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INDEX.

ABANDONMENT.

Of attachment, see "Attachment," § 2.

ABATEMENT.

Pleas in abatement, see "Pleading," § 1.

ABATEMENT AND REVIVAL.

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

Pleas in abatement, see "Pleading," § 1.
Right of action by or against personal repre-
sentative, see "Executors and Administra-
tors," § 8.

Substitution of parties, see "Parties," § 1.

1. Another action pending.
Defense of another action pending held not
affected by a defect in complaint in such other
action, where such defect was waived by fail-
ure to demur.-Romaine v. New York, N. H. &
H. R. Co. (Sup.) 491.

ABSENCE.

-

an accord and satisfaction. Mack v. Miller
(Sup.) 440.

Facts held to show an accord and satisfac-
tion.-Laroe v. Sugar Loaf Dairy Co. (Sup.)
609.

Where defendant in good faith disputed the
amount due under a contract with plaintiffs,
plaintiffs' claim was not liquidated, so as to
prevent the acceptance of a check, sent with a
statement that it was to be in full, from oper-
ating as a satisfaction of plaintiffs' claim.-
Laroe v. Sugar Loaf Dairy Co. (Sup.) 609.

Where a creditor had actual knowledge that
a check sent by the debtor was regarded as in
full satisfaction of the debt, the fact that the
creditor did not read a statement to that effect,
sent with the check, did not prevent acceptance
of the check from operating to discharge the
entire debt.-Laroe v. Sugar Loaf Dairy Co.
(Sup.) 609.

Where creditor accepts a check tendered as
payment in full and retains the proceeds, there
is an accord and satisfaction.-De Lovenzo v.
Hughes (Sup.) 857.

ACCOUNT.

Presumption of death from absence, see Accounting between partners, see "Partner-
"Death," § 1.

ABUSE OF PROCESS.

See "Process," § 3.

ABUTTING OWNERS.

ship," § 5.

Accounting by committee of insane person, see
"Insane Persons," § 1.

Accounting by executor or administrator, see
"Executors and Administrators," § 9.

§ 1. Proceedings and relief.

Plaintiff's remedy under his allegations held

a remedy at law.-Hart v. L. D. Garrett Co.

Rights in streets in cities, see "Municipal Cor- (Sup.) 774.
porations," § 4.

ACCEPTANCE.

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

ACCORD AND SATISFACTION.

See "Compositions with Creditors"; "Compro-
mise and Settlement"; "Payment"; "Re-
lease."

Acceptance of a check for an amount less than
the bill claimed to be owing by plaintiff from
defendant held not an accord and satisfaction of
the account.-Terry & Tench Const. Co. v. Lee-
son (Sup.) 267.

The acceptance of a check by a creditor, ac-
companied by a letter from the debtor, held not
84 N.Y.S.-73

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence,
see "Evidence," § 4.

ACTION.

Abatement, see "Abatement aud Revival."
Bar by former adjudication, see "Judgment,"
$ 5.
Counterclaim, see "Set-Off and Counterclaim."
Election of remedy, see "Election of Remedies."
Jurisdiction of courts, see "Courts."
Limitation by statute, see "Limitation of Ac-
tions."

Malicious actions, see "Malicious Prosecution."
Pendency of action, see "Abatement and Re-
vival," § 1.

(1153)

and 118 New York State Reporter

Review of proceedings, see "Appeal"; "Judg-
ment." § 4: "Justices of the Peace," § 2;
"New Trial."

Actions between parties in particular relations.
See "Landlord and Tenant," § 5; "Master and
Servant," §§ 1. 6.

Co-tenants, see "Partition," § 1.
Partners, see "Partnership," § 5.
Actions by or against particular classes of
parties.

Rescission of contract for insurance, see "Instr
ance, $ 3.

Sale of decedent's estate, see "Executors and
Administrators," § 7.

Services, see "Work and Labor."
Wrongful death of alien, see "Aliens,” § 1.
Particular forms of action.
See "Ejectment"; "Replevin": "Trespass," !
2; "Trover and Conversion.”

