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tered June 16, 1915, affirming a judgment in
favor of plaintiff entered upon a verdict in an
action to recover for the death of plaintiff's in-
testate alleged to have been occasioned through
the negligence of the defendant, his employer.
The deceased was foreman of the men engaged
in making packing boxes in the defendant's
printing establishment, his principal duty, how-
ever, being to operate the circular saws, by
means of which boards of various sizes were
cut into the required shape and size for the
making of these boxes. The plaintiff claims
that a stick was thrown by a circular saw and
struck the deceased causing a fatal injury, and
demands damages, alleging that the defendant
negligently failed to comply with section 81 of
the Labor Law (Consol. Law, c. 31), requiring
circular saws to be "properly guarded." Frank
Verner Johnson and Amos H. Stephens, both
of New York City, for appellant. Edwin D.

Webb and Frederick N. Van Zandt, both of
New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur.

SCHWAB v. BOYLE et al., Board of Elections of the City of New York, et al. (Court of Appeals of New York. Oct. 20, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (160 N. Y. Supp. 894), entered October 10, 1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendants to refrain from certifying that a vacancy exists in the office of president of the board of aldermen of the city of New York to be filled at the ensuing election. Roger Foster, Ira J. Ettinger, and Joseph H. San, all of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondents.

PER CURIAM. Order affirmed, with costs, on opinion of McLaughlin, J., below.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur. HOGAN, J., absent.

Dec. 5,

In ге SHILOH BAPTIST CHURCH. (Court of Appeals of New York. 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (159 N. Y. Supp. 1146), entered June 29, 1916, which affirmed an order of Special Term setting aside an election of trustees of Shiloh Baptist Church and ordering a new election in a proceeding under section 32 of the General Corporations Law (Consol. Laws, C. 23). Charles A. Smythwick, of New York Martin J. Tierney, of City, for appellants. New Rochelle, and William J. McDonnell, of New York City, for respondents.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur. HOGAN, J., absent.

SIMPSON, Appellant, v. KUMPF, Respondent. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (167 App. Div. 926, 152 N. Y. Supp. 1143), entered March 12, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. Plaintiff sues as the receiver of the Lockwhit Company appointed in supplementary proceedings to recover the sum of $392.50, which is the unexpended balance of the sum of $9,000 transferred by the Lockwhit Company, the judgment debtor, to defendant and two others, as trustees, for the purpose of receiving the same and applying said sum proportionately on account of the debts of Lockwhit Company. See, also, 216 N. Y. 634, 110 N. E. 1050. Emilie M. Bullowa and Ferdinand E. M. Bullowa, both of New York City, for appellant. L. E. Schlechter and Jacob Zelenko, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

SIMPSON et al., Respondents, v. METROPOLITAN TRUST CO. OF CITY OF NEW YORK, Appellant. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 923, 153 N. Y. Supp. 1144), entered June 29, 1915, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court upon the pleading in an action upon a promissory note. The answer alleged in substance that the sole consideration for the note in suit was the payment of a fee for legal services, the claimants being the attorneys for the makers of the note, and withholding from them at the time all knowledge of the fact that they had already received approximately the same amount from another source for the same work. Nash Rockwood and Lawrence B. McKelvey, both of Saratoga Springs, for appellant. Graham Sumner, of New York City, for respondents.

In re SEAICH. (Court of Appeals of New York. Dec. 5, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (170 App. Div. 686, 156 N. Y. Supp. 579), entered January 4, 1916, which modified, and affirmed as modified, an order of Special Term confirming the report of appraisers in a proceeding brought under sections 7 and 8 of the Business Corporations Law (Consol. Laws, c. 4) providing for the consolidation of corporations. The Yellow Taxicab Company and the Mason-Seaman Transportation Company on March 7, 1914, entered into an agreement of consolidation, which was authorized and approved by all the stockholders of both companies, except the petitioner herein, who owned about 2 per cent. of the preferred stock and 16/10 per cent. of the common stock of the Yellow Taxicab Company. Under section 8 of the Business Corporations Law the petitioner applied to the court for the appointment of appraisers to appraise the value of his stock. See, also, 218 N. Y. 692, 113 N. E. 1066. Henry B. Twombly, of New York City, for appellant. T. Ludlow Chrystie and William J. Moran, both of New York City, for reWILLARD BARTLETT, C. J., and HISspondent. COCK, CHASE, COLLIN, CUDDEBACK, PER CURIAM. Order affirmed, with costs. HOGAN, and POUND, JJ., concur.

PER CURIAM. Judgment affirmed, with costs.

