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(178 N.Y.S.)

Appellate Division, First Department. October 17, 1919.) Order modified, so as to provide that the order for examination before trial of officers of defendant be amended, by striking therefrom the names and titles of the officers of the defendant corporation, and inserting instead thereof, after the words "ordered that," the following: "the defendant Esskay Waist Company, by Samuel Krohnberg, its treasurer, and Louis Krohnberg, its vice president, be examined, and that they," and, as so modified, affirmed, with $10 costs and disbursements to the appellants. The date for the examination to proceed to be fixed in the order. No opinion. Settle order on notice.

Samuel BERNSTEIN v. ESSKAY WAIST CO. et al. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Motion denied, with $10 costs. Order filed.

Samuel BERNSTEIN, Respt., v. ESSKAY WAIST CO. et al., Applts. (Supreme Court Appellate Division, First Department. November 21, 1919.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. See, also, 176 N. Y. Supp. 94.

Louis BERNSTEIN v. Mendel GREEN WALD et al. (Supreme Court, Appellate Division, First Department. October 31, 1919.)

Motion granted. Order filed.

Isidore BERTHET et al., Respts., v. JOHN SCHUBERT COTTON CO., Inc., Applt. (Supreme Court, Appellate Division, First Department. November 7, 1919.) Judgment and order affirmed, with costs. No opinion. Order

filed.

Sullivan J. BILLINGTON, respt., v. Mildred R. BARNES et al., applts. (Supreme Court, Appellate Division, Fourth Department. September 22, 1919.) Motion to dismiss appeal granted, unless appellants file and serve printed papers within 60 days.

Louis J. BIMBERG v. TEXAS CO. et al. (Supreme Court, Appellate Division, First Department. October 17, 1919.) (Motion denied, with $10 costs. Order filed.

In the matter of the application of William Harman BLACK, respondent, to examine in proceedings supplementary to execution Daniel J. SULLY, appellant. (Supreme Court, Appellate Division, Second Department. November 17, 1919.) Appeal dismissed, without costs.

Israel O. BLAKE, Respt., v. Patrick McGOVERN et al., Applts. (Supreme Court, Appellate Division, First Department. November 14, 1919.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Harold S. BLAKE, respt., v. SUN PRINTING & PUBLISHING ASSOCIATION, applt. (Supreme Court, Appellate Division, Fourth Department. September 22, 1919.) Motion for leave to appeal to the Court of Appeals granted and question for review certified.

Isidor BLEIMAN, Applt., V. LIBMAN REALTY CO. et al., Respts. (Supreme Court, Appellate Division, First Department. November 21, 1919.) Judgment affirmed, with costs. No opinion. Order filed.

Lena BESNER, as Adm'x, etc., Respt., v. CENTRAL TRUST CO. OF NEW YORK et al., as Ex'rs, etc., of Augustus D. Juilliard et Max BLITZER, appellant, v. Isidore GELal., impleaded, etc., Applts. (Supreme Court, LERING, respondent. (Supreme Court, AppelAppellate Division, First Department. Novem-late Division, Second Department. October 11, ber 7, 1919.) Judgment and order affirmed, 1919.) As the appellant's counsel, opposing the with costs. No opinion. Clarke, P. J., and motion to dismiss, has not shown that the apSmith, J., dissent as to the defendants Central peal is meritorious (rule 12 of this department), Trust Co. et al., as executors. Order filed. the motion to dismiss the appeal is granted, with $10 costs, without prejudice to a motion upon proper papers to be relieved from the order of dismissal.

Lena BESNER v. Augustus D. JUILLIARD et al. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Motion granted. Order filed.

BETSY ROSS FLAG COMPANY, respondent, v. Louis L. BUCKLER, appellant. (Supreme Court, Appellate Division, Second Department. October 3, 1919.) Judgment and orders unanimously affirmed, with costs. No opinion.

B. N. C. WAIST CO., Inc., v. B. N. S. WAIST CO., Inc. (Supreme Court, Appellate Division, First Department. November 28, 1919.) Motion to dismiss appeal granted, with $10 costs. Order filed.

Richard M. BOLAND, respondent v. PENN SYLVANIA RAILROAD COMPANY, appel lant. (Supreme Court, Appellate Division, Sec

ond Department. November 17, 1919.) Ap-, ministrator of the goods, chattels, and credits peal dismissed, without costs.

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of Dillon Bradt, deceased, respt. Henry WERT, Jennie Wert, Emma Bradt Thompson, Eva Wert Grey, and Edna Bradt Taferner, applts. Third Department. November 12, 1919.) De(Supreme Court, Appellate Division, cree unanimously affirmed, with costs.

