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KELLOGG, J., not sitting.

that would justify the presentation of charges | pleaded with Frank H. Watkins and Bertrand against them, we think it proper that these H. Snell. papers should be remitted to the Grievance PER CURIAM. Motion denied. See, also, Committee of the Association of the Bar of 138 N. Y. Sunn. 116. the City of New York, with the request that they investigate the matters contained in the petition and in the answers of the several respondents, and report their conclusion to this court, and that, if in the opinion of the Association of the Bar facts are developed which would justify charges, they be requested to present them to the court in the form of such formal charges as they may consider proper.

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SALAMANCA VENEER PANEL CO., Respondent, v. LONG FURNITURE CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 8, 1913.) Action by the Salamanca Veneer Panel Company against the Long Furniture Company. No opinion. Judgment affirmed, with costs.

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SCHWEID et al., Respondents, v. STOR- | Third Department. December 30, 1912.) Ac ANDT, Appellant. (Supreme Court, Appel- tion by Albert Sharron against the McCall Comlate Division, Fourth Department. January pany. No opinion. 15, 1913.) Action by Bernard A. Schweid and costs and disbursements. Order affirmed, with $10 another against Carl W. Storandt. No opinion. Motion for reargument (of 138 N. Y. Supp. 1141) denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied.

SEALY v. FOOTE. (Supreme Court, Ap

pellate Division, First Department. January 17, 1913.) Action by Thomas Sealy against Clarence Foote. No opinion. Motion granted, unless appellant complies with terms stated in order. Order filed. See, also, 151 App. Div. 935, 135 N. Y. Supp. 1142.

SEAMAN, Respondent, v. SMITH et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) Action by Richard F. B. Seaman against Fitzhugh Smith and others.

PER CURIAM. Motion denied, on condition that the printed papers be served and filed on or before January 20, 1913, and that the appellant place the cause on the calendar for the 27th of January, 1913, and be ready for argument when reached; otherwise, motion granted with $10 costs. See, also, 137 App. Div. 895, 121 N. Y. Supp. 1147.

SEIBERT v. ERIE R. CO. (Supreme Court, Appellate Division, Fourth Department. January 22, 1913.) Action by Victor Seibert against the Erie Railroad Company.

PER CURIAM. Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs.

KRUSE, J., dissents, upon the ground that if there was a sudden, violent collision, caused by the engine coming against the car, and the men in charge of the engine knew that the car was being loaded, as can be found from the evidence, a prima facie case was made out, although the loaders knew that an engine was liable to come for the car.

SEVERSON, Com'r, etc., v. MACOMBER. (Supreme Court, Appellate Division, Third Department. January 8, 1913.) Action by John S. Severson, as Commissioner of Charities of the City of Binghamton, against Henry M. Macomber. No_opinion. Motion granted. See, also, 138 N. Y. Supp. 250.

SHANAHAN, Respondent, v. FELTMAN, Appellant. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) Action by John J. Shanahan against Charles LA Feltman. No opinion. Appeal dismissed, without costs.

SHARRON, Appellant, v. McCALL CO., Respondent. (Supreme Court, Appellate Division,

SHAW v. SHAW et al. (Supreme Court. Appellate Division, Second Department. January 17, 1913.) Action by Gertrude L. Shaw against William Barrett Shaw and another.

PER CURIAM. Motion for leave to appeal to the Court of Appeals denied. As already indicated, the remedy of the corespondent, in the first instance, is to move to open the interloc utory judgment, and the final judgment, if one has been entered. See, also, 138 N. Y. Supp. 999, 1142.

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SILBERMAN, Appellant, v. SCHER, Respondent. (Appeal No. 1) (Supreme Court, Appellate Division, Second Department. December 6, 1912.) Action by Ida Silberman against Louis Scher.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion for stay pending appeal granted, upon plaintiff's furnishing security, duly approved by a justice of the Supreme Court, for the payment of the fund on deposit to the defendant on affirmance. See Silberman v. Scher, 138 N. Y. Supp. 1002. decided herewith. See, also, 139 N. Y. Supp. 1144.

