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to traffic in liquors on said premises from the 1st day of October, 1909, to the 1st day of October, 1910. The defendant corporation advanced the amount of the tax thereon, and said Sabio executed a power of attorney to the defendant corporation, which power of attorney among other things authorized and permitted the transfer by the said defendant corporation of the said liquor tax certificate. The action is brought to recover damages arising from the alleged fraudulent transfer of the liquor tax certificate to other premises. William F. Bleakley, of Yonkers, for appellants. Benjamin I. Taylor, of Port Chester, for respondent. PER CURIAM. Judgment afirmed, with

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In re TOWNSEND. (Court of Appeals of New York. April 18, 1916.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1147), entered February 25, 1916, which dismissed an appeal from an order of Special Term granting the application for an order to compel an attorney to pay over certain moneys. The motion was made upon the ground that the order of the Appellate Division was not appealable to the Court of Appeals. Thomas Gregory, of New York City, for the motion. Elbert S. Boughton, of New York City, opposed.

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

UNITED STATES LEASING & HOLDING CO., Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. May 9, 1916.) Appeal from a judgment, entered October 13, 1913, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (158 App. Div. 875, 142 N. Y. Supp. 1148), reversing a judgment in favor of plaintiff entered upon a decision of the court at trial at Special Term and directing a dismissal of the complaint which alleged that the defendant by reason of its operations created and maintained a nuisance in the form of noxious gases and smoke which passed upon plaintiff's premises, and disturbing noises and odors arising therefrom, by reason of which the persons entitled to the rentals of the property suffered heavily because of the fact that tenants left the property and its rental value diminished. The answer denied the allegations of the complaint in so far as they charge the existence of a nuisance, asserting that the operations conducted by the defendant were those naturally and usually incident to the maintenance and operation of a railroad system. Joseph A. Shay and Emerich Kohn, both of New York City, for appellant. Robert A. Kutschbock and Alex. S. Lyman, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

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

VAN TUYL, Jr., State Superintendent of Banks, v. SCHWAB et al. (Court of Appeals of New York. Feb. 29, 1916.) Motion to dismiss an appeal from an order of the Appellate

Division of the Supreme Court in the First Judicial Department, entered November 5, 1915, which affirmed an order of Special Term overruling a demurrer to the reply in an action against stockholders of an insolvent trust company to enforce their statutory liability. The motion was made upon the ground that the order of the Appellate Division was an interme diate order and not appealable to the Court of Appeals. See, also, 158 N. Y. Supp. 1133. Joseph A. Kellogg, of Glens Falls, for the motion. Donald C. Strachan, of New York City, opposed.

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

VAN TUYL, State Superintendent of Banks, v. SULLIVAN et al. (Court of Appeals of New York. March 14, 1916.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (156 N. Y. Supp. 309), entered December 8, 1915, which affirmed an order of Special Term granting a motion by plaintiff for judgment in his favor on the pleadings. The action was instituted by the superintendent of banks of the state of New York to enforce the statutory liability of the defendants as stockholders of the Union Bank of Brooklyn, an insolvent banking. corporation. Some of the defendants have interposed separate demurrers

to

First, because the plaintiff has no legal capacity the complaint. The grounds stated are: to sue, for the reason that (a) suit must be in the name of the bank; (b) in general the statutes attempting to give the superintendent of banks power to bring suits of this character are unconstitutional. Second, because the Union Bank is not made a party. Third, because the complaint does not state facts sufficient to constitute a cause of action. The following question was certified: "Does the complaint herein state facts suflicient to constitute a cause of action?" William G. Cooke and Howard O. Wood, both of New York City, for appellants. Joseph G. Deane and Philip A. Walter, both of New York City, for respondent.

PER CURIAM. Order affirmed, with costs, and question certified answered in the affirmative.

COCK, COLLIN, CUDDEBACK, HOGAN, WILLARD BARTLETT, C. J., and HISSEABURY, and POUND, JJ., concur.

