In re ELY AVE, IN CITY OF NEW YORK. (Court of Appeals of New York. Feb. 29, 1916.) PER CURIAM. Motion for reargument denied, with $10 costs. See 217 N. Y. 45, 111 N. E. 266.

Louis M. King and A. M. Sperry, both of Albany, for respondent.

PER CURLAM. Judgment affirmed, with costs.

CHASE, COLLIN, HOGAN, and SEABURY, JJ., concur. WILLARD BARTLETT, C. J., and HISCOCK and CARDOZO, JJ., dissent.

FARLEY, State Excise Com'r., Respondent, v. SAGE et al., Appellants. (Court of Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (148 N. Y. Supp. 1115), entered July 13, 1914, which affirmed an order of Special Term canceling and revoking a liquor tax certificate upon the ground that the owner permitted the premises to become disorderly and the resort of disorderly persons. David E. Powers, of Utica, for appellants. Louis M. King and A. M. Sperry, both of Albany, for respondent. PER CURIAM.

ETSHELLS, Respondent, v. FARGO, Appellant. (Court of Appeals of New York. May 9, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 987, 150 N. Y. Supp. 1085), entered December 30, 1914, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for injuries sustained by the respondent through his being struck and injured by an automobile truck owned and operated by the American Express Company. The appeal to the Appellate Division was taken on the ground that the verdict was against the weight of the evidence; that it was excessive, and on the further ground that the respondent failed The errors in the admission of evidence are disOrder affirmed, with costs. to establish either the negligence of the appel-regarded, as not affecting the substantial rights lant, or his own freedom from contributory neg of the defendants. Code Civ. Proc. § 1317. ligence. John G. Milburn, Jr., and Thomas S. Doughty, both of New York City, for appellant. Jeremiah A. O'Leary and Fred O. Nelson, Jr., both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

EVANS, Appellant, v. TRIMBLE et al., Respondents. (Court of Appeals of New York. March 21, 1916.) Motion to dismiss an appeal from a judgment entered December 19, 1915, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Depart ment (169 App. Div. 363, 155 N. Y. Supp. 25), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The motion was made upon the ground of failure to perfect the appeal by filing the required undertaking. Ransom H. Gillet, of Albany, for the motion.

PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of motion.

FARLEY, State Excise Com'r, Respondent, v. BUCHMULLER et al., Appellants. (Court of Appeals of New York. May 9, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (167 App. Div. 915, 151 N. Y. Supp. 1115), entered March 1, 1915, aflirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover upon a bond executed by the defendant Charles Buchmuller as principal and the defendant Illinois Surety Company as surety. The bond was given pursuant to sections 26 and 16 of the Liquor Tax Law (Consol. Laws, c. 34), upon the transfer of a liquor tax certificate to the defendant Buchmuller, and the action is maintained pursuant to section 16 of the Liquor Tax Law. The bond is conditioned, as required by said section, that "there is no material false statement in the application statement for said liquor tax certificate." The complaint alleges in paragraph 8 thereof that the defendant, appellant, Buchmuller made certain material false statements in his application. The defendants answered separately and denied that the statements complained of were material false statements. Morton C. Fitch and Frederick E. Grant, both of New York City, for appellants,

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, SEABURY, and POUND, JJ., concur. CARDOZO, J., dis

sents.

In re FARMERS' LOAN & TRUST CO. (Court of Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (In re Duffy, 155 N. Y. Supp. 1103), entered November 26, 1915, which rogate's Court (90 Misc. Rep. 251, 152 N. Y. athrmed a decree of the New York County SurSupp. 894), construing the will of James A. Duffy, deceased. The appeal brings up for review the ruling that the vesting of the interest of appellants' intestate was deferred until the termination of the life estate created in said will, thereby entitling the survivor, John Brady, to the entire estate, to the exclusion of appellants, who claim under his deceased brother, Peter J. Brady, also named as a legatee. Edo E. Mercelis, of New York City, for appellants. George J. Gillespie, of New York City, for respondents.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

