[Vol. 158.

Second Department, October, 1913.

In the Matter of the Application of Alfred E. Vass, Respondent, for Relief by Peremptory Writ of Mandamus or Otherwise, v. J. Gabriel Britt and Others, Constituting the Board of Elections of the City of New York, Appellants.-Order affirmed, without costs. No opinion. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

John Derbyshire, Respondent, v. Keystone Varnish Company, Appellant. On a careful re-examination of the record on appeal we see no reason for a reargument, and the motion is, therefore, denied, without costs. Motion for leave to appeal to the Court of Appeals denied, without costs. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

In the Matter of the Application of Adrian O. Schoonmaker and Others for Payment of Award Made to Unknown Owners, etc.-Motion granted and matter referred to J. Harry Snook, Esq., to take proof and report, with his opinion. Present-Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Laura Van Zandt Owens, Appellant, v. Gouverneur M. Carnochan, as Surviving Executor, etc., Respondent, Impleaded with Others, Defendants.- Motion for reargument denied, without costs. Motion for leave to appeal to the Court of Appeals denied, without costs. Present - Jenks,

P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Richard Powers Phelan, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.- Motion for leave to appeal to the Court of Appeals granted. Present - Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Richard Powers Phelan, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.- Motion for reargument denied, with ten dollars costs. Present - Jenks, P. J., Thomas, Carr, Stapleton

and Putnam, JJ.

Matthew Reilly, Respondent, v. Alice Josephine Early, etc., Appellant. - Motion for reargument denied, with ten dollars costs. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

George W. Thurling, Appellant, v. Orinoco Steamship Company, Respondent. Motion for reargument denied, without costs. Motion for leave to appeal to the Court of Appeals denied, without costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Present —

Roth Angevine, Respondent, v. Max Rosenwald, Appellant.- Order reversed, without costs, and default opened on payment of fifty dollars. No opinion. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Sarah H. Barnes and Others, Respondents, v. Midland Railroad Terminal Company, Appellant. (Appeal No. 2.)— Order affirmed, without costs. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Henry F. Booth, Appellant, v. James B. Clews, Respondent.-- 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 ten dollars costs and disbursements, and motion denied, with ten

App. Div.]

Second Department, October, 1913.

dollars costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Saverio Burdi, Respondent, v. Angelo Giordano, Appellant.— Order reversed, with ten dollars 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; Brockway v. Miller, 144 id. 239), 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. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Edward E. Cady, Respondent, v. Jeanette Holmes, Appellant.— Order modified to the extent of allowing defendant twenty days from the service of the order of this court in which to pay the terms imposed by the order appealed from, and that on making said payment as aforesaid the cause be set down for trial at the next term of the Supreme Court in Orange county, and as so modified said order is affirmed, with ten dollars costs and disbursements. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

George W. Clark, Respondent, v. New York, Susquehanna and Western Railroad Company, Appellant.-Judgment of the County Court of Orange county unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ. Luigi Criscuoli, Respondent, v. Flora Criscuoli, Appellant.- Order affirmed, without costs. No opinion. Jenks, P. J., Burr, Thomas, Carr

and Rich, JJ., concurred.

Michele Di Martino, an Infant, etc., Respondent, v. Francis A. Weisbecker, Sr., and Others, Individually, and as Copartners, etc., Appellants. - Judgment and order of the County Court of Kings county unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ.

Antoinette Drda, Respondent, v. Joseph Komancek and Gustav Schar wachter, Appellants. - Order affirmed, with ten dollars costs and disburse ments. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Alexander Dumas, Jr., Respondent, v. Auburndale Realty Company Appellant. (No. 1.)— Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Carr and Putnam, JJ., concurred; Burr and Thomas, JJ., dissented.

Samuel Green, Appellant, v. Supreme Council of the Royal Arcanum and Another, Respondents.— Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Ralph E. Hemstreet, Respondent, v. Gertrude E. Childs, Appellant.Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

In the Matter of the Application of Maurice Lobsitz, Appellant, for an APP. DIV.-VOL. CLVIII.

60

Second Department, October, 1913.

[Vol. 158.

Order Permitting the Removal of the Body of Lena Lobsitz, etc. Samuel Lobsitz, Respondent.- Order affirmed, without costs. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Frank H. James, Respondent, v. John J. McMahon, Appellant.— Order reversed, with ten dollars costs and disbursements, and motion for receiver denied, without costs, upon the ground that the appointment should not be made upon the facts shown. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Fannie C. Lowden, as Committee of Mary L. Thayer, an Incompetent Person, Appellant, v. Pamlico Realty Company, Respondent. - Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas and Rich, JJ., concurred; Carr, J., dissented.

Mary McClorey, Appellant, v. The City of New York, Respondent.— Judgment unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ.

Emeline W. McHugh, Appellant, v. Joseph F. McHugh, Respondent.Order modified by providing that defendant pay fifty dollars alimony within ten days after order herein, and fifty dollars additional before trial, and that in default of either payment he be fined the sum of one hundred dollars and be committed until such sum be paid, and as so modified affirmed, without costs. No opinion. .Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Nunzio Orsino, Respondent, v. Grace Orsino and Others, Appellants.— Judgment affirmed, with costs. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

The Peck Brick Company, Respondent, v. The Haverstraw Water Supply Company, Appellant.-Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on the ground that the complaint sets up facts which constitute apparently three separate causes of action, one cause of action for each distinct parcel which is separately described in the complaint. Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Burr, J., dissented on the ground that it affirmatively appears from the complaint that parcel 2 connects parcels 1 and 3 as therein described, so that there is but a single parcel of land involved in the litigation.

