N. Y.)

William Travers Jerome, Dist. Atty. (E. Crosby Kindleberger, of counsel), for the People. PER CURIAM. Judgment of conviction affirmed.

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

PEOPLE v. NEW YORK BUILDINGLOAN BANKING CO., In re PRESTON. (Court of Appeals of New York. Oct. 15, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (119 App. Div. 830, 104 N. Y. Supp. 892), entered June 7, 1907, which affirmed an order of Special Term confirming the report of a referee in a special proceeding for the taking and stating of the accounts of the receiver of an insolvent corporation. Frederick B. Woodruff, Frederic W. Hinrichs, and Charles C. Cormany, for appellants Ehret and others. Howard Chipp and Charles W. Dayton, Jr., for respondents Preston and others.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

PEOPLE ex rel. BARNEY, Appellant, v. WHALEN, State Secretary, Respondent. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (119 App. Div. 749, 104 N. Y. Supp. 555), entered May 13, 1907, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to file a certificate of incorporation. Julien T. Davies, Joseph S. Auerbach, and Charles H. Tuttle, for appellant. William S. Jackson, Atty. Gen. (Frank White, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

PEOPLE ex rel. BOARD OF HEALTH OF VILLAGE OF FRIENDSHIP, Appellant, v. FRIES, Respondent. (Court of Appeals of New York. Oct. 15, 1907.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (109 App. Div. 358, 96 N. Y. Supp. 327), entered November 22, 1905, which reversed an interlocutory judgment of Special Term overruling a demurrer to an alternative writ of mandamus, and sustained such demurrer in an action to compel the abatement of an alleged nuisance. The following question was certified: "Was mandamus authorized to enforce the direction or order of the relator, board of health of the village of Friendship, requiring the defendant, George W. Fries, to abate or remove the nuisance complained of?" James T. Ward, for appellant. A. L. 'Elliott, for respondent.

PER CURIAM. Order affirmed, with costs; question certified answered in the negative, on opinion below.

CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, and CHASE, JJ., concur. HISCOCK, J., not sitting.

PEOPLE ex rel. BROWN et al., Respondents, v. METZ, Comptroller of City of New York, Appellant. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court

1131

in the First Judicial Department (119 App. Div. 271, 104 N. Y. Supp. 649), entered May 24, 1907, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to convey to the relators the right, title, and interest of the city of New York in certain lands and granted said motion. Francis K. Pendleton, Corp. Counsel (Theodore Connoly, John P. Dunn, and Thomas C. Blake, of counsel), for appellant. John C. Toole and James A. Deering, for respondents.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

PEOPLE ex rel. MORRELL, Appellant, v. DOLD, Respondent. (Court of Appeals of New York. Oct. 15, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (119 App. Div. 888, 105 N. Y. Supp. 1137), entered May 31, 1907, which affirmed an order of Special Term dismissing a writ of habeas corpus. Leonard F. Fish, F. Fish, for appellant. Charles E. Lydecker, for respondent.

PER CURIAM. Order affirmed.

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

PEOPLE ex rel. MORRELL, Appellant, v. DOLD, Respondent. (Court of Appeals of New York. Nov. 1, 1907.) No opinion. Motion for reargument denied, without costs. See 189 N. Y. -, supra.

PEOPLE ex rel. O'DONNELL, Appellant, v. MCCLELLAN et al., Board of Estimate and Apportionment of City of New York, Respondents. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (119 App. Div. 868, 103 N. Y. Supp. 1138), entered April 19, 1907, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the appointment of the relator as a court attendant in the Magistrate's Court in the city of New York. Thornton J. Theall, for appellant. Francis K. Pendleton, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondents.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

PEOPLE ex rel. UNION & ADVERTISER CO., Appellant, v. STALLKNECHT et al., Respondents. (Court of Appeals of New York. June 14, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (119 App. Div. 917, 105 N. Y. Supp. 1138) entered May 15, 1907, which dismissed a writ of certiorari and confirmed the action of the defendants in designating a Democratic newspaper to publish the Session Laws and concurrent resolutions of the Legislature in Monroe county. James S. Havens, for appellant. George D. Forsyth, for respondents.