In re VARIAN. (Court of Appeals of New York. March 14, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 1146), entered October 29, 1915, which affirmed an order of Special Term denying a motion for an order directing, summarily, an attorney to account for his acts as to the forma tion and management of certain corporations and also as to his disposition of certain stock alleged to have been wrongfully disposed of. Eliot Norton, of New York City, for appellant. Edwin W. Willcox and James W. Osborne, both of New York City, for respondent.

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

WHITEMAN, Respondent, v. GUILE, Appellant. (Court of Appeals of New York. March 24, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (159 App. Div. 937, 145 N. Y. Supp. 1149), entered December 15, 1913, affirming a judgment in favor of plaintiff entered upon a verdict in an action upon a promissory note. The answer admits the de livery and making of the note and alleges as a defense that the plaintiff obtained the note from

MEMORANDUM DECISIONS

*

1079

the defendant by "duress exercised by plaintiff, in two by one of defendant's gangs. Respond-
over the defendant in threatening to prosecute ent in its answer alleged that the injuries com-
and in the prosecution of the defendant's son, plained of were sustained by plaintiff through
Orton Guile, for an alleged criminal offense of his own negligence. Alexander Cameron, Carl
rape in the second degree upon plaintiff's in- Martin Abromeit, Benjamin F. Briggs, and
fant daughter, Ruth Whiteman
consequence of which and in fear and appre- appellant. Sydney A. Syme, of Mt. Vernon, for
in Charles T. Russell, all of New York City, for
hension thereof the defendant executed and de- respondent.
livered the said instrument to plaintiff and not
otherwise." James O. Sebring, of Corning, and
William S. McGreevy, of Geneva, for appel-
lant. H. V. Pratt, of Wayland, for respondent.
PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT. C. J., and HIS-
COCK, CHASE,
CARDOZO, and POUND, JJ., concur.
CUDDEBACK, HOGAN,

costs.
PER CURIAM. Judgment affirmed, with

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

WILSON, Appellant, v. AGER, Respondent, et al. (Court of Appeals of New York. Feb. Re-Fourth Judicial Department (166 App. Div. 969, 29, 1916.) Appeal from a judgment of the Ap151 N. Y. Supp. 1150), entered February 4, pellate Division of the Supreme Court in the 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to restrain the defendants from excavating a certain channel in the Black river. The morecord contains no exceptions reversable by the tion was made upon the ground that the judg Court of Appeals and that no question of law ment of affirmance was unanimous; that the Henry Purcell, Jr., of Watertown, for the motion. P. H. Fitzgerald, of Utica, opposed. was involved which said court could review. PER CURIAM. Motion denied, costs.

WILE et al., Appellants, v. MOORE, spondent, et al. (Court of Appeals of New York. March 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (155 App. Div. 944, 140 N. Y. Supp. 1150), entered June 5, 1913, affirming a judgment in favor of defendant entered upon a verdict. The complaint alleges that the defendants for a number of years had purchased goods from M. Wile & Co., a corporation, and had numerous dealings with them, and that on a certain day an ac count was stated between the corporation and the defendants, upon which there was found due and owing to the corporation from the defendants $5,622.33, which the defendants promised to pay but have not paid. The assignment from the corporation to the plaintiffs, partners, was also alleged. The answer denied all of the allegations in the complaint, set forth the Statute of Limitations, alleged payment, and alleged that the indebtedness set up in the complaint was not the indebtedness of the defend-peal ants as copartners but was the individual in

debtedness of the defendant Birdsall. Herman J. Westwood and Louis G. Monroe, both of Fredonia, for appellants. William S. Stearns, of Fredonia, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

