CARTWRIGHT, Respondent, v. McKIN- No opinion. Motion to dismiss appeal granted, NON, Appellant. (Supreme Court, Appellate with $10 costs. Order filed. Division, Third Department. November 12, 1913.) Action by Robert Cartwright against Frank H. McKinnon, as administrator, etc., of James R. Baumes, deceased. No opinion. Judgment modified, by striking therefrom recovery of costs, as not authorized by sections 1835 and 1836 of the Code of Civil Procedure, and, as so modified, affirmed, without costs. CASE v. WALTER et al. (Supreme Court, Appellate Division, First Department. November 14, 1913.) Appeal from Special Term, New York County. Action by Frank M. Case, Jr., against Eugene Walter and another. From an order directing that the issues raised by the separate defense and counterclaim be tried at Special Term, and the remaining issues at Trial Term, and granting a stay pending trial of issues at Special Term, plaintiff appeals. Modified and affirmed. David Gerber, of New York City, for appellant. Samuel W. Tannebaum, f New York City, for respondents. PER CURIAM. The order appealed from should be modified by providing that the issues raised by the counterclaim in the amended answer of the defendant Walter be tried at Special Term after the issue raised by the allegations of the answer as a defense to the plaintiff's cause of action is tried at Trial Term, and that the trial at Special Term be stayed until the determination of the trial at Trial Term. As so modified, the order is affirmed, with $10 costs and disbursements to the appellant. CASPER v. NAEF. (Supreme Court, AppelOctober 24, late Division, First Department. 1913.) Action by Louis Casper against Albert Naef. No opinion. Application denied, with $10 costs. Order signed. See, also, 80 Misc. Rep. 492, 141 N. Y. Supp. 568. CASSIN, Respondent, v. YONKERS R. CO., Appellant. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Edward D. Cassin against the Yonkers Railroad Company. L. F. Crumb, of Youkers, for appellant. No opinion. Order reversed, with $10 costs and disbursements, and motion granted. Order filed. CHAMBERLAIN, Appellant, v. GRAVES et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) Action by Charles Chamberlain against Sarah Graves and others. No opinion. Motion granted, and decision heretofore and on the 11th day of June, 1913 (142 N. Y. Supp. 1112), made herein, modified, so as to allow to the guardian ad litem the sum of $30 for his costs and disbursements on the appeal. CIOCARONE v. CHARLES L. DORAN CONTRACTING CO. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Adamo Ciocarone against the Charles L. Doran Contracting Company. In re CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. In the matter of the apOctober 3, 1913.) plication of the City of New York to acquire certain real estate at Wantagh, etc., for the purposes of water supply. No opinion. Motion for reargument denied, with $10 costs. MEMORANDUM DECISIONS the New York, Auburn & Lansing Railroad | E. Goldmark, of New York City, for respond- CONDESSO, Respondent, V. LANZETTA, CONDRAN, Respondent, v. PARK & TIL FORD, Appellants. (Supreme Court, Appellate Division, First Department. November 7, 1913.) Action by Mary E. Condran, as administratrix, against Park & Tilford. F. V. Johnson, of New York City, for appellants. J. E. Ruston, of New York City, for respondent. Judgment and order afPER CURIAM. firmed, with costs. Order filed. INGRAHAM, P. J., dissents. CONDREN, Respondent, v. PARK & TIL COUDERSPORT MANGLE ROLLER MFG. CO., Appellant, v. ELLIOTT, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 15, 1913.) Action by the Coudersport Mangle Roller Manufacturing Company against Clayton H. Elliott. No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. COYLE, Respondent, v. LUCEY, Appellant. partment. October 24, 1913.) Action by Al(Supreme Court, Appellate Division, First Debina Coyle against Jeremiah Lucey, as administrator. A. V. Norton, of New York City, for appellant. P. J. O'Brien, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. In re CRAGG. (Supreme Court, Appellate October 10, Division, Second Department. 