Third Department, November, 1916.

[Vol. 175. matter remitted to the Commission for further consideration on the opinion in People ex rel. Sidney Water Works Co. v. Conservation Commission (175 App. Div. 5), decided herewith. All concurred.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. EARL P. VAN WIE and HOWARD E. ROBINSON V. THE BOARD OF SUPERVISORS OF MONTGOMERY COUNTY.— Determination unanimously confirmed, without costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN J. LOWY, Appellant, v. SAMUEL H. ORDWAY and Others, Comprising and Constituting the Civil Service Commission of the State of New York, Respondents.- Order unanimously affirmed, with ten dollars costs and disbursements.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE THOMAS B. JEFFERY COMPANY OF WISCONSIN, Relator, v. MARTIN SAXE and Others, as State Tax Commissioners, and the STATE TAX COMMISSION OF THE STATE OF NEW YORK, Respondents.- Determination unanimously confirmed, with fifty dollars costs and disbursements.

HARRY RONZETTI, Respondent, v. WILLIAM G. Fox, Appellant.— Judgment and order unanimously affirmed, with costs.

MARY E. ROSEMAN and Others, Respondents, v. WARREN DELANO, Appellant. Order unanimously affirmed, with ten dollars costs and disbursements.

MARY E. ROSEMAN and Others, Respondents, v. WARREN DELANO, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

AUGUST W. L. ROTHENBERG, Respondent, v. JOSEPHINE F. COLLINS, as Administratrix, etc., of NEWTON COLLINS, Deceased, Appellant.-Judgment and order reversed upon the grounds stated by Woodward, J., in Rothenberg v. Collins, (161 App. Div. 387), and also upon the ground that the verdict is against the evidence. All concurred, except Howard and Cochrane, JJ., who dissented.

SAMUEL R. ROGERS and LUELLA ROGERS, Respondents, v. JAMES J. BYARD, JR., Appellant.- Interlocutory judgment unanimously affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer upon payment of costs in this court and in the court below.

STANLEY Ross, Appellant, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent.- Judgment and order unanimously affirmed, with costs.

SCHENECTADY COUNTY COAL COMPANY, Appellant, v. CHARLES W. MILLER and WADE MILLER, Doing Business under the Firm Name and style of MILLER BROTHERS, Respondents.- Judgment unanimously affirmed, with costs.

--

CHARLES W. STICKLE, Appellant, v. BURT A. GEISINGER, Respondent. - Order unanimously affirmed, with ten dollars costs and disbursements. WILLIAM M. SCHOULER, Appellant, v. WILLIAM A. RYAN and ISAAC LELAND, Respondents.― Judgment unanimously affirmed, with costs. HERMAN SMITH, an Infant, by HERMAN WILLIAM SMITH, His Guardian ad Litem, Appellant, v. HERBERT E. LISTMAN, Respondent. - Order affirmed, with costs. All concurred, except Howard, J., who dissented.

App. Div.]

Third Department, November, 1916.

STOLLWERCK BROS., INC., Appellant, v. GEORGE W. CROOKS and JAMES E. PRICE, Respondents. — Judgment unanimously affirmed, with costs. RHODA A. SMITH, Respondent, v. CATHARINE TINKLEPAUGH, Appellant, Impleaded with Others.- Interlocutory judgment unanimously affirmed, with costs, with leave to appellant to serve an answer within twenty days on payment of such costs and of the costs awarded by the interlocutory judgment.

DANIEL J. SHANAHAN, Appellant, v. THE STATE OF NEW YORK, Respondent. - Judgment of the Court of Claims affirmed, with costs. All concurred, except Howard, J., who dissented.

CYRUS D. SMITH, Respondent, v. HENRY A. FITZSIMMONS, Appellant. - Judgment and order reversed on the ground that the damages are excessive, and new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the recovery to $750, in which event the judgment is so modified, and as modified judgment and order affirmed, without costs. All concurred.

HAROLD W. THOMAS, Respondent, v. FRED COLBATH, Appellant.Judgment unanimously affirmed, with costs.

SARAH J. UNGARD, as Administratrix, etc., of CLYDE E. UNGARD, Deceased, Appellant, v. THE PENNSYLVANIA RAILROAD COMPANY, Respondent.-Order unanimously affirmed, with costs.

IDA J. VOSBURGH, Appellant, v. ELMER J. VOSBURGH, as Executor, etc., of WILLIAM VOSBURGH, Deceased, Respondent.- Judgment unanimously affirmed, with costs.

