and 121 New York State Reporter ACTION. Abatement, see "Abatement and Revival." Counterclaim, see "Set-Off and Counterclaim." Limitation by statutes, see "Limitation of Actions." Pendency of action, see "Lis Pendens." Actions between parties in particular relations. Bailor and bailee, see "Bailment." Actions by or against particular classes of parties. See "Carriers," §§ 2. 3; "Executors and Ad- Stockholders, see "Corporations," § 2. Wrongful death caused by operation of railroad, see "Railroads," § 2. Wrongful death caused by operation of street railroad, see "Street Railroads," § 1. Particular forms of action. See "Assumpsit, Action of": "Replevin"; "Trespass," § 1; "Trover and Conversion." Particular forms of special relief. See "Divorce"; "Injunction"; "Interpleader" ; Establishment of will, see "Wills," § 3. Particular proceedings in actions. "Costs"; "Damages"; "Depositions": See "Dismissal and Nonsuit"; "Evidence"; "Execution"; "Judgment"; "Jury": "Limitation of Actions"; "Motions": "Parties"; "Pleading"; "Reference"; "Trial"; "Venue." Bill of particulars, see "Pleading," § 5. Default, see "Judgment," § 1. Particular remedies in or incident to actions. See "Arrest," § 1; "Attachment"; "Bail," § 1; "Discovery"; "Injunction"; "Receivers." Trustees in bankruptcy, see "Bankruptcy," § 2. Notice of pendency of action, see "Lis Pen Bail bond, see "Bail," § 1. Bond of bank oflicer, see "Banks and Banking," § 1. Bond of liquor dealer, see "Intoxicating Liquors," § 2. Breach of contract, see "Contracts," § 6; "Sales," § 5. Breach of contract to make bequest or devise, see "Wills," § 1. Breach of covenant, see "Covenants," § 3. Personal injuries, see "Carriers," § 3; "Elec- dens." Proceedings in exercise of special jurisdictions. Courts of limited jurisdiction in general, see "Courts," $ 3. Criminal prosecutions, see "Criminal Law." Review of proceedings. See "Appeal"; "New Trial"; "Judgment," § 3. § 1. Joinder, splitting, and severance. consolidation. The consolidation of an action for damages and injunction to restrain a nuisance and a subsequent action for damages alone, and transfer of the actions to the Trial Term, held to have waived the equitable relief asked for, and to render the consolidated action one for damages.-Pritchard v. Edison Electric Illuminating Co. (Sup.) 225. Action under Stock Corporation Law, Laws 1892, p. 1833, c. 688, § 31, relating to misrep resentations by officers in sale of stock, and common-law action for same damage, held to be 678. Price of land, see "Vendor and Purchaser," § 4. properly joined.-Hutchinson v. Young (Sup) Services, see "Master and Servant," § 2; "Work and Labor." Wages, see "Master and Servant," § 2. ACTION ON THE CASE. See Trespass," § 1. ADEQUATE REMEDY AT LAW. AGREEMENT. Effect on jurisdiction of equity, see "Equity," See "Contracts." ADJOURNMENT. Of court pending trial, see "Trial," § 2. ADJUDICATION. Of courts in general, see "Courts," § 2. ADJUSTMENT. Of loss within insurance policy, see "Insur- ADMINISTRATION. Of estate of bankrupt, see "Bankruptcy," § 2. Of trust property, see "Trusts." § 3. ADMISSIONS. As evidence, see "Evidence," § 3. ADVANCEMENTS. See "Descent and Distribution," § 1. ADVERSE POSSESSION. See "Limitation of Actions." By holder of tax title, see "Taxation," § 3. 1. Nature and requisites. Inclosure of lot on three sides held adverse ANNULMENT. The mere fact of 20 years' possession does not of will, see "Wills,” § 3. ADVERTISEMENT. Official newspapers, see "Newspapers." AFFIDAVITS. See "Depositions." ANSWER. In pleading, see "Pleading," § 2. APARTMENT HOUSES. Covenants as to erection, see "Covenants," § 2. In particular proceedings, see "Arrest," § 1; See "New Trial.” "Attachment," § 2. AGENCY. See "Principal and Agent." and 121 New York State Reporter Review in particular civil actions. benefit of the most favorable inferences deduFor dispossession of tenant, see "Landlord and cible from the evidence.