1913.) In the matter of Walter H. Cragg, an No opinion. Motion to confirm reattorney. port of referee granted, and respondent dis See, also, 157 App. Div. 927, 142 N. barred. Y. Supp. 1114. Order (Supreme In re CRERAND'S ESTATE. Court, Appellate Division, First Department. No opinion. F. Crerand, deceased. October 31, 1913.) In the matter of William modified, by requiring the executor to pay the legacy, with the deduction of 1 per cent. transfer tax, and with such interest as the money on Settle order on deposit in the bank has earned, if any, and, as so modified, affirmed, with $10 costs and disbursements to the appellant. notice. CRISCUOLI, Respondent, v. CRISCUOLI, (Supreme Court, Appellate DiviOctober 24, 1913.) Appellant. sion, Second Department. No opinion. Order affirmed, without Action by Luigi Criscuoli against Flora Criscuoli. costs. See, also, 157 App. Div. 895, 142 N. Y. Supp. 1114. CROSS & BROWN CO., Appellant, v. HEGEMAN & CO. OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. October 24, 1913.) Action by the Action by Joseph P. Daly against the Otis Elevator Company, a corporation. No opinion. Order affirmed, with $10 costs and disbursements. (Su DAVIS v. LONG ISLAND R. CO. preme Court, Appellate Term, First Department. November 13, 1913.) Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Sadie Davis against the Long Island Railroad Company. From a judg ment for plaintiff, defendant appeals. Reversed and complaint dismissed. Joseph F. Keany, of City, of counsel), for appellant. New York City (Edward Kelly, of New York Charles S. Rosenthal, of New York City, for respondent. SEABURY, J. Plaintiff sued to recover damages for personal injuries sustained by her while a passenger upon one of the trains of the defendant. While plaintiff was seated in the car, a person not shown to be an employé of the defendant entered the car and dropped a board which he was carrying, upon the plaintiff's foot. It is for the injury thus caused that the plaintiff has recovered judgment. There is no evidence to show that the person who dropped the board was an employé of the defendant, and no evidence to show that the servants of the defendant in charge of the car were guilty of any act of negligence. It follows that the judgment must be reversed, with costs, and the complaint dismissed, with costs, without prejudice. All concur. In re DAY. (Supreme Court, Appellate Division, Fourth Department. July 8, 1913.) In the matter of Moses T. Day, an attorney and counselor at law. No opinion. Petition granted, and order entered disbarring the said Moses T. Day, and removing him from his office as attorney and counselor at law, and forbidding his practice as such. CYPRESS, Appellant, v. UNITED STORES DE BRUYN, Appellant, v. HILFIKER et al. REALTY CO. et el., Respondents. (Supreme Respondents. (Supreme Court, Appellate DiviCourt, Appellate Division, First Department. sion, Fourth Department. January, 1913.) October 17, 1913.) Action by Herman Cypress Action by Cornelius A. De Bruyn against Louis against the United Stores Realty Company and W. Hilfiker and others. No opinion. Judg. others. M. H. Hochdorf, of New York City, ment reversed, and new trial granted, with for appellant. C. Levy and A. Furber, both of costs to appellant to abide event. Opinion by New York City, for respondents. No opinion. FOOTE, J., withheld from publication by diOrder affirmed, with $10 costs and disburse-rection of the court. All concurred. ments. Order filed. See, also, 143 N. Y. Supp. 1112. DEC, Respondent, V. Octo BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, ber 31, 1913.) Appellate Division, Second Department. Action by Brunislaw Dec against the Brooklyn Heights Railroad Com pany. PER CURIAM. Judgment and order of the County Court of Queens County reversed, and a