ABANDONMENT.
Of attachment, see "Attachment," § 2.
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.
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.
Presumption of death from absence, see Accounting between partners, see "Partner- "Death," § 1.
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.
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.
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.
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.
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
Of courts in general, see "Courts." § 1. Operation and effect of former adjudication, see "Judgment," § 5.
Of land sold at partition sale, see "Partition," See "Theaters and Shows." § 1.
ADVERTISEMENT.
Publication of process, see "Process," 1.
In particular proceedings.
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.
See "Arrest," § 1; "Attachment," § 1; "Discov- In pleading, see "Pleading,” § 1 ery," § 1.
Supplementary proceedings, see "Execution," § 2.
Verification of pleading, see "Pleading," 3.
See "Principal and Agent."
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.
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.)
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.)
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
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.
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,
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.
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.
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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