App. Div.]

Second Department, November, 1916.

JOSEPHINE M. FAIRCHILD, Plaintiff, v. EMMA E. REED, Appellant. SCARSDALE ESTATES, Respondent, and Others, Defendants. - Order denying appellant's motion to come in and defend affirmed, with ten dollars costs and disbursements. That denial was justified by appellant's laches. No opinion. Jenks, P. J., Carr, Mills, Rich and Putnam, JJ., concurred.

STEFAN HOLOTA, Appellant, v. TRANSIT DEVELOPMENT COMPANY, Respondent.- Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Carr, Mills, Rich and Putnam, JJ.

In the Matter of Acquiring Title to BRIELL STREET from Jackson Avenue to Flushing Avenue, in the First Ward, Borough of Queens. In the Matter of JENNIE GREENBLATT, Appellant, and Others. The CITY OF NEW YORK and Others, Respondents. The unopposed confirmation of the report of the condemnation commission by order entered December 21, 1909, without any appeal, became final and conclusive upon all parties, including this appellant. (City Charter, § 986, as amended by Laws of 1906, chap. 658.)* The petitioner having without objection, on April 4, 1910, paid her assessment for benefits, and enjoyed the effects of this condemnation, cannot now be heard to raise objections based on the decision in Matter of City of New York, Decatur Street (196 N. Y. 286), decided November 9, 1909. The order is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

In the Matter of the Probate of the Last Will and Testament of VIRGILIO DEL GENOVESE, Deceased. JOSEPH DEL GENOVESE, Appellant; FRANCES DEL GENOVESE and Others, Respondents.- Order of the Surrogate's Court of Kings county affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ., concurred.

DANIEL A. MEAGHER, Respondent, v. BRADLEY CONTRACTING COMPANY, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Thomas, Carr, Mills and Rich, JJ.

ALEXANDER NEMO, an Infant, by ALICE BANNON, His Guardian ad Litem, Appellant, v. WILLIAM KOWALL, Respondent.-Judgment reversed and new trial granted, costs to abide the event. While in our opinion the verdict was against the weight of evidence, there was still a question for the jury, both as to the negligence of the defendant and contributory negligence on the part of the plaintiff. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.

ALEDA S. PHINNY, Respondent, v. GEORGE T. HAY and FREDERICK C. LOCKHART, Appellants.- Order affirmed, with ten dollars costs and disbursements. The provision thereon as to striking out the denials in paragraph 10 of the answer does not preclude the defendants to plead denials of the existence of any fact alleged in the complaint in order "to

* Laws of 1901, chap. 466, § 986, as amd. by Laws of 1906, chap. 658.-[REP. APP. DIV.-VOL. CLXXV.

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Second Department, November, 1916.

[Vol. 175.

perfect the answer as a complete affirmative defense." (See Einstein v. Einstein, 158 App. Div. 500; Douglass v. Phenix Ins. Co., 138 N. Y. 216.) Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FRANK KOEPERSKI and Others, Respondents.- Order of the County Court of Kings county affirmed. There is no evidence that the complaining witness appeared at the original trial. There is acceptable evidence that he did not appear. A question of fact was thus made for the County Court. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

CARLA SUTERA, as Administratrix, etc., of FRANCESCO SUTERA, Deceased, Appellant, v. ANCHOR LINE, LIMITED, Respondent.-- Order reversed, judgment vacated, and motion granted, and the plaintiff is permitted to serve, an amended complaint within twenty days upon payment of all costs to date, including ten dollars costs of the motion. No opinion. Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ., concurred.

GEORGE C. VAN TUYL, JR., as Superintendent of Banks of the State of New York, Appellant, v. DAVID A. SULLIVAN and Others, Defendants, Impleaded with ELIZABETH R. PUTNEY (Deceased), STEPHEN M. RANDALL and Another. Respondents. - Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion to bring in the said respondents by supplemental summons and complaint, as defendants in the action, granted, upon the ground that as to the respondents the six years' limitation imposed by section 120 of chapter 369 of the Laws of 1914* was in effect and applicable when the motion was made, and that such limitation began to run only after the expiration of the thirty-day period provided by section 80 of that act,* upon the authority of Hulbert v. Clark (128 N. Y. 295, 297); Sackheim v. Pigueron (215 id. 62, 73); Handy v. Draper (89 id. 334). (See, also, Van Tuyl v. Schwab, 172 App. Div. 670, 674.) Jenks, P. J., Carr, Mills, Rich and Putnam, JJ., concurred.

FRANCIS A. WEISBECKER and Others, Respondents, v. MULLER PAPER GOODS COMPANY, INC., Appellant.- Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ., concurred.