-New York Hydraulic Press Brick Co. v. Cunn (Sup.) 168. Tenant," § 6. Foreclosure suits, see "Mortgages," § 4. Review in special proceedings. The court on appeal is not justified in interfering with the findings of the trial court, based v. Kissel (Sup.) 176. Order denying new trial, see "New Trial," § 3. on satisfactory evidence. Smith § 1. Decisions reviewable. An order denying a motion to resettle another order is not appealable.-Garofalo v. Prividi (Sup.) 467. An order vacating an attachment is not appealable.-Feldman v. Siegel (Sup.) 538. Written stipulation that appeal from interlocutory judgment of county court may be treated as a motion for new trial on exceptions held to give the Supreme Court jurisdiction, notwithstanding Code Civ. Proc. § 1340.-Russ v. Maxwell (Sup.) 1077. § 2. Right of review. A judgment of dismissal, rendered at the request or by the consent of the plaintiff, is not appealable.-Bacon v. Abbey Press (Sup.) 165. An appeal from an order held dismissible.Levy v. Fidelity & Deposit Co. (Sup.) 487. 3. Presentation and reservation in lower court of grounds of review. Fact that bill of particulars had not been served as demanded held not of itself ground for reversal.-Block v. Sherry (Sup.) 160. Final carrier, not having objected at the time to competency of declarations of initial carrier as evidence against it, held precluded from afterwards raising objections.-Thyll v. New York & L. B. R. Co. (Sup.) 345. Permitting the jury to find for plaintiff for an amount not justified by his own evidence held error, which will be corrected, even in the absence of an exception.--Spinner v. Klinger (Sup.) 453. § 4. Dismissal, withdrawal, or aban donment. Trial court held to have had authority to make an order declaring an appeal abandoned.-Levy v. Fidelity & Deposit Co. (Sup.) 487. On appeal from an order sustaining exceptions to a referee's report, a question as to whether there was a clerical error in the report could not be considered, since any such mistake should have been corrected in the lower court.-New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co. (Sap.) 200. On appeal in mortgage foreclosure, the appellant held entitled to a determination, on the theory of the trial, to the effect that failure to pay interest had been excused, though such failure was not pleaded.-Schieck v. Donohue (Sup.) 206. Parties consenting to the trial of an action as a suit in equity cannot, on appeal, raise the question that the action was triable at law only. Jennie Clarkson Home for Children v. Chesapeake & O. Ry. Co. (Sup.) 348. The testimony being conflicting, the verdict will not be disturbed on appeal.-Berliner v. Interurban St. Ry. Co. (Sup.) 455. In an action for injuries, exclusion of testimony impeaching a physician who testified for plaintiff held prejudicial.-Brown v. Interurbas St. Ry. Co. (Sup.) 461. In an action against sureties on a bail bond. denial of sureties' motion for a new trial on an erroneous ground held harmless.-Garofalo v. Prividi (Sup.) 467. In the absence of an appeal from an order denying a motion to vacate an order of arrest, whether the affidavit on which the arrest was granted was sufficient could not be review ed on appeal from the judgment.-Anker v. Smith (Sup.) 479. A judgment of dismissal at the close of plaintiff's case requires the court on appeal to find the most favorable inferences in favor of the plaintiff.-Edwards v. Firemen's Ins. Co. (Sup. 507. The admission of evidence that defendant is indemnified against a recovery in the action is reversible error.-Blumberg v. Marks (Sup▸ 514. A judgment depending on the credibility of witnesses will not be disturbed on appeal.-into the opinion of the trial judge, to ascertain On appeal the appellate court may examine Litzky v. Horowitz (Sup.) 136. the grounds on which he set aside the verdict of the jury.-Fox v. Metropolitan St. Ry. Ca. (Sup.) 754. There being evidence which, if believed, warranted the judgment, it will be presumed on appeal that it was based thereon.-Wendell v. Walker (Sup.) 142. The court held not justified in holding complaint defective for nonjoinder of parties, where there was no showing that the parties not joined were alive when the action was commenced. -Ullman v. Cameron (Sup.) 148. On an appeal from a judgment on a directed verdict, the appellant is entitled to have the The erroneous admission of evidence is no ground for reversal, where the only point o which it bears is abundantly proven by conpetent evidence.