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Plaintiff's exceptions overruled, motion for new WELSCH, Respondent, v. TUM SUDEN, Aptrial denied, and judgment ordered for the de- pellant. (Supreme Court, Appellate Division, fendant ou nonsuit, with costs.

Second Department. June 3, 1904.) Action by

James Welsch against Henry C. Tum Suden. VUNCK, Respondent, v. SIEBRECHT, Ap. No opinion. Order aflirmed, with $10 costs pellant. (Supreme Court, Appellate Division, and disbursements. First Department. May 20, 1904.) Action by William L. Vunck against Henry A. Siebrecht. In re WHITE. (Supreme Court, Appellate J. M. Gardner, for appellant. L. W. Thompson, Division, Second Department. June 10, 1904.) for respondent. No opinion. Judgment aflirm. In the matter of the application of Josiah J. ed, with costs, with leave to defendant to with. White, guardian of the person of Frederick H. draw demurrer and to answer, on payment of White, an infant, to compel an accounting of costs in this court and in the court below. the Long Island Loan & Trust Company as

guardian of the property of said infant. No WALDORF-ASTORIA SEGAR CO., Re- opinion. Motion to dismiss appeal granted, spondeut, v. SALOMON et al., Appellants. (Su- without costs. preme Court, Appellate Division, First Department. May 20, 1904.) Action by the Waldorf WHITE, Respondent, v. GIBBS, Appellant. Astoria Segar Company against Walter J. Sal- (Supreme Court, Appellate Division, Fourth Deomon and another. W. N. Cohen, for appel. partment. May 10, 1904.) Action by Eugene lants. J. M. Bowers, for respondent. No M. White against Charles M. Gibbs. No opiuopinion. Order affirmed, with $10 costs and ion. Judgment affirmed, with costs. disbursements.

WHITE Respondent, v. GIBBS, Appellant. WALLACH V. MANHATTAN RY. CO. (Su-|(Supreme Court, Appellate Division,' Fourth Depreme Court, Appellate Division, First Depart- partment. May 24, 1904.) Action by Eugene ment. May 6, 1904.) Action by Karl Wallach ion. "Motion for leave to appeal to the Court of

M. White against Charles M. Gibbs. No opinagainst the Manhattan Railway Company. PER CURIAM. Motion denied, on payment

Appeals denied, with $10 costs. of $10 costs of motion and $10 costs of term.

WILCOX, Appellant, v. BAKER, RespondWANAMAKER et al., Appellants, v. ME Department. May 4, 1904.) Action by Samuel

ent. (Supreme Court, Appellate Division, Third GRAW, Respondent. (Supreme Court. Appel. B. Wilcox against James L. Baker. No opinlate Division, First Department. May 20, 1904.) ion. Order affirmed, with $10 costs and disAction by John Wanamaker and others against bursements. Robert I. Megraw. J. E. Hedges, for appellants. L. Lally, for respondent. No opinion. Appeal dismissed, with $10 costs and dis- N. Y. R. CO., Appellant. (Supreme Court, Ap

WILCOX, Respondent, v. SYRACUSE, B. & bursements.

pellate Division, Fourth Department. May 17,

1904.) Action by Myra Wilcox against the WASHINGTON & FRANKLIN BREWING Syracuse, Binghamton & New York Railroad CO., Appellant, v. NEIDERSTEIN et al., Re- Company. spondents. (Supreme Court, Appellate Division, PER CURIAM. Order granting new trial Second Department. June 10, 1904.) Action reversed, motion denied, and judgment ordered by the Washingtou & Franklin Brewing Com- for the defendant upon the verdict, with costs. pany against John Neiderstein, Jr., and others. Held, that upon the evidence in this case the

PER CURIAM. Motion to dismiss appeal train and gate, at the time of the accident, were granted, with costs, unless the appellant per- not being operated by the defendant, but by fects its appeal within 20 days and pays $10 another railroad company, and that there was costs to the respondents, in which event the mo no admission in the pleadings that this defendtion to dismiss the appeal is denied, without ant was so operating the railroad or gates. costs.

WILLIAMS V. GERMAN INS. CO. (SuWAYDELL V. MUNROE et al. (Supreme

preme Court, Appellate Division, Fourth DeCourt, Appellate Division, First Department. partment. May 3, 1904.) Action by John R. June 17, 1904.) Action by Frederick Waydell Williams against the German Insurance Comagainst 'John Munroe and others. No opinion. papy: Motion denied, on payment of $10 costs of mo

PER CURIAM. Motion to amend decision tion and $10 term fee. Memorandum per cur

denied. iam.