S. SHANKER METAL CEILING CO., Inc., v. FORT MASONRY CO. et al. (Court of Appeals of New York. Oct. 17, 1916.) Motion to dismiss an appeal as to plaintiff, respondent, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (159 N. Y. Supp. 1143), entered June 20, 1916, affirming a judgment of the Bronx County Court in an action to foreclose a mechanic's lien. The motion was made upon the grounds that the Appellate Division had unanimously decided that the findings of fact were sustained by the evidence, that no question of law was involved, and that the exceptions were frivolous. Louis Weinberger, of New York City, for the motion. David Steckler, of New York City, opposed.

PER CURIAM. Motion costs.

denied, without

and dangerous, and in failing to provide the
plaintiff's intestate with an adequate and suf-
ficient scaffold and with a reasonably safe place
to work, planks and materials. E. Clyde Sher-
wood, William B. Davis, and Amos H. Stephens,
all of New York City, for appellant. Ralph
Gillette, of New York City, for respondent.
PER CURIAM. Judgment affirmed, with
costs.

WILLARD BARTLETT, C. J., and HIS-
COCK, CHASE, COLLIN, HOGAN, CARDO-
ZO, and POUND, JJ., concur.

al., Respondents.
TREEMARMEN, Appellant, v. FRANK et
(Court of Appeals of New
York. Oct. 10, 1916.) Motion to dismiss an ap-
peal from a judgment of the Appellate Division of
the Supreme Court in the second Judicial De-
partment (158 N. Y. Supp. 1133), entered April
25, 1916, affirming a judgment in favor of de-
fendants entered upon a dismissal of the com-
plaint by the court at a Trial Term in an ac-
tion to recover for personal injuries alleged to
have been sustained by plaintiff through the
negligence of defendants. The motion was
made upon the ground of failure to file the re-
quired undertaking. Henry Ginnane, of New
York City, for motion.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10, costs of motion.

In re TITUS et al. (Court of Appeals of New York. Oct. 31, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (170 App. Div. 764, 156 N. Y. Supp. 509), entered December 30, 1915, which reversed so much of a decree of the New York County Surrogate's Court settling the accounts of the executors of Edward P. Hatch, deceased, as directs the assignment to the respondents, the Real Estate Title Insurance and Trust Company of Philadelphia, Herbert P. Queal and Harry T. Stoddart as trustees under four certain deeds of trust, made by William W. Hendrick- In re TRUESDELL. (Court of Appeals son, Boyd Hatch and Livingston Hatch re- of New York. Dec. 5, 1916.) Appeal spectively, of certain securities therein enu- from an order of the Appellate Division of merated, in lieu of cash or of the entire share the Supreme Court in the Second Judicial Deof their said assignors or mortgagors, in full partment (160 N. Y. Supp. 1148), entered July satisfaction of their claims against the said as- 29, 1916, which affirmed an order of the Westsignors or mortgagors or their estates, and in chester County Surrogate's Court permitting so far as said decree refuses to allow them the petitioner to issue execution upon two costs and counsel fees. Frederick T. Kelsey, judgments obtained against Thaddeus K. Green, Arthur Butler Graham, Louis Weinberger, and since deceased. The surrogate held that these Jacob Weinberger, all of New York City, Loren two judgments were liens upon the property of E. Harter, of Brooklyn, and Henry G. Gray, of the decedent Thaddeus K. Green at the time of New York City, for appellants. Otto C. Wie his death and at the time of the filing of rum, Jr., and Nelson S. Spencer, both of New respondent's petition in the Surrogate's Court; York City, for respondent executors. George and the decree directed that the respondent be S. Mittendorf, of New York City, for respond-permitted to issue executions upon these judgents Real Estate Title Insurance & Trust ments against the property of Mr. Green thereCompany and others. in described, upon which these judgments are debtor was still living. Benjamin Scharps, of liens, with like effect as if the said judgment New York City, for appellant. Floyd M. Grant, of White Plains, for respondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CÁRDOZO, JJ., concur.

TOMS, Respondent, v. POST & McCORD, Appellant, et al. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 942, 152 N. Y. Supp. 1146) entered May 13, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate, alleged to have been occasioned through the negligence of the defendant, appellant, his employer. The negligence charged in the complaint is: Defects in the condition of the ways, works and plant, in that the girder on which the plaintiff's intestate was required to work was inadequate and insufficient for his safety, and was coated with ice and was slippery and dangerous. Negligence of superintendence and of a person intrusted with authority to direct, control and command the plaintiff's intestate, in directing and requiring the plaintiff's intestate to work upon an iron or steel girder while the same was inadequate and insufficient for his safety, and coated with ice and slippery

PER CURIAM. Appeal dismissed, without costs, on the authority of Matter of Union Trust Co., 172 N. Y. 494, 65 N. E. 259.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur. HOGAN, J., absent.