FAVA v. DUNTON LODGE REALTY CO. et al. (Court of Appeals of New York. March 24, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (163 App. Div. 871, 147 N. Y. Supp. 1110), entered April 14, 1914, affirming a judgment in favor of plaintif entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic's lien. Appellants alleged for a first defense that prior to the filing of plaintiff's notice of lien plaintiff had personal and actual knowledge that the appellants Paget and Hicks were purchasers in good faith and for value of the premises; that plaintiff filed his notice of lien after such knowledge, and that the lien, if any, is subject and subordinate to the title of the appellants. For a second defense they allege that prior to the filing of plaintiff's lien, plaintiff, for a valuable consideration, entered into a valid contract extending the time of payment of any moneys due, or to grow due, on account of the matter at issue until a time subsequent to the filing of his notice of lien, and subsequent to the recording of the deed to these appellants; and that at the time of the

filing of the notice of lien and of the recording | for by the will. Paris S. Russell and John of the deed to these appellants no money was Ingle, Jr., both of New York City, for appeldue to the plaintiff under the contract. Ben-lants. George W. Wickersham, of New York jamin Reass, Hugo Hirsh, and Emanuel New- City, for respondents. man, all of Brooklyn, for appellants. J. H. Denenholz, of Jamaica, and Benjamin Marvin, of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

FISHER, Respondent, V. WAKEFIELD PARK REALTY CO., Appellant. (Court of Appeals of New York. Feb. 22, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (156 App. Div. 917, 141 N. Y. Supp. 1119), entered May 12, 1913, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for work, labor, services and materials supplied at the request of the defendant, a city contractor, in the construction, regulation and grading of a street, on a quantum meruit. Meyer D. Siegel and Nathaniel Tonkin, both of New York City, for appellant. Adrian M. Potter, of Yonkers, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur.

and

PER CURIAM. Order affirmed, with costs. CHASE, COLLIN, CUDDEBACK, CARDOZO, JJ., concur. WILLARD BARTLETT, C. J., and SEABURY and POUND, JJ., dissent on opinion of LAUGHLIN, J., below.

SIMON

GALBALLY, Appellant, V. STRAUSS, Inc., et al., Respondents. (Court of Appeals of New York. Feb. 22, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (159 App. Div. 124, 144 N. Y. Supp. 102), entered November 14, 1913, reversing a judgment in favor of plaintif entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, an employé of a contractor engaged in doing plumbing work in a building under alteration, was injured through the falling of a stairway under construction by another contractor. The complaint alleges two causes of action, the first of which is under the Employers' Liability Act, as amended by Laws 1910, c. 352, § 2, the plaintiff alleging that defendant Strauss, Incorporated, furnished a defective way, viz., a stairway for the use of the plaintiff and others employed on the premises, and that the defendant Johnson, a carpenter, was the person employed by the defendant Strauss, Incorporated, to construct the stairway, and Johnson was the person intrusted with the duty of seeing that the stairways and ways were in proper condition. The second cause of action was at common law, alleging the liability of both Strauss, Incorporated, and Johnson for the injuries sustained by the plaintiff. W. Russell Osborn, of New York City, for appellant. Arnold Lichtig, Theodore H. Lord, and Lyman A. Spalding, all of New York City, for respondents.

FOSS. Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. April 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (161 App. Div. 681, 146 N. Y. Supp. 930), entered April 17, 1914, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was brought to recover $25,000 damages and interest for alleged breach of contract on PER CURIAM. Order affirmed, and judgthe part of the defendant in purchasing certain ment absolute ordered against appellant on the waterfront property on the west bank of the stipulation, with costs in all courts, because Hudson river at Weehawken, N. J., directly of erroneous rulings by the trial judge, withfrom the owners, instead of through the plain-out passing upon the construction of section tiff, as broker for said owners. The damage 200, subd. 2, of the Labor Law, as amended in which the plaintiff claimed is the sum that he might have earned as brokerage fees from the vendors had the defendant bought through him. Grant C. Fox and Stanley Holcomb Molleson, both of New York City, for appellant. Austen G. Fox and Alexander S. Lyman, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur.

