ACTION.

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 2.
Bar by former adjudication, see "Judgment,"
§ 4.

Counterclaim, see "Set-Off and Counterclaim."
Jurisdiction of courts, see "Courts."
Limitation by statutes, see "Limitation of Ac-
tions."

Pendency of action, see "Lis Pendens."

Actions between parties in particular relations.
See "Attorney and Client," § 1; "Master and
Servant," 88 1, 2, 8; "Vendor and Purchas-
er," § 4.

Bailor and bailee, see "Bailment."
Co-tenants, see "Partition," $ 1.
Partners, see "Partnership." § 4.
Pledgor and pledgee, see "Pledges."

Actions by or against particular classes of
parties.

See "Carriers," §§ 2. 3; "Executors and Ad-
ministrators,' § 8; "Factors"; "Husband
and Wife," § 1; "Infants." § 2; "Master and
Servant," § 9; "Partnership," § 2; "Princi-
pal and Agent," § 2; "Railroads," § 2; "Re-
ceivers," § 3; "Street Railroads," § 1.
Assignees, see "Assignments," § 3.
Co-tenants, see "Tenancy in Common," § 2.
Dissolved corporation, see "Corporations," § 6.
Foreign corporations, see "Corporations." § 7.
Foreign insurance companies, see "Insurance,"
§ 1.

Stockholders, see "Corporations," § 2.
Trustees, see "Trusts," §§ 4, 5.

Wrongful death caused by operation of rail-
road, see "Railroads," § 2.

Wrongful death caused by operation of street
railroad, see "Street Railroads," § 1.

Particular forms of action.

See "Assumpsit, Action of": "Replevin"; "Tres
pass," § 1; "Trover and Conversion."

Particular forms of special relief.

See "Divorce"; "Injunction"; "Interpleader";
"Partition," § 1; "Specific Performance."
Accounting by trustee, see "Trusts," § 4.
Alimony, see "Divorce," § 3.

Enforcement or foreclosure of lien, see "Me
chanics' Liens," § 2.

Establishment and enforcement of trust, see
"Trusts," § 5.

Establishment of will, see "Wills," § 3.
Foreclosure of mortgage, see "Mortgages." § 4
Setting aside award of insurance appraisers
see "Insurance," § 10.

Setting aside will, see "Wills," § 3.

Particular proceedings in actions.

See "Costs"; "Damages" "Depositions":
"Dismissal and Nonsuit" "Evidence": "Ex-
ecution"; "Judgment"; "Jury": "Limitatiet
of Actions"; "Motions"; "Parties"; "Plead-
ing"; "Reference"; "Trial"; "Venue."
Bill of particulars, see "Pleading," § 5.
Default, see "Judgment," § 1.

Particular remedies in or incident to actions.
See "Arrest," § 1; "Attachment"; "Bail,” § 1;
"Discovery"; "Injunction"; "Receivers."

Particular causes or grounds of action.
See "Assault and Battery" $1; "Bills and
Notes," § 4; "Death," § 2; "Fraud, §
"Insurance," $12; "Libel and Slander." 82;
"Negligence," § 3; "Nuisance." § 1; "Tres-
pass"; "Use and Occupation"; "Work and
Labor."

Bail bond, see "Bail," § 1.

Bond of bank officer, see "Banks and Bank-

ing," § 1.

Bond of liquor dealer, see "Intoxicating Liq-
uors." § 2.

Breach of contract, see "Contracts," § 6;
"Sales," § 5.

Breach of contract to make bequest or devise,
see "Wills," § 1.

Breach of covenant, see "Covenants." § 3.
Breach of warranty, see "Sales," §
Conversion by factor, see "Factors.'
Discharge from employment, see "Master and
Servant," § 1.

Personal injuries. see "Carriers," § 3; "Elec-
tricity"; "Landlord and Tenant." § 4; "Mas-
ter and Servant," § 8; "Railroads," § 2.
Price of goods, see "Sales," § 4.

dens."

The consolidation of an action for damages
and injunction to restrain a nuisance and a
subsequent action for damages alone, and tran-
fer of the actions to the Trial Term, held :
have waived the equitable relief asked for, 224
to render the consolidated action one for din

ages. Pritchard v. Edison Electric Illuminatin
Co. (Sup.) 225.

Action under Stock Corporation Law, LAT
1892, p. 1833, c. 688, § 31, relating to mister
resentations by officers in sale of stock. an
common-law action for same damage, hell to a

678.

and Labor."

Wages, see "Master and Servant," § 2.

ACTION ON THE CASE.

See Trespass," § 1.

ADEQUATE REMEDY AT LAW.

AGREEMENT.

