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and 123 New York State Reporter tion by Joseph B. Talbott against Russell | VAN SEGGERN, Respondent, V. GINSShear. No opinion. Judgment unanimously af- BERG, Appellant, et al. (Supreme Court, Apfirmed, with costs.

pellate Division, First Department. June 24,

1904.) Action by Arend Van Seggern against TANNENBAUM, Respondent, V. DACKS, Henry Ginsberg, impleaded. H. H. Maas, for Appellant. (Supreme Court, Appellate Division, appellant. E. W. S. Johnston, for respondent. Second Department. July 28, 1904.) Action No opinion, Judgment affirmed, with costs, by Frank Tannenbaum against Fanny M. with leave to defendant to withdraw demurre: Dacks. No opinion. Judgment of the Mu and to answer, on payment of costs in this nicipal Court affirmed, with costs.

court and in the court below. TAYLOR, Appellant, v. PRIMUS CO., Re- VARNEY, Respondent, V. PHILO, Appelspondent. (Supreme Court, Appellate Division, lant. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Third Department. June 30, 1904.) Action Albert Taylor against the Primus Company. by Edward Varney against Clayton J. Philo. J. B. Leavitt, for appellant. E. L. Kalish, for | No opinion. Judgment affirmed, with costs. respondent. No opinion. Judgment affirmed, with costs.

VOLCKER, Respondent, v. HERTER et al.,

Appellants. (Supreme Court, Appellate DiviTHURSTON, Respondent, v. LEHIGH sion, First Department. July 13, 1904.) de VALLEY R. CO., Appellant. (Supreme Court, tion by Adolph Volcker against Peter Herter Appellate Division, Third Department. June and others. D. S. Updike, for appellants. H. 30, 1904.) Action by Fred. G. Thurston Siegrist, Jr., for respondent. No opinion. Judg. against the Lehigh Valley Railroad Company. ment and order affirmed, with costs.

PER CURIAM. Judgment and order affirmed, with costs.

VON OHLEN, Respondent, v. EMPIRE

LIFE INS. CO.. Appellant. (Supreme Court. SMITH, J., dissents.

Appellate Division, First Department. Jude TOWN OF COPAKE, Appellant, v. NIV

24, 1904.) Action by Catherine Von Ohlen

against the Empire Life Insurance Company, ER, Respondent. (Supreme Court, Appellate

C. Blandy, for appellant. W. W. Pickard, for Division, Third Department. June 30, 1904.)

respondent. No opinion. Order affirmed, with Action by the town of Copake (by Catherine

$10 costs and disbursements. Burdick, as administratrix, etc., of Wesley Burdick, deceased, a taxpayer) against Lee

WAITE, Appellant, v. GREENLEAF, Re Niver. No opinion. Judgment affirmed, with

spondent. (Supreme Court, Appellate Division, costs.

Fourth Department. July 6, 1904.) Action by

Eliza Waite against Louis C. Greenleaf. No TURNER, Appellant, v. NEW YORK AS- opinion. Judgment affirmed, with costs. BESTOS MFG. co., Respondent. (Supreme Court, Appellate Division, Second Depart.

WALKER, Appellant, v. HARDER, Sberment. September 29, 1904.) Action by Ben- | iff. Respondent." (Supreme Court. Appellate jamin F. Turner, an infant, by Bridget Turner,

Division, Third Department. June 30, 1904.) his guardian ad litem, against the New York | Action by John H.“ Walker against J. Frank Asbestos Manufacturing Company.

Harder, as sheriff of St. Lawrence county. PER CURIAM. Order dismissing plaintiff's | No opinion. Judgment (80 N. Y. Supp. 948) complaint affirmed on argument, with $10 costs unanimously affirmed, with costs. and disbursements, and appeal from order denying plaintiff's motion for a reargument dismissed, without costs.

WALKER, Respondent, v. INTERURBAN

| ST. RY. CO., Appellant. (Supreme Court, ApTUSTIN. Appellant. V. HOBBS. Respond-pellate Division, First Department. July 13, eut. (Supreme Court, Appellate Division, Sec

Ser 1904.) Action by Frank C. Walker against ond Department. June 24, 1904.) Action by

the Interurban Street Railway Company. From Edward B. Tustin against Frank S. Hobbs.

a judgment of the Appellate Term, affirming a No opinion. Order affirmed, with $10 costs and

judgment of the Municipal Court in favor of disbursements.

plaintiff, defendant appeals. Affirmed. Paul

| D. Cravath, for appellant. Frederick Durgan, TYSON, Respondent, v. JOSEPH H. BAU

for respondent, LAND CO., Appellant. (Supreme Court, Ap

HATCH, J. For the reasons stated in my pellate Division, Second Department. July 28,

opinion in the case of Scudder v. Interurban 1904.) Action by Eliza Tyson against the Jo

