Henry D'HONT, an infant, etc., respondent, v. 1 redundant, defendant appeals. Order reversed, The NATIONAL SUGAR REFINING COM- and motion granted in part. PANY OF NEW JERSEY, appellant. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Motion granted. William H. DICKENS, respondent, v. The CITY OF NEW YORK, defendant, and Atlantic Gulf & Pacific Co., appellant. (Supreme Court, Appellate Division, Second Department. January 12, 1917.) Motion for reargument denied, without costs.

Donato DI DIO, respondent, v. The BROOKLYN HEIGHTS RAILROAD COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. December 15, 1916.) Judgment reversed, and new trial granted, costs to abide the event, upon the ground that the verdict is against the weight of the evidence, and for errors at folios 216, 217. Thomas, Carr, Stapleton, Rich, and Putnam, JJ., concur.

PER CURIAM. The order appealed from is reversed, with $10 costs and disbursements, and motion granted, with $10 costs, except that in the third paragraph of the complaint there will be stricken out only the following words, viz.: After the words "were repeatedly rejected" the words "several claims of no particular value were allowed," and after the words "defendant approached plaintiff," the words "stating to him that he and his attorneys were in despair as to the possibility of a successful prosecution of his case in the Patent Office." Settle order on notice.

In the Matter of Clark W. DUNLOP, dec'd (two cases). (Supreme Court, Appellate Division, First Department. January 26, 1917.) Orders affirmed, with costs. No opinion. Orders filed.

In the matter of the claim of Mildred DODD In the Matter of the substitution of attorneys, for compensation under the Workmen's Com- etc. In the Matter of the judicial settlement, pensation Law, applt., v. LANCHESHIRE etc., of Martha E. DURBAN, deceased. (SuCORPORATION, employer, and Zurich Gener- preme Court, Appellate Division, Second Deal Accident and Liability Company, Ltd. (Su-partment. December 15, 1916.) Motion grantpreme Court, Appellate Division, Third Department. December 28, 1916.) Determination unanimously affirmed.

ed on condition that appellant perfect the appeal, place the case on the January calendar, and be ready for argument when reached; otherwise, motion denied, with $10 costs.

E. A. STROUT FARM AGENCY, respt., v. John OLSEN, applt. (Supreme Court, Appellate Division. Fourth Department. January 10, 1917.) Judgment reversed without costs, and case remitted to the trial term to make findings of fact and conclusions of law and a decision. All concur.

In the Matter of Michael J. EGAN. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Motion for commission to take testimony on written interrogatories granted. Settle order on notice.

Matter of ELSMERE PLACE. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Motion granted, with $10 costs. Order filed.

ENDERS SALES CO. v. A. G. PENN. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Motion denied, with $10 costs. Order filed.

Geo. D. ERNEST, Respt., v. Morris M.
OLANOFF, impleaded, etc., Applt. (Supreme
Court, Appellate Division, Fourth Department.
January 16, 1917.) Judgment affirmed with
costs.
All concur.

Lena FABER v. KENT HOLDING CO. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Application denied, with $10 costs. Order signed.

FAMOUS TIRE & RUBBER COMPANY, | is no distinction in that respect in favor of
Inc., respondent, v. Wallace D. FUERTH, ap- actions for negligence. I think our decision in
pellant, and another, defendant. (Supreme Tuttle v. Dubuque Fire & Marine Ins. Co., 155
Court, Appellate Division, Second Department. App. Div. 802, 140 N. Y. Supp. 930, should be
December 15, 1916.) Order affirmed, with followed here.
$10 costs and disbursements. No opinion.
Thomas, Carr, Stapleton, Mills, and Putnam,
JJ., concur.

In the Matter of the judicial settlement of the accounts of the FARMERS' LOAN & TRUST COMPANY, as executor, etc., of Andrew J. Smith, deceased. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Order denying motion for a new trial on the ground of newly discovered evidence reversed, with costs, and motion granted. Decree and order of the Surrogate's Court of Rockland County reversed. Jenks, P. J., and Thomas, Stapleton, Mills, and Rich, JJ.,

concur.

In the Matter of the Probate of Last Will

and Testament of Elizabeth G. FAULKNER, deceased. (Supreme Court, Appellate Division, Fourth Department. January 10, 1917.) Appeal dismissed upon filing of proof of appellant's failure to comply with the terms of order entered October 20, 1916.

