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WILLIAM B. HARRIS CO., Appellant, v. KIRCHOFER et al., Respondents. (Supreme Court, Appellate Term. June 1, 1906.) Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the William B. Harris Company against Louis P. Kirchofer and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded. Alfrd R. Bunnell, for appellant. Maurice M. Greenstein, for respondents.

PER CURIAM. In affirming this judgment we were led to believe that the admission in the answer by the defendants of a liability to the plaintiff and a tender of the admitted amount due had been followed up by a payment of such amount into court. It now appears that such was not the fact, and therefore the judgment should have been reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

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WILLIAMS, Respondent, v. VAN NORDEN TRUST CO., Appellant, et al. (Supreme Court, Appellate Division, First Department. June 25, 1906.) Appeal from Special Term, New York County. Action by Oliver Williams against the Van Norden Trust Company, as assignee for the benefit of creditors of James Clark and another, impleaded with others. From an order directing that, on payment by plaintiff to defendant of the sum of $50, the action should be discontinued without payment of further costs, defendant appeals. Modified and affirmed. E. W. S. Johnston, for appellant. Robert L. Luce,

for respondent.

PER CURIAM.

PER CURIAM. Judgment and order affirmed, with costs. See opinion of Spring, J., in same case on former appeal, reported in 107 App. Div. 99, 94 N. Y. Supp. 1090. KRUSE, J., dissents.

WITMARK et al., Respondents, v. J. B. SPARROW THEATRICAL CO., Appellant. (Supreme Court, Appellate Division, First Department. May 25, 1906.) Action by Marcus Witmark and others against the J. B. Sparrow Theatrical Company. S. G. Gibboney, for appellant. N. Burkan, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

WOODMANCY, Appellant, v. WOODMANCY et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 9, 1906.) Action by John C. Woodmancy against Hiram Woodmancy and others. No opinion. Judgment affirmed, with costs.

WOOD & BROOKS CO., Respondent, v. SCHLEICHER, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 9, 1906.) Action by the Wood & Brooks Company against George Schleicher.

PER CURIAM. Order affirmed, with $10 costs and disbursements.

WILLIAMS, J., not voting.

WORTHINGTON et al., Appellants, v. CITY OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division, First Department. April 20, 1906.) Action by Henry R. Worthington and another against the city of New York and others. M. Weiman, for apT. Connoly, for respondents. pellants. opinion. Order affirmed, with $10 costs and dis

bursements. Order filed.

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(Supreme Court, Appellate Division, Third DeYOUNG, Respondent, v. HYDE, Appellant. partment. May 18, 1906.) Action by Mary S. The order appealed from Young, a stockholder and policy holder against should be modified by permitting the plaintiff James' H. Hyde, impleaded. No opinion. Moto discontinue on payment to the defendant of tion for leave to go to Court of Appeals grantthe costs and disbursements of the former ap-ed, and questions certified as follows: (1) Does peal herein (93 N. Y. Supp. 821), the disbursements in the action, and $10 costs and disbursements of this appeal. As so modified, the order should be affirmed.

WILLIAMSON v. RANDOLPH. (Supreme Court. Appellate Division, First Department. April 20, 1906.) Action by Harry L. Williamson against Lewis V. F. Randolph. No opinion. Application granted. Settle order on notice.

WILSON, Appellant, V. NEW YORK MILLS, Respondent. (Supreme Court, Appellate Division, Fourth Department. May 9, 1906.) Action by Louisa M. Wilson, as, etc., against the New York Mills.

the complaint state facts sufficient to constitute a cause of action? (2) Are causes of action improperly united as alleged in defendant's demur

rer?

YOUNG v. INTERNATIONAL RY. CO. (Supreme Court, Appellate Division, Fourth Department. May 9, 1906.) Action by Martha Young against the International Railway Com

pany.

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

WILLIAMS, J., not sitting.

END OF CASES IN VOL. 99.

INDEX.

ABANDONMENT.

ACCOMPLICES.

Of water rights, see "Waters and Water Testimony, see "Criminal Law," § 3.
Courses," & 2.

ABATEMENT.

Pleas in abatement, see "Pleading," § 3.

ABATEMENT AND REVIVAL.

Election of remedy, see "Election of Remedies."
Pleas in abatement, see "Pleading," § 3.
Right of action by or against personal repre;
sentative, see "Executors and Administrators,'
§ 8.

Substitution of parties, see "Parties," § 2.

1. Another action pending.
*In an action against a stockholder to recover
a corporate debt, complaint held demurrable be-
cause showing pendency of another action.
Gause v. Boldt (Sup.) 442.

2. Transfer ог devolution of title,
right, interest, or liability.
*An action by a sheriff for conversion of
goods on which he had levied on execution may
be continued by him after the expiration of
his term.-Dickinson v. Oliver (Sup.) 432.

3. Death of party and revival of ac-

tion.

