dismiss appeal denied, without costs, without | for appellant. A. Steckler, for respondent. No ejudice to the right to renew upon sufficient opinion. Order affirmed, with $10 costs and disbursements. pers. ITZPATRICK, Respondent, v. FOX et al., Dellants. (Supreme Court. Appellate DiviSecond Department. March 4, 1904.) ion by William J. Fitzpatrick against Pat= J. Fox and another. No opinion. Judgat affirmed, with costs. LANNIGAN, Respondent, v. RYAN, Apant. (Supreme Court, Appellate Division, ond Department. January 22, 1904.) Acby John Flannigan against Patrick Ryan. opinion. Motion denied. LORES, Respondent, v. FLORES, Appel-. (Supreme Court, Appellate Division, First partment. March 11, 1904.) Action by Mada Flores against Juan B. Flores. P. Allen, FRANCIS, Respondent, v. ALBRIGHT, Ap pellant. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) Action by Jennie Francis against Edmund Albright. No opinion. Judgment affirmed, with costs. FRANK, Respondent, v. FRANK, Appellant. (Supreme Court, Appellate Division, First Department. February 5, 1904.) Action by Alfred Frank against Rose Frank. A. H. Hummel, for appellant. W. O. Miles, for respondent. No opinion. Interlocutory judgment affirmed. GILLESPIE, Respondent, V. MONTGOMERY et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 22, 1904.) Action by Frederick J. Gillespie against George L. Montgomery and Henry Bischoff. No opinion. Interlocutory judgment reversed on argument, without costs, on the ground that no decision of the issue of law appears in the record, and case remitted to the Special Term for hearing and decision. GILLESPIE, Respondent, v. MONTGOMERY et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 29, 1904.) Action by Frederick J. Gillespie against George L. Montgomery and Henry Bischoff. No opinion. Reargument ordered for Tuesday, March 1, 1904. In re GILLOON. (Supreme Court, Appellate Division, First Department. February 19, 1904.) and 120 New York State Reporter In the matter of James V. Gilloon. H. A. Forstor, for appellant. L. W. Stotesburg, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. GIVENS, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) Action by Christopher Givens against the Brooklyn Heights Railroad Company. No opinion. Order setting aside verdict and granting new trial affirmed, with costs of this appeal to abide the event of the action. GOLDMAN et al., Respondents, v. ROCCA, City Marshal, Appellant. (Supreme Court, Appellate Term. February 4, 1904.) Action by David Goldman and another against Luigi A. Rocca, as one of the marshals of the city of New York. From a judgment of the Municipal Court for plaintiffs, defendant appeals. Affirmed. Fulton McMahon (Henry C. De Witt, of counsel), for appellant. Stanislaus N. Tuckman, for respondents. DAVIS, J. This action was brought by the plaintiffs against the defendant to recover damages for defendant's neglect of duty as a marshal in failing to properly levy and collect under an execution issued to him in an action in the Municipal Court of the city of New York, First judicial district. The judgment was rendered, after hearing, on conflicting testimony as to matters of fact, and there appears no good reason upon the record to reverse it. Judgment affirmed, with costs. FREEDMAN, P. J., concurs. MacLEAN, J. (dissenting). On Saturday, May 16, 1903, the plaintiffs, through their attorney, Mr. Tuckman, issued execution for $194.50 against one Herman Rosenberg to the defendant, a city marshal, who the same day levied upon goods amply sufficient to satisfy the execution, and received $50 on account, with promise of payment in full from the judgment debtor on Monday. On Monday, however, the marshal was stayed by the filing and service of an undertaking, approved by a justice, with a notice of appeal. To the sufficiency of the sureties the attorney excepted, and nothing more till the 25th, when he wrote the marshal that the sureties had failed to appear and justify, and requested him to make a levy the follow ing day. Even had the stay been lifted, which it was not by