and 123 New York State Reporter tion by Joseph B. Talbott against Russell Shear. No opinion. Judgment unanimously affirmed, with costs. TANNENBAUM, Respondent, v. DACKS, Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Frank Tannenbaum against Fanny M. Dacks. No opinion. Judgment of the Municipal Court affirmed, with costs. TAYLOR, Appellant, v. PRIMUS CO., Respondent. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Albert Taylor against the Primus Company. J. B. Leavitt, for appellant. E. L. Kalish, for respondent. No opinion. Judgment affirmed, with costs. TURNER, Appellant, v. NEW YORK ASBESTOS MFG. CO., Respondent. (Supreme Court, Appellate Division, Second Department. September 29, 1904.) Action by Benjamin F. Turner, an infant, by Bridget Turner, his guardian ad litem, against the New York Asbestos Manufacturing Company. PER CURIAM. Order dismissing plaintiff's complaint affirmed on argument, with $10 costs and disbursements, and appeal from order denying plaintiff's motion for a reargument dismissed, without costs. VAN SEGGERN, Respondent, v. GINS. BERG, Appellant, et al. (Supreme Court. Appellate Division, First Department. June 24. 1904.) Action by Arend Van Seggern against Henry Ginsberg, impleaded. H. H. Maas, for appellant. E. W. S. Johnston, for respondent. No opinion. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer, on payment of costs in this court and in the court below. VARNEY, Respondent, v. PHILO, Appellant. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by Edward Varney against Clayton J. Philo. No opinion. Judgment affirmed, with costs. VOLCKER, Respondent, v. HERTER et al.. Appellants. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Aetion by Adolph Volcker against Peter Herter and others. D. S. Updike, for appellants. H. Siegrist, Jr., for respondent. No opinion. Judgment and order affirmed, with costs. VON OHLEN, Respondent, v. EMPIRE LIFE INS. CO.. Appellant. (Supreme Court. Appellate Division, First Department. June 24, 1904.) Action by Catherine Von Ohlen C. Blandy, for appellant. W. W. Pickard, for against the Empire Life Insurance Company. respondent. No opinion. Order affirmed, with $10 costs and disbursements. spondent. (Supreme Court, Appellate Division. WAITE, Appellant, v. GREENLEAF, ReFourth Department. July 6, 1904.) Action by Eliza Waite against Louis C. Greenleaf. No opinion. Judgment affirmed, with costs. WALKER, Appellant, v. HARDER, Sheriff, Respondent. (Supreme Court, Appellate Division, Third Department. June 30, 1904)) Action by John H. Walker against J. Frank Harder, as sheriff of St. Lawrence county. No opinion. Judgment (80 N. Y. Supp. 948) unanimously affirmed, with costs. = WALKER, Respondent, v. INTERURBAN ST. RY. CO., Appellant. (Supreme Court, Ap TUSTIN, Appellant, v. HOBBS, Respond-pellate Division, First Department. July 13. ent. (Supreme Court, Appellate Division, Sec- 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. for respondent. TYSON, Respondent, v. JOSEPH H. BAULAND CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Eliza Tyson against the Joseph H. Bauland Company. PER CURIAM. We think that the record on the appeal should contain only the evidence which was received against the sole appellant. The order refusing to resettle the case is accordingly reversed, with $10 costs and disbursements, and the proceedings remitted to the justice by whom the case was tried for resettlement in accordance with this decision. HATCH, J. For the reasons stated in my opinion in the case of Scudder v. Interurban Street Railway Company (herewith handed down) 89 N. Y. Supp. 1115, the determination appealed from should be affirmed, with costs. PATTERSON and LAUGHLIN, JJ., conLAUGHLIN, J.. dissents. cur. O'BRIEN, J., concurs in result. Me WALSH V. GENERAL FIRE EXTINGUISHER CO. et al. (Supreme Court, Appellate Division, First Department. June 29, 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. In re WASHBURN. (Supreme Court, Appellate Division, Second Department. June 22, 1904.) In the matter of the application of William D. Washburn for admission to the bar. No opinion. Application granted. In re WEHRUM. (Supreme Court, Appellate Division, First Department. June 24, 1904.) In the matter of Charles C. Wehrum. No opinion. Motion granted. In