Johanna FEINBURG, Applt., v. Francis L. TOOLEY et al., respts. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Judgment and order affirmed, with costs. No opinion. Order filed.

Anna FELDMAN, respondent, v. Joseph LUBITZ, appellant. (Supreme Court, Appellate Division, Second Department. December 15, 1916.) Judgment and order of the County Court of Kings County unanimously affirmed, with costs. No opinion.

Herman FELDMAN, respt., V. WASHBURN WIRE CO., applt. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Order affirmed, with $10 costs and disbursements. No opinion. Time of defendant to answer extended as stated in order. Order filed.

Ralph FERGUSON, appellant, v. CITY OF NEWBURGH, respondent. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Motion denied, without costs.

Matter of Samuel S. FIELD. (Supreme Court, Appellate Division, First Department. December 8, 1916). Motion granted. Order filed.

Matter of Samuel S. FIELD et al. (Supreme Court, Appellate Division, First Department. January 12, 1917.) Motion granted. Order filed.

FIRST NAT. BANK OF ANN ARBOR, respt., v. John FARSON and another, applts. (Supreme Court, Appellate Division, First De with $10 costs and disbursements. No opinion. partment. January 26, 1917.) Order affirmed, Order filed.

FIRST NAT. BANK OF HIGHBRIDGE, N. J., respt., v. Charles I. HUDSON et al., applts. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Fritz FISCHERAUER as adm'r, Applt., v. The CITY OF NEW YORK, respt. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Judgment reversed, and new trial ordered, costs to appellant to abide event, on the ground that there was a question of fact for submission to the jury. Scott, J., dissenting. Order filed.

John FITZGERALD, applt., v. John CANNAN and one, respts. (Supreme Court, AppelDecember late Division, Fourth Department. 6, 1916.) Judgment affirmed with costs, All

concur.

firmed, with costs. No opinion. Thomas, StaJudgment and order afpleton, and Putnam, JJ., concur. Jenks, P. J., not voting.. ·

Mabel L. FERGUSON, as Administratrix, SON ELECTRIC ILLUMINATING COMPatrick FLANNELLY, respondent, v. EDIetc., v. BUFFALO, ROCHESTER & PITTS-PANY OF BROOKLYN, appellant. (Supreme BURGH RAILWAY COMPANY. (Supreme Court, Appellate Division, Second Department. Court, Appellate Division, Fourth Department. January 19, 1917.) December 6, 1916.) Appeal from Special Term, Monroe County. Action by Mabel L. Ferguson, as administratrix, against the Buffalo, Rochester & Pittsburgh Railway Company. From an order, defendant appeals. Affirmed. PER CURIAM. Order affirmed with $10 costs and disbursements. All concur, except FOOTE, J., who dissents in a memorandum.

FOOTE, J. I dissent, and vote for reversal of the orders. I think plaintiff's delay of over six years in bringing the case to trial is not sufficiently excused by her attorney's uncertainty as to whether her case was controlled by federal or state laws. Public policy requires a speedy disposal of litigation and there

Arthur FLAWN, respondent, v. The NEW YORK CENTRAL RAILROAD COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. December 15, 1916) Judgment and order unanimously affirmed, with costs. No opinion.

Arthur FLAWN, respondent, v. The NEW YORK CENTRAL RAILROAD COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. January 5, 1917.) Mo tions denied, with $10 costs.

William FLEITMAN v. Chas. H. WERNER. (Supreme Court, Appellate Division, First Department. January 12, 1917.) Motion denied, with $10 costs. Order filed.

In the Matter of the application for appointment as general guardian of John FLEMING, Jr., an infant. (Supreme Court, Appellate Division, Second Department. January 5, 1917.) Order modified, so as to provide for the appointment of both parents as general guardians of the infant, and, as so modified, affirmed, without costs. No opinion. Jenks, P. J., and Carr, Stapleton, Mills, and Rich, JJ., concur.

Milton L. FLEMING, respondent, v. William M. BARRET, as President of the Adams Express Company, appellant. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Judgment affirmed, with costs. No opinion. Jenks, P. J., and Thomas, Stapleton, Rich, and Putnam, JJ., concur.

Michael FLIS, Plff., v. ERIE RAILROAD CO., Deft. (Supreme Court, Appellate Division, Fourth Department. January 16, 1917.) Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant, upon the nonsuit, with costs. All concur.