USONA STAMPING WORKS, Respondent, v. WAGNER, Appellant, et al. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (171 App. Div. 913, 155 N. Y. Supp. 1145), entered December 2, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action for conversion. The motion was made upon the ground that the Appellate Division had unanimously decided that the findings of fact were supported by the evidence and that the exceptions present no question which may be reviewed. Walter L. Bunnell, of New York City, for the motion. Louis J. Halbert, of Brooklyn, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

affirming a judgment in favor of plaintiffs enter-
ed upon a decision of the court at a Trial Term
without a jury in an action to restrain defendant
from interfering with or removing water pipes
from certain real estate and awarding damages
for water pipes already disconnected and re-
moved therefrom. Edgar T. Brackett, Sheridan
P. Wait, and Luther A. Wait, all of Saratoga
Springs, for appellant. Andrew J. Nellis and
Walter E. Ward, both of Albany, for respond-
ents.
Judgment affirmed, with

PER CURIAM.

costs.

VAN COTT v. VAN COTT et al. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from Supreme Court, Appellate Division, First Department. Action by Elbert Van Cott against Mortimer Van Cott, Jr., and others. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (167 App. Div. 694, 152 N. Y. Supp. 840), enter ed May 7, 1915, upon the submission of a controversy under section 1279 of the Code of Civil Procedure upon an agreed statement of facts affecting the method of the distribution or division of the proceeds of sale of real property, WILLARD BARTLETT, C. J., and CHASE, or the respective interests in such realty if not COLLIN, CUDDEBACK, HOGAN, CARDOsold, which has been held in trust by this de-ZO, and POUND, JJ., concur. fendant under the provisions of the third paragraph of the will of Jacob Weeks Cornwell, deceased, pursuant to an order of the Supreme Court, New York county, appointing the Windsor Trust Company, the predecessor of this defendant, to execute the trust, and such trust now having terminated by reason of the death of the life beneficiary, the testator's widow, Elbert Van Cott and Mortimer Van Cott, Jr., appeal. The questions raised in the court be low and upon this present appeal relate chiefly to the construction of the third paragraph of Mr. Cornwell's will, wherein his trustees are directed upon the death of his widow to sell the trust property and distribute the proceeds, and to the respective interests of the several distributees therein. Affirmed. Arthur M. Johnson, of Mt. Vernon, for appellants. Robert W. Candler, of New York City, for respondent Empire Trust Co. Francis A. Winslow and Bern Budd, both of New York City, for other respondents.

PER CURIAM. Judgment affirmed, without

costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

VAN DUSEN, Respondent, v. NORTHWESTERN MUT. LIFE INS. CO., Appellant. (Court of Appeals of New York. Oct. 31, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (165 App. Div. 946, 150 N. Y. Supp. 1116), entered November 18, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant. The plaintiff's intestate was walking out of the entrance to the place of business where he was employed in a building owned by defendant when he was struck by an anvil thrown from a platform connected with a stairway on the exterior of the building. The anvil was thrown down by some employés of an organization which had rented a hall in the building who were removing the anvils under the alleged direction and supervision of the defendant's agent and servant in charge of the building. F. W. Thomson and C. V. Byrne, both of Syracuse, for appellant. A. Lee Olmsted, of Syracuse, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur.

WARD et al., Respondents, v. BRIGGS, Appellant. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (169 App. Div. 904, 152 N. Y. Supp. 1147), entered May 6, 1915,

WASMER, Respondent, v. RUPPERT et al., Appellants. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (166 App. Div. 903, 151 N. Y. Supp. 1147), entered January 4, 1915, affirming a judgment in favor of plaintiff's assignor entered upon a verdict in an action for libel arising from the publication of a notice that certain chattels would be sold under a chattel mortgage given by plaintiff's assignor, "upon which default has been made." The debt had been previously paid. Ashbel P. Fitch, of New York City, for appellants. Thomas A. McKennell and Alfred H. Appell, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WIL LARD BARTLETT, C. J., dissents.

WATER COM'RS OF CITY OF BINGHAMTON, Appellants, v. CITY OF BINGHAMTON et al., Respondents. (Court of Appeals of New York. Oct. 24, 1916.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (173 App. Div. 327, 158 N. Y. Supp. 888), entered May 15, 1916, which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer. The question to be determined was whether chapter 780 of the Laws of 1867 creating a board of water commissioners in the city of Binghamton was repealed by the provisions of the Second Class Cities Law (Laws 1909, c. 55 [Consol. Laws, c. 53]) when the city of Binghamton_became subject to the operation of that law. The following question was certified: "Does the complaint herein state facts sufficient to constitute a cause of action?" George B. Curtiss, of Binghamton, for appellants. Maurice E. Page, of Binghamton, for respondents.

