App. Div.]

Second Department, October, 1913.

ates nothing and sets nothing at rest? The order, in so far as appealed from, should be reversed and the report of the referee confirmed, with ten dollars costs and disbursements. Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred. Order, in so far as appealed from, reversed, and report of referee confirmed, with ten dollars costs and disbursements.

Claudine Eckert, Respondent, v. Clara M. Truman, Appellant, and Another, Defendant.- After entry of judgment the judgment debtor may appeal by another attorney without any substitution. (Lusk v. Hastings, 1 Hill, 656; Cruikshank v. Goodwin, 20 N. Y. Supp. 757; Davis v. Solomon, 25 Misc. Rep. 695.) Mr. White's authority to represent Mrs. Truman in these proceedings had since the judgment, stands undisputed by Mr. Davenport, the former attorney of record. Plaintiff's motion to dismiss the appeal and to set aside the other proceedings taken in behalf of the appellant is denied, but without costs. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

George A. Ahearn and Others, Appellants, v. George Schuchman, Respondent.- Motion for leave to appeal to the Court of Appeals granted, and the following question certified: Does the complaint herein state a cause of action against the defendant? Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

In the Matter of the Application of the Board of Rapid Transit Railroad Commissioners, etc., for the Appointment of Three Commissioners, etc. Brooklyn and Manhattan Loop Lines, Brooklyn Sections.- Motion denied, with ten dollars costs. Burr, Rich, Stapleton and Putnam, JJ., concurred; Carr, J., taking no part.

In the Matter of the Application of the City of New York to Acquire Certain Real Estate at Wantagh, etc., for the Purposes of Water Supply. -Motion for reargument denied, with ten dollars costs. PresentJenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

In the Matter of the Application of Julius L. Mitchell, an Attorney and Counselor of Rhode Island, for Permission to Practice Law in the State of New York.- Application granted. Present - Jenks, P. J., Burr, Thomas, Carr and Rich, JJ.

In the Matter of Addison S. Sanborn, an Attorney. - Matter referred to the Hon. William D. Dickey, official referee, with the suggestion that, as the attorney is now under indictment, he exercise his discretion in waiting a reasonable time before proceeding with the reference. Present — Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Hannah S. Longworth, Respondent, v. William H. Longworth and Another, Appellants.— Motion denied, without costs, with leave to plaintiff to apply for a reargument if so advised. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Ignatz Martin, Respondent, v. Leverett F. Crumb, Appellant.- Motion for reargument denied, without costs. Motion for leave to appeal to the Court of Appeals denied upon the ground that leave to appeal is unnecessary. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Second Department, October, 1913.

[Vol. 158. Metta F. Merchant, as Administratrix, etc., Respondent, v. George M. Ryall, Appellant, and Others, Defendants.- Motion to dismiss appeal from judgment denied on condition that appellant perfect his appeal from order, place the case on the present calendar and be ready for argument when reached; otherwise, motion granted, without costs. Motion to dismiss appeal on the ground that defendant Ryall has accepted a benefit under the judgment denied, without costs. Present- Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Anna Niemeyer, an Infant, etc., Respondent, v. J. Francis O'Connor, etc., Appellant. -- Motion to dismiss appeal denied, with ten dollars costs. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Laura Van Zandt Owens, Appellant, v. Gouverneur M. Carnochan, as Surviving Executor and Trustee, etc., of Harriet F. Van Zandt, Deceased, Respondent, Impleaded with Others, Defendants.-- Motion denied, with ten dollars costs. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Guiseppe Archimede, alias Guiseppe Militano, Appellant.- Motion to dismiss appeal granted. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Frank Bernstein, Appellant.- Motion to dismiss appeal granted. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Morris Cohen, Appellant. Motion to dismiss appeal granted. Present-Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Vito Forcarazzo, Appellant.- Motion to dismiss appeal granted. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Mamie Fultz, Appellant.- Motion to dismiss appeal granted. Present — Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Jacob Greenberg, Appellant.-Motion to dismiss appeal granted. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Giovanni Manghavita, Appellant.— Motion denied, upon condition that defendant perfect his appeal, place the case on the calendar for the November term, and be ready for argument when reached; otherwise, motion granted.— Present -Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Salvatore Randazzo, Appellant. Motion denied, upon condition that defendant perfect his appeal, place the case on the calendar for the November term, and be ready for argument when reached; otherwise, motion granted. The appeal may be heard upon the original papers. Present-Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. John Shippani, Appellant. Motion denied, on condition that defendant perfect his appeal, place the case on the calendar for the November term, and be ready for

App. Div.]

Second Department, October, 1913.

argument when reached; otherwise, motion granted. The appeal may be heard upon the original papers. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. Tony Sorrentino, Appellant. Motion denied, upon condition that defendant perfect his appeal, place the case on the calendar for the November term, and be ready for argument when reached; otherwise, motion granted. PresentJenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York ex rel. Brooklyn, Queens County and Suburban Railroad Company, Respondent, v. Alfred E. Steers, President of the Borough of Brooklyn, Appellant.- Motion to resettle order granted, without costs. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Alexander Aljnuick, Appellant, v. American Manufacturing Company, Respondent.-Order unanimously affirmed, with costs. No opinion. Present- Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Frances Freeland Delabarre, Respondent, v. Anna S. Sees, Individually and as Executrix, etc., Appellant, and Maria L. Delabarre, Respondent. ― 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. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred.

