MEMORANDUM DECISIONS ALESSI et al. v. BOTTINI. (Supreme ANGEVINE, Respondent, v. ROSENWALD, Court, Appellate Division, First Department. October 31, 1913.) Action by Charles Alessi and others against Providina Bottini. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed. Appellant. (Supreme Court, Appellate Division, Second Department. October 24, 1913.) Action by Roth Angevine against Max Rosenwald. No opinion. Order reversed, without costs, and default opened, on payment of $50. ARMSTRONG, Respondent, v. MINETTOMERIDEN CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. SepAction by James D. Armtember 24, 1913.) strong against the Minetto-Meriden Company. No opinion. Motion to amend order of reversai (157 App. Div. 943, 142 N. Y. Supp. 1106), so as to state that the reversal was made upon questions of law only, and that facts had been examined and no error found therein, denied, without costs. ARNOLD Court, Appellate Division, Fourth Department. PER CURIAM. Judgment (135 N. Y. Supp. 314) reversed, and new trial granted, without costs of this appeal to either party. Held, that the judgment appealed from is erroneous in the following particulars: First, plaintiff is not entitled to a lien for the value of the undelivered stove wood; second, plaintiff's lien attaches to all the wood and logs remaining upon the plaintiff's lands, and is not limited to an undivided one-half thereof; third, plaintiff's lien is limited in amount to the value of said wood and logs, less the expense incurred by defendants in cutting and piling the same. In re ASHLEY. (Supreme Court, Appellate Division, First Department. October 31, 1913.) In the matter of Sarah D. Ashley. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. ATHERAS v. KEHAYA. (Supreme Court, Appellate Division, First Department. November 14, 1913.) Action by Aristo Atheras against Fry Kehaya. No opinion. Motion granted, with $10 costs. Order filed. In re ATKINS. (Supreme Court, Appellate Division, Second Department. October 10, 1913.) In the matter of John H. Atkins, an attorney. No opinion. Motion to conform report of referee granted, and respondent disbarred. See, also, 156 App. Div. 890, 141 N. Y. Supp. 1108. ATWELL, Respondent, V. RABINOFF, Appellant. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Ben H. Atwell against Max Rabinoff. N. G. Goldberger, of New York City, for appellant. E. Sondheim, of New York City, for respondent. No opinion. Order_reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to plaintiff to renew motion upon proper papers. Order filed. See, also, 142 N. Y. Supp. 1107. AUGINS, Respondent, v. ROSS, Appellant. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) Action by Simon Augins against Benjamin M. Ross. No opinion. Judgment and order affirmed, with costs. BANDEMER, Appellant, v. CALVIN RITTER PROTESTANT BENEFICIAL SOCIETY, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 8, 1913.) Action by Frederick L. Bandemer against the Calvin Ritter Protestant Beneficial Society. No opinion. Judgment affirmed, with costs. BANKERS' TRUST CO. v. R. E. DIETZ CO. et al. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by the Bankers' Trust Company against the R. E. Dietz Company and others. No opinion. Motion granted, on conditions stated in opinion. Opinion per curiam. Settle order on notice. See, also, 151 App. Div. 939, 135 N. Y. Supp. 1099. BARD, Respondent, v. JOHN SINGLE PAPER CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8, 1913.) Action by Jennie L. Bard, as administratrix, etc., against the John Single Paper Company. No opinion. Judgment and order affirmed, with costs. BARDIN, Appellant, v. SALISBURY et al., Respondents. (Supreme Court, Appellate Division, Third Department. November 12, 1913.) Action by Della Bardin against Martha Annie Salisbury and others. PER CURIAM. Judgment unanimously affirmed, with costs to defendants Johnston. HOWARD, J., not sitting. BARNES et al., Respondents, v. MIDLAND RAILROAD TERMINAL CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 24, 1913.) Action by Sarah H. Barnes and others against the Midland Railroad Terminal Company. No opinion. Order affirmed, without costs. See, also, 157 App. Div. 937, 142 N. Y. Supp. 1107. nied, with $10 costs. Motion for leave to appeal to Court of Appeals denied. BARTON et al., Appellants, v. REYNOLDS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 8, 1913.) Action by Emma L. Barton and others against Jennie B. Reynolds and another, as administrators, etc. Misc. Rep. 15, 142 N. Y. Supp. 895) modified, PER CURIAM. Interlocutory judgment (81 by striking out the words "upon the merits." and, as so modified, affirmed, with costs, with leave to the plaintiff to amend within 20 days. upon payment of the costs of the demurrer and of this appeal. FOOTE and MERRELL, JJ., dissent. In re BECKER. (Supreme Court, Appellate Division, First Department. October 17, 1913) In the matter of John Becker, deceased. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BEEBE, Respondent, v. BEEBE, Appellant. (Supreme Court, Appellate Division, Second Department. October 31, 1913.) Action of Mary E. Beebe against Silas P. Beebe. No opinion. Order modified, by providing that the date from which alimony shall be payable shall be June 10, 1913 (Thrall v. Thrall, 83 Hun, 188, 31 N. Y. Supp. 591), and, as thus modified, affirmed, without costs. BERKOWITZ v. BAUMAN et al. (Supreme Court, Appellate Term, First Department. November 10, 1913.) Appeal from City Court of New York, Special Term. Action by Wolf Berkowitz against Joseph Bauman and Samuel Bauman, doing business as J. Bauman & Bro. and J. & S. Bauman, Incorporated. From an order vacating an order for the examination of plaintiff before trial, defendants ap Nadal, Jones & Mowpeal. Order reversed. ton, of New York City (Bernard G. Barton, of Lester M. Friedman, of New York City, for New York City, of counsel), for appellants. respondent. PER CURIAM. We think that, under a fair construction of the stipulation entered into be tween the parties, the plaintiff waived the right to move to vacate the order for his examination. Schweinburg v. Altman, 131 App. Div. 795, 116 N. Y. Supp. 318. The order is therefore reversed, with $10 costs and disburse ments, and motion denied. BERLIN CONST. CO., Respondent, v. EXETER MACH. WORKS, Appellant. (Supreme BARRY, Appellant, v. SOLVAY PROCESS Court, Appellate Division, First Department. CO., Respondent. (Supreme Court, Appellate November 7, 1913.) Action by the Berlin ConDivision, Fourth Department. September 24, struction Company against the Exeter Machine 1913.) Action by Patrick M. Barry, as admin- Works. L. D. Ball, of New York City, for istrator, etc., against the Solvay Process Com- appellant. S. A. Lowenstein, of New York pany. No opinion. Motion for reargument (of City, for respondent. No opinion. Judgment 157 App. Div. 941, 142 N. Y. Supp. 1107) de-affirmed, with costs. Order filed. BETTINGER et al., Respondents, v. NEW BOND & MORTGAGE GUARANTEE CO. v. YORK CENT. & H. R. Ř. CO., Appellant. CAPPADONA et al. (Supreme Court, Appel(Supreme Court, Appellate Division, Fourth late Division, Second Department. September Department. October 8, 1913.) Action by Al- 23, 1913.) Action by the Bond & Mortgage bert A. Bettinger and another against the Guarantee Company against Antonio Cappadona New York Central & Hudson River Railroad and others. Company. PER CURIAM. Judgment of Special Term and judgment of Buffalo City Court reversed, and a new trial granted in Buffalo City Court, to be held on the 22d day of October, 1913, at 10 a. m., with costs in all courts to appellant to abide the event. Held, that the driver of the wagon was guilty of contributory negligence as matter of law, and that his negligence is imputable to the plaintiffs. PER CURIAM. Judgment of the County Court of Kings County affirmed, with costs. CARR, J., not voting. BOOTH, Appellant, v. CLEWS, Respondent. (Supreme Court, Appellate Division, Second Department. October 24, 1913.) Action by Henry F. Booth against James B. Clews. No opinion. As the record does not show that the trial of this action will require the examination of a long account on either side, the order of reference is reversed, with $10 costs and dis(Su-bursements, and motion denied, with $10 costs. B. F. STURTEVANT CO., Respondent, V. FIREPROOF FILM CO., Appellant. preme Court, Appellate Division, Fourth Department. October 15, 1913.) Action by the B. F. Sturtevant Company against the Fireproof Film Company. PER CURIAM. Judgment and order affirmed, with costs. ROBSON, J., dissents. BLUM, Respondent, v. SCOTTISH UNION & NAT. INS. CO. OF EDINBURGH, Appellant. (Supreme Court, Appellate Division, First Department. October 31, 1913.) Action by Max D. Blum against the Scottish Union & National Insurance Company of Edinburgh. L. Levy, of New York City, for appellant. D. Slade, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 142 N. Y. Supp. 1109; 143 N. Y. Supp. 1107. In re BRAKER. (Supreme Court, Appellate Division, First Department. October 17, 1913.) In the matter of Conrad Braker, deceased. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed. BLUM v. SCOTTISH UNION & NAT. INS. CO. OF EDINBURGH. (Supreme Court, Appellate Division, First Department. October 31, 1913.) Action by Max D. Blum against the Scottish Union & National Insurance Company of Edinburgh. No opinion. Motion to dismiss appeal denied. Order filed. See, also, Division, First Department. October 17, 1913.) In re BRAKER. (Supreme Court, Appellate 143 N. Y. Supp. 1107. In the matter of Conrad Braker, Jr., deceased. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed. BRILL, Appellant, v. HODGENS, Respondent. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Raphael Brill against Thomas M. Hodgens. A. Benedict, of New York City, for appellant. A. B. King, of New York City, for respondent. No opinion. Order reversed, with $10 costs and disbursements, and motion to vacate order for examination denied, with $10 costs, the date for the examination of defendant to be fixed on settlement of order. Settle order on notice. BROOKLYN HEIGHTS R. CO., Appellant, v. STEERS et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 31, 1913.) Action by the Brooklyn Heights Railroad Company against Alfred E. (If such conditions are not complied with, the BROWN v. FAULKNER et al. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) Action by Harry K. Brown against Eliza Faulkner and others. No opinion. Motion for reargument (of 141 N. Y. Supp. 1111) denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied. BRUNO V. ROGERS et al. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Vittorio Bruno against James H. Rogers and others. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. SANITARY V. Ac BURDI, Respondent, v. GIORDANO, Appellant. (Supreme Court, Appellate Division, Second Department. October 24, 1913.) tion by Saverio Burdi against Angelo Giordano. PER CURIAM. Order reversed, with $10 costs and disbursements, upon the ground that it fails to recite the grounds for the injunction (Code Civ. Proc. § 610; Meyer v. Moress, 106 App. Div. 556, 94 N. Y. Supp. 771; Brockway v. Miller, 144 App. Div. 239, 128 N. Y. Supp. 1079), and proceedings remitted to the Special Term for further action upon the motion for an injunction, on the same papers, or such additional papers as may be submitted on notice. In re BURKE. MEYER V. SCHULTE. BRYDGES, Respondent, CAN CO., Appellant. (Supreme Court, Appel-(Supreme Court, Appellate Division, First Delate Division, Fourth Department. July 8, partment. November 14, 1913.) In the matter 1913.) Action by Anton H. Action by John Brydges against the of Mary E. D. Burke. Sanitary Can Company. No opinion. Motion Meyer against David H. Schulte. No opinions. for reargument (of 142 N. Y. Supp. 1110) de- Motions for preference granted. nied, with $10 costs. BUFFALO POULTRY, PIGEON & PET STOCK ASS'N v. INTERNATIONAL POUL TRY ASS'N. (Supreme Court, Appellate Division, Fourth Department. October 8, 1913.) Action by the Buffalo Poultry, Pigeon & Pet Stock Association against the International Poultry Association. No opinion. Plaintiff's motion for stay pending appeal denied, with $10 costs. BUFFALO SAVINGS BANK, Respondent, V. POLISH ROMAN CATHOLIC CHURCH OF THE HOLY MOTHER OF THE ROSARY OF BUFFALO et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 15, 1913.) Action by the Buffalo Savings Bank against the Polish Roman Catholic Church of the Holy Mother of the Rosary of Buffalo, N. Y., and others. PER CURIAM. Order reversed, without costs, and the sale vacated and set aside, and the premises ordered resold under the judgment herein, upon condition, first, that the defendant mortgagor pay to the referee within five days, the referee's fees and expenses of the sale and the interest upon the amount paid by the purchaser from the time of the payment thereof, which, together with the principal sum paid, is to be returned by the referee to the purchaser; and, second, that the defendant mortgagor, within five days, execute