ADJOURNMENT.

f court pending trial, see "Trial," § 2.

ADJUDICATION.

of courts in general, see "Courts," § 2.
Operation and effect of former adjudication, see
"Judgment," §§ 4, 5.

ADJUSTMENT.

of loss within insurance policy, see "Insur-
ance," § 10.

ADMINISTRATION.

If estate of bankrupt, see "Bankruptcy," § 2.
Of estate of decedent, see "Executors and Ad-
ministrators."

of trust property, see "Trusts." § 3.

ADMISSIONS.

is evidence, see "Evidence," § 3.

ADVANCEMENTS.

See "Descent and Distribution," § 1.

ADVERSE POSSESSION.

See "Limitation of Actions."

By holder of tax title, see "Taxation," § 3.
By tenant, see "Landlord and Tenant," § 2.
Of easement, see "Easements," § 1.

1. Nature and requisites.

Inclosure of lot on three sides held adverse
ossession, under Code Civ. Proc. §§ 370, 372.-
Brown v. Doherty (Sup.) 563.

AIDERS AND ABETTORS.

Criminal responsibility, see "Criminal Law,"
8 1

ADVERTISEMENT.

Official newspapers, see "Newspapers."

AFFIDAVITS.

See "Depositions."

ANSWER.

In pleading, see "Pleading," § 2.

APARTMENT HOUSES.

Covenants as to erection, see "Covenants," § 2.

AGENCY.

See "Principal and Agent."

Review in particular civil actions.

benefit of the most favorable inferences dedu-

Foreclosure suits, see "Mortgages," § 4.

Review in special proceedings.
Order denying new trial, see "New Trial," § 3.
Probate proceedings, see "Wills," § 3.

1. Decisions reviewable.

An order denying a motion to resettle another
order is not appealable.-Garofalo v. Prividi
(Sup.) 467.

An order vacating an attachment is not ap-
pealable.-Feldman v. Siegel (Sup.) 538.

Written stipulation that appeal from inter-
locutory judgment of county court may be treat-
ed as a motion for new trial on exceptions
held to give the Supreme Court jurisdiction, not-
withstanding Code Civ. Proc. § 1340.-Russ v.
Maxwell (Sup.) 1077.

2. Right of review.

A judgment of dismissal, rendered at the
request or by the consent of the plaintiff, is not
appealable.-Bacon v. Abbey Press (Sup.) 165.
An appeal from an order held dismissible.-
Levy v. Fidelity & Deposit Co. (Sup.) 487.

3. Presentation and reservation in
lower court of grounds of review.
Fact that bill of particulars had not been
served as demanded held not of itself ground
for reversal.-Block v. Sherry (Sup.) 160.

Final carrier, not having objected at the time
to competency of declarations of initial carrier
as evidence against it, held precluded from after-
wards raising objections.-Thyll v. New York &
L. B. R. Co. (Sup.) 345.

Permitting the jury to find for plaintiff for
an amount not justified by his own evidence
held error, which will be corrected, even in the
absence of an exception.-Spinner v. Klinger
(Sup.) 453.

4. Dismissal, withdrawal, or aban-
donment.

Trial court held to have had authority to make
an order declaring an appeal abandoned.-Levy
v. Fidelity & Deposit Co. (Sup.) 487.

$ 5. Review.

The admission of evidence as to the condi-
tion of a building some six weeks before an
accident thereon is not so erroneous as to re-
quire a reversal.-Nelson v. Young (Sup.) 69.

A judgment depending on the credibility of
witnesses will not be disturbed on appeal.-
Litzky v. Horowitz (Sup.) 136.

There being evidence which, if believed, war-
ranted the judgment, it will be presumed on
appeal that it was based thereon.-Wendell v.
Walker (Sup.) 142.

The court held not justified in holding com-
plaint defective for nonjoinder of parties, where
there was no showing that the parties not join-
ed were alive when the action was commenced.
-Ullman v. Cameron (Sup.) 148.

On an appeal from a judgment on a directed
verdict, the appellant is entitled to have the

Press Brick Co. v. Cunn (Sup.) 168.

The court on appeal is not justified in inter-
fering with the findings of the trial court, based
satisfactory evidence.-Smith v. Kissel

on

(Sup.) 176.

On appeal from an order sustaining excep-
tions to a referee's report, a question as to
whether there was a clerical error in the report
could not be considered, since any such mis-
take should have been corrected in the lower
court.-New York Bank Note Co. v. Hamilton
Bank Note Engraving & Printing Co. (Sup.)

200.

On appeal in mortgage foreclosure, the appel-
lant held entitled to a determination, on the
theory of the trial, to the effect that failure
to pay interest had been excused, though such
failure was not pleaded.-Schieck v. Donohue
(Sup.) 206.