re WEHRUM et al. (Supreme Court, Appellate Division, First Department. June 29, 1904.) In the matter of Charles C. Wehrum and others. R. M. Morgan, for appellant. C. L. Guy, for respondent. PER CURIAM. Order affirmed, with costs. WELSBACH CO. v. NORWICH GAS & ELECTRIC CO. (Supreme Court, Appellate Division, Third Department. September 20, 1904.) Action by the Welsbach Company against the Norwich Gas & Electric Company. PER CURIAM. Motion for leave to go to Court of Appeals granted, and questions certified as follows: (1) Was the complaint demurrable upon the ground that it appears upon the face thereof that the plaintiff did not have legal capacity to sue? (2) Was the complaint demurrable on the ground that facts are not therein stated sufficient to constitute a cause of action? WESTCOTT et al.. Appellants, v. SMITH, Respondent. (Supreme Court, Appellate Divi sion, Third Department. June 30, 1904.) Action by Harvey Westcott and Fred. H. Westcott against F. Ellerton Smith. No opinion. Judgment and order unanimously affirmed, with costs. WHEATON v. CONROW. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) In the matter of C. A. Wheaton against E. Floyd Conrow. PER CURIAM. Order reversed, with $10 costs and disbursements, on opinion in Wheaton v. Slattery, 88 N. Y. Supp. 1074. CHESTER and HOUGHTON, JJ., dissent. WHEATON v. MORAN. (Supreme Court, Appellate Division, Third Department. June PER CURIAM. Order reversed, with $10 costs and disbursements, on opinion in Wheaton v. Slattery, 88 N. Y. Supp. 1074. CHESTER and HOUGHTON, JJ., dissent. WILSON, Respondent, v. EPSTEIN et al., Appellants. (Supreme Court, Appellate Term. June 23, 1904.) Action by Samuel Wilson against Paul Epstein and others. From a judgment for plaintiff, and from an order denying Monfried and Julius Fischer, for appellants. a new trial, defendants appeal. Reversed. Max Louis Goldberg, for respondent. New York Security & Trust Co. v. Lipman, 83 PER CURIAM. According to the doctrine of Hun, 569, 32 N. Y. Supp. 65, and the cases therein cited, the present action, so far as the record shows, was prematurely brought. Judg ment and order reversed, and new trial ordered, with costs to appellant to abide the event. SCOTT, J., concurs. MacLEAN, J. (dissenting). The case of N. Y. Security & Trust Co. v. Lipman, 83 Hun, 569, 32 N. Y. Supp. 65, might apply, did it appear that the action by Mrs. Gordman against Wilson claimed for preventive relief. So far as appears by the record, that action, whatever it may be, is still pending; but it does not appear that its final outcome will or will not determine the right to preventive relief, or that such relief in that action is sought. == WILSON, Appellant, v. WILLIAMS et al., Respondents. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by William G. Wilson against Charles H. Williams and another. H. Wallis, for appellant. C. P. Howland, for respondents. No opinion. Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below. WORTHINGTON et al. v. HERRMANN et al. (Supreme Court, Appellate Division, SecAction by ond Department. June 24, 1904.) Charles C. Worthington and Theodore F. Miller against Theodore . Herrmann and others. No opinion. Order aflirmed, with $10 costs and disbursements. W. & J. SLOANE v. STOUT. (Supreme Court, Appellate Division, First Department. June 29, 1904.) Action by W. & J. Sloane against James N. Stout. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. YUENGLING v. BETZ. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by David G. Yuengling against John F. Betz. No opinion. Motion granted, so 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." Under Code Civ. Proc. § 430, permitting a A written designation of a person on whom ACCORD AND SATISFACTION. See "Compromise and Settlement"; "Nova- ACCOUNT. Accounting by executor or administrator, see ACCRUAL. Of right of action, see "Limitation of Actions," ACKNOWLEDGMENT. Operation and effect of admissious as ground ACTION. Accrual, see "Limitation of Actions," § 2. Malicious actions, see "Malicious Prosecution." Actions between parties in particular relations. Actions by or against particular classes of See "Carriers," §§ 2, 3; "Corporations," § 2; Trustees in bankruptcy, see "Bankruptcy," § 1. (1121) and 123 New York State Reporter