In re FRIEDSAM et al. In re ALTMAN'S ESTATE. (Court of Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 507), entered November 5, 1915, which affirmed a decree of the New York County Surrogate's Court disallowing claims by the appellants herein to legacies under the will of Benjamin Altman, deceased. By the seventh clause of said will the testator provided for legacies to certain classes of his employés providing, however, that piece workers should not be included. The appellants at the commencement of their terms of employment by the testator were piece workers. At the time of his death and for some time prior thereto they were regularly salaried employés. The question was whether they were excluded from the benefits provided

1910.

WILLARD BARTLETT, C. J., and HIISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

GOLDWASSER, Respondent, v. BARNETT et al., Appellants. (Court of Appeals of New York. March 21, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1126), entered February 4, 1916, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for goods sold and delivered. The motion was made upon the grounds that the appeal is frivolous, that no question of law was involved, and that the appeal was taken solely for delay. Monroe J. Cahn, of New York City, for the motion. Isaac Schmal, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs, and $10 costs of motion.

-

In re GRINDROD. Appeal of KERWIN (Court of Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (155 N. Y. Supp. 1111), entered November 5, 1915, which affirmed an order of Special Term revoking and canceling a liquor tax certificate because of false answers

in the application upon which the certificate | tion; that the result of the advertisement was was issued to the effect that the traffic in liq- that readers of the Times were caused to believe uors had been carried on continuously since 1890 that the plaintiff's trunks, which were univerat the certificated premises; and to the effect sally sold at $25 and $45, were being sold by that there was no building used exclusively as R. H. Macy & Co. at $24.74, and as a result of a dwelling house within 300 feet of the certificat- said representations large numbers of persons ed premises. J. Edward Quinn, of Mt. Vernon, were induced to go to R. H. Macy & Co. and for appellant. Sydney A. Syme, of Mt Vernon, purchase Macy's trunk, who but for said adverfor respondent. tisement would have purchased the trunk sold by plaintiff. Adam K. Stricker, of New York A. Cook, both of New York City, for respondCity, for appellant. Harold Nathan and Alfred

ment (163 App. Div. 971, 148 N. Y. Supp. 1123), | Edmund L. Mooney and Samuel P. Goldman, entered July 1, 1914, affirming a judgment in fa- both of New York City, for respondent. vor of plaintiff entered upon a decision of the PER CURIAM. Judgment affirmed, with court on trial at Special Term in an action to costs; no opinion. foreclose a mechanic's lien. The motion was made upon the grounds that the Appellate Division unanimously decided that the findings of fact were supported by the evidence and that no question of law was involved. William D. Gaillard, of New York City, for the motion.

PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of motion.

JOHN NEMETH, Inc., v. TRACY et al. (Court of Appeals of New York. April 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (159 App. Div. 497, 144 N. Y. Supp. 901), entered January 6, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages sustained by plaintiff by reason of false representations in connection with the sale of certain bills of exchange. The evidence given upon the trial was sufficient to justify the jury in finding that the representations made to induce the purchase of the bills of exchange were fraudulent. The only question involved is as to the responsibility of the defendant Parker for the fraud of his copartners. Parker's own innocence of any fraud in fact was conceded at the trial. There is no evidence in the case to indi

cate that he had any knowledge of the fraud, or authorized or ratified the transactions connected with it. He did not upon the trial deny liability in contract, but founded his defense upon the ground that the action being for damages for false representations, the plaintiff was bound to show that the representations were made by his authority, claiming that there was nothing in the course of the partnership business from which such an authority could be inferred. Julian C. Harrison and De Witt V. D. Reiley, both of New York City, for appellant. Frederick T. Kelsey and Harries A. Mumma, both of New York City, for respondent.

PER CURIAM. Judgment reversed and new trial granted, costs to abide event, on dissenting opinion of Scott, J., below.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, and SEABURY, JJ., concur. CARDOZO, J., not sitting.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

KATZ v. KATZ et al. (Court of Appeals of New York. Feb. 22, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (159 App. Div. 921, 144 N. Y. Supp. 1122), entered November 26, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mortgage on real prop erty. The only question arising on this appeal is whether or not the defendants, appellants, William Klein and Maria M. Klein, or either of them, are personally liable for a deficiency judgment by reason of a bond executed by said defendants, appellants, at the same time that the above-mentioned mortgage was executed and delivered. The bond is contained in the same instrument as the mortgage, the entire instrument being designated as a mortgage bond. John T. Vanderveer, of New York City, for appellants. Jacob Bernstein, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HIS

COCK, CHASE, COLLIN, HOGAN, CAR-
DOZO, and SEABURY, JJ., concur.