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

without

CO. OF GLENS FALLS, Respondent. (Court
WISZ, Appellant, v. GLENS FALLS INS.
from a judgment entered January 26, 1914,
of Appeals of New York. May 9, 1916.) Ap-
Supreme Court in the Fourth Judicial Depart-
upon an order of the Appellate Division of the
1150), reversing a judgment in favor of plain-
ment (161 App. Div. 911, 145 N. Y. Supp.
tiff entered upon a verdict and directing a dis-
missal of the complaint in an action to recover
the property insured should continue to be
upon a policy of fire insurance. The answer
occupied by the said John Wisz and his family
alleges that the policy contains a provision that
solely and wholly as a private family residence
and farm and that in derogation and violation
were occupied by others. Eugene Warner, of
occupied as a private family residence and
of such conditions the premises ceased to be
Buffalo, for appellant. Vernon Cole, of Buffa-

costs.
PER CURIAM. Judgment affirmed, with

WILLIAMS YORK HERALD CO., Respondent. (Court of et al., Appellants, v. NEW Appeals of New York. April 18, 1916.) Motion to dismiss an appeal from a judgment en-lo, for respondent. tered January 15, 1915, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 529, 150 N. Y. Supp. 838), reversing a judgment in favor of plaintiffs entered upon a verdict and directing a dismissal of the complaint in an action for libel. The motion was made upon the ground of failure to file the required undertaking. Robert W. Candler, of New York City, for the motion.

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

WILLIAMS, Respondent, v. NEW YORK TELEPHONE CO., Appellant. (Court of Appeals of New York. April 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (161 App. Div. 942, 145 N. Y. Supp. 1150), entered February 25, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was struck and injured by a portion of one of defendant's poles which fell to the ground on the public highway while it was being sawed

COCK, CHASE, CUDDEBACK, HOGAN,
CARDOZO, and POUND, JJ., concur.
WILLARD BARTLETT, C. J., and HIS-

al., Appellants.
WITTWER, Respondent, v. HURWITZ et
York. Feb. 29, 1916.)
(Court of Appeals of New
PER CURIAM. Motion for reargument de-
nied, with $10 costs. See 216 N. Y. 259, 110
N. E. 433.

Appellant, v. JACKSON BROS. REALTY CO., et al., Respondents. (Court of Appeals of YONKERS-GARDEN CITY REALTY CO., New York. May 9, 1916.) Appeal from a judgment of the Appellate Division of the Su1150), entered February 5, 1914, affirming a preme Court in the Second Judicial Departjudgment in favor of defendants entered upon ment (161 App. Div. 886, 145 N. Y. Supp. a dismissal of the complaint by the court on trial at Special Term. The action is brought against the promoters and managers of the plaintiff to set aside a mortgage for $40,541.10

alleged to represent a secret profit claimed by them in fraud of the purchasers of the stock of plaintiff, and to compel an accounting by defendants covering their transactions by which the land involved was purchased for and transferred to the plaintiff. Abram I. Elkus, Wesley S. Sawyer, and Harry Wilber, all of New York City, for appellant. John H. Corwin and Philip S. Dean, of New York City, for respondents.

PER CURIAM. Judgment affirmed, with

costs.

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

YOUNGMAN, Respondent, V. NORTHI ELECTRIC CO., Appellant. (Court of Appeals of New York. May 2, 1916.) Appeal from a judgment, entered March 30, 1914, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (160 App. Div. 758, 146 N. Y. Supp. 69), reversing a judgment in favor of defendant entered upon a verdict and directing a judgment in favor of plaintiff in an action to recover commissions. The complaint alleged that the defendant had entered into a contract with plaintiff's assignor whereby he was to take up and bring about negotiations between the defendant and the American Telephone & Telegraph Company, or any of its associated companies, or any parties in the interest of said American Telephone & Telegraph Company ap pertaining to and to effect the sale by, the defendant of its so-called auto-manual telephone apparatus, and that upon a sale growing out of his negotiations he was to receive a certain percentage of the price received; that thereafter a sale was brought about and effected as a result of his services. The answer contains a denial that the sale was brought about or effected as the result of the services or negotiations of plaintiff's assignor in accordance with the contract, and sets forth a denial as to all the facts in the complaint not expressly admitted. It then alleges that said assignor abandoned the negotiations; that he was wholly unable to effect a sale under his contract, and that subsequently the contract was canceled and terminated by mutual agreement. It is then alleged that thereafter the defendant employed another agent to effect a sale to the Western Electric Company and that solely as the result of the efforts of this agent a license was granted to the Western Electric Company to make, use and sell the apparatus. Louis Babcock and Robert S. Stevens, both of Buffalo, for appellant. Howard Taylor and Avery F. Cushman, both of New York City, for respondent.

