Plaintiff's exceptions overruled, motion for new trial denied, and judgment ordered for the defendant on nonsuit, with costs.

VUNCK, Respondent, v. SIEBRECHT, Appellant. (Supreme Court, Appellate Division, First Department. May 20, 1904.) Action by William L. Vunck against Henry A. Siebrecht. J. M. Gardner, for appellant. L. W. Thompson, 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.

WELSCH, Respondent, v. TUM SUDEN, Appellant. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by James Welsch against Henry C. Tum Suden. No opinion. Order affirmed, with $10 costs and disbursements.

In re WHITE. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) In the matter of the application of Josiah J. White, guardian of the person of Frederick H. White, an infant, to compel an accounting of the Long Island Loan & Trust Company as guardian of the property of said infant. No opinion. Motion to dismiss appeal granted, without costs.

WALDORF-ASTORIA SEGAR CO., Respondent, v. SALOMON et al., Appellants. (Supreme 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 Eugène lants. J. M. Bowers, for respondent. No M. White against Charles M. Gibbs. No opinopinion. 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-M. White against Charles M. Gibbs. No opinpartment. May 24, 1904.) Action by Eugene ment. May 6, 1904.) Action by Karl Wallach ion. Motion for leave to appeal to the Court of against the Manhattan Railway Company. Appeals denied, with $10 costs.

PER CURIAM. Motion denied, on payment of $10 costs of motion and $10 costs of term.

WANAMAKER et al., Appellants, v. ME GRAW, Respondent. (Supreme Court, Appellate Division, First Department. May 20, 1904.) Action by John Wanamaker and others against Robert H. Megraw. J. E. Hedges, for appellants. L. Lally, for respondent. No opinion. Appeal dismissed, with $10 costs and disbursements.

WASHINGTON & FRANKLIN BREWING CO., Appellant, v. NEIDERSTEIN et al., Respondents. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) Action by the Washington & Franklin Brewing Company against John Neiderstein, Jr., and others. PER CURIAM. Motion to dismiss appeal granted, with costs, unless the appellant perfects its appeal within 20 days and pays $10 costs to the respondents, in which event the motion to dismiss the appeal is denied, without costs.

WAYDELL v. MUNROE et al. (Supreme Court, Appellate Division, First Department. June 17, 1904.) Action by Frederick Waydell against John Munroe and others. No opinion. Motion denied, on payment of $10 costs of motion and $10 term fee. Memorandum per curiam.

In re WEINBERGER. (Supreme Court, Ap pellate Division, First Department. May 6, 1904.) In the matter of Joseph S. Weinberger. Memorandum per curiam.

In re WEISELL. (Supreme Court, Appellate Division, First Department. June 17, 1904.) In the matter of William Weisell. No opinion. Motion denied, on payment of $10 costs of motion and $10 term fee.

WILCOX, Appellant, v. BAKER, RespondDepartment. May 4, 1904.) Action by Samuel ent. (Supreme Court, Appellate Division, Third B. Wilcox against James L. Baker. No opinion. Order affirmed, with $10 costs and disbursements.

WILCOX, Respondent, v. SYRACUSE, B. & N. Y. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 17, 1904.) Action by Myra Wilcox against the Syracuse, Binghamton & New York Railroad Company.

PER CURIAM. Order granting new trial reversed, motion denied, and judgment ordered for the defendant upon the verdict, with costs. Held, that upon the evidence in this case the train and gate, at the time of the accident, were not being operated by the defendant, but by another railroad company, and that there was no admission in the pleadings that this defendant was so operating the railroad or gates.

WILLIAMS v. GERMAN INS. CO. (Supreme Court, Appellate Division, Fourth Department. May 3, 1904.) Action by John R. Williams against the German Insurance Com

pany.

PER CURIAM. Motion to amend decision denied.

SPRING and HISCOCK, JJ., dissent.

=

al., Appellants. (Supreme Court, Appellate DiWILLNISKY, Respondent, v. GREGORY_et vision, First Department. May 20, 1904.) Action by Minnie Willnisky, as administratrix, against George F. Gregory and another. L. S. Carrere, for appellants. L. Steckler, for respondent.

PER CURIAM. Judgment and order affirm ed, with costs.

MCLAUGHLIN, J., dissents.

and 122 New York State Reporter

WIMPIE v. CENTRAL CROSSTOWN R. CO. (Supreme Court, Appellate Division, First Department. May 6, 1904.) Action by Nicholas M. Wimpie against the Central Crosstown Railroad Company. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs.

WINTERS, Respondent, v. HUGHES, Ap pellant. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by Leonard Ross Winters against John J. Hughes, doing business under the name and style of American Paper Box Company. No opinion. Judgment of the Municipal Court affirmed, with

costs.