PER CURIAM. Order affirmed, without costs, and question certified answered in the negative.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur.

WEIDMANN, Respondent, v. BORDEN et al., Appellants. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 912, 152 N. Y. Supp. 1148), entered April 26, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action for conversion. Jacob Weidmann, plaintiff's testator, loaned the Zust Motor Company, a New York corporation, $3,000, for which he was given a chattel

mortgage upon a chassis and certain machinery, lathes, presses, and tools of every kind at No. 235 West Fiftieth street, in the borough of Manhattan, city of New York. Mr. Weidmann died and the Zust Motor Company became bankrupt. It was alleged that the tools and machinery came into possession of defendants who refused to deliver the same to a representative of the mortgagee and that they were thereafter sold. Francis Colety, of New York City, for appellants. Martin Conboy and Philip S. Hill, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

HISCOCK, CHASE. COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., is of the opinion that the evidence as to the value was inadmissible, and he concurs upon the ground that the error was not harmful under the circumstances.

WEISMAN, Respondent, v. CITY OF NEW YORK, Appellant. (Court of Appeals of New York. Nov. 28. 1916.) Motion to amend remittitur. See 219 N. Y. 178, 114 N. E. 70. PER CURIAM. Motion granted, and remittitur amended, so as to read as follows: "Judgment of Appellate Division reversed, with costs in both courts, and judgment of Trial Term affirmed."

vivors or survivor of them, in trust to hold the same during the life of my daughter Mary Louisa Seaman, and to pay her the net income thereof, semiannually, during her life, and upon her death, to pay and transfer the principal thereof to her lawful issue, or in default of such issue, to divide the same equally among her brothers and sister, the descendants of any deceased brother or sister to take the share their parent would have been entitled to if living." At the time of the creation of the trust Mary L. Seaman had two children living, a son, Allan H. Seaman, and a daughter, Jane S., now wife of John De C. Van Etten, the respondent on this appeal. No other child was born to her thereafter. Allan H. Seaman died before his mother, leaving a widow, the appellant Nina Von Bach Seaman, but no child or descendant. He left a will giving all his property to said wife, and appointed her sole executrix. On behalf of the respondent Jane S. Van Etten, it is claimed that the remainders did not vest until the death of the life beneficiary, and that the respondent, being her sole surviving issue and descendant, is entitled to the whole of the trust estate. In behalf of the appellant Nina Von the will of Allan H. Seaman, it is claimed that Bach Seaman, individually and as executrix of the said Allan H. Seaman took a vested remainder upon the death of the testatrix, and that such interest passed by his will and is now vested in the appellant. The surrogate decided that Allan H. Seaman took a vested remainder on the death of the testatrix, and that it passed by his will to the appellant, and the decree was made in accordance with that decision. The Appellate Division reversed this decision and modified the decree by directing the payment of the trust fund to Jane S. Van Etten. Henry Willis Smith, of New York City, for appellant. Clarence L. Westcott. and Egbert C. Simonson, both of New York City, for respondents.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

In re WEST. (Court of Appeals of New York. Dec. 5, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (170 App. Div. 926. 154 N. Y. Supp. 1150), entered July 25, 1915, which affirmed a decree of the Saratoga County Surrogate's Court denying an application by Walter S. West to be reinstated as one of the trustees under the last will and testament of his father, George West, deceased. In December, 1907, Walter S. West was declared an incompetent person by an order of the Supreme Court of the state of New York, and a committee of his person and property was appointed. Thereafter on petition, setting forth that he had been declared an incompetent person and a committee NEW YORK, Respondent. (Court of Appeals WILLIAMS et al., Appellants, v. CITY OF appointed of his person and property, he was removed as one of the trustees because of such of New York. Oct. 3, 1916.) Appeal from a incompetency and Hiram C. Todd was appointed judgment of the Appellate Division of the Susubstituted trustee in his place. Walter H. preme Court in the First Judicial Department Cogan, of Albany, for appellant. Edgar T. (171 App. Div. 952, 156 N. Y. Supp. 1150), Brackett, of Saratoga Springs, for respondent.in favor of defendant, entered upon a verdict dientered December 31, 1915, affirming a judgment PER CURIAM. Order affirmed, with costs. rected by the court in an action to recover for WILLARD BARTLETT, C. J., and CHASE, an alleged breach of contract. The plaintiffs COLLIN, CUDDEBACK, HOGAN, CARDO- entered into a contract with the city of New ZO, and POUND, JJ., concur. York, acting by and through the aqueduct commissioners, wherein the plaintiffs agreed to furnish all the materials and labor for the permanlike manner construct a dam on the Croton

