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bench. Chase Mellen and Martin Taylor, both
of New York City, for appellant. Joseph A. INTERBOROUGH RAPID TRANSIT CO.,
Burdeau and Joseph W. Clausen, both of New Appellant, v. KELSEY, Respondent. (Court of
York City, for respondent.

Appeals of New York. July 11, 1916.) Appeal PER CURIAM. Jndgment affirmed, with from a judgment of the Appellate Division of costs.

the Supreme Court in the First Judicial

Department (166 App. Div. 567, 149 N. Y. WILLARD BARTLETT, C. J., and CHASE, Supp. 741), entered November 11, 1914, afCOLLIN, CUDDEBACK, CARDOZO, SEA- firming a judgment in favor of defendant enBURY, and POUND, JJ., concur.

tered upon a decision of the court on trial at Special Term in an action to recover the down money paid by plaintiff as vendee on the exe

cution of a contract to purchase a parcel of In re HINDS, NOBLE & ELDREDGE land on the Harlem river.' Plaintiff also sought (Court of Appeals of New York. June 13, to establish and foreclose a lien on the land 1916.) Appeal from an order of the Appellate for the repayment of said amount, Division of the Supreme Court in the First Ju- pleads a counterclaim for specific performance dicial Department (158 N. Y. Supp. 219), enter of the contract. The judgment dismisses the ed April 14, 1916, which reversed an order of complaint and gives judgment on the counSpecial Term denying the application of peti- terclaim that the plaintiff specifically pertioner for permission to change its corporate form the contract, and accept a deed in a prename and granted said application. Minority scribed form and pay the purchase price. The stockholders objected on the grounds that the cause of action claimed is based on the ground application was not made in good faith, and that defendant could not convey a title accordthat the proposed change of name would be a ing to the contract, and was in default. Charles serious detriment to the best interests and wel- T. Adams and James L. Quackenbush, both of fare of the company. The petitioning corpora- New York City, for appellant. Abram 1. Elkus tion argued that a stockholder had no right or and Wesley S. Sawyer, both of New York City, standing to oppose a change in corporate name, for respondent. and that even if a stockholder had such standing, an objection by him, to be such a "reason

PER CURIAM. Judgment affirmed, with

costs.
able objection" as to furnish grounds for deny-
ing the application.
must be predicated on fraud

WILLARD BARTLETT, C. J., and CHASE,
or illegality. The Special Term dismissed these COLLIN, CUDDEBACK, HOGAN, CAR-
contentions and denied the application on the DOZO, and SEABURY, JJ., concur.
merits. The Appellate Division reversed this de-
termination and sustained the second of the con JOHNSON, Respondent, v. CITY OF NEW
tentions mentioned, holding, in substance, that YORK, Appellant. (Court of Appeals of New
since the objecting stockholders had shown nei- York. June 13, 1916.) Appeal from an or-
ther "fraud" nor illegality" in connection with der of the Appellate Division of the Supreme
the proposed change of name, the application Court in the Second Judicial Department (165
should be granted. Frederick T. Kelsey, of App. Div. 697, 151 N. Y. Supp. 363), entered
New York City, for appellants. Edward F. January 15, 1915, reversing a judgment in fa-
Clark and Roger Hinds, both of New York City, vor of defendant entered upon a dismissal of
for respondent.

the complaint by the court at a Trial Term PER CURIAM. Order affirmed, with costs. and granting a new trial in an action to re

cover for the death of plaintiff's intestate alWILLARD BARTLETT, C. J., and HIS-leged to have been occasioned through the negCOCK, CHASE, CUDDEBACK HOGAN, ligence of defendant, his employer. The intesCARDOZO, and ÞOUND, JJ., concur.