WOLF, Respondent, v. HERRMAN, Appellant. (Supreme Court, Appellate Term. May 5, 1904.) Action by Harris Wolf against Henry Herrman. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Modified. Edward Herrmann, for appellant. Samuel Rosenbloom, for respondent.

the $50 on deposit awaited his order. Jair ment modified, by reducing it to $25 and costi and, as modified, affirmed, without costs.

WOLFE, Appellant, v. CLARKE, Resprod ent. (Supreme Court, Appellate Division, Seeond Department. June 10, 1904.) Action by Harry Wolfe against Thomas J. Clarke. Na opinion. Judgment of the Municipal Court atfirmed by default, with costs.

WOLPERS, Respondent, v. NEW YORK & QUEENS ELECTRIC LIGHT & POWER CO., Appellant. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action b Conrad Wolpers, Jr., an infant, by his guardian ad litem, Conrad Wolpers, against the New York & Queens Electric Light & Power Con pany. No opinion. Motion for leave to appeal to the Court of Appeals denied.

WOODWARD, Appellant, v. MILLAGE Re spondent. (Supreme Court, Appellate Divisica. Fourth Department. May 17, 1904.) Action by ! Charles E. Woodward against George Millage. No opinion. Judgment of County Court afirm

PER CURIAM. Had the defense of the statute of frauds been pleaded or raised at the trial, the 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 payment into court, the judgment should have gone for the defendant. In the absence of such a plea, the justice was warranted in awarding $75 to the plaintiff; but the judgment in his favor should have been in the sum of $25, as

In re ZEILER. (Supreme Court, Appellate Division, Fourth Department. May 3, 1904) In the matter of the application of George E Zeiler, an incompetent person, etc., for leave to sell certain real estate. No opinion. Order af firmed, with $10 costs and disbursements.

END OF CASES IN VOL. 88.

INDEX.

ABANDONMENT.

ACADEMIES.

Of employment by servant, see "Master and See "Schools and School Districts," § 1.
Servant," § 1.

Of highway, see "Highways," §§ 1, 2.

ABATEMENT.

Of nuisance, see "Intoxicating Liquors," § 3.

ABATEMENT AND REVIVAL.

Election of remedy, see "Election of Remedies."

Judgment as bar to another action, see "Judgment," § 6.

Right of action by or against personal representative, see "Executors and Administrators," § 6.

1. Another action pending.

An action by stockholders against the corporation and its directors, based on the alleged fraud of the directors, held not dismissible because an action had been commenced by a director, under Code Civ. Proc. §§ 1781, 1782, at the same time.-Loewenstein v. Diamond Soda Water Mfg. Co. (Sup.) 313.

ABDUCTION.

1. Prosecution and punishment. Under Code Cr. Proc. § 527, held, that a new trial should be granted to defendant, convicted, under Pen. Code, § 282 (1), of abduction for intercourse.-People v. Masterson (Sup.) 747.

ABSENCE.

Of attorney as ground for continuance, see "Continuance."

ABUSE OF PROCESS.

See "Process," § 2.

ABUTTING OWNERS.

Assessments for expenses of public improvements, see "Municipal Corporations," § 2. Compensation for taking of or injury to lands

or

easements for public use, see "Eminent Domain," & 1.

ACCEPTANCE.

Of dedication, see "Dedication," § 1.
Of goods sold in general, see "Sales," § 3.

ACCESSION.

Annexation of personal to real property, see "Fixtures."

ACCIDENT.

Cause of personal injuries, see "Negligence," § 1.

ACCOMPLICES.

Testimony, see "Criminal Law," § 2.

ACCORD AND SATISFACTION.

See "Payment"; "Release."

The payment of a part of an indebtedness does not operate as an extinguishment of the entire indebtedness without a new and binding agreement.-Weinberg v. Novick (Sup.) 168.

Where a settlement by part payment, made by defendant with plaintiffs, was separate from any settlement with other creditors of defendant, the burden was on defendant to establish a new and binding agreement on a sufficient consideration.-Weinberg v. Novick (Sup.) 168.

ACCOUNT.

See "Account Stated."

Accounting between partners, see "Partnership," § 2.

Accounting by executor or administrator, see "Executors and Administrators," § 7. Reference to take account, see "Reference," § 1.

§ 1. Right of action and defenses.

Contract giving a right to manufacture a certain patented article held not to create a partnership, joint adventure, nor any relation justifying an application to require an accounting in equity.-Henderson v. Dougherty (Sup.) 665. (1121)

Rights in streets in cities, see "Municipal Cor-
porations," § 3.
88 N.Y.S.-71

and 122 New York State Reporter

ACCOUNT, ACTION ON.

Actions by or against particular cicas parties.

