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WEAGANT v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. May 8, 1912.) Action by Minerva J. Weagant, as administratrix, against the New York Central & Hudson River Railroad Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to Court of Appeals (from 134 N. Y. Supp. 1150), denied.

WELTS, Appellant, v. ANDERSON, Respondent. (Supreme Court, Appellate Division, Fourth Department. May 22, 1912.) Action by Harry J. Welts against Joseph C. Anderson, as executor, etc. No opinion. Motion for leave to appeal to Court of Appeals denied, with $10 costs. See, also, supra.

WERST, Respondent, v. MANN, Appellant. (Supreme Court, Appellate Division, Second WEAVER, Appellant, v. YOUNG et al., Re-Magdalena Werst against Frank Mann, as SecDepartment. April 19, 1912.) Action by spondents. (Supreme Court, Appellate Divi- ond Deputy Tenement House Commissioner of sion, Fourth Department. May 1, 1912.) Ac- the city of New York. No opinion. Judgment tion by Oscar Weaver against John M. Young affirmed, with costs. and others. No opinion. Appeal dismissed, without costs, upon stipulation filed.

ent.

WERTHEIMER V. RUBINSTEIN. (Su

ment.

heimer against Morris Rubinstein. No opinion. May 10, 1912.) Action by Max WertMotion granted, with $10 costs. Order filed.

WEBER, Appellant, v. BALBACH, Respond-preme Court, Appellate Division, First Depart(Supreme Court, Appellate Division, Second Department. May 29, 1912.) Action by Louise Weber against Wilhelmina F. Balbach, as administratrix, etc. No opinion. Judgment and order unanimously affirmed, with costs.

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WESSLAU, Respondent, v. LONG ISLAND R. CO., Appellant. (Supreme Court, Appellate Division, First Department. Action by George J. Wesslau against the Long May 31, 1912.) Island Railroad Company. appellant. D. B. Griffin, for respondent. No J. F. Keany, for opinion. Judgment and order affirmed, with costs, on Morgan v. Woolverton, 136 App. Div. 351, 120 N. Y. Supp. 1008, affirmed 203 N. Y. 52, 96 N. E. 354, 36 L. R. A. (N. S.) 640. Order filed.

WESTERN ELECTRIC CO., Respondent, v. HARRISON, Appellant. (Supreme Court, Appellate Division, First Department. June 7, 1912.) Action by the Western Electric Company against William H. Harrison. W. H. Good, for appellant. F. R. Stoddard, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

́WESTON, Respondent, v. CITY OF BUFFALO, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 29, 1912.) Action by Sophie C. Weston against the City of Buffalo. affirmed, with costs. No opinion. Judgment and order

In re WEST 151ST ST. (Supreme Court, Appellate Division, First Department. May 10, 1912.) In the matter of closing W. 151st Street. No opinion. Motion denied, with $10 costs. Order filed.

WHITE, Respondent, v. NEW YORK MILITARY ACADEMY REALTY CO., Appellant. (Supreme Court, Appellate Division, Second Department. June 7, 1912.) Action by Dennis White against the New York Military Academy Realty Company. No opinion. Judgment and order reversed, and new trial granted, costs to

abide the event, on the authority of Clark v. New York Military Academy Realty Company, 135 N. Y. Supp. 865, decided herewith.

WHITSON, Respondent, v. WHITSON AUTOPRESS CO., Appellants. (Supreme Court, Appellate Division, First Department. May 24, 1912.) Action by Anna Whitson against the Whitson Autopress Company. N. April, for appellants. A. W. Levy, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

WIEDMAN, Respondent, v. KINZLY, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 1, 1912.) Action by Edward Wiedman, an infant, etc., against Frank Kinzly.

PER CURIAM.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. Held, that the court committed prejudicial error in excluding the testimony of the chief of police, tending to show that the defendant had been directed to disperse people congregating on street corners, and in view of the charge of the court on the subject of malice this error is so prejudicial as to require a reversal.

MCLENNAN, P. J., dissents, upon the ground that the question of malice was not involved, and the evidence referred to was therefore properly excluded, and that the charge of the court in that respect was not excepted to, and, therefore, the question of error is not before this court.

WILKIE, Appellant, v. ERIE R. CO., Respondent. (Supreme Court, Appellate Division, First Department. June 14, 1912.) Action by George Wilkie against the Erie Railroad Company. E. W. S. Johnston, for appellant. F. R. Jennings, for respondent. No opinion. Order affirmed, with costs. Order filed.

WILLIAMS, Respondent, v. CITY OF NEW YORK et al., Appellants. (Supreme Court. Ap, pellate Division, Second Department. April 19, 1912.) Action by Mary E. Williams against the City of New York and another. No opinion. Motion granted, with costs.

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WRIGHT CO., Appellant, v. AERO CORPORATION, Limited, Respondent. (Supreme WILLIS, Respondent, v. EVERETT, Appel- Court, Appellate Division, First Department. lant, et al. (Supreme Court, Appellate Divi- June 22, 1912.) Action by the Wright Comsion, Second Department. May 1, 1912.) Ac-pany against the Aero Corporation, Limited. tion by Charles Willis against Robert K. Ever- F. W. Williamson, for appellant. W. W. Niles. No opinion. Judgment and ett, impleaded with others. No opinion. Judg- for respondent. Order filed. See, ment and order unanimously affirmed, with order affirmed, with costs. also, 128 N. Y. Supp. 726; supra.

costs.