SILBERMAN, Appellant, v. SCHER, Respondent. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) Action by Ida Silberman against Louis Scher. No opinion. Motions denied, with $10 costs in each motion. See, also, 139 N. Y. Supp. 1144.

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STALKER, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. December 30, 1912.) Action by Alida C. Stalker, as administratrix, etc., of Stephen Stalker, deceased, against the New York Central & Hudson River Railroad Company, as lessee of the Boston & Albany Railroad.

PER CURIAM. Judgment and order affirmed, with costs.

KELLOGG and HOUGHTON, JJ., dissent, on the ground that the proof shows that the decedent exercised no care and was guilty of contributory negligence.

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al., Appellants. (Supreme Court, Appellate Division, Second Department. January 24, 1913) Action by John A. Sylvester against Henry J. Mullen and another.

STERN et al., Respondents, V. CARL SYLVESTER, Respondent, v. MULLEN et LAEMMLE MUSIC CO., Appellant. (Supreme Court, Appellate Division, First Department. February 7, 1913.) Action by Joseph W. Stern and another against the Carl Laemmle Music Company. W. G. Morse, of New York City, for appellant. T. B. Richter, of New York City, for respondents.

PER CURIAM. Judgment (74 Misc. Rep. 262, 133 N. Y. Supp. 1082) affirmed, with costs. Order filed.

INGRAHAM, P. J., dissents.

STEWART, Respondent, v. F. W. WOOL WORTH CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) Action by Susie T. Stewart against the F. W. Woolworth Company and another.

PER CURIAM. While it will be competent for the plaintiff to prove the fact stated in the seventh subdivision of the complaint, upon the trial, it is improper to plead the evidence. The allegation is unnecessary and redundant, and the order must be reversed, with $10 costs and disbursements, and the motion granted, with

costs.

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PER CURIAM. Order unanimously affirmed, with costs. As to the refusal of the learned trial justice to impose costs as a condition of granting a new trial, see Post v. Kerwin, 150 App. Div. 321, 134 N. Y. Supp. 714.

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state facts sufficient to constitute a cause of Division, Fourth Department. January 8, action?

In re THIRTY-EIGHTH ST. IN CITY OF NEW YORK. In re PORTER et al. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) In the matter of the application of the City of New York, etc., relative to acquiring title, etc., for ferry purposes. Thirty-Eighth Street, etc. The City of New York appeals, and David Porter and Thomas P. Graham are respondents. No opinion. Order modified, by fixing the taxation of the fees of the claimants, Porter and Graham, at the sum of $4,000 for each, and, as thus modified, order affirmed, without costs of this appeal. See, also, 139 N. Y. Supp. 1147.

In re THIRTY-EIGHTH ST. IN CITY OF NEW YORK. In re PORTER et al. (Supreme Court, Appellate Division, Second Department. January 28, 1913.) In the matter of the application of the City of New York relative to acquiring title, etc. Thirty-Eighth Street, etc. The City of New York appeals, and David Porter and Thomas P. Graham are respondents. No opinion. Motion denied, without costs. See, also, 139 N. Y. Supp. 1147.

In re THIRTY-EIGHTH ST. IN CITY OF NEW YORK. In re STONE. (Supreme Court, Appellate Division, Second Department. January 17, 1913.) In the matter of the application of the City of New York, etc., relative to acquiring title, etc. The City of New York appeals, and William Stone is respondent. No opinion. Order modified, by fixing the taxation of the fees of the claimant, Stone, at the sum of $4,000, and, as thus modified, order affirmed, without costs of this appeal. See, also, 139 N. Y. Supp. 1147.

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1913.) Action by Jacob Thomy and another against Alvah E. Belcher and others. No opinion. Judgment affirmed, with costs.

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