CHARLES A. VROOMAN, Appellant, v. Town OF SANFORD, Respondent. - Order reversed, verdict reinstated, and judgment directed to be entered thereon, with costs of the action and of this appeal; this court being of the opinion that the verdict was not against the weight of the evidence. All concurred.

FREMONT F. WILLIAMS, Appellant, v. LIZZIE MERRILL, Respondent.Judgment unanimously affirmed, with costs.

GEORGE J. WALLETT, Respondent, v. THE RUTLAND RAILROAD COMPANY, Appellant.- Judgment and order affirmed, with costs. All concurred, except Kellogg, P. J., who dissented.

ANNA WEIGAND, Respondent, v. UNITED TRACTION COMPANY, Appellant. Judgment and order affirmed, with costs. All concurred, except Cochrane, J., who dissented.

ANNIE PAGE WARD, Appellant, v. NEW YORK LIFE INSURANCE COMPANY and Others, Respondents.- Judgment unanimously affirmed, with costs.

EDWARD MOORE, Trading as MOORE BROS., Respondent, v. THE AMERICAN MOLASSES COMPANY OF NEW YORK, Appellant. — Order unanimously affirmed, with ten dollars costs and disbursements.

In the Matter of the Claim of CHARLES H. RICHARDSON, Respondent, for Compensation under the Workmen's Compensation Law, v. BUILDERS' EXCHANGE ASSOCIATION, Employer, and the ZURICH GENERAL ACCI

Third Department, November, 1916.

[Vol. 175.

DENT AND LIABILITY INSURANCE COMPANY, LIMITED, Insurance Carrier, Appellants. Motion granted.

MARY E. ROSEMAN and Others, Respondents, v. WARREN DELANO, Appellant. Decision amended by adding thereto a direction that said Warren Delano appear for examination on November 27, 1916, at eleven A. M., at the place and before the officer mentioned in the original order. MARY E. ROSEMAN and Others, Respondents, v. WARREN DElano, Appellant. Decision amended by adding thereto a direction that said Warren Delano appear for examination on November 27, 1916, at eleven A. M., at the place and before the officer mentioned in the original order. LUELLA HEFFRON, an Infant, by Her Guardian ad Litem, WILLIAM HEFFRON, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent. - Judgment affirmed, with costs. All concurred, except Woodward and Cochrane, JJ., who voted for reversal on the ground that the case presented an issue of fact which should have been submitted to the jury. This court reversed a judgment for the plaintiff on a former appeal on the ground that the verdict was against the weight of the evidence, and ordered a new trial (140 App. Div. 943), at which new trial the evidence should again have been submitted to the jury; the record in the second trial being precisely the same as that in the first. MARGARET A. O'CONNOR, Respondent, v. JOHN J. HEALY, as Executor, etc., of JOHN F. LOWERY, Deceased, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements. Cochrane, J., not sitting.

BROOKLYN COOPERAGE COMPANY V. A. SHERMAN LUMBER COMPANY. - Motion granted and the following question certified: Has Eva S. Clark, as executrix of the last will and testament of Pliny J. Clark, deceased, such interest in the subject of this action as to entitle her to be made a party defendant in this action on her own application ?

THE CITY OF HUDSON and the BOARD OF EDUCATION OF THE CITY OF HUDSON, Respondents, v. BURCHARTZ FIREPROOFING COMPANY, INC., Appellant. Motion granted and the following questions certified: 1. Does the complaint state facts sufficient to constitute a cause of action? 2. Is there a misjoinder of parties plaintiff ?

ETTAH M. S. KANALEY, Respondent, v. GENERAL ELECTRIC COMPANY, Appellant. - Order unanimously affirmed, with costs.

FERDINAND G. KING, Respondent, v. KATHERINE V. O'NEILL, Appellant. Order unanimously affirmed, with ten dollars costs disbursements.

and

EDWARD F. MURRAY, Appellant, v. HUDSON NAVIGATION COMPANY, Respondent, and MURRAY'S LINE, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements. Howard, J., not sitting.

In the Matter of the Application of the STANFORD HEIGHTS REALTY COMPANY OF SCHENECTADY, NEW YORK, Appellant, for a Writ of Certiorari to FLOYD S. HEDDEN and Others, Assessors of the Town of Niskayuna, New York, Respondents.- Order unanimously affirmed, with ten dollars costs and disbursements. Kellogg, P. J., not sitting.

App. Div.]

Third Department, November, 1916.