Marshall, of Dayton, and Lawrence K. Lang-
don, of Lebanon, for defendant in error.
PER CURIAM. Judgment of Court of Ap-
peals vacated and petition in error dismissed.
See journal entry. It is ordered and adjudged
by this court, that the judgment of the said
Court of Appeals be, and the same hereby is.
vacated and petition in error dismissed for the
reason that the Court of Appeals having ob-
tained jurisdiction of the cause by appeal, and
the case having been submitted and deter-
mined by said court de novo said court did not
have jurisdiction of the proceedings in error in
the same cause.

NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur.

ALKIRE et al. v. GAGE. (No. 14396.) (Supreme Court of Ohio. March 16, 1915.) Error to Court of Appeals, Delaware County. Marriott, Freshwater & Wickham, of Delaware, Chas. S. Druggan, Ohio, for plaintiffs in error. of Columbus, and Harry W. Crist, of Delaware, Ohio, for defendant in error.

PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur.

ALKIRE et al. v. SCHRYVER. (No. 14455.) (Supreme Court of Ohio. March 23, 1915.) Error to Court of Appeals, Madison County. Earnhart & Bates, of Columbus, for plaintiffs in error. Richard H. McCloud and John A. Lincoln, both of London, for defendant in error. PER CURIAM. Judgment reversed. See journal entry. It is ordered and adjudged by this court, that the judgment of the said Court of Appeals be, and the same hereby is, reversed, for the reason that it appears from the allegations of the answer and the admissions of the reply thereto that the said A. E. Alkire did not, and could not, contest said will and codicils. The entry, set forth in the answer, which was made by the court in the proceeding to contest the will of William Heath. deceased, adjudicated that fact, and, therefore, the said A. E. Alkire did not go to law to break the said will within the meaning of the 8th Item thereof. And coming now to render the judgment which the Court of Appeals should have rendered, it is hereby ordered and adjudged that the judgL.ment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law.

PER CURIAM. Judgment reversed, with costs to the appellant, on the opinion of Hotchkiss, J., in the Appellate Division, and the case remitted to that court for its consideration of the facts.

NICHOLS, C. J., and DONAHUE, WANAMAKER, and MATTHIAS, JJ., concur.

BALINGER v. SHANER et al. (No. 14478.) HISCOCK, CHASE, CUDDEBACK, HO-(Supreme Court of Ohio. March 30, 1915.) ErGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., concurs in result.

ror to Court of Appeals, Muskingum County. larry C. Shepherd, of Zanesville, for plaintiff in error. W. J. Massey and Eugene F. O'Neal, both of Zanesville, for defendants in error.

PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur.

ADENA R. CO. et al. v. PUBLIC SERVICE COMMISSION OF OHIO. (No. 14339.) (Supreme Court of Ohio. March 16, 1915.) Error to Court of Appeals, Franklin County. Henderson, Livesay & Burr, of Columbus, Squire, Sanders & Dempsey and Robert F. Denison, all of Cleveland, for plaintiffs in er- BOGGS v. HALEY et al. (No. 14640.) (Suror. Timothy S. Hogan and Edward C. Tur- preme Court of Ohio. May 4, 1915.) Error to ner, Attys. Gen., and Joseph McGhee, of Co-Court of Appeals, Hamilton County, Kramer & lumbus, George Thornburg and Herbert W. Bettman and Jos. A. Keadin, all of Cincinnati, Mitchell, both of St. Clairsville, Chas. for plaintiff in error. W. W. Dickerson, Ben

MEMORANDUM DECISIONS

B. Nelson, and S. O. Bayless, all of Cincinnati,
for defendants in error.

PER CURIAM. Judgment affirmed.
NICHOLS, C. J., and JOHNSON, DONA-
HUE, WANAMAKER, NEWMAN, JONES,
and MATTHIAS, JJ., concur.

