App. Div.]

First Department, May, 1908.

City of New York, Respondents. Taxes of 1905.-Order affirmed, with fifty dollars costs and disbursements. No opinion.

George Rubenstein, Appellant, v. Max Radt, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion.

The People of the State of New York ex rel. Marcusz Weisz, Appellant, v. The Independent Order Brith Abraham of the United States of America and Moritz Klein, as President of the Jacob Ascher Lodge No. 6, of the Independent Order Brith Abraham of the United States, Respondents.- Order affirmed, with ten dollars costs and disbursements. No opinion.

James M. A. Darrach and William F. Beekman, Respondents, v. August Silz, Appellant.-Order affirmed, with ten dollars costs and disbursements. No

opinion.

Richard B. Kelly, as Executor of Mary A. Culgin, Deceased, Plaintiff, v. Herman Wronkow and Others, Defendants. William F. Allen, Trustee in Bankruptcy of Raphael Kurzrok, and Henry Huber Company, Appellants, v. Richard B. Kelly, as Executor, etc., of Mary A. Culgin, Deceased, and Others, Respondents. Orders affirmed, with ten dollars costs and disbursements in each case. No opinion. Settle orders on notice.

Samuel Geitzholtz, Appellant, v. Abraham Feldmaus and Harry Kirschbaum, Respondents. Order affirmed, with ten dollars costs and disbursements. No opinion.

Nathan Bijur, Respondent, v. Alvin W. Krech, Appellant.--Order affirmed, with ten dollars costs and disbursements. No opinion. (Ingraham and Scott, JJ., dissenting.)

Five Hundred Fifty-six and Five Hundred Fifty-eight Fifth Avenue Company, Respondent, v. The Lotos Club, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Clementine S. Lamadrid, Appellant, v. The Sun Printing and Publishing Association, Respondent.— Order affirmed, with ten dollars costs and disbursements. No opinion.

William H. Boyer, Respondent, v. Metropolitan Sewing Machine Company, Defendant, Appellant. Lucius N. Littauer, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of the Application of Dennis E. Sheehan, Respondent, for an Order Directing Joseph Martin, Appellant, to Pay Over Certain Moneys.— Order affirmed, with ten dollars costs and disbursements. No opinion.

Mutual Contract Protection Company, Respondent, v. Cæsar Misch, Incorporation, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. (McLaughlin and Scott, JJ., dissenting.)

Benoit Wasserman, Respondent, v. Edith S. Jacobs, Appellant, Impleaded with Margaret B. Lawrence and Others.- Order affirmed, with ten dollars costs and disbursements. No opinion.

The People of the State of New York v. Joseph Murray and Another.Motion granted.

The People of the State of New York v. Adelina Varasino.- Motion denied on conditions stated in order.

First Department, May, 1908.

[Vol. 126.

The People of the State of New York v. Albert Mansi and Another.- Motion denied on conditions stated in order.

Isidore Duckoff v. Bernard Ruhe.- Motion denied on conditions stated in order.

Altonwood Park Company v. National Surety Company.- Motion granted, with ten dollars costs.

Mary A. McClain v. Elizabeth Diller.- Motion granted on conditions stated in order.

De La Vergne Machine Company v. Anthony & Scovill Company.— Motion denied on conditions stated in order.

American Transfer Company v. George Poll.-Motion granted, with ten dollars costs.

George H. Lawrence and Others v. Regina Benninger, Impleaded. — Motion granted, with ten dollars costs.

Dennis Mahoney v. Adam Hoffman. N. W. Ryan Company v. Herman Raub. John Andre v. Club Building Company. Ferdinand D. Ciprico v. Manhattan Office Company. William Eddington v. Union Railway Company. Jacob H. Greenberg v. Harris Ratner. John T. Ferrall v. Antonio Rendina. Charles Bjorkegren v. Leonard G. Kirk.- Applications for leave to appeal to Appellate Division denied, with ten dollars costs in each case.

Albert H. Woods v. David Broker and Another.- Application granted. Katherine C. Gould v. Howard Gould.- Motion denied, with ten dollars costs. Frederick Gressman, as Administrator, v. Morning Journal Association and Another.-Motion for leave to appeal to the Court of Appeals granted.

Mark N. Cormack v. New York, New Haven and Hartford Railroad Com. pany.-Motion granted.

Frida Wystrach v. Interboro Rapid Transit Company.- Motion denied, with ten dollars costs.