PER CURIAM. Order reversed and determination of respondents annulled, with costs to the plaintiff against the respondents, the supervisors of the county of Monroe, on the ground that according to the undenied allegations of the petition the Labor Journal was not, regard being had to the advocacy by such paper of the principles of the Democratic party and its support of the state and national nominees thereof, and to its regular and general circulation in the towns of the county of Monroe, a proper paper to publish the Session Laws and concurrent resolutions of the Legislature for 1907.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WERNER, and HISCOCK, JJ., concur. HAIGHT, J., not voting.

PEOPLE

rel. WESTMINSTER HEIGHTS CO., Respondent, v. COLER, President of Borough of Brooklyn, Appellant, et al. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (121 App. Div. 293, 105 N. Y. Supp. 887), entered July 22, 1907, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the president of the borough of Brooklyn to issue a permit for the opening of the surface of the street and the construction of a double track surface railway on Nostrand avenue in said borough. Francis K. Pendleton, Corp. Counsel (James D. Bell, of counsel), for appellant. Martin W. Littleton, for respondent.

PER CURIAM. Order reversed and proceedings dismissed, with costs in all courts, upon the ground that the relator has no standing to maintain them.

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

PIRONG, Respondent, v. SOLVAY PROCESS CO., Appellant. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (113 App. Div. 890, 100 N. Y. Supp. 1138), entered May 19, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been caused through defendant's negligence. Louis L. Waters, for appellant. Frank C. Sargent and John W. Reynolds, for respondent.

Oct.

PIZER, Respondent, v. HERZIG, Appellant, et al. (Court of Appeals of New York. 8, 1907.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judical Department (120 App. Div. 102, 105 N. Y. Supp. 38), entered June 14, 1907, which reversed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and granted a new trial. The motion was made upon the grounds that the Court of Appeals was without jurisdiction to review the appeal, which is not taken from a final order or judgment, but from an order of reversal granting a new trial upon questions of fact. Max Schleimer, for the motion. Irving L. Ernst, opposed.

PER CURIAM. Motion denied, without costs.

PLANT, Respondent, v. BAHR, Appellant. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (110 App. Div. 922, 96 N. Y. Supp. 1142), entered December 16, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover an amount alleged to be due as commission upon an exchange of real estate. Edward Devine, for appellant. Thomas Hogan, for respondent.

PER CURIAM. Judgment affirmed, with costs, on authority of Fisher Co. v. Woods, 187 N. Y. 90, 79 N. E. 836.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT, and IIISCOCK, JJ., concur.

PRINCE et al., Respondents, v. HOME INS. CO., Appellant. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (114 App. Div. 911, 100 N. Y. Supp. 1138), entered July 21, 1906, affirming a judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial, in an action to recover upon a policy of fire insurance. George Richards, for appellant. William D. Murray and Alfred D. Lind, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, and HISCOCK, JJ., concur.

ROSENBERG v. WILSON et al. (Court of Appeals of New York. Oct. 15, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (120 App. Div. 554, 104 N. Y. Supp. 1087), entered June 11, 1907, which modified and affirmed as modified an order of Special Term decreeing distribution in surplus money proceedings. William D. Gaillard, for appellant. Yorke Allen, for respondent Wilson.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

ROWE, Respondent, v. WHITE, Appellant. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (112 App. Div. 688, 98 N. Y. Supp. 729), entered May 9, 1906, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial in an action to recover certain moneys received by defendant as a dividend upon certain stock alleged to have been owned by plaintiff's assignor at the time the dividend was declared. R. Floyd Clarke, for appellant. Frank W. Brown, for respondent.

N. Y.)

Adelbert

of Anastasia Sandrock, deceased. Moot, Helen Z. M. Rodgers, and James C. Beecher, for appellant Henry W. Burt. George P. Keating, Louis L. Babcock, and Samuel M. Welch, for respondents Michael F. Fallon and others.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, VANN, HISCOCK, and CHASE, JJ., concur. HAIGHT, J.. not voting.

