The New York Supplement

WHITE et al., Respondents, v. MANHAT- WOLFF et al., Appellants, v. MOSES, ReTAN RY. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. April 21, 1899.) Action by James E. White and others against the Manhattan Railway Company and others. A. A. Wheat, for appellants. L. C. Desser, for respondents. No opinion. Judgment affirmed, with costs.

In re WICKES. (Supreme Court, Appellate Division, Third Department. March 8, 1899.) In the matter of the final accounting of Charles W. Wickes, as assignee of Charles A. Hosmer and Alfred P. Williamson. No opinion. Order affirmed, with costs.

spondent. (Supreme Court, Appellate Division, First Department. April 21, 1899.) Action by Armand Wolff and another against Marcus Moses, as marshal, etc. E. B. La Fetra, for appellants. J. Levy, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. See 57 N. Y. Supp. 696.

In re WOODS. (Supreme Court, Appellate Division, Second Department. April 18. 1899.) In the matter of the application of William P. Woods to revoke the liquor-tax certificate heretofore granted to Philip H. Victory. No opinion. Stay granted upon filing of undertaking for $250.

WIEMERS, Appellant, v. BECKER et al., Respondents. (Supreme Court, Appellate Division, First Department. March 17, 1899.) Action by John H. Wiemers against John F. BeckWRIGHT, Respondent, v. MAY, Appellant. er and another. E. Blumenstiel, for appellant. (City Court of New York, General Term. March C. Doremus, for respondents. No opinion. Or-27, 1899.) Action by Frederick W. Wright der affirmed, with $10 costs and disbursements. against Lewis A. May. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed. J. Quintus Cohen, for appellant. Charles M. Zaring, for respondent.

WILBER, Respondent. v. GERKEN, Appellant. (Supreme Court, Appellate Division, Third Department. March 14. 1899.) Action by Charles C. Wilber against Fred Gerken. No opinion. Judgment affirmed, with costs.

WILLIAMS v. OAKLEY. (Supreme Court, Appellate Division, First Department. February 17, 1899.) Action by Theresa F. Williams against Marie E. Oakley. No opinion. Motion granted, with $10 costs.

PER CURIAM. Judgment and order appealed from affirmed, with costs.

YELLOW PINE CO.. Respondent, v. LEHIGH VAL. CREOSOTING CO., Appellant. (Supreme Court, Appellate Division, Second Department. March 14, 1899). Action by the Yellow Pine Company against the Lehigh Valley In re WILLIAMSBURGH TRUST CO. (Su- Creosoting Company. No opinion. Order affirmpreme Court, Appellate Division, Second Departed, without costs, and without passing on the ment. April 18, 1899.) In the matter of the application of the Williamsburgh Trust Company to be designated as a depositary. No opinion. Herbert T. Ketcham appointed referee.

WIMMER. Respondent. v. CITY OF NEW YORK, Appellant (thirteen other cases). (Supreme Court, Appellate Division, Second Department. April 18, 1899.) Action by Katharine Wimmer against the city of New York and 13 other cases against the same defendant. No opinion. Motion to resettle orders denied, without costs.

legal sufficiency of the proposed amendment. See 52 N. Y. Supp. 1151.

ZIMMER, Respondent, v. THIRD AVE. R. CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 14, 1899.) Action by Cecilia J. Zimmer, an infant, against the Third Avenue Railroad Company and the Metropolitan Street-Railway Company. No opinion. Motion for leave to appeal to the court of appeals denied. See 51 N. Y. Supp. 247, and 55 N. Y. Supp. 308, 314.

END OF CASES IN VOL. 57.

INDEX.

ABANDONMENT.

Of particular species of property or rights.
See "Insurance," § 4.

ABATEMENT AND REVIVAL.

§ 1. Objections to jurisdiction.

Defendant held not to have waived the right
to object to the jurisdiction by going to trial.-
Sprague Nat. Bank v. Erie R. Co. (Sup.) 844.

A motion to dismiss at close of plaintiff's
case, on the ground that the court did not have
jurisdiction, was in time.-Day v. Sun Ins. Of-
fice (Sup.) 1033.

§ 2. Death of party and revival of ac-
tion.

A motion for substitution of executors on
death of plaintiff will not be denied for laches,
where defendant has not moved for dismissal.
-McInnis v. Gardiner (Sup.) 471.

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCORD AND SATISFACTION.

See "Compromise and Settlement."

ACCOUNT.

See "Account Stated."
Accounting between partners, see "Partnership,"
§ 2.
by executor or administrator, see "Execu-
tors and Administrators," § 5.

by guardian of infant, see "Guardian and
Ward," § 3.

by trustee, see "Trusts," § 5.

§ 1. Proceedings and relief.

The introduction by plaintiff of an account
kept by defendant containing a charge against
Where motion to substitute plaintiff's exec-plaintiff is a concession of the correctness of
uters has been delayed for two years after ex- such charge.-Dolan v. Mitchell (Sup.) 157.
ecutors qualified, and some of defendant's wit-
nesses have died, motion to substitute will be
granted only on payment of costs and stipula-
tion to try the cause when reached.-McInnis v.
Gardiner (Sup.) 471.