SPRING and HISCOCK, JJ., dissent. In re WEINBERGER. (Supreme Court, Apal., Appellants.' (Supreme Court, Appellate Di

WILLNISKY, Respondent, v. GREGORY_et pellate Division, First Department, May 6, vision, First Department. May 20, 1904.) AC1904.) In the matter of Joseph S. Weinberger. I tion by Minnie Willnisky, as administratrix, Memorandum per curiam,

against George F. Gregory and another. L. S. In re WEISELL. (Supreme Court, Appellate Carrere, for appellants. L. Steckler, for reDivision, First Department. June 17, 1904.)

spondent. In the matter of William Weisell. No opinion.

PER CURIAM. Judgment and order affirm. Motion denied, on payment of $10 costs of mo-ed, with costs. tion and $10 term fee.

MCLAUGHLIN, J., dissents.

and 122 New York State Reporter WIMPIE v. CENTRAL CROSSTOWN R. , the $50 on deposit awaited his order. Jode CO. (Supreme Court, Appellate Division, First ment modified, by reducing it to $25 and custa Department. May 6, 1901.) Action by Nich- and, as modified, affirmed, without costs. olas M. Wimpie against the Central Crosstown Railroad Company. No opinion. Motion WOLFE Appellant, v. CLARKE, Respunde granted, so far as to dismiss appeal, with $10 ent. (Supreme Court, Appellate Division, St. costs.

ond Department. June 10, 1904.) Actiot by

Harry Wolfe against Thomas J. Clarke. V WINTERS, Respondent, V. HUGHES, Ap. opinion. Judgment of the Municipal Court at pellant. (Supreme Court, Appellate Division, firmed by default, with costs. Second Department. June 3, 1904.) Action by Leonard Ross Winters against John J. Hughes, WOLPERS, Respondent, v. NEW YORK & doing business under the name and style of QUEENS ELECTRIC LIGHT & POWER (.. American Paper Box Company. No opinion. Appellant. (Supreme Court, Appellate Dirisius, Judgmeut of the Municipal Court affirmed, with Second Department. June 3, 1904.) Action to costs.

Conrad Wolpers, Jr., an infant, by his guard

ian ad litem, Conrad Wolpers, against the Ver WOLF, Respondent, v. HERRMAN, Appel. York & Queens Electric Light & Power Canlant. (Supreme Court, Appellate Term. May pany. No opinion. Motion for leare to appeal 5, 1904.) Action by Harris Wolf against to the Court of Appeals denied. Henry Herrman. From a Municipal Court judgment in favor of plaintiff, defendant ap WOODWARD, Appellant, v. VILLAGE RE peals. Modified. Edward Herrmann, for ap- spondent. (Supreme Court, Appellate Divisica, pellant. Samuel Rosenbloom, for respondent. Fourth Department. May 17, 1904.) A cting to

PER CURIAM. Had the defense of the stat. Charles E. Woodward against George Millaze. ute of frauds been pleaded or raised at the trial, No opinion. Judgment of County Court afirmthe plaintiff's recovery would have been lim ed, with costs. ited to $50; and, in view of the tender of that amount before suit brought and its subsequent In re ZEILER. (Supreme Court, Appellate payment into court, the judgment should have Division, Fourth Department. May 3, 1904. gone for the defendant. In the absence of such In the matter of the application of George E a plea, the justice was warranted in awarding Zeiler, an incompetent person, etc., for leare to $75 to the plaintiff; but the judgment in his sell certain real estate. No opinion. Order ai. favor should have been in the sum of $25, as 'firmed, with $10 costs and disbursements.

END OF CASES IN VOL. 88.

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0.0 bere La Fative, see "Executors and Administra- / Cause of personal injuries, see "Negligence," To of g h In the L37,” 5 6. Si $, as brze, be action by stockholders against the cor

Ne Tart sa B
STUITY Ritable in one

INDEX.
HEN, Ap 0
e ca, Erned F E
ABANDONMENT.

ACADEMIES.
Ona mmployment by servant, see “Master and See "Schools and School Districts," $ 1.

vant," $ 1.
ghway, see "Highways," 88 1, 2.