Parties consenting to the trial of an action
as a suit in equity cannot, on appeal, raise the
question that the action was triable at law only.
-Jennie Clarkson Home for Children v. Chesa-
peake & O. Ry, Co. (Sup.) 348,

The testimony being conflicting, the verdict
will not be disturbed on appeal.-Berliner v.
Interurban St. Ry. Co. (Sup.) 455.

In an action for injuries, exclusion of tes-
timony impeaching a physician who testified for
plaintiff held prejudicial.-Brown v. Interurban
St. Ry. Co. (Sup.) 461.

In an action against sureties on a bail bond,
denial of sureties' motion for a new trial on
an erroneous ground held harmless.-Garofalo
v. Prividi (Sup.) 467.

In the absence of an appeal from an order
denying a motion to vacate an order of ar-
rest, whether the affidavit on which the arrest
was granted was sufficient could not be review-
ed on appeal from the judgment.-Anker v.
Smith (Sup.) 479.

A judgment of dismissal at the close of plain-
tiff's case requires the court on appeal to find

the most favorable inferences in favor of the
plaintiff.-Edwards v. Firemen's Ins. Co. (Sup.)

507.

into the opinion of the trial judge, to ascertain
On appeal the appellate court may examine
the grounds on which he set aside the verdict
of the jury.-Fox v. Metropolitan St. Ry. Co.
(Sup.) 754.

The erroneous admission of evidence is no
ground for reversal, where the only point on
which it bears is abundantly proven by com-
petent evidence.-Buckley v. Westchester Light
ing Co. (Sup.) 763.

Orders denying resettlement of another order
and retaxation of costs is within discretion of
trial court, and will not be reversed, in the
absence of controlling reasons affecting the in-

terests of justice. In re Lochst Ave. (Sup.)
798; Theall v. Village of Port Chester, Id.

Allegations in answer to which demurrer was
sustained cannot be considered on appeal as
admissions, especially where not offered in evi-
dence.-International Money Box Co. v. South-
ern Trust & Deposit Co. (Sup.) 881.

An appellate court should not reverse a judg-
ment and order a new trial on questions of
fact, unless there is a reasonable probability
that the result would be changed by such new
trial. Sternaman v. Metropolitan Life Ins. Co.
(Sup.) 904.

Where, after decision by Appellate Division,
Court of Appeals places different construction
on similar instrument, the Appellate Division, on
reargument, must overrule its former decision.
-Walsh v. Hanan (Sup.) 930.

APPLIANCES.

Liability of employer for defects, see "Master
and Servant," § 4.

APPLICATION.

cause.

Fifty dollars held adequate terms to be im-
posed, on amendment of complaint as neces-
sitated by defendant's successful appeal to

APPOINTMENT.

Executor or administrator, see "Executors and
Administrators," § 2.

APPRAISAL.

A decision on appeal, unappealed from, held
the law of the case on a second trial; the evi-
dence, though of greater length, not being ma-
terially different.-Hall v. State (Sup.) 338.

The judgment of the court of claims held not
to be modified on appeal, by increasing its
award, where there are no findings, and the evi-
dence may be materially changed on a new trial.
-Hall v. State (Sup.) 338.

On a trial of a case after the court on appeal
has decided that the complaint of plaintiff
states a cause of action, it is only necessary to
determine whether plaintiff's evidence fairly es
tablishes the allegations of the complaint.-Kel-
logg v. Sowerby (Sup.) 412.

Where, on appeal from Municipal Court, the
evidence is lost, judgment will be reversed.-
Brody v. Katz (Sup.) 452.

Judgment for $250, where plaintiff claimed
only $200, properly recoverable, reduced.-Dun-
don v. Interurban St. Ry. Co. (Sup.) 452.

Judgment reversed for defects in record,-
United States Title Guarantee & Indemnity Co.
v. Royal (Sup.) 457.

Under Municipal Court. Act, Laws 1901, p.
1560, c. 580, § 326, held, that a judgment on
notes would not be disturbed on appeal, though
the verdict was not in compliance with sec-
tion 239, p. 1583; its provisions being waived.
Steinhart v. Enteen (Sup.) 482.

Surplusage in surrogate's order, made on re-
mittitur from Court of Appeals, in proceed-
ings to probate a will, held not to vitiate order.
Code Civ. Proc. § 194.-In re Hopkins' Will
(Sup.) 793.

Reversal of order denying motion for refer-
ence to ascertain defendant's damages by is-
suance of injunction held an adjudication that
defendant was entitled to damages.-Perlman
v. Bernstein (Sup.) 862.

ance," § 10.