Oliver J. Dykeman and Joseph Grasheim, Appellants, v. Domenice B. Cardone, etc., Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Fourth National Realty Company, Respondent, v. Josiah H. Goodale and Others, Individually, etc., Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

George Meigel, Appellant, v. E. V. Crandall Oil and Putty Manufacturing Company, Respondent.- Judgment unanimously affirmed, with costs, upon the authority of Meigel v. Crandall Oil & Putty Mfg. Co. (141 App. Div. 828). Present - Jenks, P. J., Burr, Thomas, Stapleton and Putnam, JJ.

Chester A. Patterson, Respondent, v. Duncan B. Harrison, Appellant. — Judgment and order of the City Court of New Rochelle reversed and new trial ordered, costs to abide the event, on the ground that the judgment is against the weight of evidence as to performance by plaintiff of the contract with defendant. Jenks, P. J., Burr, Thomas, Carr and Stapleton, JJ., concurred.

The People of the State of New York, Respondent, v. May Hawkins, Appellant.- Order of the County Court of Kings county affirming a judgment of conviction of the City Magistrate's Court, city of New York, bor

Second Department, October, 1913.

[Vol. 158.

ough of Brooklyn, affirmed. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

The People of the State of New York, Respondent, v. Edward Smith, Appellant.-Judgment of conviction of the County Court of Kings county affirmed by default. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Lillian Schmitt, Appellant, v. Andrew Schmitt, Jr., and Others, Respondents.-Judgment affirmed by default, with costs. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

George W. Thurling, Appellant, v. The Orinoco Steamship Company, Respondent.-Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Christina A. Tucker, Appellant, v. Charles S. Tucker, Respondent.Order affirmed, without costs. No opinion. Jenks, P. J., Burr, Thomas. Carr and Rich, JJ., concurred.

James N. Butterly, Appellant, v. James A. Deering, Respondent.— Motion to resettle order granted. Present — Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ. Order to be settled before the presiding justice. James N. Butterly, Appellant, v. James A. Deering, Respondent.— Motion for leave to appeal to the Court of Appeals granted. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ. Order to be settled before the presiding justice.

Paul Dickey, Plaintiff, v. Christopher A. Gortner, Defendant.- Motion for leave to appeal to the Court of Appeals denied. The time to 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 necessary in any event. Jenks, P. J., Thomas, Rich and Putnam, JJ., concurred; Carr, J., taking no part.

William F. Dreyer, Respondent, v. McCormack Real Estate Company, Appellant.- Motion for leave to appeal to the Court of Appeals denied, without costs, on the ground that the Court of Appeals can only hear such an appeal on a stipulation for judgment absolute. Present - Jenks, P. J., Burr, Thomas, Carr and Rich, JJ.

In the Matter of John H. Atkins, an Attorney.— Motion to confirm report of referee granted and respondent disbarred. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

In the Matter of Walter H. Cragg, an Attorney.— Motion to confirm report of referee granted and respondent disbarred. Present — Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

In the Matter of Whitmel H. Smith, an Attorney.- Matter referred to the Hon. Josiah T. Marean, official referee, to take testimony and report, with his opinion. Present - Jenks, P. J., Thomas, Carr, Rich and

Putnam, JJ.

The People of the State of New York, Respondent, v. Vincenzo Buccufurri, Appellant.- Motion to resettle order denied. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

App. Div.]

Second Department, October, 1913.

The People of the State of New York, Respondent, v. Robert Fitzpatrick, Appellant.- Motion to dismiss appeal granted. Present Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Jenks,

The People of the State of New York, Respondent, v. Rebecca Rothenberg, Appellant.- Motion to dismiss appeal granted. Present P. J., Thomas, Carr, Rich and Putnam, JJ.

The People of the State of New York, Respondent, v. May Smith, Appellant. Motion to dismiss appeal granted. Present-Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Arthur A. Rath, Respondent, v. Roy H. McNaught, Appellant, and Another, Defendant.- Motion for reargument denied, with ten dollars costs. Present-Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Claudine Eckert, Appellant, v. Clara M. Truman, Respondent, and George D. Nowland, Defendant.— Order affirmed, with ten dollars costs and disbursements. No opinion. Burr, Thomas, Carr and Putnam, JJ., concurred; Rich, J., not voting.

Herman Friedlander, Respondent, v. John E. Sullivan Company and John E. Sullivan, Appellants, and Others, Defendants.- Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred; Rich, J., not voting.

Mechanics Bank, Respondent, v. J. Harwood Springer and Another, Defendants, Impleaded with John H. Springer Realty Company, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Thomas, Carr and Stapleton, JJ., concurred. McLeer Electric and Manufacturing Company, Respondent, v. Palmer & Singer Manufacturing Company, Appellant.- Order modified by granting, without condition, defendant's motion for a substitution and a delivery of the papers in this action, and by reducing to the sum of $15,000 the amount of the bond to secure the payment of any judgment which may be recovered in the action as a condition of opening the defendant's default; and as so modified affirmed, without costs. No opinion. Jenks, P. J., Burr, Thomas, Carr and Stapleton, JJ., concurred. Order to be settled before Mr. Justice Stapleton.

The People of the State of New York, Respondent, v. Cornelius J. O'Connor, Appellant.- Judgment of conviction of the Court of Special Sessions affirmed by default. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Max Rich, Respondent, v. Jacob Meurer, Doing Business as Meurer Brothers Company, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred; Rich, J., not voting.

Ovadio Varon, Respondent, v. American Manufacturing Company, Appellant.-Order reversed, with ten dollars costs and disbursements, and defendant's motion granted, with ten dollars costs, and the cause removed to New York county as the county of plaintiff's residence when the action was brought. No opinion. Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred; Rich, J., not voting.