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and 140 New York State Reporter themselves shall not be marked, and upon the pellate Division, Second Department October completion of such examination all ballots taken 4, 1907.) Action by Jesse L. Williams against from such boxes, together with the envelopes the Riccadonna Hotel Company. No opinion, in which any of them may be inclosed, shall be Judgment of the Municipal Court affirmed, with forthwith returned to the boxes from which they costs. came, and such custodian shall forthwith relock and reseal such boxes, and shall retain possession thereof as required by law, subject to the WILSON, Respondent, V. ELECTRO DY. further order of the court; ordered, further, NAMIC CO., Appellant. (Supreme Court, A! that the ballots returned to and filed with the pellate Division, Second Department. October county clerk as custodian shall, at the comple-4, 1907.) Action by Fremont Wilson against tion of the examination thereof hereby author- the Electro Dynamic Company. No opinion. ized, be resealed by him in the envelopes from Order affirmed, with $10 costs and disburse which they came, and that he retain possession ments. thereof, as required by law, subject to the further order of the court”—and, as so modified, affirmed, without costs.

WILSON, Respondent, V. UTICA GAS &

ELECTRIC CO., Appellant. (Supreme Court, In re WHITTEN. (Supreme Court, Appel- Appellate Division, Fourth Department. Octo late Division, Second Department. October 4, ber 16, 1907.) Action by John Wilson against 1907.) In the matter of the application of Paul the Utica Gas & Electric Company. No opis: E. Whitten for admission to the bar. No opinion. Judgment and order affirmed, with costs. ion. Application granted.

WINANT, Respondent, ATLANTIC WILD et al., Respondents, v. VREDEN- GULF & PACIFIC COAST CO., et al., Ap BURG & CO., 'Appellants. (Supreme Court, pellants. (Supreme Court, Appellate Division. Appellate Division, Fourth Department. Nos | Second Department. October 18, 1907.) vember 20, 1907.) 'Action by Bertha Wild and i tion by William A. Winant against the Atlananother against Vredenburg & Co. No opinion. tic Gulf & Pacific Coast Company and another, Order reversed, with $10° costs and disburse- No opinion. Order affirmed, with $10 costs and ments, and motion granted, with $10 costs to disbursements. abide event.

WINOGRAD v. EPSTEIN. (Supreme Court, WILHELM v. FULLER & WARREN CO. I Appellate Division, Second Department. Octo(Supreme Court, Appellate Division. Third De- against Samuel Epstein.

Action by Joseph Winograd

No opinion. Vopartment. September 26, 1907.) Walter Wilhelm against the Fuller & Warren tion to resettle order granted, without costs. Company. No opinion. Motion denied.

WIXTED, Respondent, V. NASSAU ELECWILLARD, Respondent, v. FERGUSON,

TRIC R. CO., Appellant. (Action No. 6.) Appellant. (Supreme Court," Appellate Divi (Supreme Court, Appellate Division, Second De sion, First Department. November 22, 1907.) partment. October 4, 1907.) Action by Thom. Action by Eugene S. Willard against John W. road Company. No opinion. Judginent of the

as Wixted against the Nassau Electric RailFerguson. J. N. Blair, for appellant. G. G. Municipal Court reversed, and new trial orWorden, for respondent. No opinion. Order dered, costs to abide the event, on the author: affirmed with $10 costs and disbursements. ity of Barnett v. Brooklyn Heights R. Co.. 53 Order filed.

App. Div. 432, 65 N. Y. Supp. 1068, and Peo.

ple v. Brooklyn Heights R. Co., 187 X. Y. 48 WILLIAM P. RAE CO., Respondent, v. 79 N. E. 838. KANE et al., Appellants. (Supreme Court, Appellate Division, Second Department. Octo WOOD v. SCOTTISH UNION & NATIONber 4, 1907.), Action by the William P. Rae AL INS. Co. (Supreme Court, Appellate Di. Company against Peter F. Kane, and others. vision, First Department. October 18, 1917.1 No opinion. Appeal dismissed, without costs, Action by George E. Wood against the Scottish the judgment having been reversed herewith, Union & National Insurance Company. No and new trial granted. See 106 N. Y. Supp. 47. opinion. Motion denied, with $10 costs. Order

filed. WILLIAMS, Appellant, v. FIRST NAT. BANK OF UTICA, N. Y., Respondent. (Supreme Court, Appellate Division, Fourth Department. October 16, 1907.) Action by Wil; L. S. & N. R. CO., Appellant. (Supreme Court.

