WARNER-GODFREY CO., Respondent, v. TRIANGLE WAIST CO., Inc., 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 First Judicial Department (158 N. Y. Supp. 1134), entered April 22, 1916, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for goods sold and delivered. The motion was made upon the grounds that the appeal was frivolous and without merit, was not taken in good faith but solely for the purpose of delay. Julius Henry Cohen and Theodore B. Richter, both of New York City, for the motion. Max D. Steuer, of New York City, opposed.

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

WATSON, Respondent, v. ST. PAUL FIRE & MARINE INS. CO., 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 Third Judicial Department (155 N. Y. Supp. 1147), entered December 9, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action upon a policy of fire insurance. The motion was made upon the grounds that the findings of fact have been unanimously affirmed, that the exceptions were frivolous, and that no questions of law were presented that could be reviewed by the Court of Appeals. Eugene Bryan, of Troy, for the motion. Solomon J. Rosenblum, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. WESSELS, Respondent, v. LINCH, 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 (166 App. Div. 919, 152 N. Y. Supp. 1148), entered January 28, 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 the defendant. The plaintiff sustained his injuries at the intersection of Ninety-Second street and Second avenue, city of New York, as he was driving a large four-wheeled dump wagon in a westerly direction across the defendant's north-bound trolley track. The plaintiff's cart was struck in the rear wheel by a north-bound car, and he was jarred off his seat. The defense was contributory negliCharles H. Tuttle, Harold R. Medina, and Charles E. Chalmers, all of New York City, for appellant. Michael J. Horan, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

thereafter satisfied. Second. That the said Arthur E. Sumner, assignee, claimed to have acquired title in fee to premises by deed from Auguste Sommerkorn, April, 1907, free from incumbrances. Third. That if Arthur E. Sumner ever acquired any right or interest in or to said mortgage that the mortgage became merged in the fee of the said premises. Fourth. That a judgment was rendered on the 27th day of May, 1908, whereby the said Arthur E. Sumner was forever barred from any and all claim, right, title, or interest of every nature and description whatever in or to said premises. Fifth. That they are holders for valuable consideration without notice of the assignment of mortgage. Joseph M. Williams, of New York City, for appellant. Patrick L. Ryan and William Brunner, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs.

COLLIN, CUDDEBACK, CARDOZO, SEA-
WILLARD BARTLETT, C. J., and CHASE,
BURY, and POUND, JJ., concur.

BANK OF NEW YORK, Appellant. (Court
WOLFIN, Respondent, V. SECURITY
of Appeals of New York. June 6, 1916.) Ap-
peal, by permission (157 N. Y. Supp. 1151), from
judgment of the Appellate Division of the
Supreme Court in the Fourth Judicial Depart-
entered December 30, 1915, which affirmed a de-
ment (170 App. Div. 519, 156 N. Y. Supp. 474),
termination of the Appellate Term affirming a
judgment of the Municipal Court of the city of
New York in favor of plaintiff entered upon a
decision of the court on trial without a jury in
an action to recover from the defendant the sum
of $450 and interest upon a certain check for the
sum of $450 drawn by one Robert H. Bergman
the order of one Samuel Litt. Prior to the de-
on the Twenty-Third Ward Bank, payable to
livery of the check to Litt, Bergman, the maker
thereof, caused said Litt to indorse the same to
this plaintiff and after such indorsement caused
said Litt to sign his name upon the back of said
check and said check so indorsed to plaintiff was
delivered by Bergman, the maker of said check,
to Litt with instructions to deliver same to
plaintiff, and said Litt accepted such check for
the purpose of delivering same to plaintiff. The
said check was not handed to the plaintiff, but
it appears that plaintiff's name was forged
thereon and the said check with plaintiff's name
so forged upon the back of it was deposited in
the defendant bank by one Harry W. Gross-
man, and the defendant collected the amount
represented by said check from the Twenty-
Third Ward Bank, upon which it was drawn.
Herman B. Goodstein and Thomas J. Kavanagh,
both of New York City, for appellant. W. E.
Goldman and Philip D. Shapiro and Bernard
Chambers, both of New York City, for respond-

ent.

PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDO-CUDDEBACK, HOGAN, and CARDOZO, JJ., WILLARD BARTLETT, C. J., and CHASE, ZO, and SEABURY, JJ., concur. concur. HISCOCK and POUND, JJ., dissent, WILLIAMS. Appellant, v. GIEBELHAUS- on dissenting opinion of INGRAHAM, P. J., below. EN 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. 891, 147 N. Y. Supp. 1150), entered May 27, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to foreclose a mortgage. The answer denied the allegations of nonpayment of the money due and the prior lien of the mortgage, and set up as affirmative defenses: First. That a subsequent mortgage was given in payment of the mortgage sought to be foreclosed and that said subsequent mortgage was

WOODRUFF et al., Respondents, v. CHAPMAN, Appellant, 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 Second Judicial Department (166 App. Div. 899, 150 N. Y. Supp. 1119), entered December 30, 1914, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought by the plaintiff's testator, David L. Van Nostrand, to compel a contribution from the defendants on the theory that they were copartners with the said Van Nostrand in the real estate business.

The complaint alleges that Van Nostrand ex-Jonathan Taylor, City Sol., and Allen, Waters, pended large amounts of money on account of Young & Andress, all of Akron, for defendant the alleged copartnership, and that the defend- in error. ants did not pay their proportionate shares. Upon the trial of the action at Special Term an interlocutory judgment was ordered in favor of the plaintiff's testator on a decision, the basic finding of which was that the said Van Nostrand and the defendants had entered into an agreement of copartnership for the purpose of engaging in the real estate business, and decreed that the plaintiffs as executors of said Van Nostrand were entitled to a contribution for all advances made and moneys expended by their testator from the defendants, and that the copartnership should be dissolved and an account had and taken of moneys expended or received by the partners in relation thereto, and of all partnership dealings and transactions. Martin Conboy, of New York City, for appellant. Herbert A. Heyn, of New York City, for respond

ents.