SHANKLIN, Appellant, v. BROWN et al., Respondents. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (102 App. Div. 473, 92 N. Y. Supp. 860), entered August 19, 1905, affirming a judgment in favor of defendants entered upon a verdict directed by the court and an order denying a motion for a new trial in an action to recover for an alleged breach of contract. Philo P. Safford, for appellant. John Burlinson Coleman, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, and HISCOCK, JJ., concur. HAIGHT, J., absent.

SHARPLES, Appellant, v. ANGELL, Respondent. (Court of Appeals of New York. Oct. 29, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (112 App. Div. 906, 98 N. Y. Supp. 1114), entered March 17, 1906, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial in an action to recover on contract. J. T. Gridley, for appellant. W. Clifford, for respondent.

F.

PER CURIAM. Judgment affirmed, with

costs.

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

SLOAN, Respondent, v. BEARD, Appellant. (Court of Appeals of New York. Nov. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (114 App. Div. 920, 100 N. Y. Supp. 1143), entered September 20, 1906, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a clause in a lease giving the fessee the privilege of purchasing the demised premises. Alexander S. Andrews, Ralph S. Hull, and John Larkin, for appellant. J. Stewart Ross, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, WILLARD BARTLETT, and HISCOCK, JJ., con

cur.

SMITH, Appellant, v. LONG ISLAND R. CO., Respondent. (Court of Appeals of New York. Oct. 29, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (113 App. Div. 922, 100 N. Y. Supp. 1143), entered June 30, 1906, 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 for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. Edward J. McCrossin,

1133

for appellant. William C. Beecher and Joseph F. Keany, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

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

In re TOWN OF LIVINGSTON. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (120 App. Div., 105 N. Y. Supp. 1145), entered July 3, 1907, which affirmed an order of the Columbia County Court requiring the town clerk of the town of Livingston to call a special town meeting for the resubmission of local option questions. Samuel H. Salisbury and Russell Headley, for appellant. Harold Wilson, Jr., for respondent.

PER CURIAM. Order affirmed, with costs, upon the ground that the statutory provision requiring notice to be published of the submission of the questions of local option at a town meeting is mandatory.

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

In re VANDERBILT AVENUE WEST IN CITY OF NEW YORK. (RANSFORD, Respondent.) (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (119 App. Div. 882, 104 N. Y. Supp. 1133), entered May 24, 1907, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding. Francis K. Pendleton, Corp. Counsel (Theodore Connoly, John P. Dunn, and Thomas C. Blake, of counsel), for appellant. S. Livingston Samuels, for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT. HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

THE VILLAGE OF WAVERLY, Respondent, v. WAVERLY WATER CO. et al., Appellants. (Court of Appeals of New York. Oct. 22, 1907.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (117 App. Div. 336, 101 N. Y. Supp. 1070), entered January 17, 1907, which reversed an order of Special Term dismissing a proceeding in condemnation to acquire the property rights and franchises of the defendant Waverly Water Company. The following question was certified: "Was it necessary for the plaintiff, before beginning this action, to take the proceedings, and to comply with chapter 723, p. 2022, Laws N. Y. 1905, and to procure the consent of the state water supply commission, as in said act required?" Frederick E. Hawkes, Frederick Collin, and J. B. Floyd, for appellants. Frank A. Bell, Myron N. Tompkins, and Randolph Horton, for respondent.

PER CURIAM. Order affirmed, with costs, and question certified answered in the negative on opinion below.

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

In re VOKE et al. (WINTER, Appellant.) (Court of Appeals of New York. Oct. 8, 1907.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (118 App. Div. 917, 103 N. Y. Supp. 1145), entered March

19, 1907, which affirmed an order of Special Term directing distribution of certain surplus moneys arising upon the foreclosure of a mortgage. The motion was made upon the ground that the appellant had failed to perfect the appeal by filing the required undertaking. George Barrow, for the motion. Martin F. Dillon, opposed.