Margaret FLYNN, as Adm'x, etc., Respt., v. NEW YORK CENTRAL RAILROAD CO., Applt. (Supreme Court, Appellate Division, First Department. December 15, 1916.) Judgment and order affirmed, with costs. No opinion. Order filed.

[cember 6, 1916.) Judgment and order' reversed and new trial granted, with costs to appellant to abide event, upon the ground that the verdict is against the weight of the evidence upon the question of plaintiff's contributory negligence. All concur, except Kruse, P. J., and Foote, J., who dissent and vote for affirmance.

In the Matter of John FOX, dec'd. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Order affirmed, with costs. No opinion. Dowling, J., dissenting. Order filed.

Mary A. FRANCIS, respondent, v. Frank STEADMAN, appellant. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Judgment and order reversed, and new trial granted, costs to abide the event, upon the ground that under the evidence and the law, as declared in the charge and properly so, the plaintiff was entitled to a verdict for $113, if any, and that therefore the verdict in plaintiff's favor for $50 must have been the result of an illogical and improper compromise on the part of the jury. Jenks, P. J., and Thomas, Mills, and Putnam, JJ., concur. Carr, J., not voting.

Augusta FRANK, Applt., v. A. Alphonse FRANK and another, Respts. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Order affirmed, with $10 costs and disbursements, with leave to plaintiff to amend on payment of costs. No opinion. Order filed.

Oscar FRIED, appellant, v. The NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, respondent. (Supreme Court, Appellate Division, Second Department. January 26, 1917.) Order entered December 1, 1916, affirmed, without costs. No opinion. Jenks, P. J., and Thomas, Stapleton, and Putnam, JJ., concur. Rich., J., dissents.

Adolph FREUND v. Chas. A. STONEHAM. (Supreme Court, Appellate Division, First DeMotion denied, John FLYNN, as adm'r, Applt., v. ROD-partment. December 8, 1916.) GERS & HAGERTY, Inc., Respt. Order filed. with $10 costs. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Judgment and order affirmed, with costs. No opinion. Order filed. Mary J. FLYNN, appellant, v. Bernard J. YORK., respondent. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) Judgment unanimously affirmed, with costs, upon the ground that defendant was not obliged to light the hall for the purpose for which plaintiff was appropriating it at the time of the injury, that is, for intercommunication between the rooms of her apartment, and that it was negligent for her to attempt to walk through it in the dark for the purpose of going from one room in her apartment to another room therein.

Charles E. FOGARTY, Respt., v. PITTSBURG CONTRACTING CO., Applt. (Supreme Court, Appellate Division, First Department. January 19, 1917.) Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $8,466, in which event, judgment, as so modified, and order, affirmed, without costs. No opinion. Settle order on notice.

Simon Joseph FOUCHA, an infant etc., respt., v. Gustavus BUSE, applt. (Supreme Court, Appellate Division, Fourth Department. De

Oscar FRIED, appellant, v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, respondent. (Supreme Court, Appellate Division, Second Department. January 26, 1917.) Order entered December 23, 1915, affirmed, without costs. No opinion. Jenks, P. J., and Thomas, Stapleton, and Putnam, JJ., concur. Rich, J., dissents.

OSCAR FRIED, appellant, v. The NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, respondent. (Supreme Court, Appellate Division, Second Department. January 26, 1917.) Motion denied, without costs.

Edward FRIEDMAN, Respt., v. Julius BLAUNER and another, Applts. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Judgment affirmed, with costs. No opinion. Order filed.

John A. FRITZ v. SMITH WORTHING- G. ELIAS & BRO., Incorporated, Respondent, TON CO. (Supreme Court, Appellate Division, v. Cyrus H. BROWNELL, Charles H. Inman First Department. January 26, 1917.) Motion and Frederick Brownell, Appellants. (Supreme for stay granted, on condition that appellant Court, Appellate Division, Fourth Department. brings on the appeal for argument on February 9, 1917. Settle order on notice.

Charles FUTORANSKY, an inft., Respt., v. NASSAU ELECTRIC R. R. CO., Applt. (Supreme Court, Appellate Division, First Department. January 19, 1917.) Judgment affirmed, with costs. No opinion. Scott, J., dissenting

Order filed.