Particular forms of special relief.
See "Account"; "Creditors' Suit"; "Divorce":
"Injunction"; "Interpleader"; "Partition," {
1; "Specific Performance."
Alimony. see "Divorce." § 2.
Dissolution of partnership, see "Partnership.”
Enforcement or foreclosure of lien, see "Me
chanics' Liens," § 2.

See "Associations"; "Brokers," § 4: "Carri-
ers," §§ 1, 2; "Corporations," § 4; "Executors
and Administrators," § 8; "Guardian and
Ward," § 2; "Husband and Wife," § 4;
"Landlord and Tenant," § 4; "Master and
Servant," 87; "Municipal Corporations," §§ 5.
5; "Partnership." § 3; "Physicians and Sur-
geons"; "Principal and Agent," § 3; "Sher-
iffs and Constables," § 2.
Assignees, see "Assignments," § 2.
Referee, see "Reference." § 2.
Savings bank, see "Banks and Banking," § 2.
Stockholders, see "Corporations," § 2.
Telegraph or telephone company, see "Tele-
graphs and Telephones," § 1.
Trustees in bankruptcy, see "Bankruptcy," § 1.

Particular causes or grounds of action.
See "Bills and Notes," § 7; "Fraud," § 2;
"Insurance," § 9: "Libel and Slander," § 1;
"Malicious Prosecution," § 1; "Negligence,'
§ 3; "Nuisance," § 1; "Trespass"; "Trover
and Conversion"; "Work and Labor."
Abuse of process, see "Process," § 3.
Accounting by committee of insane person, see
"Insane Persons," § 1.

Breach of contract, see "Contracts," § 5;
"Sales," §§ 6, 7; "Vendor and Purchaser,"
§ 2.

Breach of warranty, see "Sales," § 7.

Certified check, see "Banks and Banking," § 1.
Compensation of brokers, see "Brokers," § 4.
Compensation of physician, see "Physicians and
Surgeons."

Compensation of referee, see "Reference," § 2.
Discharge from employment, see "Master and
Servant," § 1.

Failure to deliver possession of leased premises,
see "Landlord and Tenant," § 4.
Fire caused by operation of railroad, see "Rail-
roads," § 3.

Injuries caused by overflowing of stream, see
"Municipal Corporations," § 5.

Injuries from use of automobile, see "High-
ways," § 1.

Loss of baggage, see "Carriers," § 2.
Negligence in transmission of telegram, see
"Telegraphs and Telephones," § 1.
Obstruction of water supply, see "Waters and
Water Courses," § 1.

Personal injuries, see "Carriers," § 2: “Land-
lord and Tenant," § 4; "Master and Serv-
ant." § 6; "Municipal Corporations." § 5;
"Railroads," § 3; "Street Railroads," § 2.
Price of goods, see "Sales," § 6.
Recovery of goods delivered by seller, see
"Sales," § 6.

Recovery of interest, see "Interest," § 1.
Reut, see "Landlord and Tenant," § 5.

Reformation of written instrument, see "Ref-
ormation of Instruments."

Removal of personal representative, see “Er-
ecutors and Administrators." § 2.
Revocation of liquor tax certificate, see "Intox-
icating Liquors." § 2.

Separate maintenance of wife, see "Husbar!
and Wife," § 5.

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Setting aside fraudulent
conveyance,
"Fraudulent Conveyances," § 3.
Setting aside satisfaction of mortgage, see
"Mortgages," § 2.

Particular proceedings in actions.
See "Appearance"; "Continuance": "Costs":
"Damages"; "Depositions"; "Dismissal and
Nonsuit": "Evidence"; "Execution"; "Jziz-
ment": "Judicial Sales"; "Jury"; "Limita-
tion of Actions"; "Motions": "Parties":
"Pleading"; "Process": "Reference"; "Stip-
ulations"; "Trial"; "Venue."