Executors of a junior mortgagee held entitled
to intervene after rendition of judgment of fore-
closure, in a suit in which the junior mortgagee
was a party.-Smith v. Jarvis (Sup.) 483.

If a debtor dies pending an action against
him by creditors to set aside transfer to his
wife, and the wife is appointed administratrix,
she may be substituted as defendant.-Vietor
V. Goodman (Sup.) 599.

A defendant in default cannot more to set
aside proceedings on ground of death of co-
defendant, unless he is a successor in interest
of deceased.-Wasson v. Hoff (Co. Ct.) 953.

Action to foreclose mortgage is not abated
by death of the defendant that owns the land,
after interlocutory, but before final, judgment.
-Wasson v. Hoff (Co. Ct.) 953.

In an action to foreclose a mortgage, one who
objects to allowance of costs and appointment
of referee to sell cannot subsequently urge pri-
or abatement.—Wasson v. Hoff (Co. Ct.) 953.

ABUTTING OWNERS.

Rights in highways in general, see "Highways,"
§ 1.

57 N.Y.S.-73

A complaint alleging a breach of contract of
sale, but demanding an accounting, held to suf-
ficiently state a cause of action.-Middleton v.
Ames (Sup.) 443.

ACCOUNT STATED.

The objection to a complaint on an account
stated that the account shows that another than
defendant signed it is not good on demurrer.-
Moss v. Lindblom (Sup.) 703.

A complaint on an account stated need not set
forth the subject-matter of the original debt;
it need only show that an account was stated
between the parties, and that a certain sum was
found due, which was not paid.-Moss v. Lind-
blom (Sup.) 703.

An account rendered for services does not
become "stated" by the defendant's retaining
it without objection, where there was no con-
tract of employment.-Kellogg v. Rowland
(Sup.) 1064.

ACKNOWLEDGMENT.

§ 1. Nature and necessity.

Acknowledgment of a general assignment for
the benefit of creditors by a foreign corpora-
tion held sufficient.-In re Hulbert Bros. & Co.
(Sup.) 38.

(1153)

and 91 New York State Reporter.

§ 2. Taking and certificate.
The acknowledgment to a deed conveying the
real estate of a married woman, in 1858, was
not required to refer to her marriage.-Hulse
v. Bacon (Sup.) 537.

ACTION.

Foreclosure of mortgage, see "Mortgages," § 4 Setting aside fraudulent conveyance, see "Fraci ulent Conveyances," § 3.

Particular proceedings in actions.
See "Appearance"; "Continuance"; "Costs":
"Damages"; "Dismissal and Nonsuit"; "Ev
dence"; "Execution"; "Judgment"; "Jury":
"Limitation of Actions"; "Motions"; "Par
ties"; "Pleading"; "Process"; "Reference":
"Trial"; "Venue.'

Abatement, see "Abatement and Revival."
Counterclaim, see "Set-Off and Counterclaim."
Election of remedy, see "Election of Remedies." Bill of particulars, see "Pleading," § 6.
Jurisdiction of courts, see "Courts."
Default, see "Judgment," § 2.
Limitation by statutes, see "Limitation of Ac-Nonsuit, see "Trial," § 4.
tions."

Malicious actions, see "Malicious Prosecution."
Pendency of action, see "Lis Pendens."
Restraining action at law, see "Injunction," § 2
Set-off, see "Set-Off and Counterclaim."
Survival, see "Abatement and Revival," § 2.
Actions between parties in particular relations.
See "Master and Servant," § 2.
Co-tenants, see "Partition," § 1.

Actions by or against particular classes of
parties.

See "Carriers," §§ 1, 2; "Executors and Admin-
istrators," $4; "Master and Servant," § 4;
"Municipal Corporations," § 8; "Partnership,'
§ 1; "Receivers," § 2.

Stockholders, see "Corporations," § 3.
Taxpayers, see "Municipal Corporations," § 6.
Trustees, see "Trusts," § 6.

Particular causes or grounds of action.
See "Account Stated"; "Bills and Notes," § 5;
"Forcible Entry and Detainer," § 1; "Insur
ance, $7: Negligence," § 2; "Nuisance,'
§ 2; "Trespass."

Breach of contract, see "Contracts," § 5;
"Sales." § 6; “Vendor and Purchaser," § 5.
of warranty, see "Sales," § 6.
Infringement of copyright, see "Copyrights." §1.
of trade-mark or trade-name, see "Trade-
Marks and Trade-Names," § 2.
Personal injuries, see "Carriers," § 2; "Rail-
roads," § 2.

Price of goods, see "Sales," § 5.

Revival, see "Abatement and Revival," § 2.

Particular remedies in or incident to actions. See "Attachment": "Discovery"; "Injunction": "Receivers"; "Tender."

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

Suits in equity, see "Equity."

in justices' courts, see "Justices of the Peace," § 2.

Review of proceedings.

See "Appeal"; "Certiorari"; "New Trial.”
$ 1. Nature and form.

An action for money received partakes of a suit in equity.-Mertens v. Roche (Sup.) 349.

