In re SHIMER. (Supreme Court, General Term, Fifth Department. June 23, 1888.) Order affirmed, without costs. LACY et al. v. ROME, W. & O. R. Co. (Supreme Court, General Term, Fifth Department. June 23, 1888.) Edmond B. Wynn, for appellant. L. E. Filkins, for respondents. Judgment and order affirmed. ROCKWELL v. PETRIE. (Supreme Court, General Term, Fifth Department. June 23, 1888.) Moses Shire, for appellant. Mills, Palmer & Morgan, for respondent. Order affirmed, with $10 costs and disbursements. PALMER v. CITY OF ROCHESTER. (Supreme Court, General Term, Fifth Department. June 28, 1888.) Walter S. Hubbell, for appellant. Ivan Powers, for respondent. Order reversed, and motion denied, without costs. BISHOP v. JOHNSON et al. (Supreme Court, General Term, Fifth Department. June 23, 1888.) Motion for reargument denied. CURTIS v. HUTCHINS et al. (Supreme Court, General Term, Fifth Department. June 23, 1888.) John Gillette, for appellant. L. C. Hall, for respondents. Judgment affirmed, with costs. GAY et al. v. NEW YORK, L. E. & W. R. Co. (Supreme Court, General Term, Fifth Department. June 23, 1888.) M. E. & E. M. Bartlett, for appellants. Sprague, Morey & Sprague, for respondent. Order affirmed. MCKECHNIE et al. v. BOSWELL. (Supreme Court, General Term, Fifth Department. June 23, 1888.) J. Henry Medcaff, for appellants. H. F. Field, for respondent. Order affirmed, with $10 costs and disbursements. RUTHERFORD v. Blow. (Supreme Court, General Term, Fifth Department. June 23, 1888.) McMaster & Parkhurst, for appellant. Sempter & Platzek, for respondent. Judgment modified so as to direct the costs to be paid out of the assigned estate, and as so modified affirmed, without costs of this appeal. KENNEDY v. ROCHESTER CITY & B. R. Co. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Motion to dismiss appeal denied, without costs. VAN DEUSEN . WILCOX. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Garlock & Beach, for appellant. P. Chamberlain, Jr., for respondent. Judgment and order reserved, and a new trial ordered, costs to abide event MARTIN et al. v. GILBERT, Sheriff. DALE et al. v. SAME. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Baker & Swartz, for appellant. Gruber & Bard, for respondents. Judgment reversed, and a new trial ordered before another referee, costs to abide event. LA TOWRETTE v. PERSON. (Supreme Court, General Term, Fifth Department. October 19, 1888.) F. M. Inglehart, for appellant. Emery & Sickmore, for respondent. Order affirmed. BARKER, P. J., dissenting. Sorge v. UNION & ADVERTISER CO. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Hall & Foot, for appellant. C. D. Kickel, for respondent. Judgment affirmed. STEWART 0. BATES et al. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Edward Harris, for plaintiff. J. E. Durand, for defendants. Judgment affirmed, with costs. GOSSMAN et al. v. BAKER. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Henry L. Swarts, for appellant. L. M. Cummings, for respondents. Judgment affirmed. KENNEDY v. SCOVILLE. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Johnson & Charles, for appellant. Lorish & Story, for respondent. Order granting new trial affirmed on opinion of CORBETT, J., at circuit. CHURCH . CHURCH. (Supreme Court, General Term, Fifth Department. October 19, 1888.) John T. Knox, for appellant. Calvin D. Hudson, for respondent. Judgment modified by striking out the provision for costs, and, as so modified, affirmed, without costs. HOMESTEAD LAND SYNDICATE, Limited, v. Matthews. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Judgment ordered for plaintiff, for specific performance of the contract set out in the submission. In re KEEGAN'S WILL. (Supreme Court, General Term, Fifth Department. October 19, 1888.) Motion so far granted as to permit the evidence of Christopher N. Dunn to be taken of the transaction and circumstances attending the alleged execution of the instrument in question, purporting to be the last will and testament of Thomas Keegan, deceased, bearing upon the question of its execution and attestation as such; and his evidence may also be taken bearing upon the question of the identity of the instrument so executed with that offered and admitted to probate; and, on part of the contestant, the further evidence of Dennis Dempsey and Patrick Donnelly may be taken bearing upon the same questions. It is referred to G. N. Orcutt, of Hornellsville, N. Y., to take such proofs, and report the same to this court, pursuant to section 2586 of the Code of Civil Procedure. BALLARD v. VEHALA. (Supreme Court, General Term, Fifth Department. January 11, 1889.) Action by Horatio Ballard against Michael Vehala. tiff, and defendant appeals. Judgment for plain Argued before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ. Judgment affirmed. Memorandum by DWIGHT, J. MCEWEN . NORTHERN NEW YORK MANUF'G CO. (Supreme Court, General Term, Fifth Department. January 11, 1889.) Appeal from judgment on report of referee. Action for damages by John McEwen against the Northern New York Manufacturing Company. Judgment for plaintiff, and defendant appeals. Argued before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ. Joseph W. Taylor, for appellant. Clarence A. Farnum, for respondent. BARKER, P. J. We sustain the appellant's position that the answer sets up a counter-claim. The damages sustained by the defendant by reason of the breach of warranty were unliquidated, and in the law are to be considered as nominal only, in the absence of proof that they were actually more. No case has been made giving a history of the trial. We have nothing before us but the judgment roll. If the recitals in the referee's report can be accepted as presenting the rulings which were made by the referee on the trial, and in such form and manner that they may be considered by this court on this appeal, no exceptions were taken thereto by the appellant. Therefore no legal question is presented for review. The report states that the defendant offered no proof, so it cannot be said that he is entitled to have the amount of the plaintiff's recovery diminished beyond a nominal sum for any reason appearing by the record. After the trial was concluded, neither party having offered any proof, the defendant asked the referee to hold as matter of law that the answer set up a counter-claim, and he refused so to find, and the defendant filed and served an exception to such ruling. This exception is not available to the appellant, as at the time the ruling was made and the exception taken the trial had been concluded; and if the referee had held that the answer set up a counter-claim, as we think it did, it would not have availed the defendant anything, as it had not proved any damages arising from the breach of the contract sued upon; nor does it appear that the defendant at any time offered to prove that it had sustained any damage by reason of a nonperformance of the agreement by the plaintiff. For these reasons we think this judgment should be confirmed. All concur. END OF VOLUME 3, INDEX. NOTE. A star (*) indicates that the case referred to is annotated. ABATEMENT AND RE- VIVAL. Dismissal for want of jurisdiction, see Prac Another action pending. An action commenced by service of a com- ACCORD AND SATISFAC- See, also, Payment. 1. Where a suit for damages to plaintiff's Pleading and proof. 2. Where the answer in an action for the Accounting. Between partners, see Partnership, 5-9. ADULTERATION. Milk-Jurisdiction of prosecutions. ADVERSE POSSESSION. See, also, Limitation of Actions. 1. The title of a life tenant of land in the ad- (961) |