tate was, and for some years had been, employed by the city in its bridge department as a painter and rigger. At the time of the

accident, in the course of his duty, he was HUNSBERGER et al., Respondents, v. upon one of a pair of spars suspended by a GUARANTY TRUST Co. OF NEW YORK, block and fall under the structure of the BrookAppellant. (Court of Appeals of New York. lyn Bridge over Main street. These spars conJuly 11, 1916.). Appeal from an order of the stituted the framework of a scaffold which had Appellate Division of the Supreme Court in the been completed by laying loose boards across First Judicial Department (161 App. Div. 740, the spars to make a footing for the painters. 150 N. Y. Supp. 190), entered December 10, The work of applying the paint to that par1914, reversing a judgment in favor of defendant ticular portion of the bridge structure was entered upon a dismissal of the complaint by the finished, all the planks except one had been recourt at à Trial Term in an action by the ad-moved and plaintiff was seated astraddle of the ministrators of the holder of one of the first spar using the one plank left to steady himself mortgage collateral trust bonds of the Interstate while he removed certain center lines, called Land & Building Co-operative Association to belly lines. The fastening of the supporting recover damages from the defendant as successor rope attaching one end of the spar upon which trustee under the collateral trust agreement, the intestate was seated to the hook in the securing said bonds, because of the alleged gross block was defective and gave way and the spar negligence of its predecessor trustee, the Stand- fell at that end, precipitating the intestate to ard Trust Company of New York, in permitting the pavement of the street and causing inthe substitution of certain new collateral secur- juries from which he died. The principal quesity under said trust agreement in place of the tions are: (a) Whether the spars, block and collateral then held by the trustee thereunder. fall, and plank which the intestate was using J. Howland Auchincloss and Charles H. Rus- as a support at defendant's instance while he sell, both of New York City, for appellant. untied the belly lines, constituted a scaffold James H. Hickey, of New York City, for re- (or other mechanical contrivance") within spondents.

the meaning of section 18 of the Labor Law PER CURIAM. Order affirmed, and judg- (Consol. Laws, c. 31); and (b) whether this ment absolute ordered against appellant on the work of untying the belly lines preparatory to stipulation, with costs in all courts, on opinion lowering and removing the spars constituted of Dowling, J., below.

"labor* * * of any kind in the *

painting" of the bridge structure within the WILLARD BARTLETT, C. J., and CHASE, meaning of the same provision. Lamar Hardy, COLLIN, CUDDEBACK HOGAN, CAR- Corp. Counsel, of New York City (Edward A. DOZO, and SEABURY, JJ., concur.

Freshman and Thomas F. Magner, both of

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J. P. DUFFY, CO., Respondent, v. STAPLETON NAT. BANK, Appellant, et al. (Court of Appeals of New York. June 16, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1130), entered April 3, 1916, affirming a judgment of Special Term in an action to foreclose a mechanic's lien. The motion was made upon the ground that there are no exceptions in the case which survive the unanimous affirmance by the Appellate Division. Jeremiah J. Coughlan, of New York City, for the motion. Frank M. Avery, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

JULIANO v. SCHETTINO et al. (Court of Appeals of New York. June 13, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1130), entered February 19, 1916, 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 deed of real property. The motion was made upon the grounds that the judgment of the Special Term was interlocutory, that the affirmance of the same by the Appellate Division was unanimous, and that permission to appeal had not been obtained. William H. E. Jay, Jr., of Brooklyn, for the motion. James S. Darcy, of New York City, opposed.

PER CURIAM. Motion denied, without CostS.

KALKBRENNER, Respondent, v. MECHANICS' BANK, BROOKLYN, Appellant. (Court of Appeals of New York. May 30, 1916.) Motion to ,dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1130), entered March 2, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term after a special verdict in an action to recover a balance alleged to be on deposit in defendants' bank. The motion was made upon the grounds that the Appellate Division had unanimously decided that the verdict of the jury was supported by the evidence; that the exceptions were frivolous and that no appeal lay to the Court of Appeals. Nicholas Dietz, of Brooklyn,

for the motion. F. M. Tomlin, of Brooklyn, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

KEITH, Respondent, v. PAYNE, Appellant. (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 (155 N. Y. Supp. 1116), entered October 7, 1915, 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’s testator, in that he negligently maintained near the residence of the plaintiff in the village of Westport, Essex county, electric wires and apparatus which were dangerous in being too near the ground, in that the insulation was defective and that the wires were not guarded in a careful and reasonable manner, and that the plaintiff, while lawfully on the land near said wires, came in contact therewith and was injured. The defendant admitted the ownership of the wires, but denied every other allegation, and alleged contributory negligence. Edward T. Stokes, of Pt. Henry, for appellant. Owen D. Connolly, H. P. Humphrey, and Frederick E. Bowen, all of Troy, for respondent.

