MEMORANDUM DECISIONS A. B. BARR & CO. v. PIERPOINT et al. | American Encaustic Tiling Company, Limited. (Supreme Court, Appellate Division, Second De- C. A. Flammer. for appellant. F. R. Kellogg, partment. April 28, 1911.) Action by A. B. for respondents. No opinion. Judgments afBarr & Co. against Harry G. Pierpoint and oth-firmed, with costs. Order filed. ers, impleaded with Horace J. Campbell. No opinion. Order affirmed, with $10 costs and disbursements. ALLEN v. GOLD CAR HEATING CO. et al. (Supreme Court, Appellate Division, First Department. May 19, 1911.) Action by Calvin H. Allen against the Gold Car Heating Company and others. A. H. Joline, for appellant. D. Leventritt, for respondents. No opinion. Order affirmed, without costs to either party, with leave to plaintiff to amend complaint on payment of costs in the court below. Settle order on notice. ALLEN v. McWALTERS. (Supreme Court, Appellate Term. May 18, 1911.) Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Mary H. A. Allen against James McWalters. From a judgment of the Municipal Court, dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered. Howard Bayne, for appellant. Grenville T. Emmet, for respondent. PER CURIAM. We think that it was error on the part of the trial justice to exclude the testimony offered by the plaintiff, upon the trial. tending to show that the contract upon which the plaintiff's cause of action rested, as set up in the complaint. was made with the defendant and a duly authorized agent of the plaintiff, and for that reason there must be a new trial. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. AMERICAN BRIDGE CO. OF NEW YORK, Respondent, v. LYDON et al., Appellants. (Supreme Court, Appellate Division, First Department. June 2, 1911.) Action by the American Bridge Company of New York against Richard P. Lydon, as executor, etc., and others. R. L. Redfield and R. C. Beatty, for appellants. H. F. Stone, for respondent. No opinion. Judg ment and order affirmed, with costs. Order filed. ALDERSON, Respondent, v. ALDERSON, Appellant (two cases). (Supreme Court, AppelAMERICAN CASE & REGISTER CO., Relate Division, Third Department. May 3, 1911.) Actions by Mary L. Alderson against Christo-spondent, v. GRISWOLD et al., Appellants. (Supreme Court, Appellate Division, Third Depher Elmo Alderson. partment. May 16, 1911.) Action by the AmerPER CURIAM. Order affirmed, with $10 ican Case & Register Company against Martha B. Griswold and another. No opinion. Judgment unanimously affirmed, with costs. See, also, 128 N. Y. Supp. 206. costs and disbursements. BETTS, J., not sitting. ALEXANDER et al., Respondents, v. AMERICAN ENCAUSTIC TILING CO., Limited, Appellant. (Supreme Court, Appellate Division, First Department. May 19, 1911.) Action by Elmer E Alexander and others against the AMERICAN GLASS & CONSTRUCTION CO., Respondent, v. SHEEDY, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 10, 1911.) Action by the American Glass & Construction Company against James J. Sheedy. No opinion. Order affirmed, with $10 costs and disbursements. AMERICAN SAVINGS BANK v. RICE REALTY & CONSTRUCTION CO. et al. (Supreme Court, Appellate Division, Second Department. May 26, 1911.) Action by the American Savings Bank against the Rice Realty & Construction Company and others, impleaded with John Donaldson and John Donaldson, Jr., copartners, etc. See, also, 128 N. Y. Supp. 1111. PER CURIAM. The defendants having failed to plead that their judgment lien was cut off or extinguished by the foreclosures of the second mortgages, the separate defenses in their answer are insufficient on their face, whatever should be the equities if such fact was pleaded. This action should be tried out on its facts, rather than determined on questions of pleading. The interlocutory judgment is reversed, with $10 costs and disbursements, and the demurrer is sustained, with $30 costs, with leave to the defendants to serve an amended answer on payment of costs and disbursements within 20 days. AMORY v. IVINS. (Supreme Court, Appellate Division, First Department. April 28, 1911.) Action by William N. Amory against William M. Ivins. No opinion. Order appealed from modified, as provided in order. Order