inasmuch as the plaintiff did not sustain the new trial ordered, costs to abide the event, burden of establishing negligence of the defendant. Evidence of loss of profits on a contract was not admissible as damages for personal injuries, unless plaintiff also gave proof that such injuries prevented performance of the contract, or receipt of profits thereof, or diminished them. MEMORANDUM DECISIONS DECKER, Respondent, v. DECKER, Appellant. (Supreme Court, Appellate Division, November 14, 1913.) Ac First Department. tion by Kathryne B. Decker against Henry E. Decker. N. McGovern, of New York City, for appellant. E. S. Booth, of New York City, for Order modified as respondent. No opinion. stated in order, and, as modified, affirmed, without costs. Order filed. DE FRISCO, Appellant, v. GOODMAN, Respondent. (Supreme Court, Appellate Division, First Department. October 24, 1913.) Action by Dominio De Frisco against Patrick GoodM. J. Joyce, of New York City, for appellant. J. B. Henney, of New York City, for respondent. No opinion. Judgment and Order filed. order affirmed, with costs. man. DEICHES v. WESTERN DEVELOPMENT DEICHES v. WESTERN DEVELOPMENT (Supreme DELABARRE v. SEES et al. Court, Appellate Division, Second Department. Action by Frances FreeOctober 3, 1913.) land Delabarre against Anna S. Sees, individually, and as executrix, etc., and Maria L. Delabarre. PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide the final award of costs, on the ground that the proofs fall short of showing any undue influence by the appellant. Surmise and conjecture as to how the deceased came so violently to disagree with his brother do not sustain a verdict. A possibility that undue influence may have been used cannot justify setting aside a will upon that ground. DE NYIRI, Respondent, v. WICKWIRE STEEL CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 15, 1913.) Action by John De Nyiri, as administrator, etc., against the Wickwire Steel Company. No opinion. Judgment and order affirmed, with costs. DERBYSHIRE, Respondent, v. KEYSTONE (Supreme Court, VARNISH CO., Appellant. Appellate Division, Second Department. SepAction by John Derbyshire tember 23, 1913.) No against the Keystone Varnish Company. opinion. Judgment and order unanimously affirmed, with costs. Appeal to Court of Appeals denied. 143 N. Y. Supp. 1113. DERBYSHIRE, Respondent, v. KEYSTONE VARNISH CO., Appellant. (Supreme Court, Appellate Division, Second Department. OctoAction by John Derbyshire No ber 24, 1913.) On a careful re-examination of the against the Keystone Varnish Company. opinion. record on appeal, we see no reason for a rearwithout costs. Motion for leave to appeal to gument, and the motion is therefore denied, the Court of Appeals (from 143 N. Y. Supp. 1113) denied, without costs. DICK, Appellant, v. INTERBORO RAPID TRANSIT CO., Respondent. (Supreme Court, Appellate Division, First Department. November 7, 1913.) Action by Jessie S. Dick against the Interboro Rapid Transit Company. W. C. Abercrombie, of New York City, for appellant. B. H. Ames, of New York City, for respondent. costs. Order filed. No opinion. Judgment and order affirmed, with DICKEY, Plaintiff, v. GORTNER, Defendant. (Supreme Court, Appellate Division, SecAction by ond Department. October, 1913.) Paul Dickey against Christopher A. Gortner. PER CURIAM. Motion for leave to appeal The time to to the Court of Appeals denied. appeal has long since expired, and granting of leave would not extend the time. The granting of leave in a case of this character is not necSee, also, 152 App. Div. essary in any event. 