PER CURIAM. Judgment affirmed, with COStS.

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

KELLY, Respondent, v. BAKER, SMITH & CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 912, 150 N. Y. Supp. 1091), entered December 2, 1914, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages from the defendant for negligently causing the death of plaintiff's husband, in the Grand Céntral Palace, in the city of New York. The building was in the course of construction. The defendant was a sub or plumbing contractor, and at the time of the accident was putting in a line of 6-inch pipe at the side of the said premises. Plaintiff's intestate had been engaged as a laborer upon the morning of the accident by the foreman of laborers, to begin work at 1 o'clock, or after the noon lunch, and for that purpose entered the building a little before noon, and while waiting for the laborers to begin work at 1 o'clock he took a seat near the scaffold upon which employés of the defendant were working, and was struck by the collapse of this scaffold in such a manner that the planks slid upon him, or a crosspiece struck him, and he received the injuries from which he died. Edward P. Mowton, of New York City, for appellant. Edwin S. Merrill, of New York City, for respondent.

PER CURIAM. COStS.

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

Judgment affirmed, with

LEVY v. ALLISON et al. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 936, 154 N. Y. Supp. 1130), entered December, 1915, affirming a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury in an action to set aside an agreement on the ground of false representations. The motion was made upon the grounds that the decision of the Appellate Divi

sion was unanimous, that no questions of law himself threw up his hand and caught it upon were presented, that the exceptions were friv- one of the iron spear-shaped pickets of the olous, and the appeal taken only for purposes gate. His hand struck heavily upon the pickof delay. Edward H. Green, of New York City, et and was impaled there, but with his weight for the motion. Henry B. Twombly, of New and struggling he tore his hand loose, and York City, opposed.

badly lacerated and injured it. Warren J. PER CURIAM. Motion granted, and appeal Cheney and Frank H. Hausner, both of Corndismissed, with costs, and 10 costs of motion. ing, for anpellant. Monroe Wheeler, of Buffalo,

for respondent. LOW, Respondent, y. NEW YORK CENT.

PER CURIAM. Judgment affirmed,

with

costs, & H. R. R. CO., Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a WILLARD BARTLETT, C. J., and HISjudgment of the Appellate Division of the Su-COCK, COLLIN, CUDDEBACK, HOGAN, preme Court in the Third Judicial Department SEABURY, and POUND, JJ., concur. (163 App. Div. 926, 147 N. Y. Supp. 1123), entered May 12, 1914, affirming a judgment in MATHESON V. MENTE et al. (Court of favor of plaintiff entered upon a verdict in an Appeals of New York. May 23, 1916.) Apaction to recover for damages to plaintiff's peal from a judgment of the Appellate Division lands alleged to have been caused by fires neg- of the Supreme Court in the Second Judicial ligently set by defendant on its right of way. Department (163 App. Div. 912, 147 N. Y. McClary & Allen, of Malone, for appellant. Supp. 1126), entered June 5, 1914, modifying, Frank L. Bell, of Glens Falls, and Edgar T. and affirming as modified, a judgment in favor Brackett, of Saratoga Springs,' for respondent. of plaintiff entered upon a decision of the court

PER CURIAM. Judgment affirmed, with on trial at Special Term in an action to forecosts.

close a mortgage made by one Ottilie Mente to WILLARD BARTLETT, C. J., and CHASE. the “Estate of Richard J. Stainton,” deceased, COLLIN, CUDDEBACK, ' CARDOZO, SEA: purporting to secure the payment' of $17,500 BURY, and POUND, JJ., concur.