Street Railway Company (herewith handed seph H. Bauland Company.

down) 89 N. Y. Supp. 1115, the determination PER CURIAM. We think that the record

appealed from should be affirmed, with costs. on the appeal should contain only the evidence

| PATTERSON and LAUGHLIN, JJ., conwhich was received against the sole appellant.

cur. O'BRIEN, J., concurs in result. Me The order refusing to resettle the case is ac

| LAUGHLIN, J., dissents. cordingly reversed. with $10 costs and disbursements, and the proceedings remitted to the jus WALSH v. GENERAL FIRE EXTINtice by whom the case was tried for resettle- GUISHER CO. et al. (Supreme Court, Ap ment in accordance with this decision.

| pellate Division, First Department. June 20, 1904.) Action by Mary Walsh against the 30, 1904.) In the matter of C. A. Wheaton General Fire Extinguisher Company, implead- against James H. Moran. ed. No opinion. Motion denied.

PER CURIAM. Order reversed, with $10

costs and disbursements, on opinion in Wheaton WARNER, Appellant, v. WELLS et al., V. Slattery, 88 N. Y. Supp. 1074. Respondents. (Supreme Court, Appellate Di

CHESTER and HOUGHTON, JJ., dissent. vision, First Department. June 24, 1904.) ACtion by James H. Warner, as trustee, against

WILSON, Respondent, V. EPSTEIN et al., Judson G. Wells and another. D. B. Melick,

Appellants. (Supreme Court, Appellate Term. for appellant. E. S. Kalish, for respondents.

June 23, 1904.) Action by Samuel Wilson No opinion. Order affirmed, with $10 costs

against Paul Epstein and others. From a judgand disbursements.

ment for plaintiff, and from an order denying

a new trial, defendants appeal. Reversed. Max In re WASHBURN. (Supreme Court, Ap

Monfried and Julius Fischer, for appellants. pellate Division, Second Department. June 22,

Louis Goldberg, for respondent. 1904.) In the matter of the application of William D. Washburn for admission to the

PER CURIAM. According to the doctrine of bar. No opinion. Application granted.

New York Security & Trust Co. v. Lipman, 83

Hun, 569, 32 N. Y. Supp. 65, and the cases In re WEHRUM. (Supreme Court, Appel therein cited, the present action, so far as the late Division, First Department. June 24,

record shows, was prematurely brought. Judg1904.) In the matter of Charles C. Wehrum.

ment and order reversed, and new trial ordered, No opinion. Motion granted.

* with costs to appellant to abide the event.

SCOTT, J., concurs. In re WEHRUM et al. (Supreme Court, Ap-1 MacLEAN, J. (dissenting). The case of N. pellate Division, First Department. June 29, Y. Security & Trust Co. v. Lipman, 83 Hun, 1904.) In the matter of Charles C. Wehrum 569, 32 N. Y. Supp. 65, might apply, did it apand others. R. M. Morgan, for appellant. C. pear that the action by Mrs. Gordman against L. Guy, for respondent.

Wilson claimed for preventive relief. So far PER CURIAM. Order affirmed, with costs. as appears by the record, that action, whatever

it may be, is still pending; but it does not apWELSBACH CO. V. NORWICH GAS &pear that its final outcome will or will not deELECTRIC CO. (Supreme Court, Appellate termine the right to preventive relief, or that Division, Third Department. September 20, such relief in that action is sought. 1904.) Action by the Welsbach Company against the Norwich Gas & Electric Company. WILSON, Appellant, v. WILLIAMS et al.,

PER CURIAM. Motion for leave to go to Respondents. (Supreme Court, Appellate DiviCourt of Appeals granted, and questions certi- sion, First Department. June 24, 1904.) ACfied as follows: (1) Was the complaint demur- tion by William G. Wilson against Charles H. rable upon the ground that it appears upon the Williams_and another. H. Wallis, for appelface thereof that the plaintiff did not have lant. C. P. Howland, for respondents. No opinlegal capacity to sue? (2) Was the complaint lion. Judgment affirmed, with costs, with leave demurrable on the ground that facts are not to plaintiff to amend on payment of costs in this therein stated sufficient to constitute a cause court and in the court below. of action?

WORTHINGTON et al. v. HERRMANN et WESTCOTT et al., Appellants, V. SMITH,

| al. (Supreme Court, Appellate Division, Sec

Action by Respondent. (Supreme Court. Aøpellate Divi. I ond Department. June 24, 1904.) sion, Third Department. June 30, 1904.) AC

Charles C. Worthington and Theodore F. Miltion by Harvey Westcott and Fred. H. Westcott

ler against Theodore L. Herrmann and others. against F. Ellerton Smith. No opinion. Judg

por No opinion. Order aflirmed, with $10 costs and

disbursements. ment and order unanimously affirmed, with costs.