(Court of

KEARNEY v. KEARNEY et al. Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 1006), entered December 3, 1915, which affirmed an interlocutory judgment in an action for partition of real estate belonging to the estate of Patrick H. Kearney, deceased. By paragraph 5 of his will the testaand his daughter, Margaret, each a one-fourth tor, after giving his sons, Matthew and John, part of his residuary estate, provided as to the remaining one-fourth part thereof as follows: "And the remaining one-fourth part thereof, if my said son William J. Kearney has entirely given up the habit of using intoxicating liquors, I give, devise and bequeath the said one-fourth part to my said son William J. Kearney, but in the event that my said son William J. Kearney JOSEPH BECK & SONS, Appellant, v. TYN- has not given up the habit of using intoxicating BERG, Respondent. (Court of Appeals of New liquors, then and in that case, I give, devise York. Feb. 22, 1916.) Appeal from a judgment and bequeath the said remaining one-fourth of the Appellate Division of the Supreme Court part thereof to my executors, hereinafter named, in the First Judicial Department (158 App. Div. to have and to hold in trust, nevertheless, to ap929, 143 N. Y. Supp. 1124), entered December 3, ply the net income arising therefrom to and for 1913, affirming a judgment in favor of defendant the benefit of my son William J. Kearney durentered upon an order of Special Term granting ing the term of his life, and upon his death, a motion for judgment upon the pleadings. The leaving lawful issue him surviving, then to pay complaint is predicated upon the theory that over the principal of said trust fund and accumthe defendant obligated himself to pay certain ulations thereon, if any, to such issue, share and promissory notes made by a third party in con- share alike, but in the event of the death of my sideration of the discontinuance of an action said son William J. Kearney without leaving then pending between the plaintiff as plaintiff lawful issue him surviving, then to pay over and said third party as defendant. The answer the principal of said trust fund and accumulaof the defendant, in addition to denying the al- tions thereon, if any, to his surviving brothers legations of the complaint, set up, as a separate and sister, share and share alike, per stirpes defense, that the promise alleged in the com- and not per capita." William J. Kearney, the plaint was one to answer for the debt, default testator's son named in the provision just quotor miscarriage of another, and was not, nor ed, died without issue prior to the testator. The was any memorandum thereof, made in writing defendant Cosgrove, a son of the testator's or subscribed by the party to be charged there- daughter Jennie, who had died prior to the makwith, this defendant, or his lawful agent. To ing of the will, claims that by the death of Wilsuch defense of the statute of frauds the plain- liam the testator died intestate as to the onetiff, in its reply thereto, alleged that the prom- fourth of his residuary estate disposed of by ise was an original promise based on a valid the provision above quoted, and that Cosgrove consideration and not within the statute. Max is entitled, as one of the four heirs at law of D. Steuer, of New York City, for appellant, the testator, to a one-fourth of said one-fourth

part, or to a one-sixteenth of the testator's re-, siduary estate. The plaintiff contends, and the judgment appealed from decides, that the said one-fourth share is specifically disposed of by the final clause of the provision above quoted and is devised to the testator's children, Matthew, John and Margaret, "the surviving brothers and sister" of William, so that the grandson Cosgrove has no interest therein. Myles A. Walsh, of New York City, for appellant. Richard Kelly, of New York City, for respond

ent.

PER CURIAM. Order affirmed, with costs, including costs of the guardian ad litem of the infant appellant payable out of the estate.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEA BURY, and POUND, JJ., concur.