WOODHULL, Respondent, V. SYRACT SE, liam P. Williams against the First National Appellate Division, Fourth DepartinentOcto Bank of Utica, N, Y.

ber 16, 1907.) Action by Bradley Woodhul: PER CURIAM. Judgment affirmed, with against the Syracuse, Lake Shore & Vorthern costs, upon opinion in same case reported at Railroad Company. No opinion. Order rerers118 App. Div. 555, 102 N. Y. Supp. 1031. ed, with $10 costs and disbursements, and mo

SPRING, J., dissents, upon the grounds stat- tion granted, without costs. ed in the dissenting opinion in same case.

WRIGHT. Respondent, v. KNIGHTS OF WILLIAMS, Respondent, v. RICCADONNA MACCABEES OF THE WORLD, Appellant. HOTEL CO., Appellant. (Supreme Court, Ap- (Supreme Court, Appellate Division, Third De

partment. November 13, 1907.) Action by March, 1.907.) Action by Clarence L. Barber, Dennis L. Wright against the Knights of Mac- as assignee of Horace M. Hooker and David J. cabees of the World. No opinion. Judgment McGown, judgment creditors, against Curtis A. and order reversed on law and facts, and new Barnum, judgment debtor, and others. trial granted, with costs to appellant to abide COCHRANE, J. Decision amended, so as to event, upon authority of Mock v. Supreme read as follows: "Order reversed, without costs, Council of Royal Arcanum, 121 App. Div. 474, and motion denied, without costs.' See 117 106 N. Y. Supp. 155.

App. Div. 325, 101 N. Y. Supp. 1065. All conYUENGLING V. BETZ.

cur, except PARKER, J., not sitting.

(Supreme Court, Appellate Division, First Department. October 18, 1907.) Action by Catherine. M. Yuens- pellate Division, Second Department.

In re HOCHFELDER. (Supreme Court. Ap

Varch, ling against John F. Betz. No opinion. Mo- 1907.) In the matter of the application of tion denied, with $10 costs. Order filed.

Julius Hochfelder for admission to the bar. No ZAMPINO V. BRUCKNER et al. (Supreme opinion. Application granted. Court, Appellate Division, First Department.

MCLAUGHLIN v. COLLINS BUILDING & October 18, 1907.) Action by Pasquallo Zampino against John A. Bruckner and another: CONSTRUCTION CO. et al. (Supreme Couri, No opinion, Motion granted, with $ 10 costs.

Appellate Division, First Department. May, Order filed.

1907.) Action by Charles McLaughlin against the Collins Building & Construction Company

and others. No opinion. Motion denied, with ZOLOTOROFE, Respondent, v. SACODER, $ 10 costs. Appellant. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) In re ROBERTS. (Supreme Court, AppelAction by Louis Zolotorose against Joseph Sac- late Division, First Department. May, 1907.) oder.

In the matter of Frederick R. Roberts. No PER CURIAM. Motion to dismiss appeal opinion. Motion to dismiss appeal granted, granted, with costs, unless the appellant per- with $10 costs. fect the appeal within 20 days and pay the respondent $10 costs. On compliance, motion to RUDD v. McCLEAN ARMS & ORDNANCE dismiss the appeal will be denied, and the case ('o. (two cases). (Supreme Court, Appellate placed at the foot of the present calendar. Division, First Department. May, 1907.) Ac

tion by Henry Rudd against the McClea BARBER v. BARNIM et al. (Supreme Arms & Ordnance Company. No opinion. See Court, Appellate Division, Third Department. ' memorandum.

END OF CASES IN VOL. 106.

INDEX.

ABANDONMENT.

Computation of limitations in action for ac-

counting by executor, see "Limitation of Ac-
Of bastard child, see “Bastards,” 8 2.

tions," $ 1.

Examination of parties in action for account-
ABATEMENT.

ing, see "Discovery,” $ 1.

Accounting by particular classes of person8.
Of nuisance, see “Nuisance," $ 1.

