App. Div.] Second Department, July, 1915. In the Matter of the Application of Emory James Hyde for Admission to the Bar.- Application granted. Present― Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. In the Matter of the Application of Stanley D. Pearce for Admission to the Bar.- Application granted. Present — Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. Moses Levy, Respondent, v. Morris & Company, Appellant.- Motion denied, without costs. Present - Jenks, P. J., Thomas, Carr, Mills and Rich, JJ. Johanna Miller Moosman, as Administratrix, etc., Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.— Motion granted, without costs, and case set down for reargument on September 29, 1915. Present-Jenks, P. J., Thomas, Carr and Stapleton, JJ. Mills, J., taking no part. Francesco Pensa bene, as Administrator, etc., Appellant, v. F. & J. Auditore Company, Respondent.- Motion for reargument denied, with ten dollars costs. Present - Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. The People of the State of New York, Respondent, v. William Scharf, Appellant.- Motion granted. Present Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. Order to be settled before Mr. Justice Mills. Lizzie Reddick, Respondent, v. New Jersey and New York Railroad Company, Appellant.- Motions denied, without costs. Present- Jenks, P. J., Thomas, Carr and Stapleton, JJ. Mills, J., taking no part. Morris Salzman, Respondent, v. Eisenbach Realty and Construction Company, Appellant. Motion denied, with ten dollars costs. Present — Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. William H. Schofield, as Trustee, etc., Plaintiff, v. Rebecca Wolper and Others, Defendants.-Motion denied, without costs. Present - Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ. Joseph M. Wright, Respondent, v. Arthur B. Clark and Others, Appellants. Motion denied upon condition that appellants perfect the appeal, place the case on the September calendar and be ready for argument when reached; otherwise, motion granted, with ten dollars costs. Present -Jenks, P. J., Thomas, Carr and Stapleton, JJ. Mills, J., taking no part. American Hardware Corporation of New York, Appellant, v. John L. Lyttle, as Trustee, etc., and Others, Defendants, Impleaded with New York County National Bank, Respondent. Edward F. Caldwell and Victor F. Von Losberg and Others, Appellants.-Judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ., concurred. John J. Ascher, Respondent, v. Suffolk Traction Company, Appellant. -Judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. William N. Beatty, Respondent, v. Thompson-Starrett Company, Appellant. The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Second Department, July, 1915. [Vol. 170. No opinion. Judgment and order unanimously affirmed, with costs. Anthony C. Bennett, Respondent, v. The Austro-Americana Steamship Company, Appellant.― Judgment and order unanimously affirmed, with costs. No opinion. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Charles C. Brace, Respondent, v. John C. Bradley, Appellant.- Interlocutory judgment affirmed, with costs, with leave to the defendant to withdraw his demurrer and answer upon the merits within twenty days after service of notice of this order, upon payment of the costs included in said judgment and the costs and disbursements of this appeal. No opinion. Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred. Lillian K. Buchanan, Appellant, v. Nicholas Evento and Susan Evento, His Wife, Respondents.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. John D. Coleman, Respondent, v. Simpson, Hendee & Company, Appellant.-Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Rich and Putnam, JJ., concurred. Daniel Conahan, Respondent, v. The Terry & Tench Company, Inc., Appellant.- Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that the court erred in refusing each of the two requests to charge made by defendant's counsel at folios 378 to 380. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Clemence C. Croll, Respondent, v. Mary J. Kiely (Widow of John R. Dunne, Deceased) and Another, Appellants.-Judgment affirmed, with costs. No opinion. Carr, Stapleton, Rich and Putnam, JJ., concurred. Mary Cummings, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Thomas, Carr, Mills and Rich, JJ. Daniel C. Cunneen, Respondent, v. Lawrence J. Kennedy, Appellant.— Judgment and order of the County Court of Westchester county reversed, with costs, and final judgment rendered dismissing the complaint, with costs, upon the ground that the County Court did not have jurisdiction of the action when it was brought, for the reason that some of the defendants were not residents of Westchester county. (See Kortwellyeszsy v. Manhattan Cooperage Co., 162 App. Div. 285.) Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Catharine Daley, as Administratrix, etc., of Bernard Daley, Deceased, Respondent, v. J. Ehrgott & Company, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ. John F. Daly, Respondent, v. Brooklyn Daily Eagle, Appellant. - Judgment and order reversed and new trial granted, costs to abide the event, for error presented by exceptions contained in the record at folios 295 to App. Div.] Second Department, July, 1915. 302. (See Philpot v. Fifth Avenue Coach Co., 142 App. Div. 811, 822, 823.) Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Harold E. Dana, Respondent, v. Gladys E. Dana, Appellant. - Interlocutory judgment affirmed, without costs. No opinion. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. * Lisette Deebach, as Administratrix, etc., of Charles C. Deebach, Deceased, Respondent, v. Robert Gair Company, Appellant.- Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that the trial court erred in submitting to the jury, as a specification of defendant's negligence, the question of defendant's employees having had and followed the custom of leaving the elevator doors open, because there was no evidence tending to establish that such custom was a proximate cause of this accident; also upon the ground that that court erred in submitting to the jury the ordinance as a command to the defendant to have such doors closed upon the occasion of the accident, because such ordinance did not apply to this case, as the elevator shaft here was inclosed with brick walls and fireproof doors. Jenks, P. J., Carr, Mills and Rich, JJ., concurred; Thomas, J., dissented on the first ground only. May Dunn, Respondent, v. Standard Gas Light Company of the City of New York, Appellant.-Judgment and order affirmed, with costs. opinion. Thomas, Carr, Mills and Rich, JJ., concurred; Jenks, P. J., not voting. No Tillie Eisenberg, an Infant, by Frank Eisenberg, Her Guardian ad Litem, Respondent, v. The City of New York, Appellant. - Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Carr, Stapleton and Putnam, JJ. William N. Emery, Appellant, v. William P. Langevin and Hugh J. McGinley, Respondents.- Judgment and order affirmed as to defendant Langevin, with costs, but as to defendant McGinley reversed and a new trial granted, costs to abide the event, upon the ground that plaintiff's testimony, viewed most favorably to him, tended to establish all the necessary elements of an action for fraud against the defendant McGinley, and, therefore, that the complaint as to said defendant was improperly dismissed. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Edward E. Enkler, Appellant, v. Harry T. Sisson and Edward T. Sisson, Copartners, etc., Respondents.- Judgment and order of the County Court of Dutchess county reversed and new trial ordered, costs to abide the event, on the ground that the trial court erred in refusing each of the two requests to charge made by plaintiff's counsel at folios 248-250, and also in granting the request made by defendants' counsel at folios 251 and 252. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Charles Wharton Evans, Respondent, v. The Princes Bay Oyster Company, Limited, Defendant, Impleaded with Louise Werner, Appellant.— Order affirmed, with ten dollars costs and disbursements to abide the event. No opinion. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. *See Building Code of City of New York, § 95.-[REP. Second Department, July, 1915. [Vol. 170. Maria Foster, Respondent, v. Anna M. Kenny and Others, Defendants, Impleaded with Neal D. Becker, as Executor, etc., Appellant.- Interlocutory judgment affirmed, with costs. No opinion. Jenks, P. J. Thomas, Carr, Stapleton and Putnam, JJ., concurred. Joseph H. Garahan, Respondent, v. Edward F. Geer, Appellant.Order affirmed, with ten dollars and disbursements. No opinion. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Harris Gill, Respondent, v. David Lieberman, Appellant.- Judgment and order of the County Court of Kings county affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. Jacob Glantz, Appellant, v. Henry Bregstein and Others, Respondents. -As the plaintiff did not plead absence of light in the hallway as a ground of negligence, and specified in particular other grounds, he was not entitled to have that question submitted to the jury on the question of the liability of the defendants. We think, however, that the judgment and order should be reversed and a new trial granted because of error in the charge at folio 419, and on the further ground that the verdict was against the weight of evidence. Judgment and order reversed and new trial granted, costs to abide the event, upon the grounds above stated. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Morris Goldfinger, Respondent, v. Louis Gersten and David Gersten, Appellants.-Judgment affirmed, with costs. No opinion. Carr, Stapleton, Mills, Rich and Putnam, JJ., concurred. Charles A. Greve and Agnes R. Greve, Appellants, v. Fred Graf, Respondent. - Judgment reversed, and case remitted to the official referee to make appropriate findings of fact and conclusions of law. No opinion. Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ., concurred. Fred Hamburger, Respondent, v. Frank Goldstein, Appellant.— Judgment reversed and new trial granted, costs to abide the event, upon the authority of Kaufman v. Hopper (151 App. Div. 28); Prentice v. Fargo (53 id. 608; affd. without opinion, 173 N. Y. 593), and Hoe v. Sanborn (21 id. 552). Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. Hamilton Pipe Works, Inc., Appellant, Respondent, v. Roger A. Zeltmacher, Respondent, Appellant.-The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment modified so as to conform strictly with the findings of the court, and as so modified affirmed, without costs. No opinion. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred. Order to be settled before the presiding justice. William H. Harbeck, Respondent, v. Kate A. Harbeck, Appellant.Interlocutory judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred, Helgar Corporation, Appellant, v. Warner's Features, Inc., Respondent. -Judgment modified by increasing the amount of damages recoverable by the additional amount of $2,000, in accordance with the referee's finding of fact XV; and as so modified unanimously affirmed, with costs and disbursements to the appellant. We think this amount is part of the contract compensation for work actually done by the plaintiff, and not a App. Div.] Second Department, July, 1915. part of the prospective profits under the entire contract. Thomas, Carr, Stapleton and Putnam, JJ., concurred. Jenks, P. J., George C. Hendrickson, Respondent, v. Jacob Gulde, Appellant.Judgment and order of the County Court of Suffolk county unanimously affirmed, with costs. No opinion. Present―Jenks, P. J., Thomas, Carr, Mills and Rich, JJ. James S. Herrman, Respondent, v. Jeannette C. Jeffe and Others, Defendants, Impleaded with Alfred J. Moisant, Appellant.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Carr, Mills and Rich, JJ., concurred; Stapleton, J., dissented. Charles G. Hottenroth, Respondent, v. The City of New York and Brooklyn Cooperage Company, Defendants, Impleaded with East River Terminal Railroad, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ. John Huber, Jr., Appellant, v. Coney Island and Brooklyn Railroad Company, Respondent.- Judgment reversed and new trial granted, costs to abide the event, on the ground that the evidence tended to establish (1) that Noseworthy was defendant's superintendent, whose principal duty was that of superintendence; (2) that he was negligent in a matter of superintendence in directing the use of the process of rainming down the partly cut posts instead of using a long rope to pull them down; (3) that such negligent act was a proximate cause of the accident; and further (4) that plaintiff was free from contributory negligence; and also because, on the evidence showing that plaintiff objected to the method used and was by the superintendent practically assured of its safety and directed to continue its use, the issue of assumption of risk was, even in the end, for the jury and not for the trial court to decide. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred. In the Matter of the Petition of James S. Bearns to Prove the Last Will and Testament of Joseph H. Bearns, Late of the County of Kings, Deceased. Melville H. Bearns, Appellant; James S. Bearns and Others, Respondents. Decree of the Surrogate's Court of Kings county affirmed, with costs. No opinion. Jenks, P. J., Carr, Stapleton, Mills and Rich, concurred. JJ., -- In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of the City of New York, etc., for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York, Respondent; Southern Aqueduct Department, Consolidated Sections, Numbers 15 and 17. Fairlawn Cemetery Society, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred. In the Matter of the Application of the City of New York, Relative to Acquiring Title for the Widening of Crescent Street, etc., in the Borough of Queens. Frederick Ayer, Appellant; The City of New York and Others, Respondents.- Order affirmed, with ten dollars costs and dis |