William A. BRADY v. Abraham L. ERLANGER. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Motion denied, with $10 costs. Order filed.

Osias BRAND v. KAYE & FRIEDHEIM, Inc. (Supreme Court, Appellate Division, First Department. November 14, 1919.) Motion to dismiss appeal granted, with $10 costs. Order filed.

Joseph BRANDEL, respondent, v. Elizabeth GRIBBIN, interpleaded with others, appellant. (Supreme Court, Appellate Division, SecMotion ond Department. October 11, 1919.) to dismiss appeal granted, with $10 costs.

Edward W. BRENEN v. DAHLSTROM METALLIC DOOR CO. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Motion to dismiss appeal denied, with $10 costs. Order filed.

Meyer BRESLOW, appellant, v. David SEROTA, et al., respondent. (Supreme Court, Appellate Division, Second Department. October 11, 1919.) The mere statement of counsel that in his opinion the appeal would succeed does not show that the appeal is meritorious, and therefore is not a compliance with rule 12 of this department. The motion to dismiss the appeal is granted, with $10 costs, without prejudice to a motion upon proper papers to be relieved from the order of dismissal.

In the Matter of the Application of BRONX PARKWAY COMMISSION to acquire title to lands of Frederick W. KRAFT, et al. (Supreme Court, Appellate Division, Second DeOctober 3, 1919.) partment. Order affirmed as to the damaged parcels involved in that portion of the appeal presented to the court, viz., parcels 7, 86, 96, and 106, with a bill of costs to the owners of each parcel. Ne opinion. Jenks, P. J., and Putnam, Blackmar, Kelly, and Jaycox, JJ., concur.

In the Matter of BRONX PARKWAY COMMISSION, Respt. In re James GUTHRIE et In the matter of the final judicial settlement al., Applts. William H. Hughes et al., Respts. of the accounts of Charles M. BRADT, as ad-(Supreme Court, Appellate Division, First De

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perseded the notice of trial, the inquest taken | was irregular, and defendant is entitled as a matter of right to have it set aside. If the amended answer created no issue, that fact should have been determined upon the motion made by plaintiff under section 542, Code of Civil Procedure, to strike out the amended answer as interposed for the purpose of delay, Jenks, P. J., and Mills, Rich, Blackmar, and Kelly, JJ., concur.

Frances M. CARLETON, Respt., v. Alexander CARLETON, Applt. (Supreme Court, Appellate Division, First Department. October 31, 1919.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Charles A. CARNES, appellant, v. Eugene SMITH, respondent. (Supreme Court, Appellate Division, Second Department. November 7, 1919.) Motion granted, with $10 costs.

Nellie M. CARPENTER, as administratrix of the goods, chattels, and credits of George E. Carpenter, deceased, respt., v. NEW YORK CENTRAL RAILROAD COMPANY, applt. (Supreme Court, Appellate Division, Third Department. November 12, 1919.) Judgment and order (173 N. Y. Supp. 785) unanimously affirmed, with costs.

Catharine CARR v. CITY OF NEW YORK et al. Thomas CARR v. SAME. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Application denied, with $10 costs. Order signed.

Addie CELLER, respondent, v. John P. MONTFORT and J. Ralph Montfort, appellants. (Supreme Court, Appellate Division, Second Department. December 12, 1919.) Plaintiff's verdict for the full purchase price of the cow cannot be upheld, because plaintiff had not rescinded the sale by notifying defendant that she elected to return the cow. Neither did the evidence sufficiently establish plaintiff's damages from breach of the vendor's warranty that the cow was then in condition to breed. If such damages were suffered, they would be measured by the difference in value at the day of sale between the cow as warranted, and her value in the actual condition at time of sale. The judgment of the County Court of Dutchess County is therefore reversed, and a new trial ordered in said court, with costs to appellants to abide the event. Jenks, P. J., and Rich, Putnam, Kelly, and Jaycox, JJ.,

concur.

CENTRAL TRUST CO. OF NEW YORK, plff., v. PITTSBURGH, SHAWMUT & NORTHERN R. R. CO. et al., defts. Frank

Sullivan Smith, as receiver, etc., respt., Central Trust Co., of New York, as trustee, etc., et al., applts. (Supreme Court, Appellate Division, Fourth Department. October 8, 1919.) Upon consideration of the merits of the controversy, in accordance with the opinion of the Court of Appeals (223 N. Y. 347, 119 N. E. 565), the order entered May 21, 1917, and the order entered July 11, 1917, are reversed, upon the facts, and the matter remitted to the Special Term to take such further proof upon the questions involved in this proceeding as either party may desire to submit. Motion for stay granted upon giving additional security in the sum of $50,000. All concur. See, also, 179 App. Div. 607, 168 N. Y. Supp. 702.

