property. The injury to the plaintiff did | not result from any lack of numbers employed, if it was the custom and intention of those employed to permit the pole to fall in the street, but from the fact that the pole, taken down in the usual way, struck its extension arm upon the hard surface of the roadway and rebounded differently from what had been anticipated. It seems clear to us that it was the duty of the plaintiff, if he would charge the defendant, to show that the latter had neglected some duty that it owed to him; that some different result might reasonably have been expected, and that the defendant should have known this in the exercise of reasonable care, if an additional number of men had been employed. Clearly, if this pole had been piked by a dozen men, and had been permitted to fall in the street, the plaintiff might have been injured by the rebound the facts disclosed. quite as well as under course, if the proper and established method of lowering telephone or other poles carrying electric wires was to bring them down gradually, by the use of "dead men" and a large number of pike poles, it might be negligent for the defendant to fail to provide a sufficient number of men to lower these poles in the regular way, but if it was customary to let these poles fall-and this is clearly sug gested by the plaintiff's own testimony - it is difficult to see how the defendant could be charged with negligence because this particular pole, after it had been permitted to fall, and after it had fallen just as it was expected to fall, happened to rebound in a manner which was not anticipated by any of those engaged in the employment. How could the defendant know that this particular pole would rebound differently from others? 'The judgment and order appealed from should be reversed and new trial granted, costs to abide the event. Jenks, J., concurred In the Matter of the Judicial Settlement of the Account of John McElvery of the Goods, Chattels and Credits of Mary Kelly, Deceased. Motion to dismiss appeal granted, with costs, unless the appellant perfect the appeal and serve the printed papers within ten days. On compliance with these conditions the motion is denied, without costs. Nathan May and Others, Respondents, v. George Cook, Appellant.- Motion to dismiss appeal granted, with costs, unless the appellant perfect the appeal and serve the printed papers within ten days. On compliance with these conditions the motion is denied, without costs.

Fritz Nelson, Appellant, v. The Long Island Railroad Company. Respondent.-Motion for leave to use original exhibits upon argument granted, without costs, unless the respondent furnishes suitable copies of the same to be inserted in the appeal book as offered in the opposing affidavit.

John McNamara, Appellant, v. Archer B. Wallace, Respondent.-- Motion for resettlement of order granted.

Anna J. Heasty, Plaintiff, v. Frank Lambert, Defendant.-- Motion for reargument denied, without costs.

Athalia Jones, Respondent, v. Brooklyn Heights Railroad Company, Appellaut. George E. Jones, Respondent, v. Brooklyn Heights Railroad Company, Appellant.Motions for leave to appeal to the Court of Appeals denied, without costs.

Maria Spangenberg, Respondent, v. Louise Schneider, Appellant. Motions denied,

without costs.

The People of the State of New York, Respondent, v. William J. Ebel, Appellant.- Motion to resettle order denied.

[Vol. 99.

The People of the State of New York ex rel. Rose M. Finigan, Respondent, v. William H. Maxwell, as City Superintendent, etc., Appellant.-Motion denied, without costs. New York Mutual Savings and Loan Association, Appellant, v. Westchester Fire Insurance Company, Respondent.- Motion for resettlement of order denied, without

costs.

The People of the State of New York ex rel. William J. Dougan, Relator, v. Francis V. Greene, as Police Commissioner. etc., Respondent.- Motion for reargument granted and reargument ordered for January 4, 1905. Motion for resettlement of order to be held until the determination of the appeal on reargument.

New York Life Insurance and Trust Company and Others, Respondents, v. Church of the Holy Communion, Appellant.- Motion denied, without costs.

Herbert L. Whitney, Respondent, v. New York Evening Journal Publishing Company and Star Company, Appellants. Herbert L. Whitney, Respondent, v. Star Company, Appellant. Herbert L. Whitney, Respondent, v. Press Publishing Company, Appellant.

Motions denied, without costs. This court having affirmed the order granting a preference, the constitutional question sought to be argued is not necessarily involved, inasmuch as both the order in the court below and the order of affirmance here may have been made in the exercise of judicial discretion.

Thomas W. Tuite, Appellant, v. Joseph Gordon and Others, Impleaded with Margaret Gallagher, Respondent. - Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

In the Matter of the Proceedings of Frederick B. Harre and Herbert E. Williams, Respondents, v. Leo Feinberg, Tenant, Appellant. Order of the Municipal Court affirmed, with costs. No opinion. All concurred. Judith Koubernick, Respondent, v. Edward Nimark, Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion All concurred.

Otto Huber Brewery, Appellant, v. William Walsh, Respondent.- Order of the Municipal Court affirmed, with costs. No opinion. All concurred.

Solomon Perry and Joseph S. Cohen, Copartners Doing Business under the Name and Style of Solomon Perry & Company, Respondents, v. Peter A. Minekakes, Appellant. -Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred. The Brooklyn Gas and Gasoline Engine Company, Respondent, v. Robert Glaser, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred.

Frederick Benzenberg, Appellant, v. Ernest Lindemann, Respondent.- Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred.

John W. Van Dunk, as Administrator, etc., of Elias J. Van Dunk, Deceased, Respondent, v. Erie Railroad Company, Appellant.Judgment and order unanimously affirmed, with costs. No opinion.

Esther J. Brundage, Respondent, v. The City of New York, Appellant. The record does not show that the plaintiff gave the proof of such a defect in the street to justify the submission of the question of defendant's liability to the jury. Even if such a defect had been established, there is not sufficient proof of notice thereof in this record. Judgment and order reversed and new trial granted, costs to abide the event. All concurred.