CAMPBELL v. CAMPBELL.
14073.) (Supreme Court of Ohio.
(Nos. 14072,
1915.) Error to Circuit Court, Guernsey Coun-
May 11,
ty. Robert T. Scott and J. W. Campbell, both
of Cambridge, for plaintiff in error.
of Columbus, and Chas S. Turnbaugh, of Cam-
J. E. Todd,
bridge, for defendant in error.

PER CURIAM. Judgment affirmed.
NICHOLS, C. J., and JOHNSON, WANA-
MAKER, NEWMAN, JONES, and MAT-
THIAS, JJ., concur.

CARREL
CO. et al.

V. ROCHE-BRUNER

BLDG.

1081

and upon an existing public highway of the state, and that the same was constructed more and more than 21 years before the county of inal owners, the Hamilton, Springfield & Carthan 21 years before the bringing of this action, Hamilton acquired this turnpike from its origthage Turnpike Company, and that, therefore, this action is barred by the statutes of limitation, it is therefore considered and adjudged by pleas court of Hamilton county be and the same this court that the judgment of the common is hereby reversed, and the petition of the plaintiff dismissed. NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, JONES, and MATTHIAS, JJ., concur. WANAMAKER, J., dissents.

CINCINNATI ST. RY. CO. et al. v. CITY OF CINCINNATI. Court of Ohio. May 18, 1915.) Error to Court (No. 14695.) (Supreme (No. 14643.) (Supreme Court of George H. Warrington, and Miller Outcalt, all of Appeals, Hamilton County. Joseph Wilby, Ohio. May 4, 1915.) peals, Hamilton County. Dempsey & Nieber-worth, Asst. City Sol., both of Cincinnati, for Error to Court of Ap- M. Schoenle, City Sol., and Constant Southof Cincinnati, for plaintiffs in error. ding, of Cincinnati, for plaintiff in error. son & Levy and D. F. Cash, all of Cincinnati, Walter Johnfor defendants in error.

PER CURIAM. Judgment affirmed; the constitutionality of sections 3782 and 3783, General Code, not being determined.

NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur.

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CHAPMAN v. TOWNSEND et al. (No. 14094.) (Supreme Court of Ohio. June 4, 1915.) Error to Court of Appeals, Cuyahoga County. M. B. & H. H. Johnson, W. J. O'Neill, and Charles Higley, all of Cleveland, for plaintiff in error. A. A. & A. H. Bemis, M. B. & H. H. Johnson, W. J. O'Neill, Charles Higley, and C. R. Megerth, all of Cleveland, for defendants in error. On rehearing. For former decision, see 91 Ohio, 400, 110 N. E. 1056.

PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, NEWMAN, and JONES, JJ., concur.

defendant in error.

PER CURIAM. Judgment affirmed.
JONES, and MATTHIAS, JJ.,
DONAHUE, WANAMAKER, NEWMAN,

=

concur.

FELSER.
CINCINNATI TRACTION CO. v. DANEN-
(No. 14666.)
Ohio. April 27, 1915.) Error to Court of Ap-
(Supreme Court of
plaintiff in error.
peals, Hamilton County. George H. Warring-
ton and Robert S. Marx, both of Cincinnati, for
defendant in error.
Park and Jos. W. Conroy, all of Cincinnati, for
Overbeck, Kattenhorn &

MAKER, NEWMAN, JONES, and MAT-
PER CURIAM. Judgment affirmed.
NICHOLS, C. J., and JOHNSON, WANA-
THIAS, JJ., concur.

