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Actions betwee

and 121 New York State Reporter
ACTION.

| Wrongful death caused by operation of rail-

road, see "Railroads," $ 2.
Abatement, see “Abatement and Revival." Wrongful death caused by operation of street
Accrual, see "Limitation of Actions," $ 2.

railroad, see “Street Railroads," § 1.
Bar by former adjudication, see "Judgment,"

Particular forms of action.
Counterclaim, see “Set-Off and Counterclaim." See “Assumpsit, Action of”': "Replevin": "Tres-
Jurisdiction of courts, see "Courts."

pass," § 1; "Írover and Courersion."
Limitation by statutes, see “Limitation of AC-

tions."
Pendency of action, see “Lis Pendens."

Particular forms of special relief.

.'n. Interpreader i
Actions between parties in particuiar relations. In partitions, 's 11"

n parties in particuiar relations. “Partition,” § 1; "Specific Performance."
See "Attorney and Client," $ 1; "Master and Accounting by trustee, see “Trusts," $ 4.

Servant,” 88 1, 2, 8; “Vendor and Purchas Alimony, see "Divorce," $ 3.
er,” $ 4.

Enforcement or foreclosure of lien, see "Ne
Bailor and bailee, see "Bailment."

chanics' Liens," $ 2.
Co-tenants, see "Partition," $ 1.

Establishment and enforcement of trust, see
Partners, see "Partnership," § 4.

“Trusts," $ 5.
Pledgor and pledgee, see "Pledges."

Establishment of will, see “Wills," $ 3.

Foreclosure of mortgage, see "Mortgages," 4
Actions by or against particular classes of Setting aside award of insurance appraisers,
parties.

see "Insurance," 8 10.
See “Carriers," 88 2, 3; “Executors and Ad-

| Setting aside will, see "Wills," $ 3.
ministrators," $ 8; "Factors"; "Husband

Particular proceedings in actions.
aud Wife," $ 1; "Infants," $ 2; “Master and
Servant," $ 9;' "Partnership,"'$ 2; "Princi See “Costs"; "Damages"; "Depositions";
pal and Agent,” & 2; "Railroads,” $ 2; “Re-

"Dismissal and Nonsuit"; "Evidence"; "Es
ceivers," 8 3; "Street Railroads," $ 1.

ecution"; "Judgment"; "Jury"; "Limitation
Assignees, see “Assignments," $ 3.

of Actions"; "Motions” ; “Parties”; “Plead-
Co-tenants, see "Tenancy in Common," 8 2

ing"; "Reference"; "Trial”; “Venue.”
Dissolved corporation, see "Corporations," $ 6. Bill of particulars, see "Pleading." & 5.
Foreign corporations, see "Corporations,"'$ 7. Default, see "Judgment," $ 1.
Foreign insurance companies, see "Insurance,"
$ 1.

Particular remedies in or incident to actions.
Stockholders, see "Corporations," $ 2.

See “Arrest,” 81; "Attachment” ; “Bail," $ 1;
Trustees, see "Trusts," 88 4, 5.

"Discovery"; "Injunction"; "Receivers."
Trustees in bankruptcy, see "Bankruptcy," $ 2.no

Notice of pendency of action, see “Lis Pen-
Particular causes or grounds of action. dens.'
See “Assault and Battery," 8 1 ;. “Bills and Proceedings in exercise of special jurisdictions.

Notes," $ 4; "Death," & 2; "Fraud," $ 2;
“Insurance," $ 12; "Libel and Slander," $ 2;

Courts of limited jurisdiction in general, see
"Negligence,” & 3; "Nuisance," $ 1; "Tres-

"Courts," $ 3.
pass"; "Use and Occupation"; "Work and

Criminal prosecutions, see "Criminal Law."
Labor."

Suits in equity, see "Equity.
Bail bond, see “Bail," $ 1.