mere failure of appearance and justification of the sureties, the following day was too late, as in the mean season, while the plaintiffs' attorney let the stay hinder the de fendant, another marshal came in under other process and sold the goods. In fact, the plaintiffs' attorney let the stay bide until July 7th, when it was vacated by order upon his affidavit. Now the plaintiffs have a judgment against the defendant as for his neglect, to which they are not entitled, and which should be reversed. The marshal did no wrong in not breaking up the debtor's place on Saturday, if he was willing to run the risk of nonremoval of the goods till Monday. On Monday his hands were tied, and the lawyer let them stay so until long after the marshal could do anything. Were it a point now to be considered, which it is not, upon Mr. Tuckman's statement in his affidavit for the vacation of the stay and as a witness upon the trial of this cause, there is enough to show that after the levy the lawyer gave directions to the marshal, which on the one hand were oppressive and erroneous, and on the other went to releasing the defendant. Whether the marshal put in a keeper, or the keeper was temporarily absent, is immaterial herein, excepting as to the taxation of due disbursements, since it is undisputed that the levy was good, and the property levied upon was ample, when the marshal was stayed, and kept stayed. The judgment should have been the other way, and now should be reversed. GOTTSCHALK, Respondent, v. JUNGMANN et al., Appellants. (Supreme Court, Appellate Division, First Department. February 5, 1904.) Action by Louise Gottschalk against Julius Jungmann and others. J. Fettretch, for appellants. C. H. Collins, for respondent. PER CURIAM. Judgment modified, by reducing the same as entered to the sum of $1,559.16, and, as so modified, affirmed, without costs. VAN BRUNT, P. J., and MCLAUGHLIN, J., dissent. GRAY et al. v. YORK STATE TELEPHONE CO. et al. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) Action by William A. Gray and others! against the York State Telephone Company and another for an injunction restraining de fendants from erecting telephone poles and wires on a highway adjoining the plaintiffs' land. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. PER CURIAM. Judgment affirmed, on opinion in Richard A. Gray et al. v. Same De endants, 86 N. Y. Supp. 771. One bill of costs nly allowed in this case and in the case of Richard A. Gray et al. v. Same Defendants. GRAY v. SIEGEL COOPER CO. (Supreme Court, Appellate Division, First Department. 'ebruary 11, 1904.) Action by Mary A. Gray, s administratrix, against the Siegel Cooper ompany. No opinion. Motion denied. GRIFHAHN. Respondent, v. KREIZER et 1., Appellants. (Supreme Court, Appellate Diision, Second Department. March 4, 1904.) ction by Mary C. Grifhahn, as administratrix, c., against Bernard Kreizer and others. No pinion. Motion granted, unless the appellant le within 10 days an undertaking accurately | escribing the judgment and approved by the residing Justice. GROARKE, Appellant, v. LAEMLE, Re- PER CURIAM. Judgment affirmed, with sion, First Department. March 11, 1904.) Action by M. Albert Harris against John C. Haynes and others. W. H. Benn, for appellant. C. N. Jordan, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. HARRISON, Respondent, v. WILSON et al., Appellants.(Supreme Court, Appellate Division, First Department. February 19, 1904.) Action by Antoinette P. Harrison against George Wilson and another. M. F. Cary, for appellants. J. W. Shepard, for respondent. No opinion. Order affirmed, with costs. HARTMAN, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 26, 1904.) Action by Francis Hartman against the New York Central & Hudson River Railroad Company. No opinion. Judgment and order affirmed, with costs. HAWES, Respondent, v. CARR, Appellant. (Supreme Court, Appellate Division, Second Department. January 15, 1904.) Action by Alice L. Hawes, as committee of the person person, against Alfred Carr. No opinion. Orand estate of Mary Crosbie, an