Bill of particulars, see "Pleading." § 4.
Default, see "Judgment." § 1.
Notice of action, see "Process," § 1.

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

Proceedings in exercise of special jurisdictions.
Courts of limited jurisdiction in general, see
"Courts," § 2.

Criminal prosecutions, see "Criminal Law."

ACTION ON THE CASE.

See "Trespass," § 2.

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity, see "Injune-
tion," § 1; "Specific Performance," § 1

ADJUDICATION.

Of courts in general, see "Courts." § 1.
Operation and effect of former adjudication, see
"Judgment," § 5.

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Of land sold at partition sale, see "Partition," See "Theaters and Shows."
§ 1.

ADVERTISEMENT.

Publication of process, see "Process," 1.

AFFIDAVITS.

See "Depositions."

In particular proceedings.

See "Game."

ANIMALS.

It cannot be presumed, from the fact that a
dog was allowed to be at large in a highway,
that its owner knew it was vicious.-Leonard
v. Donoghue (Sup.) 60.

ANSWER.

See "Arrest," § 1; "Attachment," § 1; "Discov- In pleading, see "Pleading,” § 1
ery," § 1.

Supplementary proceedings, see "Execution,"
§ 2.

Verification of pleading, see "Pleading," 3.

AGENCY.

See "Principal and Agent."

AGREEMENT.

See "Contracts."

ALIENS.

§ 1. Disabilities.

Under Code Civ. Proc. § 1902, an action may
be maintained for the wrongful death of a res-
ident alien, leaving nonresident alien next of
kin.-Tanas v. Municipal Gas Co. of City of
Albany (Sup.) 1053.

Real property within the state passes under
the provisions of the will of a foreign testator.-
In re Barandon's Estate (Sur.) 937.

ALIMONY.

See "Divorce," § 2.

See "New Trial."

APPEAL.

Appellate jurisdiction of particular courts, see
"Courts," § 3.

Conclusiveness and effect of stipulations, see
"Stipulations."

Costs, see "Costs," § 6.

Review in action for rent, see "Landlord and
Tenant," § 5.

Review in criminal prosecutions, see "Criminal
Law," § 4.

Review in habeas corpus proceedings, see "Ha-
beas Corpus," § 1.

Review in proceedings to punish for contempt
of court, see "Contempt," § 1.
Review of proceedings before justices of the
peace, see "Justices of the Peace," § 2.

8 1. Decisions reviewable.

An appeal lies from an order of reference and
from an order denying a motion to vacate the
order.-Albany Brass & Iron Co. v. Alton (Sup.)
180.

Order denying motion to set aside a judg-
ment of dismissal and for costs in favor of de-
fendant is appealable, if at all, under Municipal
Court Act, Laws 1902, p. 1563, c. 580, § 254,
and leave motion must have been made within
five days from time of rendition of judgment.-
Cohen v. Ridgewood Shirt Co. (Sup.) 188.

and 118 New York State Reporter

Under Laws 1902, pp. 1562, 1563, 1578. c.
580, §§ 253-256, 310, regulating appeals from
the Municipal Court, an order making a party
defendant is not appealable.-White v. Lawyers'
Surety Co. (Sup.) 247.

An order of the Special Term of the City
Court, denying a motion by appellant to compel
respondent to accept service of a notice of ap-
peal, is appealable, under Code Civ. Proc. §
3189.-Masor v. Jacobus (Sup.) 270.

On entry of an order denying a motion in
general terms, the court cannot be compelled to
state that the motion was denied for want of
jurisdiction.-Hall v. Redington (Sup.) 279.
No appeal lies from an order of the trial court
dismissing a complaint.-Kromback v. Pennsyl-
vania Steel Co. (Sup.) 297.

Papers on appeal from an order vacating a
judgment held to show that the order was not
one opening a default, so as to be nonappeal-
able, but was a vacation of the judgment, ap-
pealable under Municipal Court Act, Laws 1902,
p. 1563, c. 580, § 257.-Department of Health
of City of New York v. Babcock (Sup.) 604.