W. & J. SLOANE V. STOUT. (Supreme WHEATON v. CONROW. (Supreme Court, Court, Appellate Division, First Department. Appellate Division, Third Department. Juné June 29, 1904.) Action by W. & J. Sloane 30, 1904.) In the matter of C. A. Wheaton | against James N. Stout. No opinion. Motion against E. Floyd Conrow.

granted, so far as to dismiss appeal, with $10 PER CURIAM. Order reversed, with $10

costs. costs and disbursements, on opinion in Wheaton v. Slattery, 88 N. Y. Supp. 1074.

YUENGLING v._BETZ. (Supreme Court, CHESTER and HOUGHTON, JJ., dissent. Appellate Division, First Department. June 24,

| 1904.) Action by David G. Yuengling against WHEATON V. MORAN. (Supreme Court, John F. Betz. No opinion. Motion granted, so Appellate Division, Third Department. June 'far as to dismiss appeal, with $10 costs.

END OF CASES IN VOL. 89.

INDEX.

ABANDONMENT.

ACCOMMODATION PAPER.
Of demised premises, see “Landlord and Ten-See “Bills and Notes."
ant," $ 3.

ACCORD AND SATISFACTION.
ABATEMENT AND REVIVAL.

See "Compromise and Settlement”; “Nova-
Judgment as bar to another action, see "Judg- tion.

ment," $ 3.
Right of action by or against personal repre-

ACCOUNT.
sentative, see “Executors and Administra- i Accounting by executor or administrator. see
tors," $ 8.

"Executors and Administrators," $ 9.
ABSENCE.

Pleading in general, see "Pleading," $ 2.
See "Absentees.”

ACCRUAL.

of right of action, see "Limitation of Actions."
· ABSENTEES.

$ 2.
Under Code Civ. Proc. $ 430, permitting a

ACKNOWLEDGMENT.
resident to execute, in the same manner as
deeds are executed, a designation of a person Operation and effect of admissions as grouna
to be served with summons in his stead, a des- of estoppel, see "Estoppel," $ 3.
ignation executed without the United States
need not be dated.-Pierce v. Martin (City Ct.
N. Y.) 434.

ACTION.
A written designation of a person on whom Accrual, see “Limitation of Actions," 8 2.
summons might be served in the stead of a res- Bar by former adjudication, see "Judgment,"
ident who was abroad, executed under Code $ 3.
Civ. Proc. $ 430, construed, and held to war- | Jurisdiction of courts, see "Courts."
rant the court in holding that it was executed Limitation by statute, see "Limitation of Ac-
and acknowledged on February 27th, instead of tions."
on March 27th; the date appearing therein.- Malicious actions, see “Malicious Prosecution."
Pierce v. Martin (City Ct. N. Y.) 434.

Pendency of action, see "Lis Pendens."
Submission of controversy to court without ac-

tion, see “Submission of Controversy."
ABUTTING OWNERS.

| Actions between parties in particular relations.
Assessments for expenses of public improve- See "Landlord and Tenant.” 88 2. 4: “Master

ments, see “Municipal Corporations," 8 4., and Servant," 88 4, 6.
Compensation for taking of or injury to landsco

Co-tenants, see “Partition," $ 1.
or easements for public use, see "Eminent!P

" Partners, see "Partnership,” $ 3.
Domain," $ 2.

Actions by or against particular classes of
ACCEPTANCE.

parties.

See “Carriers,” $$ 2, 3; "Corporations," $ 2;
Of benefits, affecting right to appeal, see "Ap-

cright to anneal see "An "Counties," $ 1; "Executors and Adminis-
peal," 8 2.

trators," 88 8, 10; "Husband and Wife," $
of offer or proposal, see “Contracts," & 1; 5; “Master and Servant,” 8 7; "Municipal
“Sales," $ 1.

Corporations," $$ 3, 7; "Officers," 81; "Part-

nership," & 2.

| Trustees in bankruptcy, see “Bankruptcy," $ 1.
ACCESSION.

Actions relating to particular species of property
Annexation of personal to real property, see

or estates.
"Fixtures."