incompetent der of the Special Term modified, so as to prefer this case only over the issues of the December, 1903, Trial Term, and, as modified, the appellant. GUILES v. VILLAGE OF CATTARAU-affirmed, with $10 costs and disbursements to US. (Supreme Court, Appellate Division, ourth Department. January 29, 1904.) Acon by Emma E. Guiles against the village of ttaraugus. No opinion. Motion for rearment denied, with $10 costs. GUSTAVSON, Respondent, v. JOHNSON, opellant. (Supreme Court, Appellate Divion, Second Department. March 4, 1904.) tion by Leonard Gustavson against John A. hnson. No opinion. Judgment and order animously affirmed, with costs. HAGAR, Appellant, v. BUFFALO & S. R. D., Respondent. (Supreme Court, Appellate vision, Fourth Department. March 8, 1904.) tion by Eber Hagar against the Buffalo & squehanna Railroad Company. No opinion. dgment and order affirmed, with costs. HAIGHT, Respondent, v. STOCK, GRAIN PROVISION CO. OF NEW YORK, LimitAppellant. (Supreme Court, Appellate Diion, First Department. February 5, 1904.) tion by William C. Haight against the Stock, ain & Provision Company of New York, nited. C. F. Brown, for appellant. W. P. loney, for respondent. No opinion. Judgnt and order affirmed, with costs. HALL, Respondent, v. UNITED STATES DIATOR CO., Appellant. (Supreme Court, pellate Division, Fourth Department. March 1904.) Action by George Hall against the ited States Radiator Company. No opinion. gment and order affirmed, with costs. HARRIS, Appellant, v. HAYNES et al., Rendents. (Supreme Court, Appellate Divi86 N.Y.S.-72 HAWES, Respondent, v. CARR, Appellant. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) Action by Alice L. Hawes, as committee, etc., against Alfred Carr. No opinion. Appeal dismissed, with $10 costs and disbursements. HAWES, Respondent, v. CARR, Appellant. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) Action by Alice L. Hawes, as committee, etc., of Mary Crosbie, an incompetent person, against Alfred Carr. No opinion. Order affirmed, with $10 costs and disbursements. Ac HAWLEY, Respondent, v. THAYER, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 26, 1904.) tion by Clark D. Hawley against Elizabeth B. Thayer. No opinion. Appeal dismissed, with costs, together with $10 costs of this motion, unless within 20 days appellant serves and files the printed record upon appeal and pays the $10 costs of this motion, in which event the motion is denied, without costs. HAYES, Respondent, V. WEST DISINFECTING CO., Appellant. (Supreme Court, Appellate Division, Second Department. January 15, 1904.) Action by Harry D. Hayes, Jr., an infant, etc., against the West Disinfecting Company. No opinion. Judgment of the Municipal Court affirmed by default, with costs. In re HEATHERTON. (Supreme Court, Appellate Division, Second Department. January and 120 New York State Reporter 29, 1904.) In the matter of the application of Carolyn Dancel Heatherton for a compulsory judicial settlement of the account of the proceedings of Christian Dancel and another, as administrators, etc., of Christian Dancel, deceased. No opinion. Motion to resettle order grauted, and order resettled. HENNESSEY, Respondent, v. METROPOLITAN LIFE INS. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 8, 1904.) Action by George F. Hennessey against the Metropolitan Life Insurance Company. No opinion. Judgment and order affirmed, with costs. as a city marshal for the city of New York No opinion. Judgment of the Municipal Court affirmed by default, with costs. HOGAN, Respondent, v. STRAUSS, A lant, et al. (Supreme Court, Appellate sion, First Department. February 5, 1941 Action by John E. Hogan against Hers Strauss, impleaded. L. S. Carrere, for aper lant. M. J. Joyce, for respondent. No opinio Order affirmed, with $10 costs and distre ments. HOUSMAN et al. v. STRAUS. (Supreme Court, Appellate Division, First Deport March 11, 1904.) Action by Arthur A. H opinion. Motion granted, with $10 costs. man and others against Mark J. Straus. N HENRY et al., Respondents, v. HEYDORN et al., Appellants. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) Action by A. E. Henry and Elmer E. Stanton against Elizabeth Heydorn and Rebecca Hey-spondent. (Supreme Court, Appellate Divisi dorn Bulson. No opinion. Order unanimously affirmed, with $10 costs and disbursements. HENTZ, Respondent, V. CITY OF MT. VERNON, Appellant. (Supreme Court, Appellate Division, Second Department. January 22, 1904.) Action by J. Henry Hentz against the city of Mt. Vernon. No opinion. Motion denied. HUDSON, Appellant, v. ERIE R. CO. R First Department. March 11, 1904) Art by George C. Hudson against the Erie Rail Company. J. M. Gardner, for appelant E Bacon, for respondent. No opinion. ment affirmed, with costs, on opinion render upon previous appeal. 61 App. Div. 134, 7 A Y. Supp. 350. HUTCHINS, Respondent, v. PENNSIHERRMAN et al., Respondents, v. SCHER- VANIA R. CO., Appellant. (Supreme C RER et al., Appellants. (Supreme Court, Ap-4, 1904.) Action by Martha Hutchins ag Appellate Division, Second Department. Min pellate Division, Second Department. March 4. 1904.) Action by Dionysis and Elizabeth ion. Judgment and order affirmed, with ests the Pennsylvania Railroad Company. Nec Herrman against Albert and Mary Scherrer. No opinion. Order affirmed on the argument, with $10 costs and disbursements. HEWITT v. HEDDEN. (Supreme Court, Appellate Division, Fourth Department. Jan uary 26, 1904.) Action by Loren M. Hewitt against Verner J. Hedden. No opinion. Motion for reargument denied, with $10 costs. HYERS, Respondent, v. INTERURBAN ST RY. CO., Appellant. (Supreme Court. App. late Division, Second Department. January 1904.) Action by William H. Hyers, as ad istrator, etc., of Percy W. Hyers, deceas against the Interurban Street Railway Ca ny. No opinion. Order affirmed, with §. costs and disbursements. HIRSCHBERG, Appellant, v. HOROWITZ, J. G. DIFFENDERFER CO., Respondet Respondent. (Supreme Court, Appellate Divi- IMPORTERS & TRADERS" NAT. BAN sion, Second Department. March 4, 1904.) OF NEW YORK, Appellant. (Supreme C Action by Jacob Hirschberg against Charles Appellate Division, Fourth Department Horowitz. No opinion. Judgment of the Mu-uary 29, 1904.) Action by the J. G. Dif nicipal Court affirmed, with costs. HOEFER, Respondent, v. GRANT, Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by August Hoefer against Hugh J. Grant, as receiver. A. Ofner, for appellant. C. Caldwell, for respondent. No opinion. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered to the sum of $2,100, in which case judgment as so modified, and the order appealed from, are affirmed, without costs. HOFFMAN, Respondent, V. ENGELBRECHT, City Marshal, Appellant. (Supreme Court, Appellate Division, Second Department. January 15, 1904.) Action by Jacob Hoffman against Thomas C. Engelbrecht, fer Company against the Importers' & Tra National Bank of New York. PER CURIAM. Order reversed, and t for interpleader granted, upon condities within 30 days the defendant procure the 3of Arizona and Colvin to appear and this action and give security to plain any costs which may be awarded against parties, in which event, and upon pay the fund in dispute into court, the deter is discharged as defendant, and the parts", interpleading are substituted in its t case of failure of compliance with the ?? provision, the order is affirmed, wi The form of the order is to be settled before MCLENNAN, P. J., on 2 days' KANE v. METROPOLITAN ST. ET! (Supreme Court, Appellate Division. Fis partment. February 19, 1904.) Active James Kane against the Metropolitan Street | against James F. McKernen. No opinion. MoRailway Company. No opinion. Motion de- tion granted, so far as to dismiss appeal, with nied, with $10 costs. $10 costs. In re KEEDY. (Supreme Court, Appellate Division, Second Department. January 15, 1904.) In the matter of the application of J. Marbourg Keedy for admission to the bar. No pinion. Application granted. = KEIM, Respondent, v. TOWNSEND, Appelant. (Supreme Court, Appellate Division, First Department. February 5, 1904.) Action y Frederick Keim against David C. Townend. D. McCurdy, for