and interest, bearing date December 7, 1909, and_recorded in Kings county register's office

on December 14, 1909. The complaint pleads McDONOUGH, Appellant, v. INTERBOR- the said mortgage as security for a bond to OUGH RAPID TRANSIT CO., Respondent. one George F. Stainton as executor of said (Court of Appeals of New York. May 30, estate in like sum executed simultaneously 1916.) Appeal from a judgment of the Appellate therewith. The action was originally brought Division of the Supreme Court in the First by said George F. Stainton as executor of the Judicial Department (155 App. Div. 933, 140 estate of Richard J. Stainton, deceased, claimN. Y. Supp: 1129), entered October 24, 1913, ing ownership of said bond and mortgage from affirming a judgment in favor of defendant en-said Ottilie Mente. The present plaintiff is a tered upon a dismissal of the complaint by the substituted trustee, who claims the full princicourt at a Trial Term in an action to recover pal sum and interest from the date of the for the death of plaintiff's intestate, alleged to mortgage. The defendants the Title Insurance have been occasioned through the negligence of Company of New York and Brooklyn Trust defendant. The complaint alleged that the Company, as trustee, etc., interposed an answer death of the said Bernard McDonough, deceas-denying that there was any sum due upon said ed, was the result of injuries sustained by him mortgage, and after other denials as to the said on or about the 11th day of August, 1910, by mortgage alleged that the debt was fully paid being run over by one of said defendant's north- and the mortgage had been duly satisfied of recbound trains'upon said northbound track of de-ord on February 21, 1910. James R. Deering, fendant's subway on Broadway at said 137th of New York City, for appellants. Thomas street station, having fallen from the easterly O'Callaghan, of New York City, for respondplatform thereof because of the carelessness and ent. negligence of the above-named defendant and

PER CURIAM. Judgment affirmed, with its agents, employés and servants in failing to

costs. protect said Bernard McDonough, deceased, he being then under their care and control, having

WILLARD BARTLETT, C. J.,

and CHASE, been taken from one of said defendant's north-COLLIN, CUDDEBACK, CARDOZO, SEA bound trains, upon which he was a passenger,

he was a passenger, BURY, and POUND, JJ.concur. by the said defendant's employés while in a partly comatose condition and while unable to

MATHESON V. MENTE et al. (Court of care for _himself,” Cornelius J. Earley and Appeals of New York. June 13, 1916.). Peter J. Brancato, both of New York City, for

PER CURIAM. Motion for reargument deappellant. Lemuel E. Quigg and James L. nied, with $10 costs. See 218 N. Y. - 113 Quackenbush, both of New York City, for re-N. E. 1060. spondent.

PER CURIAM. Judgment affirmed, with costs.

MAYTHAM, Appellant, v. DUNCAN et al., WILLARD BARTLETT. C. J., and HIS- May 30, 1916.) Appeal from a judgment of the

Respondents. (Court of Appeals of New York. COCK, COLLIN, CUDDEBACK, HOGAN, Appellate Division of the Supreme Court in SEABURY, and POUND, JJ., concur.

the Fourth Judicial Department (163 App. Div.

931, 147 N. Y. Supp. 1127), entered May 19, MCMAHON, Respondent, v. MALTBY, Ap- 1914, affirming a judgment in favor of defendpellant. (Court of Appeals of New York. May ants entered upon the report of a referee dis30, 1916.) Appeal from a judgment of the Ap- missing the claim of the plaintiff, based upon pellate Division of the Supreme Court in the an alleged oral agreement, against the estate Fourth Judicial Department (162 App. Div. of John Kelderhouse, deceased. It appeared 932, 147 N. Y. Supp. 1124), entered April 13, that one Benjamin L. Cowles was a shipbuild1914, affirming a judgment in favor of plaintiff er in the city of Buffalo and that he had in entered upon a verdict in an action to recover his possession an engine, boiler, and other mafor personal injuries alleged to have been sus- terial for the building of a tug, but had no tained by plaintiff through the maintenance by money to put the articles together and comdefendant of a nuisance in permitting an iron plete it. Niaytham, the plaintiff in the case at gate to stand open so as to obstruct the side-bar, became acquainted with this state of facts walk in front of his premises. Plaintiff while and saw Cowles in regard to the matter; passing along the street, in order to avoid the Cowles stating to Maytham that he would build gate, turned, and when about opposite the gate, a tug if Maytham could get some money to put slipped and fell, and in endeavoring to save the articles together and complete it. Plaintiff