In the Matter of the Claim of HARRIET A. PARTRIDGE for Compensation under the Workmen's Compensation Law for the Death of GEORGE A. PARTRIDGE, V. NORWICH PHARMACAL COMPANY, Employer, and UTICA MUTUAL COMPENSATION INSURANCE CORPORATION, Insurance Carrier. — Determination unanimously affirmed.

In the Matter of the Claim of EDNA SAENGER, Respondent, for Compensation under the Workmen's Compensation Law, v. FELIX A. LOCKE, Employer, and ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LIMITED, Insurance Carrier, Appellants.- Award unanimously affirmed.

In the Matter of the Claim of EMIL PETERMANN, Respondent, for Compensation under the Workmen's Compensation Law, v. WM. STEINER SONS & COMPANY, Employer, and ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LIMITED, Insurance Carrier, Appellants.Award unanimously affirmed on the authority of Marhoffer v. Marhoffer (ante, p. 52), decided at this term of court.

THE A. SHERMAN LUMBER COMPANY, Respondent, v. KALT LUMBER COMPANY, Appellant.— Order unanimously affirmed, with ten dollars costs and disbursements.

ANNIE PAGE WARD V. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY and RAYMOND WARD.— Motion to dismiss appeal denied. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

ANNIE PAGE WARD V. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY and Others.- Motion to dismiss appeal denied. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

ANNIE PAGE WARD V. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY and Others.- Motion to dismiss appeal denied. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

ANNIE PAGE WARD V. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY and Others.- Motion to dismiss appeal denied. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

ANNIE PAGE WARD V. THE NEW YORK LIFE INSURANCE COMPANY and GRACE L. DIACK.- Motion to dismiss appeal denied. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

ANNIE PAGE WARD V. NEW YORK LIFE INSURANCE COMPANY and Others. Appellant's motion for stay granted, with leave to the respondent to move to modify or vacate this order unless appellant prosecutes her appeal to the Court of Appeals with due diligence.

Fourth Department, November, 1916.

[Vol. 175.

FOURTH DEPARTMENT, NOVEMBER, 1916.

MARY E. MOORE, Respondent, v. THE MOHICAN COMPANY, Appellant. Appeal from a judgment of the Supreme Court, entered in the Erie county clerk's office on the 17th day of April, 1916, in favor of the plaintiff, and also from an order entered on the same day denying the defendant's motion for a new trial.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that it was the law of the case as charged by the court that plaintiff was not entitled to recover for the oily condition of defendant's floors, unless she satisfied the jury that there was a pool or unnecessary accumulation of oil at the place where she slipped differing in that respect from the general condition of the floor. The verdict for the plaintiff necessarily implies that there was such a pool or accumulation. We think this verdict is against the weight of the evidence. All concurred, except Kruse, P. J., who dissented in a memorandum.

KRUSE, P. J. (dissenting): I dissent. I think the case was submitted to the jury upon too narrow a ground, but even at that it seems to me there is evidence to sustain the verdict. It does not seem useful to send the case back simply on the ground that it is against the weight of the evidence. There is abundant proof to show that the floor was not oiled in the usual way, but in a manner to make it unusually slippery, causing people to fall, as was shown by the evidence of actual occurrences. I vote for affirmance.

GEORGE MURRAY BROWN and Another, as Executors, etc., Appellants, v. CORNELIUS SULLIVAN, Respondent.- Judgment of County Court and judgment of Justice's Court reversed, with costs. Held, that the trial of the cause in Justice's Court having been duly adjourned to February 21, 1913, the attempted further adjournment on the day preceding that to which it had been thus regularly adjourned, to March 8, 1913, was ineffective, and the justice having failed to appear upon the date to which the cause had been regularly adjourned, lost jurisdiction of the action. We do not pass upon the question as to whether or not this court or the County Court has power to fix a new date for the new trial. All concurred, except Kruse, P. J., and Lambert, J., who dissented.

JOHN LALLY, Respondent, v. MARTIN S. MINDNICH, Appellant.— Judgment and order of County Court and judgment of Justice's Court reversed, and a new trial granted in the County Court, with costs to the appellant to abide the event. Held, that the trial court erroneously rejected testimony offered on the part of the defendant to show plaintiff's inability to perform the services for which he was originally employed. 2. That the verdict of the jury is clearly against the weight of the evidence. All concurred, except Kruse, P. J., and De Angelis, J., who dissented.

ANNA RHEA ST. JOHN, an Infant, etc., Respondent, v. ALLEN S. OLM STED, Appellant.-Judgment and order affirmed, with costs. All concur