filed. See, also, 128 N. Y. Supp. 1111. ANHALT v. BURRELL et al. (Supreme Court, Appellate Division, First Department April 28, 1911.) Action by Simon Anhalt against James Burrell and others. No opinion. Motion denied, with $10 costs. Settle order on notice. See, also, 127 N. Y. Supp. 1109. ANTES, Appellant, v. INTERBOROUGH RAPID TRANSIT CO. et al., Respondents. (Supreme Court, Appellate Division, First De partment. June 2, 1911.) Action by Paula Antes against the Interborough Rapid Transit Company and others. C. H. Strong, for appe.. lant. J. O. Nichols. for respondents. No opin ion. Judgment affirmed, with costs. Order filed. ANTHONY, Respondent, v. CITY OF NEWBURGH, Appellant. (Supreme Court, Appellate Division, Second Department. June 2, 1911 Action by Walter C. Anthony against the City of Newburgh. No opinion. Judgment affirmed, with costs. ARKENBURGH, Respondent, v. ARONSON, Appellant. (Supreme Court, Appellate Division, Second Department. June 9, 1911.) Action by Oliver M. Arkenburgh against Peter Aronson. No opinion. Motion denied, without costs, on condition that appellant perfect his appeal. place the case on the next calendar, and be ready for argument when reached; otherwise, motion See, also, 141 App granted, with $10 costs. Div. 709, 126 N. Y. Supp. 533. ANDERBERG, Respondent, v. TIMONY, Appellant. (Supreme Court, Appellate Division, Second Department. June 9, 1911.) Action by Charles Anderberg against James A. Timony. ARMOUR, Respondent, v. SOUND SHORE No opinion. Motion granted, with $10 costs. FRONT IMPROVEMENT CO., Appellant. (Supreme Court, Appellate Division, First De ANDERSON, Respondent, v. SANDER, Appartment. May 12, 1911.) Action by J. Or pellant, et al. (Supreme Court, Appellate Divi- den Armour against the Sound Shore Front sion, Second Department. June 2, 1911.) Ac- Improvement Company. Rutherford B. Meyer, tion by Andrew Anderson against Leo Sander, for appellant. H. H. Abbott, for respondent. impleaded with others. No opinion. Judgment No opinion. Judgment (128 N. Y. Supp. 331) of the Municipal Court affirmed, with costs. affirmed, with costs, on the opinion of the court below. Settle order on notice. ANDREWS, Appellant, v. ALLEN, Respondent. (Supreme Court, Appellate Division, Third Department. May 16, 1911.) Action by Henrietta Andrews against George W. Allen, as administrator, etc., of John W. Allen, deceased. No opinion. Motion granted on default. See, also, 128 N. Y. Supp. 1111. ANDRUS, Appellant, v. SILVER LAKE RY. CO. et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. June 2, 1911.) Action by Martha J. Andrus against the Silver Lake Railway Company and another. No opinion. Motion for leave to appeal to Court of Appeals denied, with $10 costs. For former AUSTIN, Respondent, v. BLUTE, Appellant. (Supreme Court, Appellate Division, Third D partment. May 3, 1911.) Action by Samuel C. Austin against James Blute. PER CURIAM. Order affirmed, with $10 costs and disbursements. HOUGHTON, J., not sitting. NINTH & SIXTIETH STS., IN CITY OF In re AVENUE A. FIRST AVE., FIFTY: NEW YORK. (Supreme Court, Appellate Dr vision, First Department. May 26, 1911.) In the matter of the City of New York; Avenue First Avenue, and Fifty-Ninth and Sixtieth Streets (Bowsky award). No opinion. Motion denied. Settle order on notice. BANDEL, Appellant, v. CITY OF NEW YORK et al., Respondents. (Supreme Court. Appellate Division. Second Department. Mar 12, 1911.) Action by Charles F. Bandel against the City of New York and another. No opinion. of Mr. Justice Putnam at Special Term. See, | lin, for appellants. E. C. Miller, for respondalso, 69 Misc. Rep. 93, 124 N. Y. Supp. 869. ent. No opinion. Judgment and order affirmed, with costs. Order filed. BARCLAY, Respondent, v. BARRIE, Appellant, (Supreme Court, Appellate Division, First Department. May 26, 1911.) Action by Reginald G. Barclay against Alexander Barrie. E. B. Hill, for appellant. Gould & Wilkie, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 142 App. Div. 670, 127 N. Y. Supp. 403. BASH, Respondent, v. HEILIGER, Appellant. (Supreme Court, Appellate Division, First Department. May 26, 1911.) Action by Julius Bash against Isidor Heiliger. P. Heiliger, for appellant. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BAUKAT v. SJOBERG. (Supreme Court, Appellate Division, First Department. April 28. 1911.) Action by John K. Baukat against John P. Sjoberg. No opinion. Application denied, with $10 costs. Order signed. BECKER v. LUST. (Supreme Court. Appellate Division, First Department. May 12, 1911.) Action by John J. Becker against Alfred Lust. No opinion. Application denied, with $10 costs. Order signed. BECKER, Respondent, v. URSINO, Appellant. (Supreme Court. Appellate Division, Second Department. May 12, 1911.) Action by Harry Becker against Rocco V. Ursino. No opinion. Judgment of the Municipal Court affirmed, with costs. BEHR, Respondent, v. STEUER, Appellant. (Supreme Court. Appellate Division. Second Department. May 5, 1911.) Action by Charles B. Behr against Max D. Steuer. No opinion. Interlocutory judgment affirmed, with costs. In re BELL. (Supreme Court, Appellate Division, First Department. May 12, 1911.) In the matter of Roy M. Bell. H. A. Rubino, for appellant. C. Seasongood, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. V. BERMAN et al., Appellants, v. HOLLANDER. Respondent. (Supreme Court, Appellate Division, Second Department. May 26, 1911.) Action by Max Berman and another against Julius Hollander. No opinion. Judgment of the Municipal Court affirmed, with costs. In re BERNSTEIN. (Supreme Court, Appellate Division, Second Department. April 28, 1911.) In the matter of A. Lincoln Bernstein, an attorney. No opinion. Motion granted, and reference ordered to Richards Mott Cahoone, Esq., to take testimony and report thereon, with his opinion. Edward A. Freshman, Esq., is assigned to conduct such proceedings. BERWANGER, Respondent, v. AMERICAN ICE CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 28, 1911.) Action by Elizabeth Berwanger, an infant, by Charles Berwanger, her guardian ad litem, against the American Ice Company. No opinion. Motion for leave to appeal to the Court of Appeals denied, without costs. For former decision, see 128 N. Y. Supp. 1113. BINGHAM, Appellant, v. GAYNOR, Respondent. (Supreme Court. Appellate Division, First Department. May 26, 1911.) Action by Theodore A. Bingham against William J. Gaynor. E. C. Crowley, for appellant. S. C. Baldwin, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 127 N. Y. Supp. 1112. BINNS v. VITAGRAPH CO. (Supreme Court, Appellate Division, First Department. June 9, 1911.) Action by John R. Binns against the Vitagraph Company. No opinion. Motion denied. Order filed. See, also, 141 App. Div. 929, 126 N. Y. Supp. 1122. BIRD, Appellant, v. CITY OF BUFFALO, Respondent. (Supreme Court, Appellate Division, Fourth Department. June 2, 1911.) Action by Francis A. Bird against the City of Buffalo. No opinion. Judgment affirmed, with costs. BLOOMINGDALE v. DUFFY. Court, Appellate Division, First Department. (Supreme May 12, 1911.) Action by Emanuel W. Bloomingdale against Mary A. Duffy, as executrix. No opinion. Application granted. Order signed. See, also, 127 N. Y. Supp. 1080. BLOSSOM HEATH HEALY, Respondent. (Supreme Court, AppelINN, Appellant, V. late Division, Second Department. June 9, 1911.) In the matter of summary proceedings brought by the Blossom Heath Inn against Timothy D. Healy. No opinion. Motion denied, with $10 costs. BENNETT, Respondent, LEWIS F. Third Department. May 16, 1911.) Action by James Blute against Cornelius C. Fellowes. No opinion. Motion for reargument denied. For former opinion, see 128 N. Y. Supp. 18. B. M. MALTZ CO., Respondent, v. HERMAN J. LEVY REALTY & CONSTRUCTION CO., Appellant. (Supreme Court, Appellate Division, Second Department. June 2, 1911.) Action by the B. M. Maltz Company against the Herman J. Levy Realty & Construction Com pany. No opinion. Motion denied, with costs. See, also, 128 N. Y. Supp. 1113. B. M. MALTZ CO., Respondent, v. MARTIN et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 28, 1911.) Action by the B. M. Maltz Company against George J. Martin and another. No opinion. Judgment of the Municipal Court affirmed by default, with costs. BOBETH, Respondent, v. MAY et al., Appellants. (Supreme Court, Appellate Division, Second Department. May 26, 1911.) Action by Benjamin O. Bobeth against Robert H. May