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ACTION.

and 121 New York State Reporter

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 2.
Bar by former adjudication, see "Judgment,"
§ 4.

Counterclaim, see "Set-Off and Counterclaim."
Jurisdiction of courts, see "Courts."

Limitation by statutes, see "Limitation of Actions."

Pendency of action, see "Lis Pendens."

Actions between parties in particular relations.
See "Attorney and Client," § 1; "Master and
Servant," §§ 1, 2, 8; "Vendor and Purchas-
er," § 4.

Bailor and bailee, see "Bailment."
Co-tenants, see "Partition," § 1.
Partners, see "Partnership." § 4.
Pledgor and pledgee, see "Pledges."

Actions by or against particular classes of parties.

See "Carriers," §§ 2. 3; "Executors and Ad-
ministrators," § 8; "Factors"; "Husband
and Wife," § 1; "Infants," § 2; "Master and
Servant," § 9; "Partnership," § 2; "Princi-
pal and Agent," $ 2; "Railroads," § 2; "Re-
ceivers," § 3; "Street Railroads," § 1.
Assignees, see "Assignments," § 3.
Co-tenants, see "Tenancy in Common," § 2.
Dissolved corporation, see "Corporations," § 6.
Foreign corporations, see "Corporations," § 7.
Foreign insurance companies, see "Insurance,"
§ 1.

Stockholders, see "Corporations," § 2.
Trustees, see "Trusts," §§ 4, 5.
Trustees in bankruptcy, see "Bankruptcy," § 2.

Particular causes or grounds of action. See "Assault and Battery," § 1; "Bills and Notes," 8 4; "Death." § 2; "Fraud,' § 2; "Insurance," § 12; "Libel and Slander." 82; "Negligence," § 3; "Nuisance," § 1; "Trespass"; "Use and Occupation"; "Work and

Labor."

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.
Breach of warranty, see "Sales," § 5.
Conversion by factor, see "Factors.'
Discharge from employment, see "Master and
Servant," § 1.

Personal injuries, see "Carriers," § 3; "Elec-
tricity"; "Landlord and Tenant," § 4; "Mas-
ter and Servant," § 8; "Railroads," § 2.
Price of goods, see "Sales," § 4.

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”; "Partition," § 1; "Specific Performance." Accounting by trustee, see "Trusts," § 4. Alimony, see "Divorce," § 3.

Enforcement or foreclosure of lien, see "Mechanics' Liens," § 2.

Establishment and enforcement of trust, see "Trusts," § 5.

Establishment of will, see "Wills," § 3. Foreclosure of mortgage, see "Mortgages." § 4 Setting aside award of insurance appraisers, see "Insurance," § 10.

Setting aside will, see "Wills," § 3.

Particular proceedings in actions. "Costs"; See "Damages"; "Depositions"; "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." Notice of pendency of action, see "Lis Pendens."

Proceedings in exercise of special jurisdictions. Courts of limited jurisdiction in general, see "Courts," § 3.

Criminal prosecutions, see "Criminal Law."
Suits in equity, see "Equity.”

Review of proceedings. See "Appeal"; "New Trial"; "Judgment,” § 3. § 1. Joinder, splitting, consolidation.

and severance.

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)
Recovery of payment, see "Payment," § 3.
Rent, see "Landlord and Tenant," § 5.

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."
§ 2.

ADJOURNMENT.

Of court pending trial, see "Trial," § 2.

ADJUDICATION.

Of courts in general, see "Courts," § 2.
Operation and effect of former adjudication, see
"Judgment," §§ 4, 5.

ADJUSTMENT.

Of loss within insurance policy, see "Insur-
ance," § 10.

ADMINISTRATION.

Of estate of bankrupt, see "Bankruptcy," § 2.
Of estate of decedent, see "Executors and Ad-
ministrators."

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.
By tenant, see "Landlord and Tenant," § 2.
Of easement, see "Easements," § 1.

1. Nature and requisites.

Inclosure of lot on three sides held adverse
possession, under Code Civ. Proc. §§ 370, 372.-
Brown v. Doherty (Sup.) 563.

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ANNULMENT.

The mere fact of 20 years' possession does not Of will, see "Wills," § 3.
defeat the assertion of the paper title, but to
accomplish such result the possession must be
inconsistent with the rights of paper title hold-
er.-Miller v. Warren (Sup.) 1011.

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."

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and 121 New York State Reporter

Review in particular civil actions.

benefit of the most favorable inferences deduPress Brick Co. v. Cunn (Sup.) 168.

For dispossession of tenant, see "Landlord and cible from the evidence.-New York Hydraulic Tenant," § 6.

Foreclosure suits, see "Mortgages," § 4.

