ALVAREZ, Appellant, v. CAMARGO, Respondent. (Supreme Court, Appellate Division, First Department. June 9, 1908.) Action by Jose R. Alvarez against Tomas C. Camargo. No opinion. Motion denied, on condition that the appeal be brought on for argument on June 19, 1908. Order filed. ALVAREZ, Appellant, v. CAMARGO, Respondent. (Supreme Court, Appellate Division, First Department. June 26, 1908.) Action by Jose R. Alvarez against Tomas C. Camargo. H. Hoelljes, for appellant. P. Allen, for respondNo opinion. ent. Order affirmed, with $10 costs and disbursements. Order filed. ANDREWS, Respondent, v. GREEN. Appel Second Department. June 12, 1908.) Action by Lewis G. Andrews against Lewis H. Green. No opinion. Judgment of the Municipal Court affirmed, with costs. A. ANGELWITZ & CO. v. GOLDMAN. (Supreme Court, Appellate Division, First De|partment. June 12, 1908.) Action by A. Angelwitz & Co. against Louis Goldman. opinion. Application denied, with $10 costs. Order signed. No ED RENDERING CO., Appellant. (Supreme ATKINSON, Respondent, v. CONSOLIDATCourt, Appellate Division, Fourth Department. July 7, 1908.) Action by Elmer E. Atkinson against the Consolidated Rendering Company. No opinion. Judgment and order affirmed, with costs. BAKER, Appellant, v. SEGGIE, Respondent. (Supreme Court, Appellate Division, First Department. June 12, 1908.) Action by John O. Baker against William Seggie. B. L. Peck, for appellant. C. E. Travis, for respondent. PER CURIAM. Judgment and order affirmed, with costs. Order filed. CLARKE and SCOTT, JJ., dissent. BALLIET, Appellant, v. METROPOLITAN LIFE INS. CO., Respondent. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) Action by Josephine E. Balliet against the Metropolitan Life Insurance Company. No opinion. Motion denied. BARBEN, Appellant, v. RATNER, Respondent. (Supreme Court, Appellate Division, Second Department. June 29, 1908.) Action by John D. Barben against Louis Ratner. No opinion. Judgment of the Municipal Court affirmed, with costs. BARNES et al., Respondents, v. MIDLAND lant. (Supreme Court, Appellate Division, R. TERMINAL CO., Appellant. (Supreme Court, Appellate Division, Second Department. | by John Beattie and another, as executors, etc., June 18, 1908.) Action by Sarah H. Barnes of John Beattie, deceased, against the New and others against the Midland Railroad Ter- York & Long Island Construction Company. minal Company. No opinion. Motion denied, No opinion. Judgment affirmed, with costs. with $10 costs. BECKER et al., Appellants, v. KOVNER, Respondent. (Supreme Court, Appellate DiJune 5, 1908.) vision, Second Department. Action by Morris Becker and another against Louis Kovner. No opinion. Motion granted, with $10 costs. BENNETT v. IRONCLAD MFG. CO. (Supreme Court, Appellate Division, Fourth Department. July 7, 1908.) Appeal from Trial Term, Herkimer County. Action by Lewis Bennett against the Ironclad Manufacturing Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted. Frederick Mellor, for appellant. Everett E. Risley, for respondent. KRUSE, J. The plaintiff is the patentee of certain metal seamless baskets. He made a contract with the defendant, granting it the right to make and sell the same, and the defendant agreed to pay therefor, as a royalty, at a fixed price. It is contended by the plaintiff that the defendant made and sold baskets for which the royalty has not been paid. The action is brought to recover the same, and a verdict was rendered in plaintiff's favor for the sum of $540. From the judgment entered thereon, and the order denying the defendant's motion for a new trial, the defendant appeals. The case has been before us once before, and a judgment in favor of the plaintiff was reversed, and a new trial granted. Bennett v. Ironclad Manufacturing Company, 121 App. Div. 133, 105 N. Y. Supp. 593. The crucial fact in controversy between these parties is not the number of seamless baskets which the defendant manufactured and sold. That does not seem to be in dispute, but whether any of them, and, if so, how many, were of the kind and embodied the special features and are covered by the contract between the parties. The