Second Department, October, 1911.

[Vol. 146. - Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, upon the ground that the writing shows that the principal, Imatra I, was disclosed as the principal contracting, and that the defendants each executed the paper in his capacity as member of the committee, and hence as the agent of Imatra I. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Joseph D. Tripard, as Administrator, etc., Respondent, v. Ernest Groult (Substituted as Defendant), Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

William F. Van Wagner, Appellant, v. Charles A. Tilly, Respondent.Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that the judgment in the former action, not being upon the merits, is not a bar to the maintenance of the present action, and that the Municipal Court has jurisdiction of the cause of action set forth in the complaint. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Arthur D. Wright, Appellant, v. Peerless Garage and Sales Company, Respondent.- Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Louis Adler, Appellant, v. Margaretha Jung and George Jung, Respondents. Motion denied, without costs. Present―Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Alfred P. Delcambre, Sr., Respondent, v. Marie H. Delcambre and Others, Defendants, and the City of Mount Vernon, Appellant.- Motion for leave to appeal to the Court of Appeals denied, without costs. Present- Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Louis G. Engel, Respondent, v. Barbara Lauer and Others, Appellants. (Action No. 1.) - Motion denied, without costs. Present - Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Henri Grossman, Respondent, v. Pericles Xenakis and Others, Appellants.- Motion denied, with costs. Present - Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Charles P. Hofmann and John M. Hofmann, as Executors, etc., of Barbara Nestel, Deceased, Respondents, v. Michael Nestel and Others, Appellants. Motion denied on condition that the appellants pay ten dollars costs within ten days, perfect their appeal, place the case on the November calendar and be ready for argument when reached; otherwise motion granted, with ten dollars 'costs. Present - Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

In the Matter of the Judicial Settlement of the Account of Proceedings of Phoebe A. D. Boyle and Another, Executors, etc. John H. B. Boyle, Individually and as Executor, etc., Appellant; Phoebe A. D. Boyle and Others, Respondents.- Motion denied, without costs. Present-Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

William Lauder, as Trustee, Appellant, v. William H. Meserole and Others, Defendants. August W. Todebush, Purchaser, Respondent.- Motion

App. Div.]

Second Department, October, 1911.

granted, without costs, on condition that the appellant place the case on the November calendar and be ready for argument when reached; otherwise motion denied, with ten dollars costs. Present-Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Daniel J. Lyons, Respondent, v. Jacques Suzanne, Sued Herein as John Suzanne. Appellant.― Motion to dismiss appeal granted, with costs. Present- Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

John F. Monnot, and Others, by Louise E. Monnot, Their Guardian, Respondent, v. Joseph Husson, Appellant.-Motion granted, without costs, and motion set down for argument November 13, 1911. Present Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Dominick Pace and James A. Monaghan, etc., Respondents, v. Frank C. Strick & Co., Ltd., Appellant.- Motion denied, without costs. Present Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

James Garfield Purdy, Respondent, v. Thomas J. Blain, Appellant.— Motion granted, without costs, and case set down for argument November 13, 1911. Present Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Dora Rieckenberg, Plaintiff, v. Charles Rieckenberg, Defendant.— Motion for stay granted, without costs. Present-Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ. Order to be settled before Mr. Justice Carr.

Percival G. Ullman, Jr., Respondent, v. Edna N. Ullman, Appellant.— Order signed. Present - Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ.

Karl Anderson, Appellant, v. O'Rourke Engineering Construction Company, Respondent.- Judgment unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ. Oliver M. Arkenburgh, Respondent, v. Peter Aronson, Appellant.Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ., concurred.

Thomas Bratton, Respondent, v. Henry Steers, Incorporated, Appellant. -Judgment and order unanimously affirmed, with costs. No opinion. Present- Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ.

Brewster & Company, Appellant, v. The Long Island Railroad Company, Respondent.-Judgment unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ.

Andrew Caputo, an Infant, by Vincenzo Caputo, His Guardian ad Litem, Respondent, v. Kosmos Engineering Company and The City of New York, Appellants.― Judgment and order affirmed, with costs. opinion. Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred; Burr, J., dissented.

No

John W. Clifford, Respondent, v. William C. Bolton, Appellant.Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Agostino Del Vecchio, Appellant, v. Nassau Electric Railroad Company, Respondent.- Judgment unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Second Department, October, 1911.

[Vol. 146.

Gertrude H. Doughty, Plaintiff, v. Elwood W. Baker, Defendant.→÷ Judgment for defendant, without costs, upon agreed statement of facts, on the authority of Lyons v. Ostrander (167 N. Y. 135). Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

William F. Durst and George H. Durst, Respondents, v. Dickran M. Sarkisian and Charles W. Ellis, Appellants, Impleaded with Harry Lawrence and Others, Defendants.-Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, upon the grounds (1) that the Drapery Hardware Manufacturing Company is not a party defendant to this action; and (2) that it does not appear that the books and papers of which inspection and discovery is sought contain any entries relating to the merits of this action. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

Emmet Edgerton and Daniel P. Ritchey, Appellants, v. Evelyn M. Dawson and Others, Respondents.- Judgment modified by striking therefrom the words "upon the merits," and as so modified affirmed, without costs of this appeal. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Sigmund Einstoss, Appellant, v. Jacob Seltzerman, Respondent.— Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Mary C. Flynn and Others, Respondents, v. John C. Judge, Appellant. -Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

William A. Hufman, Sr., Respondent, v. Daniel F. Shea, Appellant.Judgment affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

In the Matter of Proving the Last Will and Testament of Catharine Johnston, Deceased. — Decree of the Surrogate's Court of Kings county affirmed by default, with costs. Jenks, P. J., Hirschberg, Carr, Woodward and Rich, JJ., concurred.

