This determination, however, should not be regarded as indicating that we think that the appellants can bring up for review on said appeal all of the intermediate orders specified in their notice. Apparently such notice indicates an intent to ask this court to review practically all of the proceedings which have ever been taken in this long litigation, and it is perfectly manifest that some of the orders are discretionary while others cannot be regarded as necessarily affecting the final judgment now before us for review, and, therefore, they cannot be considered on this appeal. The motion should be denied, without costs. All concur. Motion denied. CHARLES LEOPOLD, Respondent, v. CITY OF NEW YORK, Appellant. Reported below, 184 App. Div. 244. (Argued January 6, 1919; decided January 14, 1919.) MOTION to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 8, 1918, affirming in part and reversing in part a judgment in favor of plaintiff entered upon a verdict. The motion was made upon the ground that the judgment appealed from was interlocutory inasmuch as it granted a new trial as to part of the judgment appealed from. John C. Wait for motion. Motion denied, with ten dollars costs, but without prejudice to right to move to dismiss appeal from so much of judgment as granted new trial as to item of $1,709.30, unless appellant within ten days files stipulation for judgment absolute in case said order of reversal is affirmed as to said item. WILLIAM P. LOGAN, Respondent, v. ALBERT GUGGENHEIM, Appellant. Logan v. Guggenheim, 181 App. Div. 914, appeal dismissed. (Submitted January 6, 1919; decided January 14, 1919.) MOTION to dismiss an appeal from a judgment entered January 15, 1918, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of the court at a Trial Term, setting aside a verdict in favor of plaintiff and granting a new trial and reinstated said verdict. The motion was made upon the ground that an appeal did not lie of right to the Court of Appeals and that permission to appeal had not been obtained. Erskine C. Rogers for motion. Daniel W. Blumenthal opposed. Motion granted and appeal dismissed, with costs and ten dollars costs of motion. MICHAEL J. KENNEDY, Appellant, v. NATIONAL JEWELERS' BOARD OF TRADE, Respondent, Impleaded with Others. Kennedy v. Natl. Jewelers' Bd. of Trade, 179 App. Div. 948, appeal dismissed. (Argued January 6, 1919; decided January 14, 1919.) MOTION to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 28, 1917, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The motion was made upon the ground that the plaintiff was deceased; that the action was one for malicious prosecution; that a motion to substitute the executor of the said plaintiff in his stead had been denied and that said cause of action had abated. C. G. Fryer for motion. Robert E. Whalen opposed. Motion granted, without costs. JOHN N. PRESTON, as Administrator of the Estate of WILLARD G. PRESTON, Deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Respondent. Preston v. Pennsylvania R. R. Co., 136 App. Div. 911, appeal dismissed. (Submitted January 6, 1919; decided January 14, 1919.) MOTION to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 23, 1914, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. The motion was made upon the ground that an appeal did not lie as of right to the Court of Appeals and that permission to appeal had not been obtained. Frank Rumsey for motion. No one opposed. Motion granted and appeal dismissed, with costs and ten dollars costs of motion. HERMAN STEINER et al., Copartners under the Firm Name of ZUCKER, STEINER & COMPANY, Appellants, v. AMERICAN ALCOHOL CO., INC., Respondent. Steiner v. American Alcohol Co., Inc., 181 App. Div. 309, affirmed. (Submitted January 6, 1919; decided January 21, 1919.) APPEAL from a judgment, entered April 22, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer. The complaint alleged that plaintiffs and defendants entered into a certain agreement whereby defendant agreed to sell and the plaintiffs to purchase certain merchandise; that the agreement of sale was oral, and that plain tiffs stated it would be necessary to reduce said agreement to writing, but defendant falsely represented to plaintiffs that it would fully perform its agreement and make delivery of the merchandise in accordance therewith as if said agreement were reduced to writing; that said representations were false and untrue and defendant did not intend to perform said agreement and did not intend to deliver said merchandise; that said fraudulent représentations were made with the intention of avoiding the reduction of said agreement to writing and with the further intention of cheating and inducing plaintiffs not to purchase similar goods in the open market; that plaintiffs, in reliance upon such statements, did not purchase similar goods, as they could have done at the price mentioned in the agreement; that thereafter defendant repudiated the contract and refused to perform it and that at the time of such repudiation the market price of the goods had advanced so that plaintiffs were unable to purchase similar goods except at a price in excess of the agreed price. A. Herman Friesner for appellants. Max Schenkman for respondent. Judgment affirmed, with costs; no opinion. Concur: HISCOCK, Ch. J., CHASE, HOGAN, Cardozo, POUND and ANDREWS, JJ. Not sitting: MCLAUGHLIN, J. In the Matter of the Accounting of THE FARMERS' LOAN AND TRUST COMPANY, as Temporary Administrator, and as Administrator with the Will Annexed of the Estate of EDWIN O. BRINCKERHOFF, Deceased. NEW YORK ASSOCIATION FOR IMPROVING THE CONDITION OF THE POOR et al., Appellants; EVELINA D. CLARK et al., Respondents. Matter of Farmers' Loan & Trust Co., 181 App. Div. 642, affirmed. (Submitted January 6, 1919; decided January 21, 1919.) APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1918, modifying and affirming as modified a decree of the New York County Surrogate's Court settling the accounts of the administrator of the estate of Edwin O. Brinckerhoff, deceased. The controversy related to allowances made by the Supreme Court, out of the surplus income of the testator, Edwin O. Brinckerhoff, an incompetent person, during his lifetime, to certain of his next of kin, collateral relations, for their support and maintenance; and the question was whether those allowances should be treated as part of the testator's estate on final distribution. The allowances aggregated $20,717.50. The surrogate held that they constituted advances on account of the respective distributive shares in the estate of the next of kin who had received the allowances, and that their amount should be added to the amounts in the administrator's hands for the purpose of computing the shares of the parties. This ruling the Appellate Division reversed. Francis Smyth, George N. Whittlesey and Matthew C. Fleming for appellants. Ezekiel Fixman and Clarence M. Lewis for respondents. Order affirmed, with costs; no opinion. Concur: CHASE, HOGAN, CARDOZO, POUND, MCLAUGHLIN and ANDREWS, JJ. Not voting: HIS COCK, Ch. J. MARY C. O'KEEFFE, Appellant, v. J. FRED DUGAN, as Acting Town Clerk of the Town of Riverhead, et al., Respondents. ROBERT P. GRIFFING et al., Intervenors, Respondents. O'Keeffe v. Dugan, 185 App. Div. 53, affirmed. (Argued January 6, 1919; decided January 21, 1919.) APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1918, which reversed an order of Special Term granting an injunction restraining the acting town clerk of the town of Riverhead |