Review of proceedings.
Bond of bank officer, see "Banks and Bank- I See “Appeal" : "New Trial” : “Judgment." & 3.

ing," § 1.
Bond of liquor dealer, see “Intoxicating Liq-1 8 1. Joinder, splitting, consolidation.
uors," 8 2.

and severance.
Breach of contract, see "Contracts,” § 6; | The consolidation of an action for damages
"Sales," $ 5.

and injunction to restrain a nuisance and a
Breach of contract to make bequest or devise,

subsequent action for damages a lone, and trans
see "Wills," $ 1.

fer of the actions to the Trial Term, held to
Breach of covenant, see "Covenants," $ 3.

have waived the equitable relief asked for, and
Breach of warranty, see "Sales," $ 5.

to render the consolidated action one for dam
Conversion by factor, see "Factors.".

ages.-Pritchard v. Edison Electric Illuminating
Discharge from employment, see “Master and

Co. (Sup.) 225.
Servant," $ 1.
Personal injuries, see "Carriers," 8 3; "Elec Action under Stock Corporation LAW, Lars
tricity”; “Landlord and Tenant,"°8 4'; "Mas 1892, p. 1833, c. 688, $ 31, relating to misrep.

ter and Servant,” $ 8; “Railroads," $ 2. resentations by officers in sale of stock, and
Price of goods, see “Sales," $ 4.

common-law action for same damage, held to be
Price of land, see “Vendor and Purchaser," f 4. properly joined.-Hutchinson v, Young (Sop.
Recovery of payment, see "Payment," $ 3. 678.
Rent, see “Landlord and Tenant," $ 5.
Services, see "Master and Servant," 8 2; "Work ACTION ON THE CASE.

and Labor."
Wages, see "Master and Servant," $ 2.

See 'Trespass," $ 1.

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ADEQUATE REMEDY AT LAW.

AGREEMENT.
Effect on jurisdiction of equity, see "Equity," See “Contracts."
$ 2.
ADJOURNMENT.

AIDERS AND ABETTORS.
Of court pending trial, see “Trial," $ 2. Criminal responsibility, see “Criminal Law,"
ADJUDICATION.

ALIENS.

§ 1. Disabilities.
Of courts in general, see "Courts," 8 2.
Operation and effect of former adjudication, see

A negro born in Africa held not entitled to
"Judgment," 88 4, 5.

recover a penalty, under Civil Rights Law,
Laws 1895, c. 1042 (Laws 1895, p. 974), in the

absence of proof of his citizenship.-Fuller v.
ADJUSTMENT.

McDermott (Sup.) 536.
Of loss within insurance policy, see "Insur-

ALIMONY.
ance," $ 10.

See “Divorce," $ 3.
ADMINISTRATION.
Of estate of bankrupt, see "Bankruptcy," § 2.

AMENDMENT.
Of estate of decedent, see "Executors and Ad-

Of particular legal proceedings.
ministrators."
Of trust property, see "Trusts," $ 3.

See “Pleading,” g 4; “Trial," § 7.
Pleading after appeal, see "Appeal," 6.

Pleading in action on contract, see “Contracts,"
ADMISSIONS.

8 6.
As evidence, see “Evidence,” $ 3.

AMOUNT IN CONTROVERSY.
ADVANCEMENTS.

Jurisdictional amount, see "Courts,” 4.
See “Descent and Distribution,” 8 1.

ANARCHY

Charging one with being an anarchist as slan-
ADVERSE POSSESSION. der, see “Libel and Slander," § 1.
See "Limitation of Actions."

ANIMALS.
By holder of tax title, see "Taxation,"
By tenant, see “Landlord and Tenant,"

Petition of person who had seized animals
Of easement, see "Easements," § 1.

pasturing on lot occupied by him, under Code

Civ. Proc. $8 3084, 3085, held insufficient.-
1. Nature and requisites.

Burns v. Morrow (Co. Ct.) 719.
Inclosure of lot on three sides held adverse
possession, under Code Civ. Proc. $$ 370, 372.-
Brown v. Doherty (Sup.) 563.

ANNULMENT.
The mere fact of 20 years' possession does not lof will. see “Wills." & 3.
defeat the assertion of the paper title, but
accomplish such result the possession must be
inconsistent with the rights of paper title hold-

ANSWER.
er.-Miller v. Warren (Sup.) 1011.

In pleading, see “Pleading," $ 2.
ADVERTISEMENT.

APARTMENT HOUSES.
Official newspapers, see "Newspapers."

Covenants as to erection, see “Covenants,” 2.
AFFIDAVITS.

APPEAL.
See “Depositions."
In particular proceedings, see “Arrest," § 1; See "New Trial.”
"Attachment,” 8 2.

Appellate jurisdiction of particular courts, see

"Courts," § 4.
AGENCY.

Costs, see “Costs," $ 4.

Review of criminal prosecutions, see "Criminal
See "Principal and Agent."

| Law," $ 6.

to

and 121 New York State Reporter
Review in particular civil actions. | benefit of the most favorable inferences dedu-
For dispossession of tenant, see "Landlord and | cible from the evidence.- New York Hydraulic
Tenant," $ 6.

