PER CURIAM. Motion denied. KELLOGG, J., not sitting.

WATT, Respondent, v. FELTMAN et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 22, 1906.) Action by Edward Watt. an infant, by Alice Watt, his guardian ad litem, against Charles L. Feltman and Alfred Feltman. No opinion. Motion for reargument denied.

WEEKS. Appellant, v. CITY OF MIDDLETOWN. Respondent. (Supreme Court. Appellate Division, Second Department. December 8, 1905.) Action by Benjamin F. Weeks against the city of Middletown. No opinion. Motion for reargument denied.

WEEKS v. COE. (Supreme Court, Appellate Division, Second Department. March 2, 1906.) In the matter of judgment moneys recovered in action of Count W. Weeks against E. Holloway Coe, as executor, etc., of E. Frank Coe, deceased, defendant.

PER CURIAM. Order reversed, and motion granted, without costs.

HIRSCHBERG, P. J., dissents.

WEIL et al., Respondents, v. BAUER, Appellant. (Supreme Court, Appellate Division, First Department. March 23, 1906.) Action by James Weil and another against Ulrike Bauer. K. C. McDonald, for appellant. D. J. Callert, for respondents. No opinion. Judgment affirmed, with costs.

WELLS, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, Second Department. March 2, 1906.) Action by Henry E. Wells against the Metropolitan Street Railway Company. No opinion. Judgment reversed, and new trial granted, costs to abide the event, on the ground that the evidence presented a question of fact that ought to have been submitted to the jury.

WELLS, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, Second Department. March 2, 1906.) Action by Sarah Ann Wells against the Metropolitan Street Railway Company. No opinion. Judgment reversed, and new trial granted, costs to abide the event, on the ground that the evidence presented a question of fact that ought to have been submitted to the jury.

WHITE V. DAVENPORT et al. (Supreme Court, Appellate Division, Second Department.

WHITE et al., Respondents, v. WHITE Fourth Department. March 21, 1906.) Action Appellant. (Supreme Court, Appellate Division, by Horace White and others against Howard G. White. No opinion. Motion to dismiss appeal granted, with $10 costs, unless the appel lant shall, within 30 days from the date of service of a copy of this order, together with notice of entry thereof, file and serve the printed papers on appeal, as provided by rule 41, and pay to the respondent's attorneys $10 costs of this motion, in which event said motion is denied, without costs.

WILLIAMS, Respondent, v. CITY OF NEW YORK et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 16, 1906.) Action by Edna A. Williams, an infant, etc., against the city of New York and the New York Building Loan Banking Company. No opinion. Order modified, by requir ing as a condition of the amendment the payment by the plaintiff of the trial fee of $30 and the disbursements of the defendant on the trial, with $10 costs of the motion, and, as modified, affirmed, without costs.

WILSON, Respondent, V. NEW YORK MILK PRODUCTS CO., Appellant. (Supreme Court, Appellate Division, Fourth Department

ABANDONMENT.

Of contract, see "Contracts," § 3.

Of lease, see "Landlord and Tenant," § 2.

ABATEMENT AND REVIVAL.
Election of remedy, see "Election of Remedies."
Judgment as bar to another action, see "Judg-
ment," § 5.

Right of action by or against personal repre-
sentative, see Executors and Administra-
tors," § 4.

1. Death of party and revival of ac-
tion.

Under General Assignment Act, Laws 1877,
p. 545, c. 466, § 10, as amended by Laws 1878,
p. 408, c. 318, a referee's report in proceedings
to compel an assignee to account held subject
to withdrawal from the files when filed after
the death of the assignee.-In re Venable (Sup.)
938.

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 6.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," §§ 2, 4.

Rights in streets in cities, see "Municipal Cor-
porations," § 7.

Accounting by executor or administrator, see
"Executors and Administrators," $ 5.
Accounting by trustee, see "Trusts," § 4.
Accounting by wife in action on separation
agreement, see "Husband and Wife," § 3.
Grounds for equitable estoppel in action for
an accounting, see "Estoppel," § 2.
Opinion evidence in action for accounting, see
"Evidence," § 7.

§ 1. Proceedings and relief.

In an action for an accounting defendant may
have affirmative relief, although not demanded
by his answer.-Consolidated Fruit Jar Co.
v. Wisner (Sup.) 52.

An alleged right of a corporation to recover
profits earned by another corporation by use
of a model which plaintiff claimed as its prop-
erty held barred by lapse of time.-New York
Automobile Co. v. Franklin (Sup.) 781.

ACCOUNT STATED.

*The test of an account stated is that the
minds of the parties met as to the amount due.
-New York Board of Fire Underwriters v.
Boughan & Co. (Sup.) 402.

In an action on an account stated, defendant
is not entitled to show under a general denial
that plaintiff is indebted to him for matters
altogether outside the items embraced in the
account.-Uhlhorn v. Hovey (Sup.) 1040.

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence,
see "Evidence," § 3.

Operation and effect of admissions as ground of
estoppel, see "Estoppel," § 2.

ACTION.

Abatement, see "Abatement and Revival."
Bar by former adjudication, see "Judgment,"
§ 5.
Commencement within period of limitation, see
"Limitation of Actions," § 1.

Election of remedy, see "Election of Remedies.”
Jurisdiction of courts, see "Courts."
Limitation by statute, see "Limitation of Ac-
tions."

Penal and qui tam actions, see "Penalties," § 1.
Pendency of action, see "Lis Pendens."
Restraining action at law, see "Injunction,"
§§ 2, 5.

See syllabus.