-Buckley v. Westchester Lighting Co. (Sup.) 763. Orders denying resettlement of another order and retaxation of costs is within discretion of trial court, and will not be reversed, in the absence of controlling reasons affecting the in terests of justice.-In re Locust Ave. (Sup.) Allegations in answer to which demurrer was An appellate court should not reverse a judg- Where, after decision by Appellate Division, APPLIANCES. Liability of employer for defects, see "Master APPLICATION. On appeal from a judgment entered on a re- Of payment, see "Payment," § 2. ted by the referee, but subsequently struck out, APPOINTMENT. § 6. Determination and disposition of Executor or administrator, see "Executors and cause. Fifty dollars held adequate terms to be im- A decision on appeal, unappealed from, held The judgment of the court of claims held not On a trial of a case after the court on appeal Where, on appeal from Municipal Court, the Judgment for $250, where plaintiff claimed Judgment reversed for defects in record.- Under Municipal Court Act, Laws 1901, p. Surplusage in surrogate's order, made on re- Reversal of order denying motion for refer- Administrators," § 2. ASSESSMENT. and 121 New York State Reporter ASSUMPTION. Of compensation for property taken for public Of risk by employé, see "Master and Servant," use, see "Eminent Domain," § 2. Of damages, see "Damages," § 4. Of expenses of public improvements, see "Municipal Corporations," § 4. Of tax, see "Taxation," § 2. ASSETS. Of estate of decedent, see "Executors and Administrators," § 3. ASSIGNMENTS. § 6. ATTACHMENT. See "Execution." Effect of receivership on attachment lien, see "Receivers," § 2. Order vacating, whether appealable, see "Appeal," § 1. § 1. Property subject to attachment. The fund of a life insurance company deposited in a bank held the property of the company, subject to attachment.-National Park Necessary parties in action by assignee, see Bank v. Clark (Sup.) 185. "Parties," § 1. Transfers of particular species of property. See "Insurance," §§ 4, 6; "Mortgages," § 3. Priorities between equitable assignments determined.-Weeks v. City of New York (Sup.) 2. Proceedings to procure. formation and belief, in an attachment affidavit A creditor held justified in asserting on inunder Code Civ. Proc. § 636, that defendant had not designated a person on whom service might be made on his remaining absent from the state for more than six months.-Ennis v. Untermyer (Sup.) 695. § 3. Quashing, vacating, dissolution, or abandonment. An attachment in an action against a foreign of a domestic corporation of the same name, corporation should not be vacated on motion but not a party to the action, on the ground that property of the latter corporation had been attached.-Bacon v. Abbey Press (Sup.) 165. An objection to attachment warrants, not specified in defendant's motion to vacate on the papers, held unavailable.-Ennis v. Untermyer (Sup.) 695. § 4. Liabilities on bonds or undertakings. The vacation of an attachment having been improper, held, there was no liability on the bond given to obtain the attachment.-Steuer v. Rockwood (Sup.) 144. ATTORNEY AND CLIENT. Allowance for counsel fees on discontinuance of injunction, see "Injunction," § 1. Argument and conduct of counsel at trial in civil actions, see "Trial," § 4. Attorney's fees in divorce proceedings, see "Divorce," § 3. Attorneys in fact, see "Principal and Agent." Authority of attorney to represent dissolved corporation, see "Corporations," § 6. Competency of attorney as witness, see "Witnesses, "§ 1. Payment of attorney's fees by personal repre sentative, see "Executors and Administra tors," § 4. 1. Duties and liabilities of attorney to client. In an action by a client against the attorney for damages because of the negligent investment of her funds by defendant, evidence held insu cient to support a finding that a written agree ment for the loan, purporting to be executed by |