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

WARD, Respondent, v. TERRY & TENCH CONS. CO., Appellant. (Court of Appeals of New York. Oct. 15, 1907.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (118 App. Div. 80, 102 N. Y. Supp. 1066), entered March 15, 1907, which modified and affirmed as modified an order of Special Term granting a motion for leave to amend the summons and complaint in an action to recover for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. The following question was certified: "Did the court have power, under the facts disclosed by the papers on appeal herein filed in this court, to make the order heretofore made and entered herein in the office of the clerk of the county of New York on the 9th day of November, 1906?" William J. Moran and Frank Verner Johnson, for appellant. I. Newton Williams, for respondent. PER CURIAM. Order affirmed, with costs. Question certified answered in the affirmative. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

WASHINGTON TRUST CO. OF CITY OF NEW YORK v. BALDWIN et al. (Court of Appeals of New York. Oct. 15, 1907.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (118 App. Div. 186, 102 N. Y. Supp. 1105), entered March 8, 1907, which reversed an order of Special Term granting a motion to revive and continue an action against the executor of a sole defendant and denied said motion. The following question was certified: "Was the plaintiff entitled as a matter of right to a revival of the action notwithstanding the motion to revive was not made until more than nine years after the death of the defendant and the appointment and qualification of the executor of his will?" W. C. Percy, for appellant. Maunsell B. Field, for respondent Baldwin.

PER CURIAM. Order affirmed, with costs. Question certified answered in the negative. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CIIASE, JJ., concur.

v.

WHITING, Appellant, NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (110 App. Div. 916, 96 N. Y. Supp. 1150), entered January 23, 1906, affirming a judgment in favor of defendant entered upon a dismissal of the complaint in an action to recover for personal injuries alleged to have been caused by defendant's negligence. John E. O'Brien, for appellant. Robert A. Kutschbock and Charles C. Paulding, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and HAIGHT, VANN, WERNER, and HISCOCK, JJ., concur. EDWARD T. BARTLETT, J., dissents. GRAY, J., not sitting.

WISOTZKEY, Respondent, v. NIAGARA FIRE INS. CO., Appellant. (Court of Appeals of New York. Oct. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (112 App. Div. 599, 98 N. Y. Supp. 760), entered May 11, 1906, affirming a judgment in favor of plaintiff, entered upon the report of a referee in an action to recover upon a policy of fire insurance. Horace McGuire, for appellant. F. A. Robbins, for respondent.

In re WOOD'S ESTATE. (Court of Appeals of New York. Oct. 22, 1907.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (115 App. Div. 893, 101 N. Y. Supp. 1149), entered October 26, 1906, which affirmed an order of Special Term confirming the report of a referee in an action for an accounting. William W. Mumford, Origen S. Seymour, Leonidas Dennis, and Robert Gray, for appellants. Charles De Hart Brower, for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK, and CHASE, JJ., concur.

YORK, Appellant, v. SEARLES et al., Respondents. (Court of Appeals of New York. Nov. 1, 1907.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (97 App. Div. 331, 90 N. Y. Supp. 37), entered October 24, 1904, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an equitable action to have plaintiff decreed the owner of certain stock under certain contracts and to restrain the defendants from selling the Lucius E. Judson, for appellant. George W. Schurman, Richard E. Dwight, and Edward J. Patterson, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, and HIS COCK, JJ., concur. WILLARD BARTLETT, J., not sitting.

BEDFORD BUFF STONE CO. v. ANDERSON. (No. 6,469.) (Appellate Court of Indiana. Dec. 12, 1907.) Appeal from Circuit Court, Lawrence County; Jas. B. Wilson, Judge. Action by Arthur Anderson, by next friend, against the Bedford Buff Stone Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed. Elmer E. Stevenson and Brooks & Brooks, for appellant. W. E. Clark, for appellee.

PER CURIAM. The appellee has filed a confession of error. In accordance therewith, the judgment is reversed and the cause remanded, with instructions to sustain appellant's demurrer to the complaint and for further proceedings.