ACCEPTANCE.
ABATEMENT.

Of dedication, see “Dedication," § 1.

Of goods sold in general, see “Sales," $ 3.
-iisance, see "Intoxicating Liquors," $ 3.
1BATEMENT AND REVIVAL.

ACCESSION.

Annexation of personal to real property, see
ion of remedy, see "Election of Reme “Fixtures.”
Laent as bar to another action, see "Judg-
.t," $ 6.

ACCIDENT.
of action by or against personal repre-

.
Another action pending:

ACCOMPLICES.
on and its directors, based on the alleged Testimony, see "Criminal Law," $ 2.
of the directors, héld not dismissible be-
an action had been commenced by a di-
under Code Civ. Proc. 88 1781, 1782, at
ime time.-Loewenstein v. Diamond Soda

ACCORD AND SATISFACTION.
Mfg. Co. (Sup.) 313.

See "Payment"; "Release."
ABDUCTION.

The payment of a part of an indebtedness

does not operate as an extinguishment of the Prosecution and punishment.

entire indebtedness without a new and binding er Code Cr. Proc. $ 527, held, that a agreement.-Weinberg v. Novick (Sup.) 168. rial should be granted to defendant, con Where a settlement by part payment, made

under Pen. Code, $ 282 (1), of abduc- by defendant with plaintiffs, was separate from ir intercourse. People v. Masterson (Sup.) any settlement with other creditors of defend

ant, the burden was on defendant to establish

a new and binding agreement on a sufficient
ABSENCE.

consideration.-Weinberg v. Novick (Sup.) 168.
torney as ground for continuance, see
itinuance."

ACCOUNT.

See “Account Stated,"
ABUSE OF PROCESS.

Accounting between partners, see "Partner-
Process," $ 2.

ship," $ 2.
Accounting by executor or administrator, see

"Executors and Administrators," § 7.
ABUTTING OWNERS.

Reference to take account, see "Reference,"

§ 1.
ments for expenses of public improve-
s, see "Municipal Corporations," 8 2. § 1. Right of action and defenses.
nsation for taking of or injury to lands Contract giving a right to manufacture a cer-
isements for public use, see "Eminent tain pateuted article held not to create a part-
ain," $ 1.

nership, joint adventure, nor any relation jus-
in streets in cities, see "Municipal Cor- tifying an application to require an accounting
ions," $ 3.

in equity.-Henderson v. Dougherty (Sup.) 665. 88 N.Y.S.—71

(1121)

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END OF CASES IN POL

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Cascellation of wr cellation of Instri Ietermination of a sty, see "Quietin Lissolution of part Enforcement or fo

bonics Liens," s

"Trusts," Ŝ 2. Establishment of wi Freeclosure of mor Reformation of wri

mation of Instr Removal of cloud on Betting aside will, se

Particular pr

"Subscriptions”; “Trover and Cores) 222es." & 2; “Moi Breach of contract by carrier, see "tars Be "Continuance" ; Compensation of attorney, see "Attores Tranlt. see "Judgme Failure to deliver possession of demisd"Courts," $ 1.

Discharge from employment, see "Mastat Procedirus in exercis Assignment of right of action, see “Assign- Flood caused by defective canal, see "Cerekwipal prosecutions, Bar by former adjudication, see “Judgment," Injuries caused by servant, see "Master Appeal" ; "Judge Commencement within period of limitation, Injuries to property of tenant, see "I || 1. Xatare and fo

Personal injuries, see “Carriers," $4, 3:e of action based

Servant." & 7; "Municipal Corporations-Jones v. Leopoló

and 122 New York State Reporter
ACCOUNT, ACTION ON. Actions by or against particular disa

parties.

Particul Limitations applicable, see “Limitation of Ac See “Brokers," 1.3 "Carriers," $ Bee "Replevin"; tions,” 8 1.

porations," $ 6; "Executors and Adoto

tors,' $ 6; "Infants," $ 2; “Master and ACCOUNT STATED.

ant," $ 8; Municipal Corporations Account": " "Officers, § 3; "Partnership," $ 3:

"Specific Perform Where the proof in an action on an account

sicians and Surgeons”; “States," sody, see “Diro stated failed to show a meeting of minds as to Railroads," $ 2; “Towns," $ 2; Wartesanalment of mari the balance alleged to be due, the complaint men." was properly, dismissed.-Hall v. New York Banks, see "Banks and Banking," { 1 Brick & Paving Co. (Sup.) 582.