Press Brick Co. v. Cunn (Sup.) 168.
Foreclosure suits, see “Mortgages," $ 4.

The court on appeal is not justified in inter-
Review in special proceedings.

fering with the findings of the trial court, based
Order denying new trial, see "New Trial,” $ 3.

on satisfactory evidence,-Smith v. Kissel
Probate proceedings, see “Wills," $ 3.

(Sup.) 176.

On appeal from an order sustaining excep-
8 1. Decisions reviewable.

tions to a referee's report, a question as to
An order denying a motion to resettle another

whether there was a clerical error in the report
order is not appealable.-Garofalo v. Prividi

could not be considered, since any such mis-
(Sup.) 467.

take should have been corrected in the lower
An order vacating an attachment is not ap court.--New York Bank Note Co. v. Hamilton
pealable.-Feldman v. Siegel (Sup.) 538. Bank Note Engraving & Printing Co. (Sup.)
Written stipulation that appeal from inter-

200.
locutory judgment of county court may be treat-. On appeal in mortgage foreclosure, the appel-
ed as a motion for new trial on exceptions lant held entitled to a determination, on the
held to give the Supreme Court jurisdiction, not- theory of the trial, to the effect that failure
withstanding Code Civ. Proc. $ 1340.-Russ v. to pay interest had been excused, though such
Maxwell (Sup.) 1077.

failure was not pleaded.-Schieck v. Dopohue

(Sup.) 206.
§ 2. Right of review.
A judgment of dismissal, rendered at the

Parties consenting to the trial of an action
request or by the consent of the plaintiff, is not as a suit in equity cannot, on appeal, raise the
appealable.-Bacon v. Abbey Press (Sup.) 165.

question that the action was triable at law only.

-Jennie Clarkson Home for Children v. Chess-
An appeal from an order held dismissible.-

peake & 0. Ry, Co. (Sup.) 348.
Levy v. Fidelity & Deposit Co. (Sup.) 497.

The testimony being conflicting, the verdict
3. Presentation and reservation in will not be disturbed on appeal.-Berliner F.

lower court of grounds of review. Interurban St. Ry. Co. (Sup.) 455.
Fact that bill of particulars had not been
served as demanded held not of itself ground. In an action for injuries, exclusion of tes
for reversal.-Block v. Sherry (Sup.) 160. timony impeaching a physician who testified for

plaintiff held prejudicial.-Brown v. Interurban
Final carrier, not having objected at the time

St. Ry. Co. (Sup.) 461.
to competency of declarations of initial carrier
as evidence against it, held precluded from after-

In an action against sureties on a bail bord.
wards raising objections.-Thyll v. New York & denial of sureties' motion for a new trial on
L. B. R. Co. (Sup.) 345.

an erroneous ground held harmless.-Garofalo

v. Prividi (Sup.) 467.
Permitting the jury to find for plaintiff for
an amount not justified by his own evidence In the absence of an appeal from an order
held error, which will be corrected, even in the | denying a motion to vacate an order of ar-
absence of an exception. ---Spinner v. Klinger rest, whether the affidavit on which the arrest
(Sup.) 453.

was granted was sufficient could not be review-

ed on appeal from the judgmeut.-Anker .
$ 4. Dismissal, withdrawal, or aban-

Smith (Sup.) 479. .
donment.
Trial court held to have had authority to make

A judgment of dismissal at the close of plain-
an order declaring an appeal abandoned.-Levy

| tiff's case requires the court on appeal to find
v. Fidelity & Deposit Co. (Sup.) 487.

the most favorable inferences in favor of the

plaintiff.-Edwards v. Firemen's Ins. Co. (Sup..
§ 5. Review.'

507.
The admission of evidence as to the condi-

The admission of evidence that defendant is
tion of a building some six weeks before an

| indemnified against a recovery in the aetion is
accident thereon is not so erroneous as to re-
quire a reversal.-Nelson v. Young (Sup.) 69.

reversible error.-Blumberg v. Marks (Sup.

514.
A judgment depending on the credibility of
witnesses will not be disturbed on appeal.-

On appeal the appellate court may examine

into the opinion of the trial judge, to ascertain
Litzky v. Horowitz (Sup.) 136.

the grounds on which he set aside the rerdict
There being evidence which, if believed, war- of the jury.-Fox v. Metropolitan St. Ry. Co.
ranted the judgment, it will be presumed on (Sup.) 754.
appeal that it was based thereon.-Wendell v.