WITH, Respondent, v. COOK, Appellant. (Supreme Court, Appellate Division, First Department. June 14, 1912.) Action by Thorbjorg With against D. Randolph Cook. F. Hulse, for

WRIGHT & ALEXANDER CO., Respondent, v. ALEXANDER, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 1, 1912.) Action by the Wright & Alex

ander Company against David A. Alexander. No opinion. Judgment affirmed, with costs.

YUSEFF v. BUTLER-BUTLER, Inc. (Supreme Court, Appellate Division, First Department. April 26, 1912.) Action by Abraham Yuseff against Butler-Butler, Incorporated. I. W. Goodhue, for plaintiff. J. H. Jones, for defendant. No opinion. Submission dismissed, without costs. Settle order on notice.

ZOBREST, Appellant, v. EAST BUFFALO BREWING CO. et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 1, 1912.) Action by John W. Zobrest against the East Buffalo Brewing Company and others.

PER CURIAM. costs.

Judgment affirmed, with See, also, 135 N. Y. Supp. 815. MCLENNAN, P. J., dissents.

END OF CASES IN VOL. 135

KEY NUMBER SYSTEM)

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABANDONMENT.

See Adverse Possession, § 24; Divorce, $ 82;
Domicile, 4; Intoxicating Liquors, 88 103,
104.

ABATEMENT AND REVIVAL.

See Divorce, § 83.

II. ANOTHER ACTION PENDING.
§8 (N.Y.Sup.) In view of Municipal Court
Act, 157, and since a second suit is not barred
by the pendency of a former action unless the
second is vexatious, and of the $500 limit upon
the Municipal Court's jurisdiction, a defendant
having a claim of $1,700 was not precluded
from setting it up in that court by the pen-
dency of another action on this claim.-Rund-
lett & Reynolds v. Whitall, 135 N. Y. S. 697.
§8 (N.Y.Co.Ct.) An action for the foreclo-
sure of a mechanic's lien for materials and for
services does not prevent a simultaneous ac-
tion against the contractor or other party.-
Pierce v. Kinney, 135 N. Y. S. 537.

§13 (N.Y.City Ct.) Pendency of action in
another state to recover rent cannot be plead-

ed in abatement of an action in New York on

the same cause of action.-Scott v. Demarest,
135 N. Y. S. 264.

V. DEATH OF PARTY AND REVIVAL
OF ACTION.

(B) Continuance or Revival of Action.
$72 (N.Y.Sup.) A passenger's action for an
assault and ill treatment based on an alleged
breach of the carrier's contract to carry safely
may be revived in the name of plaintiff's per-
sonal representative after his death.-Daniel v.
Brooklyn Heights R. Co., 135 N. Y. S. 698.

ACCEPTANCE.

See Contracts, §§ 16, 26; Dedication, § 35;
Frauds, Statute of, §§ 89, 90; Sales, §8
179, 181.

ACCORD AND SATISFACTION.

See Compromise and Settlement; Payment.

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and defendant electric railways for an adjust-
ment of rights under a lease, where there was
no accounting, and defendant owed plaintiff
more than a million dollars; the agreement not
purporting to finally determine the accounts
between the parties.-Brooklyn Heights R. Co.
v. Brooklyn City R. Co., 135 N. Y. S. 990.

. To constitute an accord and satisfaction there
must be an intention to settle claims, admitted
or in dispute, and mutuality of binding force.
-Id.

§5 (N.Y.Sup.) An accord and satisfaction
must be supported by a good consideration.--
Brooklyn Heights R. Co. v. Brooklyn City R.
Co., 135 N. Y. S. 990.

$11 (N.Y.Sup.) Where a buyer sent a letter
stating his claims based on delays of the seller
and a voucher check for the exact balance
shown due by the letter stating on its face that
it was "in full of the above amount," and that
it was in payment of a bill rendered, the net
amount of which was stated as the sum paid,
and the seller drew the money on the check
with knowledge that it was tendered in full
settlement, and acknowledged receipt of it, and
inclosed a statement showing a balance due,
the seller accepted the check in full settlement
establishing an accord and satisfaction.-Bar-
ron v. Brooklyn Heights R. Co., 135 N. Y. S.
323.

§ 16 (N.Y.Sup.) An agreement for an accord
and satisfaction must be executed.-Brooklyn
Heights R. Co. v. Brooklyn City R. Co., 135 N.
Y. S. 990.

§ 20 (N.Y.Sup.) An agreement does not oper-
ate as an accord and satisfaction if there was
fraud or a mutual mistake as to indebtedness
recited in the agreement.-Brooklyn Heights R.
Co. v. Brooklyn City R. Co., 135 N. Y. S. 990.

ACCOUNT.

See Brokers, § 29; Corporations, §§ 189, 314,
319; Courts, § 14; Executors and Adminis-
trators, §§ 465, 510; Trusts, § 365; Wills,
§ 428.

ACKNOWLEDGMENT.

(N.Y.Sup.) There was no accord and sat-
isfaction under an agreement between plaintiff See Limitation of Actions, § 145.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER
135 N.Y.S.-73

(1153)

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