and others. No opinion. Judgment and order affirmed, with costs. BRAVEN, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Ar pellate Division, Fourth Department. May 1911.) Action by Bertha Braven, as admis tratrix, etc., against the International Railwa Company. No opinion. Judgment and orde affirmed, with costs. BREGMAN, Appellant, v. PELLMAN, R spondent. (Supreme Court, Appellate Divisie. Second Department. June 9, 1911.) Action by Louis Bregman against Louis Pellman. opinion. Motion to dismiss appeal granted, with $10 costs. BREWSTER v. INTERBOROUGH RAPID TRANSIT CO. (Supreme Court, Appellate D vision, First Department. April 28, 1911.) A tion by Barnet Brewster against the Interber ough Rapid Transit Company. No opinion Application denied, with $10 costs. Order siz ed. See, also, 68 Misc. Rep. 348, 123 N. I. Supp. 992. BRISKMAN, Appellant, v. BERINSTEIN Respondent. (Supreme Court, Appellate Division, First Department. May 26, 1911.) A tion by Samuel Briskman against Abraham M Berinstein. M. S. Hyman, for appellant. E. L Adams, for respondent. No opinion. Judgment affirmed, with costs. Order filed. BOROUGH BANK OF BROOKLYN, Respondent, v. MCLAUGHLIN, Appellant, et al. (Supreme Court, Appellate Division, Second Department. June 9, 1911.) Action by the Borough Bank of Brooklyn against Edward J. Mc-spondent. (Supreme Court, Appellate Division. Laughlin, impleaded with others. PER CURIAM. No sufficient reason appears why the officers of the plaintiff should not be examined before trial. Order reversed, with $10 costs and disbursements, and order for examination reinstated. BURR, J., dissents, solely upon the ground that the testimony sought would be inadmissible upon the trial. Jamestown Business College Association v. Allen, 172 N. Y. 291, 64 N. E. 952, 92 Am. St. Rep. 740. BOWMAN, Appellant, v. FURBER et al., Respondents. (Supreme Court, Appellate Division, Second Department. May 19, 1911.) Action by Archibald Bowman against Percy N. Furber and others. (Appeal No. 2.) No opinion. Order affirmed on reargument, with $10 costs and disbursements. See, also, 127 N. Y. Supp. 1113. BOYCE, Respondent, v. WALKER et al., Appellants. (Supreme Court, Appellate Division, Third Department. May 3, 1911.) Action by Scott G. Boyce against Warren D. Walker and another. No opinion. Judgment unanimously aflirmed, with costs. See, also, 130 App. Div. 305, 114 N. Y. Supp. 166. BOYLE et al., Appellants, v. BLISS, Respondent. (Supreme Court, Appellate Division, Second Department. May 12, 1911.) Action by William H. Boyle and another against John J. Bliss. No opinion. Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, on the ground that the deci BRISKMAN, Appellant, v. ECKHARDT, R Fourth Department. May 3, 1911.) Action by BROOKLYN HEIGHTS R. CO., Respondent, v. BROOKLYN CITY R. CO.. Appellant (Supreme Court, Appellate Division. Second Department. June 7. 1911.) Action by the Brooklyn Heights Railroad Company against the Brooklyn City Railroad Company. No opinion. Motion to postpone granted, and cas ordered placed at the head of the day calendar for October 3. 1911. See, also, 132 App. Div. 936, 116 N. Y. Supp. 1132. BROWN. Respondent. V. THOMPSON STARRETT CO. et al., Appellants. (Supreme Court, Appellate Division, First Department May 12, 1911.) Action by George E. Brow against the Thompson Starrett Company and others. F. M. Clark, for appellants. E. P Kilroe, for respondent. No opinion. Oorder affirmed, with $10 costs and disbursements. Or See. also, 139 App. Div. 632, 124 der filed. N. Y. Supp. 396. BRYAN, Respondent, v. CARTER. Appel lant. (Supreme Court, Appellate Division. See ond Department. May 12, 1911.) Action by George F. Bryan against Bennett C. Carter. PER CURIAM. Judgment of the Municipal Court modified, by striking out the award of costs to plaintiff, on the ground that no written notice for plaintiff, nor any verified pleading. was filed (Municipal Court Act [Laws 1902 out the provision in the judgment that defendant is liable to arrest (Municipal Court Act, § 274), and, as thus modified, affirmed, without costs. See, also, 127 N. Y. Supp. 1114. BUCHANAN, Appellant, v. SLOANE, Respondent. (Supreme Court, Appellate Division, Second Department. June 9, 