Life tenants, see “Life Estates." Sending statements of account to one who did Stockholders, see "Corporations," | 4 not incur an indebtedness could not make him Trustees, see "Trusts," $ 2. liable thereon.-William Allen & Co. v. Som- Trustees in bankruptcy, see "Bankruptes.".2 erset Hotel Co. (Sup.) 944.

Particular causes or grounds of actia In an action by an assignee of an account for See "Account Stated"; "Bills and Nestablishment and labor and materials, testimony by the assignor held insufficient to support a judgment for an

4; “Death," $ 1; "False Imprisone amount even greater than the claim.-Muller v.

1; “Insurance," 8$ 3, 4; “Libel and Sanie S. Arouson & Co. (Sup.) 1006.

§ ," “

$ 1; “Work and Labor." ACCRUAL.

Abuse of process, see “Process," $ 2.

Breach of contract, see “Contracts of rent, see "Landlord_and Tenant," $ 5.

"Sales," $$ 5, 6; "Vendor and Purchsie Of right of action, see "Limitation of Actions," 88 4, 5. § 2. ACCUMULATIONS.

$$ 3–6.

Breach of contract to supply electricity Restrictions on creation of trusts for accumu- Breach of warranty, see “Sales," ( 6

"Electricity." lation, see "Perpetuities."

Compensation of agent, see “Princips!

Agent," $ 2.
ACKNOWLEDGMENT.
Or indebtedness barred by limitation, see “Lim- Compensation of broker, see "Brokers."

Client," $ 2. itation of Actions," $ 3.

Compensation of physicians, see "Pays Operation and effect of admissions as evi and Surgeons." dence, see “Evidence," $ 5.

Delay in delivery of goods by arrier, see

riers," $ 1.
ACTION.

Servant," 8 1.
Abatement, see "Abatement and Revival.”
Accrual, see “Limitation of Actions," $ 2. ises, see “Landlord and Tenant," $ 4.
ments," $ 1.

§ 1. 8 6.

Servant," $ 8. see “Limitation of Actions," $ 2.

and Tenant," $ 4. Counterclaim, see "Set-Off and Counterclaim." Election of remedy, see "Election of Reme ries," $ 1; "Highways," $ 3; *Maste

dies." Jurisdiction of courts, see "Courts."

3, 4; “Railroads," & 2; “Street Raikai Limitation by statutes, see "Limitation of Ac 82. tions."

Price of goods, see "Sales," $ 5. Penal and qui tam actions, see “Penalties," Recovery of land sold by vendor, $ 1.

dor and Purchaser," § 4. Pendency of action, see "Abatement and Re- Recovery of payment, see "Payment." vival," $ 1.

Recovery of price paid for land, te Actions between parties in particular relations. Rent, see "Landlord and Tenant," $ 5

and Purchaser," $ 5. See "Attorney and Client," $ 2; "Landlord and Services, see Master and Servant."

Tenant," $$ 4, 5; “Master and Servant," $8 “Work and Labor." 2, 7; "Principal and Agent," $ 2.

Wages, see "Master and Servant," ! Corporation and corporate officers, see “Cor- Waste, see "Life Estates." porations," $ 5.

Wrongful death caused by negligence de Partners, see "Partnership," $ 2.

officers, see "Towns," $ 2. Stockholders and corporate officers, see "Cor- Wrongful delivery of goods by estris, porations,” $ 5.

"Carriers," $ 1.

[graphic]

"Depositions" ;

E: "Limitation of Ac bes: “Pleading" lopulations"; "T Bill of particulars, se

ter of judgment, se Tieliet, see “Trial," Particular remedies 8 "Attachment":

[graphic]

Cearts of limited ju

Review of

complaint constru

u in tort for the co

9

det on contract gr hature and sell a certa

be one at law.-H

I an action for tres Hinz, plaintiff held

breach of an alleged Fäter pipes therein

12 Joinder, splitt

and severance. errant held entitled e Izainst master for * to fork, and again Krizopre caused injury 2. Co. (Sup.) 70.

а

Particular forms of action.

Under Code Civ. Proc. $$ 498, 499, and secSee “Replevin"; "Trover and Conversion." tion 488, subd. 6, held, that the improper union

of actions in a complaint, where it appears upParticular forms of special relief.

on the face thereof, must be taken advantage See “Account": "Divorce"; "Quieting Title"; of by demurrer, and is waived by answer.“Specific Performance."