Joseph W. Jones v. Warner Instrument Company.- Motion denied, with ten dollars costs.

Siegmund E. Halberstadt v. New York Life Insurance Company.- Motion granted; questions to be certified on settlement of order. Settle order on notice. Alice F. H. King v. Will J. Block Company. - Motion granted. Alice F. H. King v. Will J. Block Company.-Motion denied. In the Matter of William R. Montgomery.- Order resettled. Herman Ganss v. J. M. Guffey Petroleum Company.— Motion denied. Wilbur F. Swayze v. New York and Ohio Coal Company.- Motion granted. Order to be submitted.

Joseph Harris, as Trustee, v. Arthur Wells.- Motion to resettle granted to the extent and on the conditions stated in memorandum per curiam. Settle order on notice.

Patrick L. Allen v. Knights of Columbus.- Motion denied.

In the Matter of Alexander G. Young. - Respondent disbarred.

App. Div.]

Fourth Department, May, 1908.

FOURTH DEPARTMENT, MAY, 1908.

CORNING GLASS WORKS, Appellant, v. THE CORNING CUT GLASS COMPANY and Others, Respondents.

Trade name corporation

adoption of name similar to rival's — fraud certificate of incorporation

conclusiveness of.

Appeal from a judgment of the Supreme Court, entered in the Steuben county clerk's office on the 14th day of January, 1907, upon the report of a referee dismissing the complaint upon the merits.

Judgment affirmed, with costs. All concurred, except Kruse, J., who dissented in a memorandum, and McLennan, P. J., not sitting.

KRUSE, J. (dissenting): I dissent upon the ground that the name Corning Cut Glass Company," adopted by the defendant, is so nearly like the plaintiff's name as likely to deceive, and that the use thereof by the defendant in the same general business and in the same locality as that of the plaintiff was a fraud upon the plaintiff, within the rule applied in Higgins Co. v. Higgins Soap Co. (144 N. Y. 462), and similar cases; and also that it is contrary to the express provisions of section 6 of the General Corporation Law,* and the filing of the defendant's certificate of incorporation is not conclusive upon the courts. (People ex rel. Columbia Co. v. O'Brien, 101 App. Div. 296.)

CHARLES H. JORDAN, as Administrator, etc., of SAMUEL J. ARMSTRONG, Deceased, Respondent, v. ERIE RAILROAD COMPANY, Appellant. Negligence-collision with train at crossing in city — evidence of caution-effect of ordinance as to speed of trains on care required.

Appeal from a judgment entered in the Erie county clerk's office on the 21st day of January, 1908, and also from an order entered on the same day denying a motion for a new trial.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that the plaintiff failed to establish freedom from contributory negligence on the part of the deceased. All concurred, except Kruse, J., who dissented in a memorandum.

KRUSE, J. (dissenting): The jury was warranted in finding from the circumstances that the deceased and his associate stopped, looked and listened before attempting to cross the railroad, and that the train was not then within sight or hearing; and further, that from their stopping place they could see far enough up the track so that a train not then in view, going at the usual and ordinary rate of speed as regulated by the city ordinance, would not reach the crossing until they had passed over. It cannot be said as matter of law that the deceased was required to anticipate that a train which is prohibited from running more than six miles an hour at the given point, then out of his sight and hearing, will * See Laws of 1892, chap. 687, § 6, as amd. by Laws of 1900, chap. 704. Since amd. by Laws of 1902, chap. 9, and Laws of 1907, chap. 115 — [REP.

Fourth Department, May, 1908.

[Vol. 126. run at the rate of twenty-five or forty miles an hour, approach the crossing without warning and overtake and collide with him at the crossing, when he has no knowledge of the approaching train or reason to expect that one will be run at such excessive rate of speed. There being no eye-witness to the accident, the jury was warranted, from these and other circumstances, in finding the deceased free from contributory negligence. I, therefore, vote for affirmance of the judgment and order appealed from.

Irvin A. Williams, Appellant, v. Theodore A. Page and Kate McCullam Page, His Wife, Respondents.- Judgment affirmed, with costs. All concurred.

Theresa Steffan, Respondent, v. Anthony C. Steffan, Appellant. - Judgment and order affirmed, with costs. All concurred.

John J. Stephens and Others, Respondents, v. The New York, Ontario and Western Railway Company, Appellant. — Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., not sitting.