The erroneous admission of evidence is no
Walker (Sup.) 142.

ground for reversal, where the only point ou
The court held not justified in holding com- which it bears is abundantly proren by com-
plaint defective for nonjoinder of parties, where petent evidence.-Buckley y. Westchester Light-
there was no showing that the parties not join-ing Co. (Sup.) 763.
ed were alive when the action was commenced. Orders denying resettlement of another order
--Ullman v. Cameron (Sup.) 148.

and retaxation of costs is within discretion of
On an appeal from a judgment on a directed trial court, and will not be reversed, in the
verdict, the appellant is entitled to have the absence of controlling reasons affecting the in-

APPLICATION.

ARBITRATION AND AWARD.

terests of justice.-In re Locust Ave. (Sup.), Where, after decision by Appellate Division,
798; Theall v. Village of Port Chester, Id. Court of Appeals places different construction
Allegations in answer to which demurrer was

on similar instrument, the Appellate Division, on
sustained cannot be considered on appeal as

| reargument, must overrule its former decision.

-Walsh y. Hanan (Sup.) 930.
admissions, especially where not offered in evi-
dence.-International Money Box Co. v. South-
ern Trust & Deposit Co. (Sup.) 881.

APPLIANCES.
An appellate court should not reverse a judg-
ment and order a new trial on questions of

Liability of employer for defects, see "Master
fact, unless there is a reasonable probability and Servaut," $ 4.
that the result would be changed by such new
trial.-Sternaman v. Metropolitan Life Ins. Co.
(Sup.) 904.

On appeal from a judgment entered on a re- of payment, see "Payment,” 8 2.
port of a referee, incompetent evidence admit-
ted by the referee, but subsequently struck out,
is not to be considered in disposing of the ap-

APPOINTMENT.
peal.-Hurley v. Macey (Sup.) 924.
$ 6. Determination and disposition of

Executor or administrator, see "Executors and

Administrators," $ 2.
cause.
Fifty dollars held adequate terms to be im-
posed, on amendment of complaint as neces-

APPRAISAL.
sitated by defendant's successful appeal to
Court of Appeals.-Steinbach v. Prudential Ins.
Co. (Sup.) 107.

Of loss under insurance policy, see “Insur-

ance," $ 10.
A decision on appeal, unappealed from, held
the law of the case on a second trial; the evi-
dence, though of greater length, not being ma-
terially different.-Hall v. State (Sup.) 338.

The judgment of the court of claims held not | See “Reference.”
to be modified on appeal, by increasing its
award, where there are no findings, and the evi-
dence may be materially changed on a new trial.

ARCHITECTS.
-Hall v. State (Sup.) 338.

Certificate as to completion of contract, see
On a trial of a case after the court on appeal "Contracts." & 5.
has decided that the complaint of plaintiff
states a cause of action, it is only necessary to
determine whether plaintiff's evidence fairly es ARGUMENT OF COUNSEL.
tablishes the allegations of the complaint.-Kel-
logg v. Sowerby (Sup.) 412.

See “Trial," $ 4.
Where, on appeal from Municipal Court, the
evidence is lost. judgment will be reversed.-

ARREST.
Brody v. Katz (Sup.) 452.
Judgment for $250, where plaintiff claimed

See "Bail”; “Rescue."
only $200, properly recoverable, reduced.-Dun- | On execution, see "Execution," § 2.
don v. Interurban St. Ry. Co. (Sup.) 452. § 1. In civil actions.

Judgment reversed for defects in record.- Affidavit held insufficient to authorize an ar-
United States Title Guarantee & Indemnity Co. rest for obtaining goods on a false statement
v. Royal (Sup.) 457.

as to financial condition.-Price v. Levy (Sup.)
Under Municipal Court Act, Laws 1901, p.

740.
1560, C. 580, § 326, held, that a judgment on

ARREST OF JUDGMENT.
notes would not be disturbed on appeal, though
the verdict was not in compliance with sec-
tion 239, p. 1583; its provisions being waived. | In criminal prosecutions, see “Criminal Law,”
Steinhart v. Enteen (Sup.) 482.