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In the matter of the application of the CITY OF NIAGARA FALLS, relator, for a writ of prohibition against the PUBLIC SERVICE COMMISSION of the State of New York for the Second District, and International Railway Company. (Supreme Court, Appellate Division, Third Department. November 21, 1919.) Order denying motion for writ of prohibition reversed, as matter of law and not as a matter of discretion, with $10 costs and disbursements, and writ granted, on the authority of Matter of Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E.

(178 N.Y.S.)

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Alexander W. CLAPP, appellant, v. Catherine HUNTER, respondent, Nelly V. B. Clapp and others, appellants, and others. (Supreme Court, Appellate Division, Second Department. November 17, 1919.) Appeal dismissed, without costs.

In the Matter of the Application of Albert CLEMENTS, respondent, for a peremptory writ of mandamus, directed to William Williams, as Commissioner, etc., and another. EDISON ELECTRIC ILLUMINATING COMPANY OF BROOKLYN and another, appellants. (Supreme Court, Appellate Division, Second Department. October 10, 1919.) Appeal dismissed, with costs, upon the ground that an order granting an alternative writ of mandamus is not appealable. People ex rel. Levenson v. O'Donnel, 99 App. Div. 253, 90 N. Y. Supp. 961; People ex rel. Mt. Vernon Trust Co. v. Millard, 127 App. Div. 77, 111 N. Y. Supp. 22; People ex rel. Wilson v. African Y. Supp. 394. W. M. E. Church, 156 App. Div. 386, 141 N. Blackmar, Kelly, and Jaycox, JJ., concur. Jenks, P. J., and Putnam,

Everett COAKLEY, respt., v. Ernest L. COOLEY, applt. (Supreme Court, Appellate Division, Fourth Department. September 22, In the matter of the claim of Clarence 1919.) Motion to dismiss appeal granted, unCLARKE, for compensation under the Work-less appellant shall file and serve printed briefs men's Compensation Law; STATE INDUS- by September 29th and be ready for argument TRIAL COMMISSION, respt., v. STANDARD on October 6th. SHIPBUILDING CORPORATION, employer, and Travelers' Insurance Company, insurance carrier, applts. (Supreme Court, Appellate Division, Third Department. November 21, 1919.) Compensation has been awarded for the loss of the use of one-half of the eye. The most favorable view of the evidence is that there was a loss of one-tenth only of the use. The award is therefore modified, by making the compensation for 12 weeks, instead of 64 weeks, and, as thus modified, unanimously affirmed.

Mo

In the matter of the probate of the last will and testament of Elizabeth CLARKSON, deceased. (Supreme Court, Appellate Division, Third Department. November 21, 1919.) tion to dismiss appeal denied. Motion to stay proceeding pending appeal denied. Order unanimously affirmed, with $10 costs and disbursements. Witness to be examined pursuant to the original order, and the modification thereof, at her residence in the city of New York, on the 17th day of December, 1919, at 11 o'clock in the forenoon.

William Z. CLEARY, respondent, v. WEST SHORE GAS COMPANY and another, appellants. (Supreme Court, Appellate Division. Second Department. November 17, 1919.) Appeal dismissed, without costs.

Minnie M. CLEMENS, respt., v. Sanford G.
CLEMENS, as adm'r, etc., applt. (Supreme
Court, Appellate Division, Fourth Department.
October 8, 1919.) Judgment affirmed, with
costs.
All concur.

Raymond G. COGHLAN, Respt., v. Charles F. JENKINS et al., Applts. (two cases). (Supreme Court, Appellate Division, First Department. October 31, 1919.) Orders affirmed, with $10 costs and disbursements. No opinion. Örders filed.

Joseph COHEN, an infant, etc., appellant, v. CITY OF NEW YORK, respondent. (Supreme Court, Appellate Division, Second Department. November 17, 1919.) Appeal dismissed, without costs.

Siegel COHEN et al. v. JOHN CURTIN, Inc. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Application granted. Order signed.

Isidor COHEN et al. v. Abraham GOLDMAN et al. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Application denied, with $10 costs, and stay vacated. Order signed,

Isidor COHEN v. Morris SOLOMON. (Supreme Court, Appellate Division, First Department. October 17, 1919.) Motion to dismiss appeal granted, with $10 costs. Order filed.

Joseph H. COHEN, Respt., v. Charles B. TOOLE, impld., etc., Applt. (Supreme Court, Appellate Division, First Department. November 21, 1919.) Judgment and orders affirmed,

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