1911.) Action by Archibald Buchanan against David Sloane. No opinion. Judgment of the Municipal Court affirmed, with costs. BUCKLEY, Respondent, v. WELCH, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 31, 1911.) In the matter of the arbitration of certain claims in favor of Martin D. Buckley against Joseph J. Welch. No opinion. Judgment and order affirmed, with costs. BURGESS, Appellant, v. DOCKSTADER, Respondent. (Supreme Court, Appellate Division, Third Department. May 3, 1911.) Action by Harry R. Burgess against Otis Dockstader. PER CURIAM. Judgment unanimously affirmed, with costs. SMITH, P. J., not sitting. BURLINGTON VENETIAN BLIND CO., Appellant, v. RICH, Respondent. (Supreme Court, Appellate Division, Second Department. May 5, 1911.) Action by the Burlington Venetian Blind Company against Arthur L. Rich. PER CURIAM. Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, on the ground that the evidence does not show that the plaintiff was doing business in the state of New York, within the meaning of the statute. WOODWARD and RICH, JJ., dissent. BURNS BROS. v. ROYAL BANK OF NEW YORK. (Supreme Court, Appellate Division, First Department. May 26, 1911.) Action by Burns Bros. against the Royal Bank of New York. No opinion. Application granted, upon plaintiff's filing stipulation provided in order. Order signed. See, also, 128 N. Y. Supp. 723. CAMPBELL, Respondent, v. THOMPSON & NORRIS CO., Appellant. (Supreme Court, Appellate Division, Second Department. May 12, 1911.) Action by James Campbell against the Thompson & Norris Company. No opinion. Judgment of the Municipal Court unanimously affirmed, with costs. CAMPION v. FARLEY et al. (Supreme Court, Appellate Division, First Department. April 28, 1911.) Action by Marion G. Campion against John M Farley and others. A. S. Pratt and E. J. Myers, for appellant. J. F. Daly, for respondents. No opinion. Judgment affirmed, with costs. Order filed. CARPENTER, Appellant, v. UNITED GAS, ELECTRIC LIGHT & FUEL CO., Respondent. (Supreme Court, Appellate Division, Third Department. May 3, 1911.) Action by Peter Carpenter against the United Gas, Electric Light & Fuel Company. No opinion. Judgment and order unanimously affirmed, with costs. CARRIGAN, Respondent, v. CARRIGAN, Appellant. (Supreme Court, Appellate Division, Second Department. May 19, 1911.) Action by J. Edward Carrigan against Ella M. Carrigan. No opinion. Interlocutory judgment affirmed, with costs. CASSI v. JANNUZZI. (Supreme Court, Appellate Division, First Department. May 26, 1911.) Action by Abelardo Cassi against Vincenzo Jannuzzi. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed. CAVADLO, Appellant, v. FICHTENBAUM et al., Respondents. (Supreme Court, Appellate Division, Second Department. May 5, 1911.) Action by Elizabeth Cavadlo, an infant, etc., by Morris Cavadlo, her guardian ad litem, against Oscar Fichtenbaum and another. No opinion. Judgment and order unanimously affirmed, with costs. CHARTERED BANK OF INDIA v. NASSAU FIRE INS. CO. (Supreme Court, Appellate Division, First Department. May 12, 1911.) Action by the Chartered Bank of India against the Nassau Fire Insurance Company. No opinion. Motion denied, with $10 costs. Order filed. CHASE, Respondent, v. GENERAL ELECTRIC CO., Appellant. (Supreme Court, Appellate Division, Third Department. May 3, 1911.) Action by Joseph E. Chase against the General Electric Company. PER CURIAM. Judgment and order affirmed, with costs. HOUGHTON, J., dissents, on the ground that, if the fire was caused by opening the cover to the furnace, such accident was one not reasonably to be anticipated, and hence there was no negligence on the part of the defendant. CHENKIN, Appellant, v. LIPMAN, Respondent. (Supreme Court, Appellate Division, First Department. May 26, 1911.) Action by Barnet Chenkin against Max Lipman. J. Manheim, for appellant. T. Baumeister, for respondent. No opinion. Order affirmed, with costs. Order filed. See, also, 138 App. Div. 267, 122 N. Y. Supp. 1083. CICIO, Appellant, v. FUSCO, Respondent. (Supreme Court, Appellate Division, Second Department. May 19, 1911.) Action by Pellegrino Cicio against Alfonzo Fusco. No opinion. Appeal dismissed, with $10 costs and disbursements. |