85.
Surplusage in surrogate's order, made on re-
mittitur from Court of Appeals, in proceed-

ASSAULT AND BATTERY.
ings to probate a will, held not to vitiate order.

vandlord and Ten-
Code Civ. Proc. 8 194.-In re Hopkins' Will | On tenant as
(Sup.) 793.

ant,” $ 4.
Reversal of order denying motion for refer- 8 1. Civil Hability.
ence to ascertain defendant's damages by is. In an action for an assault committed in tak-
suance of injunction held an adjudication that ing possession of property, evidence held not
defendant, was entitled to damages.-Perlman sufficient to raise a question as to the use
v. Bernstein (Sup.) 862.

I of excessive force.-Mattice v. Scutt (Sup.) 1009.

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and 121 New York State Reporter
ASSESSMENT.

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," 8 4.
Of expenses of public improvements, see “Mu-

ATTACHMENT.
nicipal Corporations," $ 4.
Of tax, see "Taxation," $ 2.

See “Execution.”

Effect of receivership on attachment lien, see
ASSETS.

"Receivers," 2.

Order vacating, whether appealable, see "AD-
Of estate of decedent, see "Executors and Ad peal," $ 1.
ministrators," $ 3.

§ 1. Property subject to attachment.

The fund of a life insurance company de-
ASSIGNMENTS.

posited in a bank held the property of the comi-

pany, subject to attachment.-National Park
Necessary parties in action by assignee, see

Bank v. Clark (Sup.) 185.
"Parties," § 1.

§ 2. Proceedings to procure.
Transfers of particular species of property, A creditor held justified in asserting on in-
rights, or instruments.

formation and belief, in an attachment affidarit
See "Insurance," 88 4, 6; "Mortgages," $ 3.

under Code Civ. Proc. § 636, that defendant had

not designated a person on whom service might
Corporate shares, see “Corporations," § 1. be made on his remaining absent from the state
8 1. Operation and effect.

for more than six months.—Ennis v. Catermyer
Priorities between equitable assignments de

(Sup.) 695.
termined.-Weeks v. City of New York (Sup.) 8 3. Quashing, vacating, dissolution, of
98.

abandonment.
8 2. Rights and liabilities of parties.

An attachment in an action against a foreign

corporation should not be vacated on motion
A contractor held not liable on his acceptance

of a domestic corporation of the same name,
of the order of the subcontractor, who aban-
doned the work, so that no last payment became

but not a party to the action, on the ground

that property of the latter corporation had
due to him.-Miller y. Norcross (Sup.) 56.

been attached.-Bacon v. Abbey Press (Sup.
An assignee of a contract is bound by the 165.
act of his assignor releasing the other party

An objection to attachment warrants, Dot
to the contract from his obligation thereunder,

specified in defendant's motion to vacate on the
where the latter had no notice of the assign-

papers, held unavailable.- Ennis v. Unternya
ment.-Smith v. Kissel (Sup.) 176.

(Sup.) 695.
8 3. Actions.

§ 4. Liabilities on bonds or undertak-
A complaint held to state a cause of action for
work and labor.-Schilling Co. v. Robert H.

ings.

The vacation of an attachment having beeo
Reid & Co. (Sup.) 1115.

improper, held, there was no liability on the
A complaint held demurrable, as not showing bond given to obtain the attachment.-Steuer
existence of condition precedent to payment.- v. Rockwood (Sup.) 144.
Schilling Co. v. Robert H. Reid & Co. (Sup.)
1115.

ATTORNEY AND CLIENT.
ASSIGNMENTS FOR BENEFIT OF

| Allowance for counsel fees on discontinuance

of injunction, see “Injuuction," s 1.
CREDITORS.

Argument and conduct of counsel at trial is

civil actions, see “Trial,” $ 4.
See "Bankruptcy.”

Attorney's fees in divorce proceedings, see "Di-

vorce," $ 3.

Attorneys in fact, see "Principal and Agent.**
ASSOCIATIONS.

Authority of attorney to represent dissolved

corporation, see “Corporations," $ 6.
See "Clubs”; “Trade Unions."

Competency of attorney as witness, see "Wit-

nesses," $ 1.

Payment of attorney's fees by personal repre
ASSUMPSIT, ACTION OF.

sentative, see "Executors and Administra

tors," $ 4.
See “Use and Occupation”; “Work and La-

1. Duties and liabilities of attorney
bor."

to client.
In an action to recover a balance remaining In an action by a client against the attorney
unpaid for materials furnished and labor per- for damages because of the negligent investment
formed in a plumbing job, evidence held suffi- of ber funds by defendant, evidence held insuff-
cient to sustain the referee's report for plain- cient to support a finding that a written agter
tiffs.-Hurley v. Macey (Sup.) 924.

I ment for the loan, purporting to be executed by

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