KELDERHOUSE, Appellant, v. McGARRY et al., Respondents. (Court of Appeals of New York. March 14, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (167 App. Div. 956, 152 N. Y. Supp. 1121), entered December 13, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The motion was made upon the grounds that the action was one to set aside a transfer, assignment or written instrument as in fraud of the rights of creditors, and that permission to appeal had not been obtained. Edward N. Mills, of Buffalo, for the motion.

PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of motion.

pany pleaded in its answer were: First, that at the time of its medical examination the applicant substituted some other person in his place and that that person was examined by the company's medical examiner; and, secondly, that the applicant in his application falsely stated that he had not been under the care of a physician for two years prior to the company's medical examination, whereas, in truth and fact he had been under the care of a physician within two years previous to the said examination. Paul Grout and F. Sidney Williams, both of New York City, and Gardiner Conroy, of Brooklyn, for appellant. Adolph Ruger, of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT. C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

LIEBLER et al., Appellants, v. SHUBERT, Respondent. (Court of Appeals of New York. Feb. 22, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (161 App. Div. 928, 146 N. Y. Supp. 1098), entered March 30, 1914, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action in equity for the dissolution of a joint venture in the production of a play and for an accounting, injunction and receiver. The complaint alleges that on or about October 17, 1910, an agreement of joint venure was entered into between the plaintiffs and defendant for the production in the United States and Canada, as equal owners, of the play entitled "The Blue Bird"; that the defendant and plaintiffs acquired, by contract with the New Theater (which owned the Amerithe road; that the parties did produce the play can rights), the right to produce the play upon under their agreement; that the same has been extremely profitable; that the plaintiffs duly performed all the conditions of the agreement, and that the defendant has refused to pay over

In re KLAUBER'S ESTATE. (Court of Appeals of New York. May 2, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 1117), entered November 5, 1915, which affirmed an order of the New York County Surrogate's Court modifying a prior order assessing a transfer tax upon the estate of David Klauber, deceased. The question involv-y part of the profits except the sum of $4,000. ed is the valuation and taxation of the good will of the copartnership in which the deceased had an interest. On the 26th day of April, 1907, Klauber, Horn & Co. was dissolved by the retirement of Horn. It had a good will concededly valued at $300,000. On the following day the firm of Klauber Bros. & Co. was organized. The decedent had substantially a half interest in both firms. The new firm had only been organized six months when Klauber died. It had made no profits and the lower courts have held that it had no good will. The comptroller contends that the good will of the old firm necessarily passed to the new firm and that the interest of the deceased in that good will was a valuable interest the transfer of which should pay a tax under the statute. Alexander Otis, Schuyler C. Carlton, and Lafayette B. Gleason, all of New York City, for appellant. Siegfried F. Hartman and John B. Stanchfield, both of New York City, for respondents.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

KUBIAK, Respondent, v. METROPOLITAN LIFE INS. CO.. Appellant. (Court of Appeals of New York. March 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (161 App. Div. 942, 145 N. Y. Supp. 1129), entered February 25, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover upon a policy of life insurance. The defenses which the insurance com

but alleges that it was entered into by the deThe answer admits the contract of joint venture, fendant on behalf of the Shubert Theatrical Company, a New York corporation, and that said Shubert Theatrical Company is a necessary and material party to the action. The answer also purports to allege certain defenses and a counterclaim. See, also, 213 N. Y. 647, 107 N. E. 1080. David Leventritt, James N. Rosenberg, and Max D. Josephson, all of New York City, for appellants. Charles H. Tuttle, Edward E. McCall, and William Klein, all of New York City, for respondent.

PER CURIAM.

costs.

Judgment affirmed, with

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, and SEABURY, JJ., concur. CARDOZO, J., not sitting.

YORK. (Court of Appeals of New York. May In re LINCOLN AVE. IN CITY OF NEW 2, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (168 App. Div. 922, 152 N. Y. Supp. 1123), entered April 16, 1915, which reversed an order of Special Term denying a motion to confirm the reports of commissioners of estimate and assessment, in so far as they affected premises of the appellants herein, in street opening proceedings. The proposed avenue runs directly through the center of the appellants' plant, dividing it into two almost equal parts. It is contended that this separation of the plant, with the consequent interference with its operation, will cause a very great consequential damage to the remainder thereof, and