CINCINNATI & COLUMBUS TRACTION CO. v. BURCH. (No. 14726.) (Supreme Court Dinsmore & Shohl, all of Cincinnati, for plainof Ohio. June 4, 1915.) Error to Court of Aptiff in error. Healy, Ferris & McAvoy, of Cinpeals, Hamilton County. C. B. Matthews and cinnati, for defendant in error.

and NEWMAN, JJ., concur.
PER CURIAM. Judgment affirmed.
JOHNSON, DONAHUE, WANAMAKER,

CINCINNATI & EASTERN ELECTRIC
RY. CO. v. RITTY. (No. 14607.) (Supreme
of Appeals, Hamilton County.
Court of Ohio. April 20, 1915.) Error to Court
Shohl and Chas. M. Leslie, all of Cincinnati,
Dinsmore &
for plaintiff in error.
fendant in error.
John R. Schindel, both of Cincinnati, for de-
Morison R. Waite and

PER CURIAM. Judgment affirmed.
NEWMAN, JONES, and MATTHIAS, JJ.,
concur.
JOHNSON, DONAHUE, WANAMAKER,

CINCINNATI, H. & D. RY. CO. v. BOARD OF COM'RS OF HAMILTON COUNTY. (No. 14441.) (Supreme Court of Ohio. March 23, 1915.) Error to Court of Appeals, Hamilton County. Morison R. Waite and John Randolph Schindel, both of Cincinnati, for plaintiff in error. Thomas L. Pogue, Pros. Atty., John V. Campbell and Carl M. Jacobs, Jr., Asst. Pros. Atty., all of Cincinnati, for defendant in error. PER CURIAM. journal entry. Judgment reversed. It is ordered and adjudged See by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed. And the court coming now to render the judgment that the Court of Appeals should have rendered, and it appearing that the abut-y, ments described in plaintiff's petition were constructed and maintained on the right of way of the Hamilton, Springfield & Carthage Turnpike Company, at a point other than where the turnpike of said company was constructed over

CITY OF CINCINNATI v. BALTIMORE &
O. S. W. R. CO. et al. (No. 14402.) (Supreme
Court of Appeals, Hamilton County.
Bettman and Walter M. Schoenle, City Sols.,
Court of Ohio. March 16, 1915.) Error to
and Coleman Avery and Constant Southworth,
Alfred
Asst. City Sols., all of Cincinnati, for plaintiff
and Edward Barton, all of Cincinnati, for.
Harmon, Colston, Goldsmith & Hoad-
defendants in error.

in error.

PER CURIAM. Judgment affirmed.
HUE, NEWMAN, JONES, and MATTHIAS,
JJ., concur.
NICHOLS, C. J., and JOHNSON, DONA-
WANAMAKER, J., dissents.

CITY OF NEWARK v. BURNETTE et al. (No. 14702.) (Supreme Court of Ohio. June 4, 1915.) Error to Court of Appeals, Licking County. Ralph Norpell, City Sol., and Fitzgibbon, Montgomery & Black, all of Newark, for plaintiff in error. D. B. Van Pelt and C. A. Craighead, both of Dayton, and Owen A. Nash, of Newark, for defendants in error.

See

PER CURIAM. Judgment reversed. journal entry. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed. The court finds that the Court of Appeals erred in its conclusion that the plaintiff had abandoned said premises as a graveyard, and therefore erred in dismissing the petition of plaintiff, in entering a decree quieting the title of the defendants in said premises as against the plaintiff, and in requiring the plaintiff to remove water pipes, poles, electric light wires, lights, fountain, cement walks, and cement steps from said premises. The court finds that, notwithstanding interments have not been made in said graveyard for many years, and that many bodies previously buried there have been removed therefrom, it appearing that many bodies still remain, there has not been a complete abandonment of said premises to purposes inconsistent with its preservation as a graveyard. The court further finds that the improvements made by the plaintiff are not inconsistent with such use and preservation. Coming now to make the decree which should have been entered herein by the Court of Appeals, it is hereby ordered and decreed that the title of the plaintiff in and to said premises-which shall be preserved and improved as a graveyard, but not otherwise-be and hereby is quieted as against the defendants, and all persons claiming through or under them, and the amended cross-petition of the defendants is dismissed, and the costs of this proceeding are adjudged to defendants in error.

and all persons claiming through or under them, and the amended cross-petition of the defendants is dismissed, and the costs of this proceeding are adjudged to defendants in error. JOHNSON, DONAHUE, NEWMAN, JONES, and MATTHIAS, JJ., concur. WANAMAKER, J., not participating.