Particular causes or grounds of action. See "Bills and Notes," §§ 1, 3, 5; "Bonds," § 2; "Conspiracy," § 1; "Fraud," § 2; "Indemnity"; "Insurance," § 7; "Judgment," 6; "Libel and Slander," § 2; Malicious Prosecution," §1; "Negligence," § 2; "Nuisance," § 1; "Salvage," 8 2; "Trespass"; "Work and Labor." Breach of contract, see "Contracts," § 4; "Vendor and Purchaser," § 3. Breach of covenant, see "Covenants," § 1. Breach of warranty, see "Sales," § 5. Foreclosure of attorneys' liens, see "Attorney and Client," § 3. Foreign judgment, see "Judgment," § 6. Injuries from breaking of dam, see "Waters and Water Courses," § 1. Injuries to bridges and highways, see "Highways," § 3. Personal injuries, see "Carriers," § 3; "Landlord and Tenant," § 2; "Master and Servant," §§ 6, 7; "Railroads," § 4; "Street Railroads," § 2. Recovery of possession of demised premises, see "Landlord and Tenant," § 4. Rent, see "Landlord and Tenant," § 3. Particular forms of action. See "Ejectment"; "Trespass," § 1. Particular forms of special relief. See "Divorce"; "Injunction"; "Interpleader" ; "Partition," § 1; "Quieting Title"; "Specific Performance." Construction of will, see "Wills," § 9. Dissolution of partnership, see "Partnership," § 3. Enforcement or foreclosure of lien, see "Mechanics' Liens," § 2. Establishment of will, see "Wills," § 4. § 1. Nature and form. of a lunatic did not object to the form of an action against her, but alleged a counterclaim, and the case was tried as an action on contract, defendant held not entitled to object to the regularity of a judgment against her for the amount found to be due.-La Grange v. Merritt (Sup.) 32. Where the executrix of a deceased committee An appeal by a constable from a city auditing board to the board of supervisors of the county for the adjustment of his claim for services is a special proceeding, within Code Civ. Proc. §§ 3333, 3334.-Perry v. Myer (Sup)) 347. Where plaintiff orally complained of defendant "for damages of property." and in the bil of particulars made claim for damages in a certain sum for the destruction of a set of plans, drawings, etc., the action was in tort.Bermel v. Harnischfeger (Sup.) 1029. Though a party having cause of action ex delicto may waive the tort and sue in assumpsit, yet, where he elects to sue in tort, he can not recover in assumpsit.-Bermel v. Harnischfeger (Sup.) 1029. ACTION ON THE CASE. See "Trespass," § 1. ADEQUATE REMEDY AT LAW. Effect on jurisdiction of equity, see "Specific Performance," § 1. ADJOINING LANDOWNERS. An owner of land is entitled to restrain an Foreclosure of mortgage, see "Mortgages," § 4. adjoining landowner from making excavations Particular proceedings in actions. See "Continuance"; "Costs"; "Damages"; "Depositions"; "Evidence"; "Execution" "Judgment"; "Judicial Sales"; "Limitation of Actions"; "Parties"; "Pleading"; "Trial"; "Venue.' Bill of particulars, see "Pleading," § 7. Particular remedies in or incident to actions. See "Arrest," § 1; "Attachment"; "Deposits in Court"; "Discovery"; "Garnishment"; "Injunction"; "Receivers." Notice of pendency of action, see "Lis Penlens." roceedings in exercise of special jurisdictions. Courts of limited jurisdiction in general, see "Courts," § 2. Criminal prosecutions, see "Criminal Law.". Suits in admiralty, see "Salvage," § 2. Suits in justices' courts, see "Justices of the Peace," § 3. Review of proceedings. See "Appeal"; "Certiorari"; "New Trial." in his land tending to deprive complainant's land of lateral support in its natural stateGillies v. Eckerson (Sup.) 609. Where plaintiff's digging operations deprived his land of cohesiveness, he could not recover for the falling of his lands on their being d prived of lateral support by defendant's excara tions on his own land. Gillies v. Eckersc (Sup.) 609. Under Building Code, § 22, enacted pursuant to Greater New York Charter, § 647, défendant in an action for negligence in shoring up wa of building contiguous to an excavation, held estopped to say that he did not intend to go to a depth of more than 10 feet.-Blanchard v. Sav arese (Sup.) 664. ADJUDICATION. Operation and effect of former adjudication, see "Judgment," §§ 3-5. ADMINISTRATION. Of estate assigned for benefit of creditors, see "Assignments for Benefit of Creditors," § 1. |