In the Matter of Supplementary Proceedings. Jacob Rosenthal, Respondent, v. Joseph Albert, Appellant.— Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on the authority of Matter of Ward v. Stoddard (144 App. Div. 143). Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

In the Matter of Andrew H. Smith, an Incompetent Person. Gilbert T. Smith and Others, Appellants; Ellsworth Smith, Respondent.— Order of the County Court of Orange county affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

In the Matter of Jennie Perkins Williams, an Alleged Incompetent Person, Appellant. Frederick W. Sandford, Respondent. (Appeal No. 1.) — Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

In the Matter of Jennie Perkins Williams, an Alleged Incompetent Person, Appellant. Frederick W. Sandford and Franklin Trust Company,

App. Div.]

Second Department, October, 1911.

Respondents. (Appeal No. 2.) — Order affirmed, with ten dollars costs and disbursements to the respondents Sandford and Franklin Trust Company, payable out of the estate of the incompetent. No opinion. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.

Catherine Krupp, Respondent, v. John D. Lymber, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Hirschberg, Burr, Carr and Woodward, JJ.

Henry Meyer, Respondent, v. Lawyers Title Insurance and Trust Company, Appellant.-Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ., concurred.

Abraham Moran, Appellant, v. The Nassau Electric Railroad Company, Respondent.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Florence M. Myers, Administratrix, etc., of Philip V. Myers, Deceased, Respondent, v. James A. Gray, Jr., and Others, Appellants. — Judgment affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Michael S. N. Pierre, Appellant, v. Edward V. Farley, as Receiver, etc., Respondent.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Pittsburgh Plate Glass Company, Appellant, v. Philip Roth and Others, etc., Respondents.- Judgment of the Municipal Court affirmed, with costs, as to the defendants Schaedlich and Lafreniere, and judgment reversed and new trial ordered as to the defendant Roth, costs to abide the event, upon the ground that as to said defendant there is no evidence of any special agreement that his individual notes were to be taken in payment of the debt. Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ., concurred.

Sophie Puttre, Appellant, v. The Nassau Electric Railroad Company, Respondent.- Judgment and order reversed and new trial granted, costs to abide the event, on the ground that the case presented a question for the jury. Thomas, Carr, Woodward and Rich, JJ., concurred; Jenks, P. J., dissented.

George Puttre, Appellant, v. The Nassau Electric Railroad Company, Respondent.-Judgment and order reversed and new trial granted, costs to abide the event, on the ground that the case presented a question for the jury. Thomas, Carr, Woodward and Rich, JJ., concurred; Jenks, P. J., dissented.

The People of the State of New York, Respondent, v. Thomas Dunford, Appellant.- Judgment of conviction of the Court of Special Sessions affirmed. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

The People of the State of New York, Respondent, v. R. F. Stevens Company, Appellant. (Action No. 1.) — Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Second Department, October, 1911.

[Vol. 146.

The People of the State of New York, Respondent, v. R. F. Stevens Company, Appellant. (Action No. 2.) - Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Caroline Reith, as Administratrix, etc., of George M. Reith, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Hirschberg, Carr, Woodward and Rich, JJ.

Herbert Rex, an Infant, by Charles M. Rex, His Guardian ad Litem, Respondent, v. Coney Island and Brooklyn Railroad Company, Appellant, Impleaded with The Long Island Railroad Company.-Judgment and order affirmed, with costs. No opinion. Burr, Woodward and Rich, JJ., concurred; Jenks, P. J., and Hirschberg, J., dissented, upon the ground that having reversed the judgment against the Long Island Railroad Company for reasons stated in the per curiam opinion (ante, p. 905), they deem it wiser to have a new trial as to both defendants.

Frank P. Rian, Respondent, v. Alfred H. Bromell, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

Henry W. Rozell & Son, Respondent, v. Elizabeth Dennin, Appellant.— Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ., concurred.

Noah Schlossberg, Appellant, v. Livingstone Trading Company, Respondent.-Judgment of the Municipal Court affirmed by default, with costs. Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ., concurred. John T. Skelly, as Assignee of George A. Viemeister and Edmund C. Viemeister, Composing the Firm of Viemeister Brothers, for the Benefit of Creditors, Appellant, v. Fredericka Rehder, Individually and as Executrix, etc., of William Rehder, Deceased, and Others, Respondents.Judgment affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Nell St. John, Appellant, v. Jere F. Collins and Others, Defendants, Impleaded with Kate F. Collins, Respondent.-Judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas and Carr, JJ., concurred; Woodward and Rich, JJ., dissented.

Michael T. Terranova, Appellant, v. The Mutual Aid Association of St. John, Respondent.― Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that the attempted suspension of the sick benefit provision of the by-laws violated the contract between plaintiff and defendant. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Carl Timmermann, as Executor, etc., of Bertha Battermann, Deceased, Respondent, v. Isidor Cohn and Others, Defendants. Frances Glanckopf, Purchaser, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Joseph Vogel, Appellant, v. Stratton Manufacturing Company,