See "Executors and Administrators,” 88 5, 6;

"Receivers," $ 4.
ABATEMENT AND REVIVAL. Partners, see "Partnership," $ 2.

Trustee, see "Trusts," $ 3.
Election of remedy, see "Election of Remedies.” | $ 1. Proceedings and relief:
Judgment as bar to another action, see "Judg-
ment," $ 4.

Plaintiff, after filing a complaint showing
Right of action by or against personal repre-

that he is entitled to an accounting, may obtain
sentative, see "Executors and Administra-

an interlocutory judgment that defendant file
tors," § 5.

an account.--Pierce v. McLaughlin Real Estate

Co. (Sup.) 28.
§ 1. Another action pending.
*Assignee of a mortgage, the validity of which

ACTION.
was involved in two actions then pending, held
not entitled to maintain an action to fore- Abatement, see "Abatement and Revival."
close the same, but that it should be left to its Bar by former adjudication, see "Judgment,"
remedy in the actions then pending against its $ 4.
assignor.--City Real Estate Co. v. MacFarland Election of remedy, see "Election of Remedies."
(Sup.) 333, 335.

Jurisdiction of courts, see "Courts."
Limitation by statute, see "Limitation of Ac-

tions."
ABUTTING OWNERS.

Malicious actions, see "Malicious Prosecution.”
Assessments for expenses of public improve- Pendency of action, see “Abatement and Re-

vival." $ 1; “Lis Pendens."
ments, see "Municipal Corporations," § 4.
Compensation for taking of or injury to lands Restraining action at law, see "Injunction," $ 2.

or easements for public use, see "Eminent actions between parties in particular relations,
Domain," $ 1.

See “Master and Servant," 88 1, 8-11.
Rights in streets in cities, see “Municipal Cor- Bailor and bailee, see “Bailment."
porations,” g 6.

Co-tenants, see “Partition," $ 1.

Partners, see “Partnership,” $ 2.
ACCEPTANCE.

Actions by or against particular classes of
By landlord of surrender of possession of de-

persons.
mised premises, see "Landlord and Tenant," See "Carriers," $$ 2, 3;. "Corporations," $ 5;
$ 4.

“Executors and Administrators," $ 5; "Hus-
Of dedication, see “Dedication," $ 1.

band and Wife," 8 2; "Indians"; "Munic-
ipal Corporations,' $ 7; “Principal and

Agent," $ 1; “Railroads," $ 4; "Receivers,"
ACCIDENT.

$ 3; “Street Railroads," 8 2.
Cause of personal injuries, see “Negligence,” Assignees, see "Assignments,” $ 2.
8 1.

National bank, see "Banks and Banking," $ 2.

Particular causes or grounds of action.
ACCORD AND SATISFACTION.

See “Bills and Notes,”. & 2;. “Costs,” § 6;

“Death,” $ 1; “Fraud," § 2; "Insurance,
See “Compromise and Settlement"; "Payment." $ 5; “Libel and Slander," $ 3; “Malicious

Prosecution," $ 2: "Money Paid"; "Money
ACCOUNT.

Received"; "Negligence," § 3; "Trespass”;

“Work and Labor.
Accounting as to royalties under patent, see Bond of indemnity against mechanic's lien, see
"Patents," $ 1.

"Mechanics' Liens," $ 4.

*Point annotated. See syllabus.
106 N.Y.S.--73

(1153)

and 140 New York State Reporter Breach of contract, see "Contracts,” $ 6; dicial Sales"; "Jury"; "Limitation of Ac "Sales," § 4.

tions"; "Motions"; "Parties" ; "Pleading Breach of contract for transportation and de "Process"; "Reference"; "Trial" ; "Venue."

livery of shipment, see "Carriers,” $ 2. Breach of liquor tax certificate bond, see "In- Default, see "Judgment," $ 1.

Bill of particulars, see “Pleading," $ 7. toxicating Liquors," 8 2.

Nonsuit, see “Trial," $ 4. Breach of warranty, see "Sales," & 4.

Verdict, see “Trial," $ 5. Compensation of broker, see “Brokers," $ 3. Death of animal caused by operation of rail. Particular remedies in or incident to actions. road, see "Railroads," $ 5.