See “Pledges."
89 N.Y.S.—71

(1121)

and 123 New York State Reporter Particular causes or grounds of action. § 1. Nature and form. See "Bills and Notes," 88 1, 3, 5;. "Bonds," ģ

Where the executrix of a deceased committee 2; "Conspiracy," $ 1; "Fraud," $ 2; 'In of a lunatic did not object to the form of an demnity”; “Insurauce," $ 7; "Judgment,” 8 action against her, but alleged a counterclaim, 6; “Libel and Slander,” & 2; "Malicious and the case was tried as an action on contract, Prosecution," $ 1; “Negligence,” g 2; "Nui- defendant held not entitled to object to the sance," $ 1; "Salvage," $ 2;' "Trespass”; regularity of a judgment against her for the “Work and Labor."

amount found to be due.-La Grange 5. Mer

ritt (Sup.) 32. Breach of contract, see “Contracts," 8 4; “Vendor and Purchaser," $ 3.

An appeal by a constable from a city auditBreach of covenant, see “Covenants,” $ 1. ing board to the board of supervisors of the Breach of warranty, see “Sales," $ 5.

county for the adjustment of his claim fæ Foreclosure of attorneys' liens, see "Attorney services is a special proceeding, within Code and Client," $ 3.

1 Civ. Proc. $8 3333, 3334.—Perry v. Myer (Sup. Foreign judgment, see "Judgment,” g 6.

347. Injuries from breaking of dam, see "Waters Where plaintiff orally complained of defend

and Water Courses," $ 1. Injuries to bridges and highways, see "High- of particulars made claim for damages in a

ant "for damages of property." and in the bil ways," $ 3.

certain sum for the destruction of a set o! Personal injuries, see “Carriers," $ 3; “Land- ; plans, drawings, etc., the action was in tort.

lord and Tenant," & 2; “Master and Serv- Berm'el v. Harnischfeger (Sup.) 1029.
aut,” $$ 6, 7; “Railroads,” g 4; "Street Rail-
roads," $ 2.

Though a party having cause of action es Recovery of possession of demised premises, see

delicto may waive the tort and sue in assung"Landlord and Tenant," § 4.

sit, yet, where he elects to sue in tort, he can Rent, see “Landlord and Tenant," $ 3.

not recover in assumpsit.-Bermel v. HarnischServices, see “Work and Labor."

feger (Sup.) 1029. Particular forms of action.

ACTION ON THE CASE.
See "Ejectment"; "Trespass," $ 1.

See "Trespass,” g 1.
Particular forms of special relief.
See “Divorce";, “Injunction"; "Interpleader" ;
“Partition," '$ 1;. "Quieting Title"; "Spe-

ADEQUATE REMEDY AT LAW. cific Performance.”

Effect on jurisdiction of equity, see “Specific Construction of will, see "Wills," $ 9.

Performance," g 1.
Dissolution of partnership, see "Partnership,"

§ 3.
Enforcement or foreclosure of lien, see “Me- ADJOINING LANDOWNERS.

chanics' Liens," $ 2.
Establishment of will, see "Wills," $ 4.

An owner of land is entitled to restrain Foreclosure of mortgage, see “Mortgages," $ 4. adjoining landowner from making excarations

in his land tending to deprive complainant's Particular proceedings in actions. land of lateral support in its natural state.See "Continuance''; "Costs”; “Damages";

Gillies v. Eckerson (Sup.) 609. “Depositions''; "Evidence"; "Execution"; Where plaintiff's digging operations deprived "Judgment”; “Judicial Sales"; "Limitation i his land of cohesiveness, he could not recover of Actions"; "Parties" ; "Pleading"; "Trial”; for the falling of his lands on their being a “Venue.”

prived of lateral support by defendant's escara Bill of particulars, see “Pleading,” 8 7.

tions on his own land.--Gillies v. Eckersic Default, see "Judgment," $ 1.

(Sup.) 609.

Under Building Code, $ 22, enacted pursuant Particular remedies in or incident to actions.

to Greater New York Charter, § 617, defendar: See "Arrest," $ 1; “Attachment"; "Deposits in an action for negligence in shoring up in in Court"; "Discovery”; “Garnishment”; “In- of building contiguous to an excavation, helde junction''; “Receivers."

topped to say that he did not intend to go to a Notice of pendency of action, see “Lis Pen- depth of more than 10 feet.—Blanchard F. Sar. dens."

arese (Sup.) 664. coceedings in exercise of special jurisdictions. Courts of limited jurisdiction in general, see

ADJUDICATION. **Courts," $ 2.

Operation and effect of former adjudication, see Criminal prosecutions, see "Criminal Law.”

"Judgment," 88 3-5.
Suits in admiralty, see “Salvage," $ 2.
Suits in justices' courts, see “Justices of the
Peace," $ 3.

ADMINISTRATION.
Review of proceedings.

Of estate assigned for benefit of creditors, see See "Appeal”; “Certiorari"; "New Trial." "Assignments for Benefit of Creditors," $ 1.

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