Action to recover for injuries sustained by the negligence of a nurse, in a hospital, engaged under contract. held an action on contract, and not in tort.-Ward v. St. Vincent's Hospital (Sup.) 784.

ADJOINING LANDOWNERS.

See "Boundaries."

lateral support of the highway for his building An abutting landowner is entitled to the as against an adjoining owner interfering with } such highway.—Finegan v. Eckerson (Sup.) 615.

A trespasser who has committed a nuisance. in encroaching on the adjoining premises of a

Recovery of land sold by vendor, see "Vendor other, cannot defeat the right of the latter to and Purchaser," § 4.

of tax paid, see "Taxation," § 3.

Unfair competition in trade, see "Trade-Marks and Trade-Names," § 2.

Particular forms of action.

See "Assumpsit, Action of"; "Ejectment"; "Replevin."

Particular forms of special relief. See "Account"; "Creditors' Suit": "Divorce": "Injunction"; "Interpleader"; "Partition," 1; "Specific Performance."

Cancellation of written instrument, see "Cancellation of Instruments."

a mandatory injunction restraining the ne sance by offering to buy the land encroached on.-Hahl v. Sugo (Sup.) 920.

ADMINISTRATION.

Of estate assigned for benefit of creditors. see "Assignments for Benefit of Creditors," § 3. of decedent, see "Executors and Adminis trators."

of ward, see "Guardian and Ward," § 2. Of trust property, see "Trusts," § 3.

ADMISSIONS.

Dissolution of partnership, see "Partnership," As evidence, see "Evidence," § 2.

§ 2.

Enforcement or foreclosure of lien, see "Me

chanics' Liens," § 2.

Establishment and enforcement of trust, see "Trusts," § 6.

ADULTERATION.

See "Food."

ANTENUPTIAL CONTRACTS.

See "Husband and Wife," § 1.

APPEAL.

See "Certiorari"; "Justices of the Peace," § 3;
"New Trial.”

Costs, see "Costs," § 5.

1. Decisions reviewable.

An order granting a discontinuance on plain-
tiff's motion, with costs. is not an order allow-
ing costs of motion, and hence is appealable.-
Elliott v. Vermilyea (City Ct. N. Y.) 218.

$ 2. Right of review.

Payment of a judgment under protest does not
bar appeal therefrom.-Empire Hardware Co. v.
Young (Sup.) 753.

Application to open a default may be first
made on appeal.-Empire Hardware Co. v.
Young (Sup.) 753.

§ 3.

Presentation and reservation in
lower court of grounds of review.
An objection to evidence must be specific.-
Asbestos Pulp Co. v. Gardner (Sup.) 353.

Since Code Civ. Proc. § 1022, requires a gen-

Suspension of power of alienation of property, eral exception to a short decision, not stating
see "Perpetuities."

ALIMONY.

See "Divorce," § 2.

ALTERATION OF INSTRUMENTS.

See "Reformation of Instruments."

AMENDMENT.

Of particular legal proceedings.

separately the facts found, rendered under that
section, such a judgment, to which no excep-
tion was taken, must be affirmed.-Thompson
v. Schwartz (Sup.) 416.

Where the record shows that no objection
was made to a dismissal of the complaint at the
close of plaintiff's case, the judgment will be
affirmed. Speiss v. Weinberg (Sup.) 761.

A party cannot first complain of a charge
on appeal.-Hard v. Densmore (Sup.) 1014.

Objection that the court treated a motion to
overrule a demurrer as frivolous as a notice of
argument is waived by failure to object on the
hearing, and by not moving to correct the judg
819.

See "Judgment," § 4; "Pleading," § 5; "Pro- ment.-McWilliam v. Dayton (City Ct. N. Y.)
cess," § 3.

ANCILLARY ADMINISTRATION.

See "Executors and Administrators," § 6.

ANCILLARY RECEIVERSHIP.
See "Receivers," § 3.

ANIMALS.

1 Rev. St. p. 351, relating to estrays, applies
more particularly to animals straying on the
highway than to those trespassing on private
property.-Boyce v. Perry (Co. Ct.) 214.

ANNULMENT.

Of marriage, see "Marriage.".

ANSWER.

In pleading, see "Pleading," $ 2.

§ 4. Effect of transfer of cause or pro-
ceedings therefor.

A judge may require the printing in the ap-
peal book of a statement of facts in his opin-
ion denying a motion for a new trial.-Me-
Manus v. Western Assur. Co. (Sup.) 559.

An order at special term directing defendant
to make corrections in a case should not re-
strain him from moving the same for argu-
ment or arguing the same on appeal, until the
case is corrected.-McManus v. Western Assur.
Co. (Sup.) 559.

A judge may correct a case after it is filed
pursuant to a stipulation, if it does not state
the occurrence at the trial according to the
facts.-McManus v. Western Assur. Co. (Sup.)

559.

§ 5. Record and proceedings not in rec-
ord:

A document that was not read or used in evi-
dence should not be set out in the record as
having been offered in evidence.-MeManus v.
Western Assur, Co. (Sup,). 559.

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The New York Supplement, Volume 57