The People of the State of New York ex rel. Erie Railroad Company, Respondent, v. The Board of Supervisors of the County of Erie, Appellant.- Order affirmed, with costs, on the authority of People ex rel. New York Central, etc., Co. v. Matthias (84 App. Div. 122). All concurred, except Williams, J., who dissented.

The People's Bank of Buffalo, Respondent, v. Phoebe W. Hedley, Appellant, Impleaded with Charles Wesley, as Trustee of George H. Hedley, a Bankrupt, and George H. Hedley.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Henry Bradley, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred.

J. Howard Mark, Appellant, v. William Fritsch and Albert Krippendorf, Respondents. Judgment and order affirmed, with costs. All concurred. Washington H. Ransom, Respondent, v. Elizabeth Devlin and Ella M. Devlin, Appellants. Judgment and order affirmed, with costs. All concurred.

James H. Weston, Respondent, v. International Paper Company, Appellant.— Judgment and order affirmed, with costs. All concurred, except Williams, J., not sitting.

Union Trust Company of Rochester, Appellant, v. Harry P. Sickels, Respondent.- Motion for leave to appeal to Court of Appeals denied, with ten dollars costs.

Union Trust Company of Rochester, Appellant, v. John N. Rauber, Respond- Motion for leave to appeal to Court of Appeals denied.

ent.

Union Trust Company of Rochester, Appellant, v. Thomas R. Finucane, Respondent.- Motion for leave to appeal to Court of Appeals denied.

In the Matter of the Appointment of Two Trustees of the City and County Hall for the Use of the City of Buffalo and County of Erie in Place of Wadsworth J. Zittel and Henry C. Steul, Whose Terms of Office Expire May 4, 1908.-Wadsworth J. Zittel and Henry C. Steul appointed trustees, each for the term of six years from May 4, 1908.

App. Div.]

Fourth Department, May, 1908.

In the Matter of the Estate of Albert J. Spencer, Deceased. Mary L. Spencer, as Widow of Albert J. Spencer, Deceased, Appellant; Dennis E. Spencer and William L. Spencer, as Executors, etc., of Albert J. Spencer, Deceased, Respondents. Order modified in accordance with memorandum filed with the clerk, and as so modified affirmed, with ten dollars costs and disbursements, payable out of the estate. Held, that decedent, notwithstanding the fact that appellant had obtained a judicial decree of separation from him some years before his death and that he had not since such decree contributed to her support, died "having a family" and "leaving a widow" within the meaning of section 2713 of the Code of Civil Procedure. All concurred.

Martin G. Kunkel, Appellant, v. Frank Riedel and Others, Respondents.Order affirmed, with ten dollars costs and disbursements. All concurred.

Thomas McAuliffe, Jr., an Infant, by Thomas McAuliffe, Sr., His Guardian ad Litem, Appellant, v. County of Erie and Others, Respondents. — Judgment affirmed, with costs. All concurred, except Kruse, J., not sitting.

Michael Conroy, Respondent, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.-Judgment and order affirmed, with costs. All concurred.

J. Tome Reynolds and Mary Reynolds, as Administrators, etc., of Walter L. Phillips, Deceased, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.— Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., and Williams, J., who voted for reversal on the ground that plaintiffs' intestate was not shown to have been free from contributory negligence.

Albert Steffen, Appellant, v. Luke Smith, Respondent.- Judgment and order affirmed, with costs. All concurred.

In the Matter of the Appraisal of the Estate of Frederick Cook, Deceased, etc.- Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted and questions for review certified.

Francis J. Quinn, Respondent, v. The Sun Printing and Publishing Company, Appellant. Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs.

Ralph M. Snell, Appellant, v. Niagara Paper Mills, Respondent. - Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Held, that as the cause of action set forth in the complaint was not referable and was denied by the answer and the long account was contained in the counterclaim, the Special Term had no authority to grant the order of reference. (Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236.) All concurred, except McLennan, P. J., and Williams, J., who dissented on the authority of Irving v. Irving (90 Hun, 423; affd., 149 N. Y. 573.)

Erickson Perkins and Others, Respondents, v. William L. S. Olmsted, Appellant.- Judgment and order affirmed, with costs. All concurred.

In the Matter of the Judicial Settlement of the Account of George W. Dickerson, as Committee of the Property of Alice Carroll, an Incompetent Person, now Deceased, Appellant. Patrick McGreghan, as Executor, etc., of Alice Carroll, Deceased, Respondent, Appellant. — Decree modified so as to provide that