Henry S. Pettit, Appellant, v. The Trustees of the Freeholders and Commonalty of the Town of Brookhaven and Another, Respondents.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Rich and Stapleton, JJ., concurred.

The People of the State of New York ex rel. Walter S. Chapman, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.- Determination confirmed, with fifty dollars costs and disbursements. No opinion. Burr, Thomas, Carr and Putnam, JJ., concurred; Rich, J., dissented on the ground that the relator was entitled to a reasonable adjournment for the attendance of his counsel.

The People of the State of New York ex rel. Fred Pellecchio, Judgment Debtor, Respondent, v. Sheriff of Kings County. Saverio Gallo, Judgment Creditor, Respondent; Saverio Gallo, Appellant. — From the

App. Div.]

Second Department, October, 1913.

return to the writ of habeas corpus, to which no traverse was filed, it appears that the relator was held by the sheriff of Kings county pursuant to an order of the Special Term of the Supreme Court, committing him to his custody for a civil contempt. The court had jurisdiction to make the order, and the provisions thereof were within its power. No other ques

tions can be presented by such a writ. (People ex rel. Price v. Hayes, 151 App. Div. 561.) The order discharging relator should be reversed, without costs, and he should be remanded to the custody of the sheriff of Kings county. Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

Michel I. Schwartz, Appellant, v. Herbert E. Williams and Others, Respondents. (Appeal No. 1.) — Order affirmed, with ten dollars costs and disbursements. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Michel I. Schwartz, Appellant, v. Herbert E. Williams and Others, Respondents. (Appeal No. 2.)-Order affirmed, with ten dollars costs and disbursements. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Richard M. Van Gaasbeek, Appellant, v. Tisdale Lumber Company and Others, Respondents.- Motion to dismiss appeal granted, without costs, upon the ground that the appeal from the order to resettle the former order is not appealable. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

Stephen Wasko, Appellant, v. John Macko, as President, etc., Respondent.- Judgment affirmed, without costs. No opinion. Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

James Clarence Wells, Respondent, v. Alvah W. Haff, Appellant. (Actions 1 and 2.) — Action No. 1: Order affirmed, without costs. Action No. 2: Order modified so that plaintiff's discontinuance shall be on payment of defendant's taxable costs in that action, and as so modified affirmed, without costs. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Westchester Trust Company, as Executor and Trustee, etc., Respondent, v. Helen W. Condon and Mary A. Abbot, Respondents, and Helen W. Condon, as Guardian ad Litem, etc., Appellant. - Judgment and order affirmed, with costs to plaintiff, respondent. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

David L. Whitmore, Who Sues on Behalf of Himself and All Other Private Consumers of Water in the City of Mount Vernon Similarly Situated, Respondent, v. New York Inter-Urban Water Company, Appellant.— Order reversed, with ten dollars costs and disbursements, on the authority of Wood v. New York Inter-Urban Water Co. (157 App. Div. 407), and motion granted, with ten dollars costs. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Woodstock-on-Hudson, Respondent, v. The City of Yonkers and Gideon H. Peck, as Treasurer, etc., Appellants.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred.

In the Matter of Effingham L. Holywell, an Attorney.- The motion of

Second Department, October, 1913.

[Vol. 158.

the Bar Association to confirm the report of the referee herein is granted, and Mr. Holywell is directed to appear at the bar of this court on Monday, November 10, 1913, at one o'clock P. M. Burr, Thomas, Carr and Putnam, JJ., concurred; Jenks, P. J., not voting.

James B. Kilsheimer, Jr., Respondent, v. Louis Kendal and Others, Defendants. Caroline S. Stetler and Another, Appellants.-Motion denied, without costs, with leave to renew if the appeal is not diligently prosecuted. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

Frederick Siefter, etc., Respondent, v. American Bonding Company of Baltimore, Appellant.- Motion granted. Present-Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ.

Mary E. Beebe, Respondent, v. Silas P. Beebe, Appellant.- Order modified by providing that the date from which alimony shall be payable shall be June 10, 1913 (Thrall v. Thrall, 83 Hun, 188), and as thus modified affirmed, without costs. No opinion. Burr, Thomas, Carr, Rich and Putnam, JJ., concurred.

Samuel H. Booth and Others, Respondents, v. J. Noah H. Slee, Appellant.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Rich and Stapleton, JJ., concurred.

The Brooklyn Heights Railroad Company, Appellant, v. Alfred E. Steers, Individually and as President of the Borough of Brooklyn, and the City of New York, Respondents.―Judgment affirined, with costs. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred. Joseph P. Daly, Respondent, v. Otis Elevator Company, a Corporation, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Brunislaw Dec, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.-Judgment and order of the County Court of Queens county reversed and a new trial ordered, costs to abide the event, inasmuch as the plaintiff did not sustain the 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. Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

John Grady, Respondent, v. National Conduit and Cable Company, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present―Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ. Nettie G. Hazer, now Nettie G. Sheldon, Respondent, v. Thomas Willis, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ.

In the Matter of the Application for the Appointment of a Committee of the Person and Property of Katherine K. C. Lyman, an Alleged Incompetent Person, Respondent. Margaret K. C. Beale, Appellant; Elizabeth I. Howe, Respondent.- Order affirmed, with ten dollars costs and dis