appellant. E. M. Sheprd, for respondent. No opinion. Judgment nd order reversed, and new trial ordered, with osts to appellant to abide event, unless plainiff stipulates to reduce judgment as entered, cluding costs and allowance, to the sum of 4,883.69, in which event the judgment as so odified, and the order appealed from, are afrmed, without costs. KENNEDY, Respondent, v. THOMPSON, al., Appellants. (Supreme Court, Appellate ivision, Second Department. January 29, 04.) Action by William T. Kennedy against e Marcus A. Thompson and another. No inion. Motion to dismiss appeal denied, on ndition that the appellant pays $10 costs and rfects his appeal within 10 days. Upon faile to comply with these conditions, the motion granted, with $10 costs. (Supreme Court, Appellate Division, First DeLAWSON, Respondent, v. LORD, Appellant. partment. February 5, 1904.) Action by William C. Lawson against Franklin B. Lord, as executor. H. D. Baldwin, for appellant. C. B. Blair, for respondent. No opinion. Judgment and order affirmed, with costs. LEARY, Respondent, v. CORVIN et al., Appellants. (Supreme Court, Appellate Division, First Department. March 11, 1904.) Action by Rose M. Leary against Lizzie J. Corvin and others. D. McClure, for appellants. J. A. Hodge, for respondent. PER CURIAM. Judgment affirmed, with costs, on the opinion of the court below. O'BRIEN, J., dissents. LEAYCRAFT et al., Respondents, v. HEUER, Appellant. (Supreme Court, Appellate Division, First Department. February 5, 1904.) Action by J. Edgar Leaycraft and others against Henry O. Heuer. C. G. F. Wahle, for appellant. G. H. Crawford, for respondents. No opinion. Judgment and order affirmed, with costs. LEISTEN, Respondent, v. CORNING, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 26, 1904.) Action by Augustus Leisten against Anna CorNo opinion. Judgment and order affirmed, with costs. KIRKPATRICK, Appellant, v. ALLEMAN-ning. A FIRE INS. CO. OF PITTSBURG, PA., espondent. (Supreme Court, Appellate Divion, Second Department. January 7, 1904.) In re LEITCH'S WILL. (Supreme Court, -tion by John J. Kirkpatrick against the Appellate Division, First Department. Februlemannia Fire Insurance Company of Pitts-ary 19, 1904.) In the matter of the will of John rg, Pa. No opinion. Order affirmed, without sts. Leitch, deceased. W. J. Leitch, for appellant. J. E. Kelly, for respondent. No opinion. Decree affirmed, with costs. KLEIN, Respondent, V. EAST RIVER ECTRIC LIGHT CO., Appellant. (SuLEWIS, Appellant, v. TINDEL MORRIS -me Court, Appellate Division, First DepartCO., Respondent. (Supreme Court, Appellate nt. February 19, 1904.) Action by Freder- Division, First Department. March 11, 1904.) Klein against the East River Electric Light Action by Thomas A. Lewis against the Tindel mpany. No opinion. Motion granted. Ques-lant. N. B. Beecher, for respondent. No opinMorris Company. J. D. P. White, for appels to be settled on presentation of order. NIBBS v. EGGERS et al. (Supreme Court, ellate Division, Third Department. March 904.) Action by William H. Knibbs against nie Mosher Eggers and others. No opinion. giment unanimously affirmed, with costs. OHON, Appellant, v. KOHON, Respond(Supreme Court, Appellate Division, First artment. February 5, 1904.) Action by jamin Kohon against Rose Kohon. S. Gooan, for appellant. H. M. Marks, for redent. No opinion. Judgment affirmed, costs. ion. Order affirmed, with $10 costs and disbursements. McCHESNEY, Respondent, v. MOORE, Appellaut. (Supreme Court, Appellate Division, First Department. March 11, 1904.) Action by Margaret J. McChesney against James Moore. J. H. Hazelton, for appellant. A. M. Thiery, for respondent. PER CURIAM. Interlocutory judgment affirmed, with costs, with leave to defendant to withdraw demurrer, and to answer, on payment of costs in this court and in the court below. VAN BRUNT, P. J., and HATCH, J., dissent. ANGLEY V. MCKERNEN. (Supreme -t, Appellate Division, First Department. McCORD v. LAUTERBACH. (Supreme -uary 11, 1904.) Action by John Langley Court, Appellate Division, First Department. |