937, 137 N. Y. Supp. 1117. CARR, J., taking no part. opinion. Motion to dismiss appeal denied. Order filed. See, also, 153 App. Div. 887, 138 N. Y. Supp. 1114. DOELLINGER, Respondent, v. NEW YORK EVENING JOURNAL PUB. CO., Appellant. SAME V. STAR CO. (Supreme Court, Appellate Division, First Department. November 14, 1913.) Actions by Alice Doellinger against the New York Evening Journal Publishing Company and against the Star Company. C. J. Shearn, of New York City, for appellants. R. Maggio, of New York City, for respondent. No opinion. Orders affirmed, with $10 costs and disbursements. Orders filed. DRDA, Respondent, v. KOMANCEK et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 24, 1913.) Action by Antoinette Drda against Joseph Komancek and other. No opinion. Order affirmed, with $10 costs and disbursements. DREYER, Respondent, V. MCCORMACK REAL ESTATE CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 25, 1913.) Action by William F. Dreyer against the McCormack Real Estate Company. PER CURIAM. Order affirmed, with costs. Appeal to Court of Appeals denied. 143 N. Y. Supp. 1114. THOMAS, J., dissents, on authority of O'Beirne v. Lloyd, 43 N. Y. 248. Order affirmed, with $10 costs and disbursements. Order filed. (Supreme DRUMMOND v. KUNSTLER. Court, Appellate Division, First Department. October 31, 1913.) Appeal from Special Term, New York County. Action by Michael J. Drummond, commissioner, etc., on complaint of Fre da Friedman against Isidor Kunstler. From an order of filiation, defendant appeals. Reversed and dismissed. Julius Offenbach, of New York City, for appellant. Terence Farley, of New York City, for respondent. PER CURIAM. We think the finding of the court below was against the weight of evidence. The judgment is therefore reversed and the proceeding dismissed. and vote for affirmance. PER CURIAM. We think that the evidence adduced by the plaintiff established a prima facie case, and it was error to dismiss the complaint. The letter of the attorney for the plaintiff, written after the commencement of the ac tion, was incompetent to destroy the cause of action, and was improperly admitted, unless set up by way of supplemental pleading. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. DOWLING, J., dissents. DREYER, Respondent, v. McCORMACK REAL ESTATE Co., Appellant. (Supreme Court, Appellate Division, Second Department. October 10, 1913.) Action by William F. Dreyer against the McCormack Real Estate Company. No opinion. Motion for leave to appeal to the Court of Appeals (from 143 N. Y. Supp. 1114) denied, without costs, on the DUCHARDT et al., Respondents, v. HUXground that the Court of Appeals can only LEY et al., Appellants. (Supreme Court, Aphear such an appeal on a stipulation for judg-pellate Division, First Department. October 24, ment absolute. 1913.) Action by Kate Duchardt and others against Kate Huxley and others. T. F. Ken nedy, of New York City, for appellants. L. L. Kellogg, of New York City, for respondents. No opinion. Judgment affirmed, with costs. Order filed. DRISCOLL, Respondent, v. CADILLAC HOTEL CO., Appellant. (Supreme Court, Appellate Division, First Department. October 24, 1913.) Action by Cornelius Driscoll against the Cadillac Hotel Company. G. M. Pinney, of New York City, for appellant. H. C. Smyth, of New York City, for respondent. PER CURIAM. Exceptions overruled, and Settle order on Court, Appellate Division, First Department. DUCKETT v. HOFFERBERTH. (Supreme October 17, 1913.) Action by Alfred W. Duckett against Charles F. Hofferberth. No opinion. Motion to dismiss appeal granted, with $10 in order. Order filed. judgment ordered on verdict. notice. INGRAHAM, P. J., and CLARKE, J., dis- costs, unless appellant comply with terms stated sent. DRUMMOND, Respondent, v. DI PAOLO, Appellant. (Supreme Court, Appellate Division, First Department. October 24, 1913.) Action by Michael J. Drummond, as commissioner, against Frank Di Paolo. M. Wechsler, of New York City, for appellant. T. Farley, of New York City, for respondent. No opinion. DUKE v. AMERICAN MUSEUM OF NATURAL HISTORY. (Supreme Court, Appellate Division, First Department. October 17, 1913.) Action by Frank Duke against the American Museum of Natural History. No opinion. Motion denied, with $10 costs. Order filed. See, also, 157 App. Div. 637, 142 N. Y. Supp. 804. |