defendant contends, and has contended the judgment in the action between these same all the way through this litigation, that since parties declaring the contract forfeited and canceled (Bennett v. Ironclad Manufacturing Company, 90 App. Div. 611, 85 N. Y. Supp. 1126) it has not manufactured or sold metal baskets of the description or kind covered by the con tract. is any stronger than it was when here before. I do not see that the plaintiff's case and we reversed the judgment. There is more evidence of the same kind, but it is lacking in probative force upon the question in dispute. The essential element showing that the defendant manufactured and sold baskets embodying the special features named in the contract is and 145 New York State Reporter wanting. I think the judgment should be reversed, and a new trial granted. WILLIAMS, J., dissents. BENTLEY et al., Appellants, v. AHRENS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. July 7, 1908.) Action by Gustavus A. Bentley and others against George H. Ahrens and another. No opinion. Judgment affirmed, with costs. BERGER, Respondent, v. RENZ, Appellant. (Supreme Court, Appellate Division, Second Department. June 18, 1908.) Action by Morris Berger against Magdelena Renz. No opinion. Judgment affirmed, with costs. June 12, 1908.) Action by Mary Bloomer against the St. Paul Fire & Marine Insurance Company. No opinion. Judgment and order unanimously affirmed, with costs. BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 6 OF MANLIUS, Appellant, v. GEE et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 27, 1908.) Action by the board of education of Union free school dis trict No. 6 of Manlius, N. Y., against John W. Gee and another. PER CURIAM. Judgment and order affirmed, with costs. MCLENNAN, P. J., not sitting. BERGER, Respondent, v. SUSSMAN et al., BONAGURA, Respondent, v. JANPOL et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 18, 1908.) Ac-sion, Second Department. June 5, 1908.) Appellants. (Supreme Court, Appellate DiviAction by Samuel Berger against Adolph Sussman and another. No opinion. Judgment and order affirmed, with costs. BIEBER, Appellant, v. ROSENGARTEN, Respondent. (Supreme Court, Appellate Division, First Department. July 8, 1908.) Action by Aaron Bieber against Philip Rosengarten. J. Manheim, for appellant. M. Jaffe, for respondent. No opinion. Judgment affirmed, with costs. Order filed. BIRD, Respondent, v. NEW YORK & Q. C. R. Co., Appellant. (Supreme Court. Appellate Division, Second Department. June 18, 1908.) Action by John Bird against the New York & Queens County Railroad Company. No opinion. Judgment and order of the County Court of Queens county unanimously affirmed, with costs. Ac BLISS et al. Respondents, v. LEVY et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) tion by Aaron P. Bliss and another against Morris Levy, and others; Carl Weinberg being sued as Abraham Weinberg. PER CURIAM. If the case was dismissed on the return day because of the failure of the plaintiffs to appear, the judgment appealed from was rendered without jurisdiction; but on the appeal from the judgment the return is conclusive, and that states that the case was adjourned on the return day. The notice of appeal states that the appeal is also from an order denying a motion to vacate said judgment, entered on the 2d day of January, 1908; but no such order is returned to this court. There is a memorandum of a decision indorsed on the papers. but no order. This is another illustration of the laxity which so frequently occurs in the making of returns to this court on appeals from the Municipal Court. The judg ment of the Municipal Court is affirmed, with costs, and the appeal from the alleged order is dismissed. tion by Salvatore Bonagura against Henry Janpol and others. No opinion. Motion to dismiss appeal granted, with $10 costs. BOWER, Respondent, v. HOLBROOK, CABOT & ROLLINS, Appellant. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) Action by Adah J. Bower, as administratrix, etc., of George Bower against Holbrook, Cabot & Rollins. No opinion. Motion denied. BOYCE, Respondent, v. NEW YORK CITY RY. Co., Appellant. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) Action by Mary E. Boyce, as administratrix, etc., against the New York City Railway Company. No opinion. Motion denied. BOYD, Respondent, v. BOYD, Appellant. (Supreme Court, Appellate Division, Second Department. June 12, 1908.) Action by Margaret P. Boyd against Alexander Boyd. opinion. Order affirmed, with $10 costs and disbursements. No W. H. BRACE CO., Appellant, v. KRAFT et (Supreme Court, Appellate al., Respondents. Division, Fourth Department. May 27, 1908.) Action by the W. H. Brace Company against No opinion. Frank A. Kraft, and another. Judgment affirmed, with costs. BRAIKER, Respondent, v. LINDENBAUM, et al., Appellants. (Supreme Court, Appellate Division, Second Department. June 29, 1908.) Action by Max Braiker against Harry Lindenbaum and others. No opinion. Judgment of the Municipal Court unanimously affirmed, with costs. BRANDT v. THIRD AVE. R. CO. (Supreme Court, Appellate Division, First Department. June 19, 1908.) Appeal from Trial Term. Action by Charles E. Brandt against BLOOMER, Respondent, v. ST. PAUL FIRE the Third Avenue Railroad Company. From & MARINE INS. CO., Appellant. (Supreme a judgment dismissing the complaint, plaintiff Court, Appellate Division, Second Department.appeals. Reversed, and new trial ordered. Ar nold Cross, for appellant. B. H. Ames, for re- | Franklin Insurance Company. A. L. Davis, for spondent. appellant. W. B. Crisp, for respondent. No opinion. Judgment and order affirmed, with Order filed. costs. PER CURIAM. We think there should be a new trial in this case, on the ground that the question as to the defendant's negligence and the plaintiff's freedom from contributory negligence should have been presented to the jury. Judgment reversed, and new trial ordered, with costs to appellant to abide event. BROADWELL, Appellant, v. CONOVER, Respondent. (Supreme Court, Appellate Division, Fourth Department. July 7, 1908.) Action by William C. Broadwell against Jacob D. Conover. No opinion. Judgment and order affirmed, with costs. In re BROOKLYN BAR ASS'N. (Supreme Court, Appellate Division, Second Department. June 29, 1908.) In the matter of the application of the Brooklyn Bar Association to disbar William O. Miles, an attorney. No opinion. Application granted. BROWN, Respondent, v. COOPER PAPER BOX CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 20, 1908.) Action by Nellie Brown, an infant, etc., against the Cooper Paper Box Company. PER CURIAM. Judgment and order affirmed, with costs. See 106 N. Y. Supp. 1118. ROBSON, J., dissents. In re BROWNE. (Supreme Court, Appellate Division, First Department. July 8, 1908.) In the matter of Alice K. Browne, deceased. opinion. Order affirmed, with costs. Order filed. No BRUDER, Appellant, v. PHILLIPS, Respondent. (Supreme Court, Appellate Division, First Department. June 12, 1908.) Action by William H. Bruder against Mary J. Phillips. A. Wardwell, for appellant. I. N. Sievwright, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BRYANT, Respondent, v. BERG, Appellant. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) Action by Melville W. C. Bryant against Carl Berg. No opinion. Judgment affirmed, with costs. BUCHANAN, Respondent, v. BROOKLYN HEIGHTS R. CO. et al.. Appellants. (Supreme Court, Appellate Division, Second Department. June 5, 1908.) Action by Frances L. Buchanan against the Brooklyn Heights Railroad Company and another. PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide the event, unless within 20 days plaintiff stipulate to reduce the recovery of damages to the sum of $5,000, in which case the judgment, as modified, is unanimously affirmed, without costs of this appeal to either party. BUCKY, Respondent, v. BEN FRANKLIN INS. CO., Appellant. (Supreme Court, Appellate Divison, First Department. June 12, 1908.) Action by Milton G. Bucky against the Ben BUCKY, Respondent, v. BEN FRANKLIN INS. CO., Appellant. (Supreme Court, Appellate Division, First Department. June 12, 1908.) Action by Milton G. Bucky against the Ben Franklin Insurance Company. PER CURIAM. Order affirmed, with $10 costs and disbursements. Order filed. MCLAUGHLIN, J., dissents. BUCKY v. BEN FRANKLIN INS. CO. (Supreme Court, Appellate Division, First Department. June 26, 1908.) Action by Milton G. Bucky against the Ben Franklin Insurance Company. No opinion. Motion denied, with $10 costs. Order filed. and 145 New York State Reporter PER CURIAM. Judgment affirmed, with costs. BUSH, Respondent, v. INTERNATIONAL tion by the Carthage Tissue Paper Mills against PAPER CO., Appellant. (Supreme Court, Ap- the village of Carthage and others. pellate Division, Fourth Department. May 29, 1908. Action by Frank Bush against the International Paper Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied. MCLENNAN, P. J., not sitting. CAUGHEY v. SMITH. (Supreme Court, Appellate Division, First Department. June 26, 1908.) Action by Clemens J. Caughey against Thomas M. Smith. From an order awarding a preference, defendant appeals. Modified. Eugene L. Sykes, for appellant. Edmund F. Harding, for respondent. PER CURIAM. The order should be modified, so as to award this action a preference over other issues noticed for the same term, and, as modified, affirmed, without costs. CEFOLA v. SIEGEL-COOPER CO. (Supreme Court, Appellate Division, Second Department. June 12, 1908.) Appeal from Trial Term, Queens County. Action by Donat Cefola against the Siegel-Cooper Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed. See 119 App. Div. 896, 104 N. Y. Supp. 1123. Frederick E. Fishel for appellant. John B. Stanchfield for respondent. PER CURIAM. Judgment affirmed, with costs. GAYNOR, J. (dissenting). There being no appeal from the order denying the motion for a new trial on the minutes, but only from the judgment, we may review the exceptions only. The only exceptions presented to us as erroneous by the learned counsel for the appellant in his brief and orally are the exception to the denial of the motion to dismiss at the close of the plaintiff's case, and another to the admission of evidence. Although in the making up of the case and exceptions the former was inserted it cannot be considered, the defendant having thereafter put in evidence. It is a vain thing for counsel for the defendant to take an exception to the denial of a motion to dismiss CARRIER, Respondent, v. POTTER, Appel- at the close of the plaintiff's case unless it is lant. (Supreme Court. Appellate Division, Fourth Department. May 20, 1908.) Action by William H. Carrier against Frank A. Potter. PER CURIAM. Judgment affirmed, with costs. MCLENNAN, P. J., not sitting. In re CARROLL'S ESTATE, CITY OF TROY, Appellant, v. CARROLL'S ESTATE, Respondent. (Supreme Court, Appellate Division. Third Department. June 18, 1908.) In the matter of the estate of Mary L. Carroll, deceased. In the matter of the claim of the city of Troy against the estate of Mary L. Carroll, deceased. No opinion. Decree (106 N. Y. Supp. 681) unanimously affirmed, with costs. CARTHAGE TISSUE PAPER MILLS, Respondent, v. VILLAGE OF CARTHAGE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. July 7, 1908.) Ac his intention not to put in any evidence. Indeed, the taking of such an exception should mean to the trial judge that the defendant rests upon the evidence for the plaintiff. To take it, and then proceed to put in evidence for the defendant, are inconsistent things, as the putting in of such evidence is a waiver of the exception. The exception to the admission of evidence of a previous accident or injury to another person was good. The growing notion that evidence of a previous accident at the same place may be given on general principles to show liability is erroneous. The use made of such evidence by counsel for the plaintiff is disastrous to the defendant, even though it proves no dereliction of the defendant. It is not enough that a thing is dangerous; it has to be obviously dangerous, or else dangerous to the knowledge of the defendant, to create liability. Evidence of such previous accidents is only permissible to prove notice to the defendant that the place is dangerous, as shown by the event, so as to predicate negligence on his failure to remove the |