PER CURIAM. Judgment affirmed, with costs.

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

AVERY et al. v. CITY OF AKRON et al. (No. 14982.) (Supreme Court of Ohio. Dec. 11, 1915.) Error to Court of Appals, Summit County. Otis, Beery & Otis, of Akron, for plaintiffs in error. Jonathan Taylor, city sol., of Akron, for defendants in error.

PER CURIAM. It appearing that there is no constitutional question involved, it is ordered that the petition in error herein be, and the same hereby is, dismissed. Dismissed for want of jurisdiction.

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

BARNER v. BARNER. (No. 14859.) (Supreme Court of Ohio. Oct. 26, 1915.) Error to Court of Appeals, Cuyahoga County. Charles H. Olds, of Cleveland, for plaintiff in error. T. J. Moffett and Paul Howland, both of Cleveland, for defendant in error.

PER CURIAM. Judgment affirmed, on authority of Cadwell v. Cadwell, 93 Ohio, 23, 112 N. E. 148. Judgment affirmed.

NICHOLS, C. J., and JOHNSON, WANAMAKER, JONES, and MATTHIAS, JJ., con

cur.

BAUER v. NICKOL et al. (No. 14828.) (Supreme Court of Ohio. Oct. 26, 1915.) Error to Court of Appeals, Hamilton County. Oscar W. Kuhn, of Cincinnati, for plaintiff in error. Stephen W. Jones and E. A. Tepe, both of Cincinnati, for defendants in error.

PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, WANAMAKER. NEWMAN, and JONES, JJ., concur. MATTHIAS, J., not participating.

BITTNER v. DOLLY VARDEN CHOCOLATE CO. (No. 14894.) (Supreme Court of Ohio. Nov. 9, 1915.) Error to Court of Ap: peals, Hamilton County. Cowell & Lamping, of Cincinnati, for plaintiff in error. Morison R. Waite and John Randolph Schindel, both of Cincinnati, for defendant in error.

PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, NEWMAN, and JONES, JJ., concur.

BOETTLER et al. v. CITY OF AKRON, (No. 15025.) (Supreme Court of Ohio. Feb. 1, 1916.) Error to the Court of Appeals, Summit County. Frank & Ream and Rogers, Mather & Nesbitt, all of Akron, for plaintiffs in error.

PER CURIAM. It appears from the record that the Court of Appeals found from the evidence that the defendant in error, the said city of Akron, in the exercise of its riparian rights, has not deprived the plaintiffs of any of their legal rights as such riparian owners, that it has not invaded or abridged any such rights of the plaintiffs, and that it has not threatened and is not about to exercise its riparian rights in such manner as will in the future, as claimed by the plaintiffs in their petition, deprive the plaintiffs of their legal rights or invade or abridge the same. And it appearing from these findings of fact that the plaintiffs in error have not been deprived of any property, either with or without due process of law, and that they have not in any manner or degree suffered any injury, damage, or impairment of their rights by anything the defendant in error has done or intends to do, therefore the record in this case presents no constitutional question arising under the Constitution of this state or the Constitution of the United States, for the consideration of this court, and, there being no constitutional question involved in this case, this court is without jurisdiction in the premises. Cause dismissed for want of jurisdiction.

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

BUTLER v. CINCINNATI NORTHERN R. CO. (No. 15037.) (Supreme Court of Ohio. Feb. 1, 1916.) Error to Court of Appeals, Paulding County. Bentley & McCrystal, of Sandusky, for plaintiff in error. Harry N. Quigley and L. J. Hackney, both of Cincinnati, for defendant in error.

PER CURIAM. Judgment affirmed.

NICHOLS, C. J., and JOHNSON, DONAHUE. WANAMAKER, NEWMAN, and JONES, JJ., concur. MATTHIAS, J., not participating.

CERRI v. MONTALTO. SAME v. TORNINCASA. SAME v. ZAPPIA. SAME V. ZERO. (Nos. 14965-14968) (Supreme Court of Ohio. Jan. 25, 1916.) Error to Court of Error_to_Court Appeals, Lorain County. Harry F. Payer and Frederick A. Henry, both of Cleveland, for plaintiff in error. George L. Glitsch and G. A. Resek, both of Lorain, for defendant in error Montalto. C. G. Washburn and C. F. Adams, both of Elyria, for defendants in error in three remaining cases.

PER CURIAM. Judgments affirmed on authority of Pagano, Adm'r, v. Cerri, 93 Ohio, 345, 112 N. E. 1037. Judgments affirmed.

NICHOLS, C. J., and JOHNSON, WANAMAKER, JONES, and MATTHIAS, JJ., concur. NEWMAN, J., dissents. DONAHUE, J., concurs in judgment rendered in first three cases, but dissents to judgment in last case above.

(Nos.

Dec.

CITY OF CINCINNATI. (two cases).
CINCINNATI, L. & N. RY. CO. et al. v.
15002, 15003.) (Supreme Court of Ohio.
ton County. Maxwell & Ramsey and Joseph S.
11, 1915.) Error to Court of Appeals, Hamil-
Graydon, all of Cincinnati, for plaintiffs in er-
ror. Walter M. Schoenle, City Sol., Carl M.
Jacobs, Jr., Asst. City Sol., and Constant South-
worth, Acting City Sol., all of Cincinnati, for
defendant in error.

See

PER CURIAM. Judgment affirmed. journal entry. It appearing that section 8897, General Code, is mandatory in its terms both upon the municipality and the railroad company, and that notice to the railroad company

END OF CASES IN VOL. 113