and 127 New York State Reporter ing, with an approved surety company as surety, to pay the costs of the appeal in the event of an affirmance of the judgment. If these conditions are not complied with, the motion is denied, with $10 costs. VOLLHART, Appellant, v. SEARLES, Respondent. (Supreme Court, Appellate Division, First Department. April 20, 1905.) Action by Rosina Vollhart against James H. Searles. C. E. Thornall, for appellant. F. H. Kellogg, for respondent. No opinion. Judgment aflirmed, with costs. WALSH, Respondent, v. FISHERIES CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by Jeremiah Walsh against the Fisheries Com pany. PER CURIAM. Judgment and order affirmed, with costs. George W. Sickels against Joseph Storch. No opinion. Judgment and order unanimously affirmed, with costs. WASHINGTON v. THOMAS et al. VIRDEN v. SAME. KNIGHT & WALL CO. v. SAME. (Supreme Court, Appellate Division. First Department. May 12, 1905.) Actions by C. S. Washington, by one Virden, and by the Knight & Wall Company against Orlando F. Thomas and another. No opinion. Motions denied, with $10 costs in one case. WASSERMAN, Appellant, v. BACON, Respondent. (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Action by Benoit Wasserman against Charles P. Bacon. No opinion. Judgment and order affirmed, with costs. WATERMAN, Appellant, v. LEHIGH VALJENKS, J., dissents. LEY R. CO., Respondent. (Supreme Court, Appellate Division, Third Department. May WANAMAKER et al. v. MEGRAW. (Su-3, 1905.) Action by Albert Waterman against preme Court, Appellate Division, First Depart- the Lehigh Valley Railroad Company. No opinment. April 14, 1905.) Action by John Wana-ion. Judgment and order unanimously affirmed. maker and others against Robert H. Megraw. with costs. No opinion. Motion for leave to appeal granted. WANAMAKER, Respondent, v. POWERS, Appellant. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by John Wanamaker against Thomas J. Powers, Jr. No opinion. Motion denied. WANAMAKER, Respondent, v. POWERS, Appellant. (Supreme Court, Appellate Division, Second Department. May 5, 1905.) Action by John Wanamaker against Thomas J. Powers, Jr. No opinion. Motion denied. WARNER, Respondent, V. VERMEULE, Appellant. (Supreme Court, Appellate Division, First Department. May 5, 1905.) Action by William C. Warner against John D. Vermeule. W. H. Russell, for appellant. H. E. Deming, for respondent. No opinion. Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer, on payment of costs in this court and in the court below. WEBB, Appellant, v. RAPP, Respondent. (Supreme Court, Appellate Division, Fourth Department. May 10. 1905.) Action by Jennie Webb against Peter Rapp. No opinion. Appeal dismissed, without costs, on stipulation. WEILER, Appellant, v. NEW YORK MERCANTILE EXCH., Respondent. (Supreme Court, Appellate Division, First Department. May 5, 1905.) Action by Katherine Weiler, as administratrix, against the New York Mercantile Exchange. T. J. O'Neill, for appellant. J. Notman, for respondent. No opinion. Judg ment affirmed, with costs. WEIR et al. v. BARKER. (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Action by John R. Weir and Frederick Weir, composing the firm of James Weir's Sons, against Frances E. Barker, trustee under the will of Charles Barker, deceased. PER CURIAM. The order must be settled in accordance with the decision; but the defendant may have an order of this court providing that her right to appeal to the Court of Appeals shall not be affected by the payment of rent pending such appeal. The time to apply for the appointment of a referee will be continued se cordingly. Order to be settled before MIL LER, J. WERNER CO. v. BONNELL et al. (StYOUNG, Respondent, v. NEW YORK CITY preme Court, Appellate Division, First Depart-RY. CO., Appellant. (Supreme Court, Appelment. April 14, 1905.) Action by the Werner late Term. May 29, 1905.) Appeal from MuCompany against J. Harper Bonnell and oth- nicipal Court, Borough of Manhattan. Action ers. No opinion. Motion granted, so far as to by Samuel T. Young against the New York City dismiss appeal, with $10 costs. Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. William E. Weaver, for appellant. Carruth, Ziegler & Carruth, for respondent. WHITE v. DAVENPORT et al. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by Josiah J. White against William B. Davenport and others. No opinion. Motion denied, and stay vacated. WHITNEY, Respondent, v. JOSEPH H. BAULAND CO., Appellant. (Supreme Court. Appellate Division, Second Department. April 21, 1905.) Action by William A. Whitney against the Joseph H. Bauland Company. No opinion. Judgment and order unanimously affirmed, with costs. In re WILDER et al. (Supreme Court, Appellate Division, Fourth Department. May 10, 1905.) In the matter of the application of Frank P. Wilder and the Carthage Sulphite Pulp Company for the appointment of commissioners to assess damages of riparian owners on Deer river, etc. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held that, without in any manner passing on the merits of the award herein, it does not seem necessary, upon the facts disclosed by the record in this proceeding, to send the report back to the commissioners to have detailed findings made by them. WILLSEN v. METROPOLITAN ST. R. CO. (Supreme Court, Appellate Division, First PER CURIAM. We are of the opinion that none of the exceptions were well taken. The objection on page 5 of the stenographer's minutes appears to have been made after the question had been asked and answered; and, moreover, under the circumstances disclosed by the evidence in the case, the plaintiff was entitled to recover, as one of the elements of the damages sustained by him, the amount paid by him for a wagon to take the place of the wagon destroyed by the defendant. The evidence warrants the finding of the justice. Judgment af firmed, with costs. CONGER, Respondent, v. CONGER et al., Appellants. (Supreme Court, Appellate Division, First Department. December, 1904.) Action by Clarence R. Conger, as trustee under the last will and testament of Catherine Ann Hedges, deceased, against Theodore H. Conger and others. Judgment modified as directed in opinion, and, as modified, affirmed, without costs. Opinion by PATTERSON, J., in which O'BRIEN and LAUGHLIN, JJ., concur, withheld from publication by direction of the court. VAN BRUNT, P. J., and HATCH, J., dissent. Motion for reargument pending. GOWANS et al., Appellants, v. JOBBINS, Respondent. (Supreme Court, Appellate Division, Fourth Department. January, 1905.) Action' by John Gowans and others against Frances H. Jobbins, as ancillary executrix of William F. Jobbins, deceased. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, unless the defendant comply with the conditions contained in the per curiam memo and 127 New York State Reporter randum herewith filed with the clerk, in which event said order will be modified in conformity with said memorandum, and, as so modified, affirmed, with $10 costs and disbursements to the appellants. PEOPLE ex rel. SALLADIN et al.. Respondents, v. CITY OF OSWEGO et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January, 1905.) Proceedings by the people of the state of New York, on the relation of Anthony Salladin, Jr., and others, against the city of Oswego, N. Y., and the department of works of the city of Oswego, N. Y. PER CURIAM. Order reversed, with costs, and application for writ denied, with $25 costs. Held, that the relators did not establish any such clear right upon the law and facts as to be entitled to a peremptory writ. WARNER v. THOMPSON et al. (Supreme Court, Appellate Division, First Department. May 5, 1905.) Action by William C. Warner against Edward Thompson and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Reversed. John L. Hill, for appellants. Horace E. Deming, for respondent. No opinion. Judgment affirmed. END OF CASES IN VOL. 98. INDEX. ABANDONMENT. Of demised premises, see "Landlord and Ten- Of street railroad franchise, see "Street Rail- ABATEMENT. Of nuisance, see "Nuisance," § 1. ABATEMENT AND REVIVAL. Judgment as bar to another action, see "Judg- Right of action by or against personal repre- 1. Death of party and revival of ac- In an action to set aside plaintiffs' transfer Under Code Civ. Proc. §§ 757, 765, the re- General Assignment Act, Laws 1877, p. 545, Where a report of a referee appointed to signee and before his personal representative ABSENCE. ABUTTING OWNERS. See "Navigable Waters," § 1. Rights in streets in cities, see "Municipal Cor- ACCEPTANCE. Of goods sold in general, see "Sales," § 4. ACCIDENT. Cause of personal injuries, see "Negligence," ACCORD AND SATISFACTION. See "Compromise and Settlement"; "Pay- ACCOUNT. See "Account Stated." ACCOUNT STATED. Merger and bar of causes of action in judg- Retention without answer of bill rendered stated. Benedict v. Jennings (Sup.) 464. In an action on an account stated, evidence ABUSE OF PROCESS. See "Process," § 2. count and 127 New York State Reporter ACCRETION. See "Navigable Waters," § 1. ACKNOWLEDGMENT. Operation and effect of admissions as evidence, A certificate of acknowledgment cannot be ACTION. Abatement, see "Abatement and Revival." Counterclaim, see "Set-Off and Counterclaim." Limitation by statute, see "Limitation of Ac- Set-off, see "Set-Off and Counterclaim." Actions between parties in particular relations. Actions by or against particular classes of parties. See "Attorney and Client," § 2; "Brokers," §§ Telephone company, see "Telegraphs and Tele- Trustees, see "Trusts," §§ 3, 4. Breach of contract, see "Contracts." § 6; Foreign judgment, see "Judgment," § 10. Price of goods, see "Sales," § 6. Recovery of bank deposit, see "Banks and Recovery of land sold by vendor, see "Vendor Recovery of payment, see "Payment," § 2. Services, see "Work and Labor." Taking of or injury to property in exercise of Particular forms of action. See "Replevin"; "Trover and Conversion." Cancellation of written instrument, see "Can- Enforcement or foreclosure of lien, see "Me- Setting aside tax assessment, see "Taxation," Particular proceedings in actions. Bill of particulars, see "Pleading," § 5. Revival, see "Abatement and Revival," § 1. Actions relating to particular species of property Verdict, see "Trial," § 5. See "Trusts," § 4. or estates. Particular causes or grounds of action. Abuse of process, see "Process," § 2. Aid of attachment, see "Attachment," § 1. |