ALFRED A. WHITMAN, Appellant, v. CHARLES L. MUNNICH and WILLIS H. MUNNICH, Respondents.—Judgment and order affirmed, with costs.— No opinion. Thomas, Carr, Stapleton, Mills and Rich, JJ., concurred. ANNA WILSON, Respondent, v. FISHKILL ELECTRIC RAILWAY COMPANY, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Carr, Mills, Rich and Putnam, JJ. MICHAEL WOICIANOWICZ, Appellant, v. PHILADELPHIA AND READING COAL AND IRON COMPANY, Respondent.- Judgment reversed and new trial granted, costs to abide the event, on the ground that the evidence raised an issue of the negligence of the mine foreman in directing

*Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369), § 120; Id. § 80.-[REP.

App. Div.]

Second Department, November, 1916.

plaintiff to assist in pushing back upon the rails the derailed car in the immediate front of a car upon the same rails, which were descending, and which car the jury might find was unspragged · that is, unblocked - and that it does not appear from this record that the Pennsylvania statute,* exempting the mine owner for certain negligence of a certified mine foreman includes such act of such negligence. Jenks, P. J., Carr, Mills, Rich and Putnam, JJ., concurred.

FRANCES ALLEN, Appellant, v. MENAS S. GREGORY, Respondent.— Motion denied, without costs. Present - Thomas, Carr, Stapleton, Mills and Rich, JJ.

ANNA CHROSCIEL, as Administratrix, etc., of JOHN CHROSCIEL, Deceased, Respondent, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.- Motion denied, with ten dollars costs. Present — Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ

EDWARD V. FITZGERALD, Appellant, v. NATHAN GOLDSTEIN, Respondent.- Motion to dismiss appeal granted, without costs. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

ETTA G. HINAMAN, as Administratrix, etc., of WILLIAM HINAMAN, Deceased, Respondent, v. ERIE RAILROAD COMPANY, Appellant.- Motion denied. Present Jenks, P. J., Carr, Stapleton and Putnam, JJ.

In the Matter of JAMES W. CARPENTER, an Attorney. - Motion granted to amend order of reference so as to authorize the official referee to investigate the participation, if any, of the respondent in any arrangement whereby the fees of the witnesses should be paid by the railroad company; also so as to direct the official referee to report to the court the evidence, with his opinion thereon. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

In the Matter of the Application of ALFRED FOX, as Commissioner of Charities, for an Increase in the Amount Directed to Be Paid, etc.- Motion granted unless within ten days appellant pay the sum of $150 on account, under the provisions of the bond, perfect the appeal, place the case on the December calendar; in which event the motion is denied. Present Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

MORRIS L. KLINE, Appellant, v. BENJAMIN ZWIREN, Respondent.— Motion to dismiss appeal granted, without costs. Present — Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EISSING CHEMICAL COMPANY, Appellant.- Motion for leave to reargue the appeal or for resettlement of the order of reversal denied. Present - Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

BEATRICE SELNER, Respondent, v. LOUIS SELNER, Appellant. - Motion granted, without costs. Present - Thomas, Carr, Stapleton, Mills and Rich, JJ.

FRANK BAMBARA, Respondent, v. WESTCHESTER STREET RAILWAY COMPANY and JOHN H. CALHOUN, Appellants.- Judgment and order of the County Court of Westchester county affirmed, with costs. No opin

*See Penn. Laws of 1891, p. 176, No. 177, as amd.-[REP.

Second Department, November, 1916.

[Vol. 175. ion. Carr, Rich and Putnam, JJ., concurred; Jenks, P. J., and Mills, J., dissented.

FRANK BRAINARD, Respondent, v. FIREMAN'S FUND INSURANCE COMPANY, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

PAUL CARL, Appellant, v. SUN PRINTING AND PUBLISHING ASSOCIATION, Respondent. The defendant, upon advisement, should seek to avert or to minimize the harm that may flow from an article inaccurate in any part, and hence injurious. Hence, the article published after the libel in question may be plead and proven for that purpose, as well as to reduce punitive damages, if the plaintiff is entitled to prove the same, although on this appeal he contends that in the complaint he makes no such demand. Interlocutory judgment affirmed, with costs. Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ., concurred.

ALICE C. CLARK, Respondent, v. WILLIAM P. CLARK, Appellant.— Order reversed, without costs, and defendant's motion remitted to the Special Term to be heard upon the merits, as provided in section 775 of the Judiciary Law.* No opinion. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting,

MARY A. HEATH, as Administratrix, etc., of EDWARD HEATH, Deceased, Respondent, v. STEEPLECHASE PARK COMPANY, Appellant. - Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days from the entry of the order herein plaintiff stipulate to reduce the verdict to the sum of $8,000; in which event the judgment as so modified and the order are unanimously affirmed, without costs. Jenks, P. J., Carr, Mills, Rich and Putnam, JJ., concurred.