App. Div.]

The Carbon-Dioxide and Magnesia Company, Appellant, v. Mitchell M. Nolan, Respondent. Judgment of the Municipal Court affirmed by default, with costs. All con

curred.

Max Bennett and Isaac H. Smith, Respondents, v. Frederick O'Rourke and Isaac Jarashow, Appellants.- Judgment of the Municipal Court affirmed by default, with costs. All concurred.

Isaac Cortelyou, Agent for Joannah Bergen, Respondent, v. William C. Prather, Appel'ant.-Judgment of the Municipal Court af. firmed by default, with costs. All concurred.

Harry L. Shultz, Appellant, v. Catherine T. Kelly and Others, Respondents.- Order reversed on argument, with ten dollars costs and disbursements, and motion denied, with costs, on the ground that the moving papers disclose no facts authorizing the appointment of a receiver. All concurred. Morris Friedman, Appellant, v. Pickering Printing and Publishing Company, Respondent. Order affirmed on argument, with ten dollars costs and disbursements. All concurred.

James H. Burton, Respondent, v. Eustace H. Lemay, Appellant, Impleaded with George S. Hoke, Defendant.- Judgment and order reversed and new trial granted, costs to abide the event, for the error in the admission of hearsay evidence to the effect that the failure of the enterprise was due to the appellant Lemay, and not to the default of his associate. All concurred.

The People of the State of New York ex rel. Charles W. Freelan, Relator, v. Francis V. Greene, as Police Commissioner of the Police Department of the City of New York, Respondent.- Determination confirmed, with costs. No opinion. All concurred, except Woodward and Jenks, JJ., dissenting. William Laier, as President, etc., Appellant, v. Charles Horney, Respondent. (Action No. 1.) William Laier, as President, etc., Appellant, v. Charles Horney, Respondent. (Action No. 2.) — Judgments of the Municipal Court affirmed, with costs. No opinion. All concurred.

James Harrison, Respondent, v. Interurban Street Railway Company, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred. Joseph A. Harrison, Respondent, v. Interurban Street Railway Company, Appellant,

-Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred.

Nettie Thompson, Respondent, v. Charles E. Adams, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion.

Charles Boenig, an Infant under the Age of Fourteen Years, by Robert W. Boenig, his Guardian ad Litem, Appellant, v. Metropolitan Street Railway Company, Respond ent. Judgment and order affirmed, with costs. No opinion. All concurred, except Hooker, J., dissenting.

In the Matter of the Petition of The Brooklyn Union Elevated Railroad Company, Respondent, Relative to Acquiring Title to Real Estate or Right of Way on Crescent Street, etc., in the Borough of Brooklyn, etc. Parcel 61. Premises 271 Myrtle Avenue. Lillian Becker and Emily Becker, Appellants.Final order of confirmation reversed and a new trial directed before commissioners to be appointed at the Special Term, on the authority of Matter of Brooklyn Union El.

R. R. Co. (95 App. Div. 108). All concurred, except Woodward and Jenks, JJ., dissenting. Margaret O'Keefe Seitz, as Executrix, Respondent, v. William G. Groves and Others, Defendants. John H. Whyte, Purchaser, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

John F. Fairchild, Respondent, v. The City of Mount Vernon, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

Joseph S. Wood, Respondent, v. The City of Mount Vernon, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

Henry Burke, Respondent, v. Louis Frenkel, Appellant, Impleaded with Ella Frenkel.Order so far as appealed from affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

Kate McQuinney, as Executrix, etc., of David McQuinney, Deceased, Appellant, v. Williamsburgh Savings Bank, Respondent.Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. Mary MacPherson, Respondent, v. Catherine Woolley Hamilton, Appellant.- Order affirmed, with ten dollars costs and disburse. ments. No opinion. All concurred. Thomas M. Farley, Respondent, v. Hugh V. Monahan, Appellant. Judgment and order of the County Court of Kings county affirmed, with costs. No opinion. All concurred.

Barbara Reicke, Respondent, v. Union Railway Company of New York City. Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Augustus Acker, Respondent, v. Schmitt & Schwanenfluegel, a Corporation, Appellant. -Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred. Frank Griffin, Respondent, v. Henry C. Friedman, Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred.

John D. Mason, Appellant, v. Caroline A. Sims, Respondent.-Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred.

Jacob Schulehofer, Respondent, v. Charles E. Fink, Appellant.-The question of fact as to the competency and fidelity of plaintiff's assignor was determined upon conflicting evidence, and this determination had ample support in the evidence. It is apparent that the failure of the court below to allow to the defendant the credit of forty-two dollars, earned by the assignor between the discharge and the trial, was inadvertent. This sum should have been offset; the judgment must be modified by reducing it to that extent, and as modifled affirmed, without costs. All concurred.

James Sloan, Respondent, v. Grace F. Beard, Appellant. Order affirined, with ten dollars costs and disbursements. No opinion. All concurred.

George E. Lovett and Grace E. Lovett, etc., Appellants, v. J. Quintus Cohen, Respondent. -Judgment of the Municipal Court affirmed, with costs. No opinion. All concurred. Brooklyn Warehouse and Dry Dock Company, Respondent, v. The West End Dry Dock Company, Appellant.- Judgment affirmed, with costs. No opinion. All concurred. Peter McChesney, Respondent, v. Mohawk Condensed Milk Company, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.