John H. GAGE, Respt., v. Richard BEWLEY et al., Applts. (Supreme Court, Appellate Division, Fourth Department. January 16, 1917.) Motion for reargument (160 N. Y. Supp. 1131) denied, without costs.

December 6, 1916.) Appeal from Trial Term, Erie County. Action by G. Elias & Bro., Incorporated, against Cyrus H. Brownell and others. From judgment for plaintiff upon directed verdict, and from order denying new trial, defendants appeal. Reversed, and new trial' granted.

PER CURIAM. The directed verdict seems

to rest upon the proposition that the plaintiff's letter of December 12, 1914, with the so-called order inclosed therein, and the defendants' letter of December 19, 1914, in reply thereto, constitute a complete contract. We are of the opinion that those letters, in connection with the previous negotiations and correspondence between the parties and their acts and conduct subsequent thereto, should be considered upon the question as to whether the minds of the John E. GAITLEY, applt., v. ALBANY parties ever met upon all the essentials necessary FOUNDRY COMPANY and others, respts. to make a contract. While the price is definitely (Supreme Court, Appellate Division, Third De- named in the correspondence, the quantity of partment. January 12, 1917.) In the matter of some of the lumber is but approximately stated, the submission of question to Hon. A. V. S. and from the evidence given on behalf of the Cochrane, as to the effect of contract dated defendants a finding is permissible that there March 12, 1912, between John E. Gaitley and was not an absolute agreement by defendants John R. Marshall with reference to the owner- to sell and by the plaintiff to purchase the lumship of fund of $4,378.76 now deposited in the ber, but that the agreement depended upon First National Bank of Albany, N. Y. Upon the whether the defendants would be satisfied with petition of Joseph P. Coughlin, Esq., ordered, the run of the lumber as the plaintiff directed that all persons interested in the estate of John it to be manufactured and with the plaintiff's R. Marshall, deceased, show cause before this inspection and grading thereof. (2) Whether court on the opening of court on the first day the defendants, by selling the one-inch maple of the September term, 1917, at the city hall, lumber, breached the contract, depends upon an in the city of Saratoga Springs, N. Y., why the affirmative finding that the defendants had sold order appealed from should not be reversed, or agreed to sell the same to the plaintiff, and and that service of the order be made upon that, we think, cannot be held as a matter of the widow of said Marshall by delivering a law upon the evidence. (3) The amount of the copy to her personally without the state within damages was likewise a question of fact. The 20 days rom the date of the order, and to all judgment and order should be reversed, and a other persons interested in the estate by pub-new trial granted, with costs to the appellant lication thereof for six weeks in the Knicker to abide the event. bocker Press and the Albany Evening Journal, in the manner provided for the service of a summons in an action in the Supreme Court. Cochrane, J., not sitting.

Patrick GALLAGHER, Respt., v. ANCIENT ORDER OF HIBERNIANS, impld., Applts. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Judgment affirmed, with costs. No opinion. Order filed.

Frances V. GARDNER, Respt., v. BUFFALO, LOCKPORT & ROCHESTER RY. CO., Applt. (Supreme Court, Appellate Division, Fourth Department. January 16, 1917.) Order reversed with $10 costs and disbursements and motion denied, with $10 costs. Held, that no case for a new trial upon the ground of surprise was made out. All concur.

Howard S. GARDNER, Respt., v. THOMPSON-STARRETT CO., Applt. (Supreme Court, Appellate Division, First Department. January 26, 1917.) Judgment and order affirmed, with costs. No opinion. Order filed.

Severe GENDRAU, Applt., v. RELIABLE FURNITURE & CARPET CO., respt. (Supreme Court, Appellate Division, Fourth De partment. November 22, 1916.) Motion for leave to appeal to the Court of Appeals denied with $10 costs.

Sherman A. GENING, respt., v. Ross M. TURNER, applt. (Supreme Court, Appellate Division. Third Department. January 12, 1917.) Order unanimously affirmed, with $10 costs and disbursements.

BALDWIN, respt.
Catherine C. GENS, applt., v. Charles A.
Division, Fourth Department.
(Supreme Court, Appellate
January 3,
1917.) Judgment affirmed with costs. All con-

cur.

GEORGE COLON & CO., Applt., v. Sarah B. SMITH and another, Respts. (Supreme Court, Appellate Division, First Department. December 22, 1916.) Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. No opinion. Order filed.