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procured defendant's intestate to advance the Division of the Supreme Court in the Third Jumoney under an agreement with Cowles that dicial Department (169 App. Div. 310, 154 N. Y. said intestate should be entitled to four-fifths Supp. 1059), entered November 19, 1915, upon of the profits on the sale of the tug. Plaintiff an order which reversed a determination of the alleged an oral agreement with intestate where- Board of Claims dismissing the plaintiff's claim by he was to receive one-half of the said four- for the value of a telephone line claimed to have fifths of profits. Charles Newton and A. W. been appropriated by the state in the construcPlumley, both of Buffalo, for appellant. Al- tion of the Barge Canal and directed judgment bert C. Spann, of Buffalo, for respondents. awarding damages therefor. T. Harvey Ferris,

PER CURIAM. Judgment affirmed, with of Utica, Charles T. Russell, of New York City, costs, under the last sentence of section 1317 John A. Delehanty, of Albany, Arnold W. Sherof the Code of Civil Procedure.

man, of New York City, and c. R. Dewey, of WILLARD BARTLETT. C. J.. and HIS- Utica, for plaintiff, Egburt E. Woodbury, Atty. COCK, COLLIN, CUDDEBACK, HOGAN, Gen. (Joseph P. Coughlin, of Albany, of counSEABURY, and POUND, JJ., concur.

sel), for the State.

PER CURIAM. Judgment affirmed, without MILHOLLAND, Appellant, v. PAYNE, Re-costs. spondent. (Court of Appeals of New York. WILLARD BARTLETT, C. J., and CHASE, May 23, 1916.). Appeal from a judgment of the COLLIN, HOGAN, CARDOZÓ, and SEAAppellate Division of the Supreme Court in the BURY, JJ., concur. CUDDEBACK, J., disThird Judicial Department (169 App. Div. 712, sents. 155 N. Y. Supp. 773), entered November 10, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint in an O'BRIEN, Appellant, v. CITY OF NEW action to compel specific performance of a con- YORK, Respondent. (Court of Appeals of New tract to sell real property or for damages. The York. May 12, 1916.) Appeal from a judgment action is brought in equity to compel the de- of the Appellate Division of the Supreme Court fendant to deed to the plaintiff certain land in the First Judicial Department (155 N. Y. theretofore purchased by the defendant on the Supp. 538), entered December 11, 1915, affirming ground that the defendant had agreed to pur- a judgment in favor of defendant entered upon chase the same for the plaintiff, and upon the an order of Special Term sustaining a demurrer promise of the defendant to make such convey to and dismissing the complaint in an action to ance to the plaintiff. Adelbert W. Boynton, of recover one-half the amount of fees collected by Keeseville, for appellant. Frank B. Wickes, of plaintiff in his official capacity and turned over Ticonderoga, for respondent.

to said defendant according to law. On JanuPER CURIAM. Judgment affirmed, with ary 1, 1914, plaintiff, having been duly elected

to the office of sheriff of the county of Bronx. costs. WILLARD BARTLETT, C. J., and CHASE. duly qualified for said office, and assumed the

As appurtenant to plaintiff's COLLIN, OUDDEBACK, CARDOZO, SEA- duties as sheriff of said county, during the BURY, and POUND, JJ., concur.

months of January, February, and March, 1914.