Ward v. Smith (Sup.) 700. Alimony, see "Divorce," $ 1.

§ 3. Commencement, prosecution, and Annulment of marriage, see “Marriage."

termination. Cancellation of written instrument, see "Can Where a suit was commenced by a director cellation of Instruments."

against the other directors of a corporation, unDetermination of adverse claims to real prop- der Code Civ. Proc. 88 1781, 1782, and an acerty, see "Quieting Title."

tion by stockholders for the same relief was Dissolution of partnership, see "Partnership,” commenced simultaneously, held, that the trial $2.

of the issues in the latter action should have Enforcement or foreclosure of lien, see “Me been deferred until the determination of the chanics' Liens," $ 2.

other.-Loewenstein v. Diamond Soda Water Establishment and enforcement of trust, see Mfg. Co. (Sup.) 313.

“Trusts," $ 2. Establishment of will, see “Wills," $ 2.

Where the determination of an action in the Foreclosure of mortgage, see "Chattel Mort- all the issues, plaintiff was not entitled to have

Supreme Court did not necessarily determine gages," 8 2; "Mortgages," $ 4. Reformation of written instrument, see “Ref- an action by defendants against plaintiff in ormation of Instruments."

the Municipal Court stayed, pending a deterRemoval of cloud on title, see "Quieting Title.” mination of the action in the Supreme Court.Setting aside will, see “Wills," $ 2.

Jones v. Leopold (Sup.) 568.

Under Municipal Court Act, Laws 1902, pp. Particular proceedings in actions.

1498, 1199, c. 580, 88 26, 30, an action in which See “Continuance" ; “Costs"; "Damages" ; summons and alias summons were issued,

“Depositions”; "Dismissal and Nonsuit" the latter only appearing to have been served, "Evidence"; "Execution"; "Judgment"; cannot be regarded as commenced until the "Limitation of Actions": "Motions"; "Par alias summons was issued and served.-Goldties”; “Pleading”; “Process"; "Reference"; man v. Tobias (Sup.) 991.

"Stipulations" ; "Trial”; “Venue.” Bill of particulars, see "Pleading,” g 6.

ADJOINING LANDOWNERS.
Default, see "Judgment,"_$ 2.
Offer of judgment, see "Judgment," § 1.

See “Boundaries."
Verdict, see "Trial," $ 7.

Under Laws 1855, p. 11, c. 6, a license by Particular remedies in or incident to actions.

au adjoining property owner to the owner of See "Attachment”; “Discovery”; “Receivers." other property to enter for the purpose of shor.

ing up the licensor's wall held not a sufficient Proceedings in exercise of special jurisdictions. consideration for the licensee's agreement to Courts of limited jurisdiction in general, see protect the licensor's water pipes from freezing. “Courts," $ 1.

-Korn v. Weir (Sup.) 976.
Criminal prosecutions, see "Criminal Law.”
Review of proceedings.

ADJUDICATION. See “Appeal"; "Judgment," $ 5; “New Trial.” Operation and effect of former adjudication, § 1. Nature and form.

see "judgment," $$ 6, 7. A complaint construed, and held to state a cause of action based on a money demand, and

ADMINISTRATION. pot in tort for the conversion of a bank deposit.-Jones v. Leopold (Sup.) 568.

Of estate of decedent, see "Executors and AdAction on contract granting a right to manu

ministrators." facture aud sell a certain patented article held of property by receiver, see “Receivers,” 1. to be one at law.-Henderson v. Dougherty of trust property, see “Trusts,” $ 1. (Sup.) 665. In an action for trespass for injuries to a

ADMIRALTY. building, plaintiff held not entitled to recover See "Shipping." for breach of an alleged contract to protect certain water pipes therein.-Korn v. Weir (Sup.)

ADMISSIONS. 976. $ 2. Joinder, splitting, consolidation, In pleading, see "Pleading," $$ 2, 3.

As evidence in civil actions, see “Evidence," 85. and severance. Servant held entitled to join causes of ac

Judgment on, see "Judgment," § 1. tion against master for failing to furnish safe place to work, and against third person whose

ADVERSE CLAIM. negligence caused injury.-Lynchov. Elektron Mfg. Co. (Sup.) 70.

To real property, see "Quieting Title."

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