See “Arrest," $ 1; “Bail," $ 1; "Deposits in Death of passenger, see “Carriers," $ 3.

Court”; “Discovery"; "Injunction”; “Receir. Death of servant, see “Master and Servant," 88 ers”; “Tender."

10, 11. Infringement of trade-mark or trade-name, see

Appointment of receiver for corporation, see

“Corporations," $ 6. “Trade-Marks and Trade-Names," $ 3.

Notice of pendency of actions, see "Lis PenInjuries from overflow, see "Waters and Water

dens." Courses," $ 2. Loss of passenger's effects, see "Carriers,” { 3. Stay of proceedings, see “Appeal,” $ 5. Necessaries furnished wife, see "Husband and Proceedings in exercise of special or limited Wife," $ 2.

jurisdictions. Negligent construction of railroad culvert, see Courts of limited jurisdiction in general, see "Railroads," $ 4.

"Courts," $ 3. Personal injuries, see "Carriers,". $ 3; “Master Criminal prosecutions, see "Criminal Law.” and Servant," 88 8–11; "Municipal Corporations," § 7; "Railroads," $ 5; Street Rail

Kevierd of proceedings. roads," $ 2.

See "Appeal"; "Certiorari”; “Justices of the Price of goods, see “Sales," $ 3.

Peace," 8 2; "New Trial.”
Price of land, see “Vendor and Purchaser," $ 5.
Receiver's bond, see "Receivers," $ 5.

1. Joinder, splitting, consolidation, Recovery of deposit on purchase price of land,

and severance. see "Vendor and Purchaser," 8 4.

*Where substantial damage is alleged and Recovery of price paid for land. see “Vendor judgment demanded therefor, such damage is and Purchaser,”, § 6.

not incidental to the equitable cause of action Services, see “Master and Servant," $ 1; for an injunction also alleged.-Duclos v. Kel. “Work and Labor."

ley (Sup.) 1058. Unfair competition in trade, see “Trade-Marks *A cause of action for trespass and an equitaand Trade-Names,” $ 3.

ble cause of action for injunction to prevent Wages, see "Master and Servant," $ 1.

further trespass may be joined.-Duclos v. Kel. Wrongful payment by bank of forged check, ley (Sup.) 1058. see "Banks and Banking," § 2. Particular forms of action.

ACTION ON THE CASE.
See "Ejectment"; "Replevin"; "Trespass," 8 2.
For revocation of probate of will, see "Wills," See “Trespass,” g 2.
8 4.
Particular forms of special relief.

ADEQUATE REMEDY AT LAW. See “Account" “Creditors' Suit”; “Divorce" ;

** Injunction"; "Partition,” $ 1; "Quieting Effect ,on jurisdiction of equity, see “InjuncTitle”; “Specific Performance.”

tion," 8 1. Abatement of nuisance, see “Nuisance," $ 1.

Effect on jurisdiction of equity to restrain Alimony, see “Divorce," § 2.

unlawful combination, see "Monopolies," $ 1. Annulment of marriage, see "Marriage." Compelling transfer of licenses after dissolution

ADJOINING LANDOWNERS.
of corporation, see "Corporations," $ 8.
Determination of adverse claims to real prop. See "Boundaries."

erty, see “Quieting Title.'
Enforcement or foreclosure of lien, see “Me-
chanics' Liens," 8 3.

ADJUDICATION.
Establishment of will, see "Wills," 8 4.
Foreclosure of mortgage, see "Building and of courts in general, see “Courts," $ 2.

Loan Associations"; "Mortgages," $ 3. Operation and effect of former adjudication, see Recovery of mortgaged property, see "Chattel "Judgment," $8 4, 5.

Mortgages," 8 2.
Removal of cloud on title, see "Quieting Title."
Setting aside will, see “Wills," § 4.

ADMINISTRATION.
Particular proceedings in actions. Of estate assigned for benefit of creditors, see
See "Continuance"; “Costs"; "Damages" “Assignments for Benefit of Creditors," $ 1.

"Depositions" ; "Dismissal and Nonsuit" Of estate of decedent, see "Executors and Ad"Evidence"; "Execution”; “Judgment"; "Ju ministrators."

*Point annotated. See syllabus.

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