Limitations applicable, see "Limitation of Ac- See "Brokers," § 3; "Carriers," 14 * tions," § 1.

ACCOUNT STATED.

Where the proof in an action on an account stated failed to show a meeting of minds as to the balance alleged to be due, the complaint was properly dismissed.-Hall v. New York Brick & Paving Co. (Sup.) 582.

Sending statements of account to one who did not incur an indebtedness could not make him liable thereon.-William Allen & Co. v. Somerset Hotel Co. (Sup.) 944.

In an action by an assignee of an account for labor and materials, testimony by the assignor held insufficient to support a judgment for an amount even greater than the claim.-Muller v. S. Aronson & Co. (Sup.) 1006.

ACCRUAL.

Of rent, see "Landlord and Tenant," § 5.
Of right of action, see "Limitation of Actions,"
§ 2.

ACCUMULATIONS.

Restrictions on creation of trusts for accumulation, see "Perpetuities."

ACKNOWLEDGMENT.

Of indebtedness barred by limitation, see "Limitation of Actions," § 3.

Operation and effect of admissions as evidence, see "Evidence," § 5.

ACTION.

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 2.
Assignment of right of action, see "Assign-
ments," § 1.

Bar by former adjudication, see "Judgment,"
§ 6.
Commencement within period of limitation,
see "Limitation of Actions," § 2.
Counterclaim, see "Set-Off and Counterclaim."
Election of remedy, see "Election of Reme-
dies."

Jurisdiction of courts, see "Courts."

Limitation by statutes, see "Limitation of Actions."

Penal and qui tam actions, see "Penalties," § 1.

porations," § 6; "Executors and Ad -
tors," § 6; "Infants," § 2; "Master a
ant," 8; "Municipal Corporations" i
"Officers,' § 3; "Partnership." § 3;
sicians and Surgeons"; "States," 2:
Railroads," § 2; "Towns,” § 2; “Ware
men."

Banks, see "Banks and Banking,” § 1
Life tenants, see "Life Estates."
Stockholders, see "Corporations," § 4.
Trustees, see "Trusts," § 2.
Trustees in bankruptcy, see "Bankrupt”:

Particular causes or grounds of actin
See "Account Stated"; "Bills and New
4; "Death," § 1; "False Imprison
1; "Insurance," §§ 3, 4; "Libel and S
§ 2; "Negligence," § 4; "Penalties"
"Subscriptions"; "Trover and Copres
§ 1; "Work and Labor."

Abuse of process, see "Process,” § 2 Breach of contract, see "Contracts" { "Sales," $$ 5, 6; "Vendor and Purcha §§ 4. 5.

Breach of contract by carrier, see "Car §§ 3-6.

Breach of contract to supply electrici
"Electricity."

Breach of warranty, see "Sales,” § 6.
Compensation of agent, see "Princips!
Agent," § 2.

Compensation of attorney, see "Attore -
Client," § 2.

Compensation of broker, see "Brokers"
Compensation of physicians, see "Pr
and Surgeons."

Delay in delivery of goods by carrier, see-
riers," § 1.

Discharge from employment, see "Master
Servant," § 1.

Failure to deliver possession of demised
ises, see "Landlord and Tenant,” § 4.
Flood caused by defective canal, see "Ca
§ 1.

Injuries caused by servant, see “Master
Servant," § 8.

Injuries to property of tenant, see "Lani”
and Tenant," § 4.

Personal injuries, see "Carriers." §§ 4. 5. ries," § 1; "Highways." § 3; "Master Servant." § 7; "Municipal Corporations 3, 4; "Railroads," § 2; "Street Rain § 2.

Price of goods, see "Sales,” § 5. Recovery of land sold by vendor, see dor and Purchaser," § 4.

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

Actions between parties in particular relations.
See "Attorney and Client," § 2; "Landlord and
Tenant," $$ 4, 5; "Master and Servant," §§
2, 7; "Principal and Agent," § 2.

Corporation and corporate officers, see "Cor-
porations," § 5.

Partners, see "Partnership," § 2.

Recovery of price paid for land, see and Purchaser." § 5.

Rent, see "Landlord and Tenant." §
Services, see "Master and Servant,"
"Work and Labor."

Wages, see "Master and Servant." § 2
Waste, see "Life Estates."
Wrongful death caused by negligence
officers, see "Towns," § 2.

Stockholders and corporate officers, see "Cor- Wrongful delivery of goods by carriet, porations," § 5.

"Carriers," § 1.

"Appeal”; “Judgment," § 5; "New Trial." Operation and effect of former adjudication,

an action for trespass for injuries to a
ing, plaintiff held not entitled to recover See "Shipping."
reach of an alleged contract to protect cer-
water pipes therein.-Korn v. Weir (Sup.)