2. Right of review.

A receiver of a corporation is not entitled to
appeal from so much of an order refusing to
discharge him as grants leave to renew the mo-
tion.-Union Surety & Guaranty Co. v. Greater
New York Amusement Co. (Sup.) 286.

Where defendant admitted his liability for
goods sued for, and, on a levy being made,
promptly paid the judgment, an appeal there-
from was without merit.-Jouda v. Kaplan
(Sup.) 863.

§ 3. Presentation and reservation in
lower court of grounds of review.
Objection, in an action for divorce, that the
wife was incompetent, under Code Civ. Proc.
§ 831, to testify concerning the husband's prop-
erty and income, cannot be made for the first
time on appeal.-Valentine v. Valentine (Sup.)

37.

The report of a referee, appointed in a pro-
ceeding for the dissolution of a corporation, not
only to take proof and report, with his opinion,
as to claims for costs, expenses, and counsel
fees, but to admit and reject creditors' claims,
can only be reviewed on exceptions.-People v.
American Loan & Trust Co. (Sup.) 114; In re
Simmons, Id.

Where no exception was taken to any admis-
sion or exclusion of evidence, objection cannot
be raised on appeal.-Huck v. Bischoff (Sup.)
173.

Judgment for defendant will not be reversed
because, had plaintiff sued on another theory,
he could have recovered.-Twelfth Ward Bank
v. Cohen (Sup.) 310.

Objection to a verification, that the jurat did
not show the petition was sworn to, but mere-
ly that it was subscribed, before the surrogate,
cannot be made for the first time on appeal.-
In re Mahoney's Estate (Sup.) 329.

The defense of payment, when not pleaded,
cannot be considered on appeal.-McKean v.
Scott (Sup.) 456.

Party objecting to a line of incompetent evi-
dence held entitled to take advantage of the
admission of certain prejudicial evidence not
specifically objected to.-Winans v. Demarest
(Sup.) 504.

No question is presented for review on appeal
from a judgment entered on a decision contain-
ing separate conclusions of fact and of law,
when no exceptions were taken.-Dunleavey v.
Dunleavey (Sup.) 562.

By moving for directed verdict and except-
held precluded from urging on appeal the right
ing to direction for opposite party, defendant
to go to the jury.-Dearman v. Marshall (Sup.)

705.

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An affidavit that demand for transfer was
made will not prevail on appeal; the record not
showing the demand, and the trial court hav-
ing decided it was not made.-Fischer v. Brook-
lyn Heights R. Co. (Sup.) 254.

Whether certain items in a counterclaim
should have been allowed will not be reviewed.
where it does not affirmatively appear that the
verdict included such items.-Page v. Brummer
(Sup.) 268.

The Supreme Court, on appeal, cannot take
cognizance of the decision of the court be-
low, not contained in the record.-Sommer v.
Sommer (Sup.) 444.

An order denying resettlement of the case
on appeal may be reversed; there being no
dispute as to the facts, and the matters desired
to be inserted being material.—Marjulies v.
Goldstein (Sup.) 475.

Where the return on appeal from a judgment
of the Municipal Court did not contain the com-
plaint or testimony, the merits could not be re-
viewed.-O'Brien v. Kuntz (Sup.) 535.

On appeal from an order denying a motion for
retaxation of costs, the record must show what

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able, arise from facts shown by her evidence,
only the favorable one can be considered.-Ben-
jamin v. Metropolitan St. Ry. Co. (Sup.) 458.

Where the record on appeal shows that a cer-
tain person appeared at trial for one of the par-
ties, it will be presumed that the person so
appearing was authorized so to do.-Depart-
cock (Sup.) 604.
ment of Health of City of New York v. Bab-

Where a judgment may have been rendered
on either of two issues, one of which was in-
sufficiently established, the court on appeal
will not assume that it was based on the other
issue.-M. S. Huey Co. v. Rothfeld (Sup.) 883.
§ 10. Discretion of court.