CITY OF WOOSTER v. EVANS. (No. 14615.) (Supreme Court of Ohio. April 27, 1915.) Error to the Court of Appeals, Wayne County. E. W. Newkirk, City Sol., and Benton G. Hay, both of Wooster, for plaintiff in error. Rice & Souers, of Canton, for defendant in error.

PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same is hereby affirmed, for the reason that this court holds, on the authority of Tea Co. v. Tippecanoe, 85 Ohio St. 120, 96 N. E. 1092, that, in view of the guaranties of the Bill of Rights, sections 3673 and 3676 of the General Code cannot be interpreted to authorize a license fee on transient dealers of the character described in the affidavit in this case, and making such offenses that affidavit punishable. Judgment affirmed. JOHNSON, DONAHUE, NEWMAN, and JONES, JJ., concur.

as the defendant in error was charged with in

COEN v. NATIONAL MASONIC PROVIDENT ASS'N OF MANSFIELD. (No. April 20, 14584.) (Supreme Court of Ohio. 1915.) Error to Court of Appeals, Richland County. Higley & Maurer, of Cleveland, and William McE. Weldon, of Mansfield, for plainMcBride & Wolfe, of Mansfield, for defendant in error. JOHNSON, DONAHUE, NEWMAN, JONES, Appeals reversed, and that of the common pleas PER CURIAM. Judgment of the Court of and MATTHIAS, JJ., concur. ER, J., not participating.

WANAMAK

CITY OF NEWARK v. CRANE et al. (No. 14701.) (Supreme Court of Ohio. June 4, 1915.) Error to Court of Appeals, Licking County. Ralph Norpell, City Sol., and Fitzgibbon, Montgomery & Black, all of Newark, for plaintiff in error. D. B. Van Pelt and Charles A. Craighead, both of Dayton, and Owen A. Nash, of Newark, for defendants in

error.

PER CURIAM. Judgment reversed. See journal entry. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed. The court finds that the Court of Appeals erred in its conclusion that the plaintiff had abandoned said premises as a graveyard, and therefore erred in dismissing the petition of plaintiff, in entering a decree quieting the title of the defendants in said premises as against the plaintiff, and in requiring the plaintiff to remove water pipes, poles, electric light wires, lights, fountain, cement walks, and cement steps from said premises. The court finds that, notwithstanding interments have not been made in said graveyard for many years, and that many bodies previously buried there have been removed therefrom, it appearing that many bodies still remain, there has not been a complete abandonment of said premises to purposes inconsistent with its preservation as a graveyard. The court further finds that the improvements made by the plaintiff are not inconsistent with such use and preservation. Coming now to make the decree which should have been entered herein by the Court of Appeals, it is hereby ordered and decreed that the title of the plaintiff in and to said premises-which shall be preserved and improved as a graveyard, but not otherwise-be and hereby is quieted as against the defendants,

tiff in error.

aflirmed.

NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, JONES, and MATTHIAS, JJ., concur.

COEN v. TRAVELERS' INS. CO. (No. 14147.) (Supreme Court of Ohio. April 20, 1915.) Error to Court of Appeals, Cuyahoga County. Higley & Maurer, of Cleveland, for plaintiff in error. Hoyt, Dustin, Kelley, McKeehan & Andrews, of Cleveland, for defendant in error.

See

PER CURIAM. Judgment reversed. journal entry. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is. reversed, and, coming now to render the judgment that the Court of Appeals should have rendered, this court finds that the court of common pleas erred in sustaining the motion of the defendant below to direct the jury to return a verdict in its favor at the close of the plaintiff's evidence. It is further ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law.

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