he collected the sum of $1,649.46 in fees reguNEWCOMB, Respondent, v. LA ROE, Appel- lated and prescribed by statute, for the various lant. (Court of Appeals of New York. May 30, services performed by plaintiff for the communi1916.) Appeal from a judgment of the Appel- ty. As required by law (Laws 1912, c. 548, § 4) late Division of the Supreme Court in the First plaintiff deposited said amount with the chamJudicial Department (160 App. Div. 819, 146 N. berlain of the city of New York. Plaintiff claims Y. Supp. 133), entered May 12, 1914, modifying, that by virtue of the Laws of 1890, c. 523, § 1, and affirming as modified, a judgment in favor of and the acts supplementary thereto and amend defendant entered upon a decision of the court atory thereof, he is entitled to one-half of the on trial at Special Term in an action to construe amount so turned over. Wiliam Cohn, of New the will of and to determine the amount due to York City, for appellant, Lamar Hardy, Corp. defendant for services rendered to plaintiff's tes-Counsel, of New York City (Terence Farley, of tator. The complaint alleged: (1) That a be- New York City, of counsel), for respondent. quest of $4,000 and of an income of $1,400 a

PER CURIAM. Judgment affirmed, with year for life to defendant was intended by the costs, on opinion of Clarke, J., below. plaintiff's testator to be in satisfaction of a claim filed by defendant for $7,579.53 for services ren- COCK, CHASE, COLLIN, HOGAN, CARDO

WILLARD BARTLETT, C. J., and FISdered by her as trained nurse and housekeeper zo, and SEABURY, JJ., concur. for the testator; (2) that defendant had elected to stand upon her claim and had rejected the bequest; and (3) prayed judgment accordingly and WINGATE CO., Appellant. (Court of Appeals

O'DONNELL, Respondent, v. CAULDWELLalso that the amount due to defendant for her of New York. June 6, 1916.) Appeal from a services might be determined by the court. fendant answered: (1) Denying that it was the judgment of the Appellate Division of the Suintention of the testator that the bequest was (164 App. Div. 941, 149 N. Y. Supp. 1100), en

preme Court in the First Judicial Department to be received in satisfaction of her claim, also tered November 4, 1914, affirming a judgment in denying that she had elected to reject the be- favor of plaintiff entered upon a verdict in an quest; and (2) setting up as a counterclaim that action to recover for the death of plaintiff's inthe estate was indebted to her for services in testate alleged to have been occasioned through the sum

of $8,880, less $2,010.06 paid upon ac- the negligence of defendant, his employer. The count. Nelson L. Robinson and William A. Hoy, complaint alleged that the decedent, Martin both of New York City, and Fred M. La Duke, O'Donnell, was injured "while working for the of Keeseville, for appellant. D. Cady Herrick, defendant by George Bell, and Benjamin Patterson, all of through an elevator shaft

reason of being precipitated New York City, for respondent.

while about

to take passage upon a hoisting elevator maPER CURIAM. Judgment affirmed, with chine which was being then used in said building costs.

by the defendant for the purpose and work to WILLARD BARTLETT, C. J., and HIS- which it was then engaged in said building, by COCK, COLLIN, CUDDEBACK, HOGAN, reason of the fact that said hoisting elevator was SEABURY, and POUND, JJ., concur.

prematurely started by the employés of the de

fendant in charge thereof in a careless and negNEW YORK TELEPHONE CO. v. STATE. ligent manner before the said above-named de (Court of Appeals of New York. July 11, 1916.) cedent had time to fully enter said elevator." Cross-appeals from a judgment of the Appellate. Clayton J. Heermance and Alfred E. Holmes,

both of New York City, for appellant. Thomas
J. O'Neill, Cornelius J. Earley, and Peter J. J.
Brancato, all of New York City, for respondent.
PER CURLAM. Judgment affirmed, with
COStS.
WILLARD BARTLETT. C. J., and HIS-
COCK, COLLIN, CUDDEBACK, HOGAN,
SEABURY, and POUND, JJ., concur.