Under Code Civ. Proc. §§ 121, 757, 758, 760,
held proper, on application by plaintiff, to sub-
stitute defendant's executor by an order.-
Citizens' Nat. Bank v. Bang (Sup.) 76.

*Under Code Civ. Proc. § 764, where a ver-
dict is reversed in action for personal injury
before death of party, action held to abate at
his death.-Hughes v. Russell (Sup.) 203.

*Under the express provisions of Code Civ.
Proc. 766, where an action is authorized to
be brought by a public officer, his death does
not abate the action which may be continued
by his successor.-Dickinson v. Oliver (Sup.)

432.

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 3.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent Do-
main," § 2.

ACCEPTANCE.

ACCORD AND SATISFACTION.

See "Compromise and Settlement,"; "Payment";
"Release."

*Facts held not to constitute accord and sat-
isfaction.-Federal Printing Co. v. Garrick
Press (Sup.) 809.

satisfaction precluding a seller from a recovery
*Facts held insufficient to show an accord and
of the balance of the price due.-Bowery Bay
Bldg. & Imp. Co. v. Rossiter, MacGovern &
Co. (Sup.) 922.

ACCOUNT.

See "Account Stated."

Accounting between partners, see "Partnership,"
§§ 2, 3, 5.
Accounting between principal and agent, see
Accounting by executor or administrator, see
"Principal and Agent," § 2.
"Executors and Administrators," §§ 3, 5, 9.
Accounting by receiver, see "Receivers." § 2.
Accounting by trustee, see "Trusts," §§ 5, 6.
Long accounts as ground for reference, see "Ref-
erence," § 1.

Voluntary dismissal, see "Dismissal and Non-
suit," § 1.

ACCOUNT STATED.

*Matters held not such that an account stated
could be based thereon.-Brush & Stephens Co.
v. Ross (Sup.) 796.

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence,
see "Evidence," § 3.
Operation and effect of admissions as ground of
estoppel, see "Estoppel," § 1.

ACTION.

Abatement, see "Abatement and Revival."
Election of remedy, see "Election of Remedies."
Jurisdiction of courts, see "Courts."
Limitation by statutes, see "Limitation of Ac-
tions."

Of bill of exchange, see "Bills and Notes," § 1. Malicious actions, see "Malicious Prosecution."
*Point annotated. See syllabus.
(1153)

99 N.Y.S.-73

and 133 New York State Reporter

Pendency of action, see "Abatement and Re- | Enforcement or foreclosure of lien, see "M vival," § 1; "Lis Pendens."

Survival, see "Abatement and Revival," § 3.

Actions between parties in particular relations. See "Landlord and Tenant," § 3; "Master and Servant," §§ 1, 2, 10.

Partners see "Partnership," §§ 2, 5.

Actions by or against particular classes of parties.

See "Brokers," §§ 2, 3; "Carriers," §§ 2-8; "Corporations," §§ 5, 8; "Executors and Administrators,' § 8: "Guardian and Ward," § 1; "Husband and Wife," § 1; "Infants," $3; "Master and Servant," § 11; "Municipal Corporations"; "Principal and Agent," § 3: "Railroads," § 1; "Street Railroads," § 2. Banks, see "Banks and Banking," § 3. Corporate officers, see "Corporations," § 3. Stockholders, see "Corporations," § 2. Trustees, see "Trusts," §§ 3, 6.

Particular causes or grounds of action. See "Account Stated"; "Bills and Notes," §§ 1, 5; "False Imprisonment," § 1; "Fraud,' §1; "Guaranty," § 2; "Insurance," $$ 2, 5, 6; "Libel and Slander," § 3; "Malicious Prosecution," § 3; "Money Paid,"; "Money Received"; "Negligence," § 3; "Trespass"; "Trover and Conversion," § 2.

Breach of contract, see "Contracts," § 6; "Vendor and Purchaser," § 5.

Breach of warranty, see "Sales," § 6. Deficiency on foreclosure of mortgage, see "Mortgages," § 1.

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

Loss of or injury to shipment, see "Carriers," §§ 2, 3.

Personal injuries, see "Carriers," §§ 6, 7; "Gas"; "Master and Servant," §§ 10, 11; "Municipal Corporations"; "Railroads," § 1 "Street Railroads." § 2.

Price of goods, see "Sales," § 5.
Recovery of deposit on purchase price of land,
see "Vendor and Purchaser," § 5.
Recovery of price paid for land, see "Vendor
and Purchaser," § 5.

Recovery of tax paid, see "Taxation," § 3.
Removal of executor or administrator, see "Ex-
ecutors and Administrators," § 2.
Rent, see "Landlord and Tenant," § 4.
Services, see "Master and Servant," § 2.
Wages, see "Master and Servant," § 2.
Wrongful removal from municipal office,
"Municipal Corporations," § 1.

Particular forms of action.

See "Replevin"; "Trespass," § 1; and Conversion."

Particular forms of special relief.

see

"Trover

See "Creditors' Suit"; "Divorce"; "Injunction"; "Interpleader" ; "Specific Performance."