EVANSVILLE & T. H. R. CO. T. YEAGER. (No. 6,162.) 1 (Appellate Court of Indiana. Dec. 20, 1907.) Appeal from Circuit Court, Posey County; A. M. Welborn, Judge. Action between the Evansville & Terre Haute Railroad Company and Elmer Yeager. On appeal to the Appellate Court by the Evansville & Terre Haute Railroad Company, the case is transferred to the Supreme Court. Jno. E. Iglehart, Edwin Taylor, E. H. Iglehart, and G. V. Menzies, for appellant. H. F. Clements and F. P. Leonard, for appellee.

PER CURIAM. This cause being submitted to the entire court and four judges not concurring in the result, the case is hereby transferred to the Supreme Court under section 15 of the act approved March 12, 1901. Acts 1901, p. 569, c. 247.

LAKE ERIE & W. R. CO. v. PARKER et al. (No. 5,912.) (Appellate Court of Indiana. Oct. 29, 1907.) Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge. Action by Mina Jane Parker and others against the Lake Erie & Western Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed, with instructions to grant a new trial. Jno. B. Cockrum, Shirts & Fertig, and Hawkins, Smith & Hawkins, for appellant. Dan Waugh, Kane & Kane, and Nash & Teter, for appellee.

HADLEY, J. This is a companion case with L. E. & W. R. R. Co. v. McFall, 165 Ind. 574, 76 N. E. 400, L. E. & W. R. R. Co. v. Ford (Ind. Sup.) 78 N. E. 969, and L. E. & W. R. R. Co. v. Hobbs (Ind. App.) 81 N. E. 90; all growing out of the same conflagration. The first and second paragraphs of the complaint in this case contain substantially the same averments as the first and second paragraphs of the cases cited, and upon the authority of those cases the demurrers thereto were properly overruled. Objection is also made to the fourth and sixth instructions given by the court at request of appellee. These instructions are identical with

1135

the fifth and sixth instructions set out in the case of L. E. & W. R. R. Co. v. Ford, supra, and which the Supreme Court held to be reversible error. Upon the authority of that case the giving of the sixth instruction was error. Other questions are presented, but they will not necessarily arise on another trial, and therefore are not considered. Cause reversed, with instructions to grant a new trial.

COMSTOCK, C. J., and ROBY, RABB, and MYERS, JJ., concur. WATSON. P. J., absent.

PERE MARQUETTE R. CO. v. STRANGE. (No. 5,946.)2 (Appellate Court of Indiana. Dec. 20, 1907.) Appeal from Circuit Court, La Porte County; Jno. C. Richter, Judge. Action by Jeter G. Strange against the Pere Marquette Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Elam & Fesler, for appellant. Theron Miller, F. E. Osborn, and Wm. A. McVey, for appellee.

PER CURIAM. Upon examination of this case, the judgment of the trial court is affirmed.

WALTERS v. SHEARER et al. (No. 5,917.) (Appellate Court of Indiana. Nov. 20, 1907.) Appeal from Circuit Court, Miami County; Jos. N. Tillett, Judge. Ejectment by John Walters against Benjamin F. Shearer and another. From a judgment for plaintiff for possession, subject to liens declared in favor of defendants, plaintiff appeals. Affirmed. Affirmed. Lawrence & Rhodes, for appellant. Reasoner & Ward, for appellees.

PER CURIAM. This was an action brought by appellant against appellees for ejectment. Appellees answered setting up liens, also a cross-complaint, asking for foreclosure of a bond for a deed, to have title quieted and other proper relief, trial by court and finding for appellant that he have possession, and finding for appellee Shearer that he have judgment for balance of purchase money and money expended upon the property, and to discharge liens thereon, said judgments being declared liens on the real estate in question. We have carefully examined the record, including the evidence offered. The finding and judgment of the court are clearly in accord therewith and the equities of the parties thereto. We find no reversible error in the record. Judgment affirmed.