Review in special proceedings.

Order denying new trial, see "New Trial," § 3.
Probate proceedings, see "Wills," § 3.

§ 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,

donment.

or

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On appeal from an order sustaining excepwhether there was a clerical error in the report tions to a referee's report, a question as to 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. (Sup.) 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 tes timony impeaching a physician who testified for St. Ry. Co. (Sup.) 461. plaintiff held prejudicial.-Brown v. Interurban

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 reviewed on appeal from the judgment.-Anker v. aban-Smith (Sup.) 479.

Trial court held to have had authority to make an order declaring an appeal abandoned.-Levy v. Fidelity & Deposit Co. (Sup.) 487.

§ 5. Review.

The admission of evidence as to the condition of a building some six weeks before an accident thereon is not so erroneous as to require a reversal.-Nelson v. Young (Sup.) 69.

A judgment of dismissal at the close of plaintiff's case requires the court on appeal to fud 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. Co. (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 on which it bears is abundantly proven by con petent 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.)
798; Theall v. Village of Port Chester, Id.

Allegations in answer to which demurrer was
sustained cannot be considered on appeal as
admissions, especially where not offered in evi-
dence. International Money Box Co. v. South-
ern Trust & Deposit Co. (Sup.) 881.

An appellate court should not reverse a judg-
ment and order a new trial on questions of
fact, unless there is a reasonable probability
that the result would be changed by such new
trial.-Sternaman v. Metropolitan Life Ins. Co.
(Sup.) 904.

Where, after decision by Appellate Division,
Court of Appeals places different construction
on similar instrument, the Appellate Division, on
reargument, must overrule its former decision.
-Walsh v. Hanan (Sup.) 930.

APPLIANCES.

Liability of employer for defects, see "Master
and Servant," § 4.

APPLICATION.

On appeal from a judgment entered on a re- Of payment, see "Payment," § 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-
peal.-Hurley v. Macey (Sup.) 924.

APPOINTMENT.

§ 6. Determination and disposition of Executor or administrator, see "Executors and

cause.

Fifty dollars held adequate terms to be im-
posed, on amendment of complaint as neces-
sitated by defendant's successful appeal to
Court of Appeals.-Steinbach v. Prudential Ins.
Co. (Sup.) 107.

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

On a trial of a case after the court on appeal
has decided that the complaint of plaintiff
states a cause of action, it is only necessary to
determine whether plaintiff's evidence fairly es-
tablishes the allegations of the complaint.-Kel-
logg v. Sowerby (Sup.) 412.

Where, on appeal from Municipal Court, the
evidence is lost, judgment will be reversed.-
Brody v. Katz (Sup.) 452.

Judgment for $250, where plaintiff claimed
only $200, properly recoverable, reduced.-Dun-
don v. Interurban St. Ry. Co. (Sup.) 452.

Judgment reversed for defects in record.-
United States Title Guarantee & Indemnity Co.
v. Royal (Sup.) 457.

Under Municipal Court Act, Laws 1901, p.
1560, c. 580, § 326, held, that a judgment on
notes would not be disturbed on appeal, though
the verdict was not in compliance with sec-
tion 239, p. 1583; its provisions being waived.
Steinhart v. Enteen (Sup.) 482.

Surplusage in surrogate's order, made on re-
mittitur from Court of Appeals, in proceed-
ings to probate a will, held not to vitiate order.
Code Civ. Proc. § 194.-In re Hopkins' Will
(Sup.) 793.

Reversal of order denying motion for refer-
ence to ascertain defendant's damages by is-
suance of injunction held an adjudication that
defendant was entitled to damages.-Perlman
v. Bernstein (Sup.) 862.

Administrators," § 2.

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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.

81. 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.
rights, or instruments.

See "Insurance," §§ 4, 6; "Mortgages," § 3.
Corporate shares, see "Corporations," § 1.
§ 1. Operation and effect.

Priorities between equitable assignments determined.-Weeks v. City of New York (Sup.)

98.

§ 2. Rights and liabilities of parties. A contractor held not liable on his acceptance of the order of the subcontractor, who abandoned the work, so that no last payment became due to him.-Miller v. Norcross (Sup.) 56.

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 assignee of a contract is bound by the act of his assignor releasing the other party to the contract from his obligation thereunder, An objection to attachment warrants, not where the latter had no notice of the assign-specified in defendant's motion to vacate on the ment.-Smith v. Kissel (Sup.) 176. papers, held unavailable.-Ennis v. Untermyer (Sup.) 695.

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84. 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 representative, see "Executors and Administrators," § 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 insuthcient to support a finding that a written agree ment for the loan, purporting to be executed by

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