Alimony, see "Divorce," § 1.

Dissolution of partnership, see "Partnership," § 5.

chanics' Liens," §§ 2. 3.

Establishment and enforcement of trust, sed "Trusts," § 6.

Establishment of boundaries, see "Boundaries,” § 1.

Establishment of will, see "Wills," § 4. Foreclosure of mortgage, see "Mortgages," §3. Setting aside fraudulent conveyance, see "Frardulent Conveyances." § 1. Supplementary proceedings, see "Execution," § 3.

See

Particular proceedings in actions.

"Appearance";. "Costs"; "Damages"; "Depositions"; "Dismissal and Nonsuit"; "Evidence"; "Execution"; "Judgment": "Jndicial Sales"; "Limitation of Actions"; "Parties"; "Pleading"; "Reference"; "Stipulations"; "Trial"; "Venue."

Bill of particulars, see "Pleading," § 6.
Default, see "Judgment," § 2.
Nonsuit, see "Trial," § 4.

Revival, see "Abatement and Revival," § 3.
Verdict, see "Trial," § 6.

Particular remedies in or incident to actions.

See "Arrest," § 1; "Attachment"; "Discor ery"; "Garnishment"; "Injunction"; "ReNotice of pendency of action, see “Lis Penceivers."

dens."

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Where, in an action by a stockholder and policy holder in an insurance company, the only cause of action stated rested on the ground allegation that she was also a policy holder did that plaintiff was a stockholder, the further not result in an improper joinder of causes of action. Young v. Equitable Life Assur. Soc. (Sup.) 446.

In an action by a stockholder against the directors to recover sums claimed to be due the corporation, causes of action held not improper ly joined.-Young v. Equitable Life Assur. Soc. (Sup.) 446.

*A contract held indivisible, so that an action thereon could not be split up.-Howard v. Huater (Sup.) 542.

ACTION ON THE CASE.
See "Trespass," § 1.
*Point annotated. See syllabus.

ADEQUATE REMEDY AT LAW.

Effect of other remedy on right to relief by pro-
hibition, see "Prohibition," § 1.

ADJOINING LANDOWNERS.

See "Boundaries."

bridge by adverse possession.-Staples v. Corn-
wall (Sup.) 1009.

ADVERTISEMENT.

Construction of contract for, see "Contracts,"
§ 2.

Measure of damages for breach of contract for,
see "Damages," § 2.

Liability for negligence in excavating, see "Neg- Official newspapers, see "Newspapers."
ligence," § 1.

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Of estate of decedent, see "Executors and Ad- See "Arrest," § 1; "Attachment," § 5.
ministrators."

Of trust property, see "Trusts," § 3.

ADMISSIONS.

As evidence in civil actions, see "Evidence,"
§ 3.

ADOPTION.

Adoption of minors held regulated solely by
statute. In re Huyck's Estate (Sup.) 502.

For change of venue, see "Venue," § 1.
For opening judgment, see "Judgment," § 5.
Supplementary proceedings, see "Execution." §

3.

AFTER-ACQUIRED PROPERTY.

Rights of trustee in bankruptcy as to property
of bankrupt acquired subsequently to adjudica-
tion, see "Bankruptcy," § 1.

AGENCY.

Absence of adoption papers from office where See "Principal and Agent."

they ought to be raises the presumption that
none exist. In re Huyck's Estate (Sup.) 502.

Evidence held insufficient to raise presumption

AGREEMENT.

ALIENATION.

that adoption papers had been filed in county See "Contracts."
building thereafter destroyed by fire.-In re
Huyck's Estate (Sup.) 502.

Evidence held insufficient to raise presump-
tion of legal adoption.-In re Huyck's Estate
(Sup.) 502.

There is no presumption that children living
with people whose names they have taken have
been adopted. In re Huyck's Estate (Sup.) 502.

See "Food."

ADULTERATION.

ADVANCES.

By landlord to tenant, see "Landlord and Ten-
ant," § 4.

ADVERSE POSSESSION.

See "Limitation of Actions."

Acquisition of rights, see "Easements," § 1.

1. Nature and requisites.
Facts held sufficient to establish title to land
in controversy by adverse possession.-Morris
v. Morris (Sup.) 964.

*One constructing and maintaining a bridge
on the land of another under a license from the
latter cannot acquire the right to maintain the

Suspension of power of alienation of property,
see "Perpetuities."

ALIENS.

Escheat, see "Escheat."

ALIMONY.

See "Divorce," § 1.

ALLOWANCE.

Of claims against estates. of decedents, see
"Executors and Administrators," $ 5.

To surviving wife, husband, or children of
decedent, see "Executors and Administra-
tors," § 4.

ALTERATION OF INSTRUMENTS.
Discharge of pledgor, see "Pledges."
Discharge of surety, see "Principal and Sure-
ty,Ӥ 1.

*In a claim against a decedent's estate, the
burden held to be on claimant to explain an
Point annotated. See syllabus.

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