and deliver an undertaking to the plaintiff, with sufficient sureties, to the effect that if upon such resale the premises shall sell for less than $80,000, they will pay the difference between that sum and the amount for which they are sold, said undertaking as to form and sufficiency of sureties to be approved by the county judge of Erie county. BURKE, Respondent, v. BURKE, Appellant. (Supreme Court, Appellate Division, Fourth October 15, 1913.) Action by Department. John F. Burke against William H. Burke. PER CURIAM. Order overruling demurrer and order continuing injunction affirmed, with $10 costs and disbursements, with leave to the defendant to plead over within 20 days, upon payment of the costs in this court and the court below. the ground that this case does not present such ROBSON and LAMBERT, JJ., dissent, upon exceptional features as to justify the interven tion of a court of equity, under the rule laid down in Bomeister v. Forster, 154 N. Y. 229, 48 N. E. 534, 39 L. R. A. 240. BURKE, Respondent, v. LINCH, Appellant. (Supreme Court, Appellate Division, First De partment. October 31, 1913.) Action by Michael Burke, an infant, etc., against George W. Linch, as receiver, etc. C. E. Chalmers, of New York City, for appellant. A. L. Davis, of New York City, for respondent. No opinion. Judgment and order reversed, and new trial or dered, with costs to appellant to abide event, on the ground that the finding that the defendant was guilty of negligence and the person injured was free from contributory negligence was against the weight of evidence. Settle or der on notice. BURMASTER, Respondent, v. PENNSYL VANIA R. CO. et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. Juny 8, 1913.) Action by Martha Burmaster MEMORANDUM DECISIONS against the Pennsylvania Railroad Company | Department. and another. PER CURIAM. Judgment and order affirmed, with costs. LAMBERT, J., not sitting. BURREICI v. PELHAM OPERATING CO. et al. (Supreme Court, Appellate Division, First Department. October 31, 1913.) Action by Josephine Burreici, as administratrix, against the Pelham Operating Company and others.. No opinion. Motion denied, with $10 costs. Order filed. See, also, 142 N. Y. Supp. 1110, 157 App. Div. 912. BUTTERLY, Appellant, v. DEERING, Respondent. (Supreme Court, Appellate Division, AcOctober 10, 1913.) Second Department. tion by James N. Butterly against James A. Deering. No opinion. Motion to resettle order granted. Settle order before the Presiding Justice. See, also, 143 N. Y. Supp. 1109. October 24, 1913.) Action by Edward E. Cady against Jeanette Holmes. Ac CAMPBELL, Respondent, v. BOSSON, Appellant. (Supreme Court, Appellate Division, Third Department. September 26, 1913.) tion by Jeremiah Campbell against George C. Bosson, Jr. No opinion. Order affirmed, with $10 costs and disbursements. CARBONE v. ELLISON CONST. CO. et al. (Supreme Court, Appellate Division, First Department. October 31, 1913.) Action by Raphael Carbone against the Ellison Construction C. L. Hoffman, of New Company and others. York City, for appellants. S. Wechsler, of New Order filed. York City, for respondent. No opinion. Judgment affirmed, with costs. In re CARPENTER. (Supreme Court, Appellate Division, Fourth Department. October 8, 1913.) In the matter of Austin W. Carpenter, attorney and counselor at law. PER CURIAM. Issues raised by the petition and answer thereto referred to Arthur R. Moore, an attorney residing at Fredonia, N. and the district attorney of Chautauqua counto this court, together with his opinion thereon, ty is hereby designated to prosecute the matter. BUTTERLY, Appellant, v. DEERING, Re-Y., to take the proofs thereon and return same spondent. (Supreme Court, Appellate Division, AcOctober 10, 1913.) Second Department. tion by James N. Butterly against James A. Deering. No opinion. Motion for leave to appeal to the Court of Appeals (from 158 App. Div. 181, 142 N. Y. Supp. 1050) granted. Settle order before the Presiding Justice. See, also, 143 N. Y. Supp. 1109. CADY, Respondent, v. HOLMES, Appellant. (Supreme Court, Appellate Division, Second CARR, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) Action by Bernard J. Carr against the New York Central & Hudson River Railroad Company. No opinion. Motion for leave to appeal to Court of Appeals (from 142 N. Y. Supp. 1111) denied, with $10 costs. |