O'REILLY v. ADAMS 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 Third Judicial Department (163 App. Div. 60, 148 N. Y. Supp. 441), entered July 10, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The complaint alleged that plaintiff is receiver in supplementary proceedings under a judgment recovered by Casper Michaels against James McCord for $397.55, which was assigned to John D. Eckert; that James McCord had on deposit in the Rondout Savings Bank, from July, 1902, to June, 1910, $400; that the bank refused to pay the amount to the plaintiff after demand. The bank denied that James McCord had on deposit at any time the sum of $400 or any part thereof, and alleges that the account was opened by Maria McCord ; that she retained title to the account and possession of the passbook at all times until June, 1910, when the account was closed and the amount due thereon paid to Maria McCord. H. H. Flemming and De Witt Roosa, both of Kingston, for appellant. John D. Eckert and N. Frank O’Reilly, both of Kingston, for respondent.

PER CURIAM. costs.

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

Judgment affirmed, with

In re PATTERSON. (Court of Appeals of New York. July 25, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (160 N. Y. Supp. 362), entered July 8, 1916, which affirmed an order of Special Term dismissing a petition for the review of the apportionment enacted by chapter 373 of the Laws of 1916. Albert De Roode and Ellwood M. Rabenold, both of New York City, for appellant. Egburt E. Woodbury, Atty. Gen. (Leonard J. Obermeier, of New York City, of counsel), for respondents.

PER CURIAM. The Apportionment Act of 1916 having been adjudged unconstitutional in the case of Matter of Dowling, 219 N. Y. 44, 113 N. E. 545, on grounds other than those set forth in the petition herein, the appeal in this case is dismissed, without costs.

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

PELLOCK, Respondent, v. SCHENECTADY RY. CO., Appellant. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 929, 147 N. Y. Supp. 1131), entered May 25, 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 defendant in permitting one of its trolley cars to collide with a wagon driven by said intestate. The negligence of the defendant and the contributory negligence of intestate were the only questions on appeal. Daniel Naylon, Jr., of Schenectady, for appellant. Wil

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PEOPLE, Respondent, v. ABELSON, Appellant. (Court of Appeals of New York. May 23, 1916.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (162 App. Div. 674, 148 N. Y. Supp. 30), entered May 29, 1914, which reversed a judgment of the Court of Special Sessions of the City of New York sustaining a demurrer to an information filed against the defendant and disallowed said demurrer. The motion was made upon the ground of failure to file the required return. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the motion. Robert M. Moore, of New York City, opposed.

PER CURIAM. Motion granted, unless brief for appellant is served upon the district attorney within five days, in which event the case is set down for argument on June 5, 1916.

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PEOPLE, Respondent, v. ABELSON, Appellant. (Court of Appeals of New York. June 13, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (162 App. Div. 674, 148 N. Y. Supp. 30), entered May 29, 1914, upon an order which reversed a judgment of the Court of Special Sessions of the City of New York sustaining a demurrer to an information and overruled such demurrer. The information was as follows: “Be it remembered that I, Charles S. Whitman, district attorney of the county of New York, by this information accuse the above-named defendant of the crime of keeping a room to be used for gambling, committed as follows: At the city of New York, in the county of New York, the said defendant, on the 9th day of November, 1913, kept a room to be used for gambling.” The Court of Special Sessions held that the demurrer should be sustained on the ground that the information was fatally defective in that it failed to state the . acts constituting the crime. Robert M. Moore, of New York City, for appellant. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

PER CURIAM. Judgment affirmed.

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

PEOPLE, Respondent, v. ARONSON et al., Appellants. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (156 N. Y. Supp. 396), entered December 24, 1915, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendants of the crime of larceny by obtaining property and credit by the use of a false statement, as defined in section 1293 of the Penal Law (Consol. Laws, c. 40). Defendants, husband and wife, obtained the discount of certain notes, by presenting to the discounting bank a written statement representing that the wife was the owner of certain real property. It appeared that two months prior to the presentation of the statement the property had been conveyed. Jacob Manheim, of New York City, for appellants. Harry E. Lewis, Dist. Atty., of Brooklyn

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