In re WESTCHESTER TRUST CO. (Court of Appeals of New York. Dec. 12, 1916.). Appeal from Supreme Court, Appellate Division, Second Department. In the matter of the accounting of the Westchester Trust Company, as substituted trustee under the will of Margaret De Frate Hodgman, deceased. From an order of the Appellate Division of the Supreme Court in the Second Judicial Department (173 App. Div. 403, 159 N. Y. Supp. 887), modifying, and affirming as modified, a decree of the Westchester County Surrogate's Court, on appeal by Jane S. Van Etten from part thereof, Nina Von Bach Seaman, individually and as executrix. appeals. Affirmed. The sole question presented by the appeal is the construction of a part of the fourth clause of Mrs. Hodgman's will, by which the trust was created, and of which the following is a copy: "And the remaining equal fifth part I give and bequeath to my executors, or those

formance, and in a good, substantial and workriver at Muscoot mountain in the towns of Somers and Bedford, Westchester county, to be known as the Muscoot dam, with its gate houses. overflow and other appurtenances. Subsequently plaintiffs, alleging breach of contract by the defendant, abandoned the work and brought this action to recover the value of work done claim sought to recover the difference between and damages. Defendant by way of counterthe contract price and the amount expended to complete the work. L. Laflin Kellogg, of New York City, for appellants. 'Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and COL

JJ., concur. HISCOCK, J., dissents, on the | E. Buckingham, of New York City, for respondground that it was error for the court to hold as matter of law that the city did not commit a breach of this contract by withholding payment on the certificates.

WILLIAMS, Appellant, v. VAN WAGENEN et al., Respondents. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (170 App. Div. 896, 154 N. Y. Supp. 1150), entered July 28, 1915, affirming a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term in an action brought for the construction of the will of John M. Dodd, deceased, whereby it was decreed that by the will of Carrie R. Castree, deceased, donee of a power of appointment under the will of said John M. Dodd, deceased, she effectually exercised the said power of appointment in conformity with the correct construction of the will of said John M. Dodd, deceased. This appeal raises the question: Did the plaintiff, as remair derman, have such an absolute vested in terest in the estate of John M. Dodd, deceased, under the third and fourth clauses of his will, that immediately upon the death of Carrie R. Castree, the life beneficiary, she became the absolute owner thereof, or could the interest of the plaintiff be divested by the life beneficiary's exercise of the power of appointment contained in the fourth clause of said will. Plaintiff's contention is that her interest could not be defeated; that her estate in remainder was vested and absolute. The guardian ad litem contends, and the court below held, that the plaintiff became entitled to an estate in remainder in the principal of the trust fund, subject to open and let in after-born children of Carrie R. Castree, and subject to divestment in the event of Carrie R. Castree exercising her power of appointment pursuant to the will of John M. Dodd. Carrie R. Castree appointed the use and income of the trust fund to the plaintiff during her ife with remainder to the plaintiff's surviving issue, with limitations over in the event of her death without issue. William W. Green and Edward W. Walker, both of New York City, for appellant. Louis F. Dodd and George Rosen dale, both of New York City, for respondent trustees of John M. Dodd and others. Charles

ent trustee of Carrie R. Castree, deceased. William H. Ford and George M. Thompson, both of New York City, for respondents Williams and others. Phoenix Ingraham, of New York City, for respondents John M. Dodd and others.

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WILLOUGHBY, Respondent, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, Appellant. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (159 N. Y. Supp. 1150), entered May 31, 1916, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover a death benefit. The motion was made upon the ground that the Appellate Division unanimously decided that there was evidence sufficient to sustain the verdict and that the exceptions were frivolous. Charles Newton, of Buffalo, for the motion. George J. Arnold, of Buffalo, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

WOOD, Respondent, v. VILLAGE OF RICHFIELD SPRINGS, Appellant. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment, entered December 8, 1914, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 103, 148 N. Y. Supp. 498), reversing a judgment in favor of defendant entered upon the report of a referee and directing judgment in favor of plaintiff. The motion was made upon the grounds of failure to file the required return, that the decision of the Appellate Division was unanimous, that no questions of law were involved, and that the exceptions were frivolous. Lynn J. Arnold, of Albany, for the motion.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

END OF CASES IN VOL. 114

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