In the Matter of the Application of PATRICK F. FITZGERALD, Appellant, for a Writ of Mandamus against the BOARD OF EDUCATION OF THE CITY OF NEW YORK, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

JAMES KANE, Respondent, v. WILLIAM F. CONNELL and JOHN HEICHEL, Appellants. The injunction order appears to have been granted without any security, and no provision is made for security in the order. (See Code Civ. Proc. § 620; Howley v. Francis Press, 127 App. Div. 646; Feller v. Kronowitz, 137 id. 896.) The order is, therefore, reversed, with ten dollars costs and disbursements, and motion denied, with costs. This is, however, without prejudice to renewing this motion at Special Term with a proper undertaking under Code of Civil Procedure, section 620. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

MICHAEL J. KANE, an Infant, by MICHAEL KANE, His Guardian ad Litem, Appellant, v. SPERRY & BEALE COMPANY, Respondent. — Judgment reversed and new trial granted, costs to abide the event on authority of Grimshaw v. Lake Shore & M. S. R. Co. (205 N. Y. 371). (See, also, Adams v. Tozer, 163 App. Div. 751; Nudelman v. Borden's Condensed

*Consol. Laws, chap. 30 (Laws of 1909, chap. 35), § 775. — [REP.

App. Div.]

Second Department, November, 1916.

Milk Co., 77 Misc. Rep. 103.) Carr, Stapleton, Mills, Rich and Putnam, JJ., concurred.

THEODORE KLEISRATH, Respondent, v. DENNIS KENNELLY, Appellant. - Appeal dismissed in open court on consent. Present - Thomas, Carr, Stapleton, Mills and Putnam, JJ.

MATHILDE R. KUNZ, Respondent, v. GEORGE A. KUNZ, Appellant.— Order affirmed, with ten dollars costs and disbursements. No opinion. Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

HARRY LIFSCHUTZ, an Infant, by LOUIS LIFSCHUTZ, His Guardian ad Litem, Respondent, v. BENJAMIN DRAMEN, Appellant.-The plaintiff is not entitled to go to trial without paying the costs already imposed. His neglect to pay these costs has interfered with a diligent prosecution of his action. The order appealed from is so modified as to provide that the complaint be dismissed, with ten dollars costs, unless the plaintiff pay the costs heretofore imposed, and notice this case for trial at the January, 1917, term; and as so modified the order is affirmed, without costs. Carr, Mills, Rich and Putnam, JJ., concurred; Jenks, P. J., not voting.

ARCHIBALD MORRISON, Appellant, v. NICKLAUS KRAUS, Respondent.— Order of the County Court of Queens county reversed, with ten dollars costs and disbursements, without prejudice to a new application to said court by the defendant, within ten days, for a reopening of his default upon additional affidavits. (See Heischober v. Polishook, 152 App. Div. 193; Rothschild v. Haviland, 172 id. 562.) The judgment to stand as security in the meantime. Thomas, Carr, Stapleton, Rich and Putnam, JJ., concurred.

MAX PHILLIPS, Respondent, v. WEST ROCKAWAY LAND COMPANY and Another, Appellants.- Argument of this appeal to stand over and be heard with the appeal from the judgment. (177 App. Div. 260.) Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting. PATRICK QUALEY, Respondent, v. PINES RUBBER COMPANY, INC., Appellant.- Order reversed, with ten dollars costs and disbursements, and motion granted, without costs. (See Warner v. Star Co., 162 App. Div. 458; Piuntkosky v. Harrington's Sons Co., 167 id. 117; Linker v. Jamison, 173 id. 349.) Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

FRANCIS X. ROUSSEAU, Respondent, v. THOMAS ROBB, JR., Individually, etc., and Others, Appellants.- Order affirmed, with ten dollars costs and disbursements. It is probable that the Special Term, exercising its discretion, was not satisfied with the sufficiency of the affidavit of defendants' attorney that the convenience of witnesses would be promoted by the granting of the motion. The deponent failed to specify the witnesses whom he had interviewed and to state the materiality of their evidence as a matter of personal knowledge. (See Pattison v. Hines, 105 App. Div. 282.) Thomas, Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., not voting.

EDWARD E. YOUNG, Appellant, v. INTERNATIONAL MOTOR COMPANY, Respondent.-The facts of this case do not distinguish it from the rule expressed in McGuire v. Autocar Sales Co. (150 App. Div. 278). The judg