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Evidence held to support a finding that the
conductor of a street car was negligent in clos- An order dismissing for lack of prosecution,
ing the door on the hand of a passenger.-giving plaintiff an opportunity to place the
Egnstfeld v. Central Crosstown Ry. Co. (Sup.)
148.

Whether escape of smoke and gas into prem-
ises constituted an eviction, and whether a lease
was surrendered at landlord's request, held ques-
tions of fact, not reviewable on conflicting evi-
dence.-Call v. Case (Sup.) 166.

A finding for plaintiff on a question of fact
will not be disturbed. - Freedman v. Badanes
(Sup.) 179.

No exceptions being taken to a decision in
the short form, under Code Civ. Proc. § 1022, no
questions of fact or law are reviewable on ap-
peal. Forgotston v. Brafman (Sup.) 237.

On appeal from a judgment of the Municipal
Court, in a case in which the pleadings have
been oral, their scope must be determined by
the evidence, rather than by the complaint.-
Greenberg v. Angerman (Sup.) 244.

Evidence admitted without objection held to
be considered. though it might have been ob-
jected to as varying a written instrument.-
Union Bank v. Case (Sup.) 550.

Where both parties move for direction of
a verdict, the questions of fact and the credi-
bility of witnesses are for the court.-Dearman
v. Marshall (Sup.) 705.

§ 8. - Amendments,

additional

proofs, and trial of cause anew.
On appeal, where it was in issue which of
two different names was on the truck which
caused the injury, that question must be de-
termined on the testimony, and not on affidavits.
-Gubner v. Farrell (Sup.) 157.

In action against a city for damages aris-
ing from overflowing of a stream into which
was discharged sewage and drainage water,
held, that the complaint could not be amended
on appeal so as to conform to the theory on
which the case was tried and decided.---Smith
v. City of Auburn (Sup.) 725.

An omission in proof of a matter of record
may be supplied on appeal, to sustain a judg-
ment, when the record cannot be answered or
changed.-Cullingworth v. Wilson (Sup.) 968.

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cause on the calendar, will not be disturbed; no
abuse of discretion appearing.-Wuppermann v.
Valentine (Sup.) 150.

The granting of a motion to open a default,
being in the exercise of judicial discretion, held
not to be disturbed.-Kapner v. Samuels (Sup.)
195.

The exercise of the court's discretion in grant-
ing a stay of a trial is subject to review.-Hal-
lenborg v. Greene (Sup.) 321.

Discretion of trial court in setting aside a
verdict as against weight of evidence will not
be reversed, unless clearly abused.-Lynch v.
Metropolitan St. Ry. Co. (Sup.) 495.

An order granting a new trial for inadequacy
of damages will not be reversed on appeal, in
the absence of actual injustice.-Starr
Ritchie (Sup.) 917.

$ 11.

V.

Questions of fact, verdicts, and
findings.

A finding by the court in an action tried with-
out a jury on conflicting evidence will not be
disturbed on appeal, unless it has been improp-
erly affected by the errors assigned by appel-
lant.-Braun v. Hothan (Sup.) 8.

Where the allegations to which plaintiff's
proof was directed were unproved in their
entire scope and meaning, there is such a failure
of proof as requires a reversal on appeal.-Mo-
ran v. Kent (Sup.) 17.

In proceedings by a landlord for possession
and for rents, held, that final order on conflict-
ing testimony will not be disturbed on appeal.
-Levy v. Zasuly (Sup.) 126.

Plaintiff's testimony on a second trial being
different from that on the first trial, and being
contradicted, the finding against him will not be
disturbed. Trenholm v. Provident Sav. Life
Assur. Soc. (Sup.) 136.

Finding for plaintiff on conflicting evidence
will not be disturbed. - Ryan v. Swartwout
(Sup.) 151.

A finding will not be disturbed on appeal mere-
ly because more witnesses testified the other
way.-Park & Tilford v. Metropolitan St. Ry.
Co. (Sup.) 249.

A judgment, supported by evidence allowed to
go in generally, without objection and without

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