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INDEX.

ABANDONMENT.

| an accord and satisfaction. - Mack v. Miller

(Sup.) 440. Of attachment, see “Attachment,” $ 2.

Facts held to show an accord and satisfac

| tion.-Laroe v. Sugar Loaf Dairy Co. (Sup.) ABATEMENT.

609.

Where defendant in good faith disputed the Pleas in abatement, see “Pleading," $ 1. amount due under a contract with plaintiffs,

plaintiffs' claim was not liquidated, so as to ABATEMENT AND REVIVAL. prevent the acceptance of a check, sent with a

statement that it was to be in full, from operElection of remedy. see “Election of Remedies." | ating as a satisfaction of plaintiffs claim.-Judgment as bar to another action, see "Judg

Laroe v. Sugar Loaf Dairy Co. (Sup.) 609. ment," $ 5.

Where a creditor had actual knowledge that Pleas in abatement, see "Pleading," & 1. a check sent by the debtor was regarded as in Right of action by or against personal repre- full satisfaction of the debt, the fact that the

sentative, see "Executors and Administra- creditor did not read a statement to that effect, tors," $ 8.

sent with the check, did not prevent acceptance Substitution of parties, see "Parties," $ 1. of the check from operating to discharge the

entire debt.-Laroe v. Sugar Loaf Dairy Co. $1. Another action pending. Defense of another action pending held not

(Sup.) 609. affected by a defect in complaint in such other

Where creditor accepts a check tendered as action, where such defect was waived by fail-payment in full and retains the proceeds, there ure to demur.-Romaine v. New York, N. H. & is an accord and satisfaction.--De Lovenzo V. U. R. Co. (Sup.) 491.

Hughes (Sup.) 857.

ABSENCE.

ACCOUNT. Presumption of death from absence, see Accounting between partners, see "Partner"Death," $ 1.

| ship," $ 5.
| Accounting by committee of insane person, see

"Insane Persons," $ 1.
ABUSE OF PROCESS. Accounting by executor or administrator, see

"Executors and Administrators," $ 9. See “Process," $ 3.

1. Proceedings and relief. -ABUTTING OWNERS.

Plaintiff's remedy under his allegations held

a remedy at law.Hart v. L. D. Garrett Co. Rights in streets in cities, see "Municipal Cor- | (Sup.) 774. porations," $ 4.

ACKNOWLEDGMENT.
ACCEPTANCE.

Operation and effect of admissions as evidence, Of goods sold in general, see “Sales," $ 3.

see "Evidence," § 4. ACCORD AND SATISFACTION.

ACTION. See "Compositions with Creditors"; "Compro- Abatement, see “Abatement and Revival." mise and Settlement"; "Payment"; "Re- Bar by former adjudication, see "Judgment," lease." Acceptance of a check for an amount less than

Counterclaim, see "Set-Off and Counterclaim."

Election of remedy, see "Election of Remedies." the bill claimed to be owing by plaintiff from

Jurisdiction of courts, see "Courts." defendant held not an accord and satisfaction of

Limitation by statute, see "Limitation of Acthe account.-Terry & Tench Const. Co. v. Lee

tions." son (Sup.) 267.

Malicious actions, see "Malicious Prosecution." The acceptance of a check by a creditor, ac- Pendency of action, see "Abatement and Recompanied by a letter from the debtor, held not vival," $ 1. 84 N.Y.S.-73

(1153)

see

and 118 New York State Reporter Review of proceedings, see "Appeal”; “Judg- Rescission of contract for insurance, see "Insurment," $4; “Justices of the Peace," $ 2: ance," $ 3. "New Trial."

Sale of decedent's estate, see "Executors and

Administrators," $ 7.
Actions between parties in particular relations. Services. see “Work and Labor."
See "Landlord and Tenant," $ 5; "Master and Wrongful death of alien, see "Aliens," & 1.

Servant," 88 1, 6.
Co-tenants, see “Partition," § 1.

Particular forms of action.
Partners, see “Partnership,” & 5.

See "Ejectment"; "Replevin"; "Trespass," &

2; "Trover and Conversion." Actions by or against particular classes of parties.

Particular forms of special relief. See “Associations": "Brokers," $ 4; "Carri-See “Account"; "Creditors' Suit"; "Divorce"; ers," 88 1, 2; "Corporations," 8 4; "Executors

1 “Injunction"; "Interpleader"; "Partition," and Administrators," $ 8; Guardian and l; “Specific Performance." Ward," $ 2; "Husband and Wife," $ 4; Alimony, see "Divorce," $ 2. “Landlord and Tenant," 84; "Master and Dissolution of partnership, see "Partnership," Servant," & 7; "Municipal Corporations," 8 $ 5. 5; "Partnership," $ 3; "Physicians and Sur- Enforcement or foreclosure of lien, see "Megeons"; "Principal and Agent," $ 3; "Sher chanics' Liens," $ 2. iffs and Constables," $ 2.

Reformation of written instrument, see "RefAssignees, see “Assignments," $ 2.

ormation of Instruments." Referee, see "Reference." 8 2.

| Removal of personal representative, see "ExSavings bank, see “Banks and Banking," $ 2. ecutors and Administrators," $ 2. Stockholders, see "Corporations," $ 2.

Revocation of liquor tax certificate, see "IntoxTelegraph or telephone company, see "Tele icating Liquors," $ 2. giaphs and Telephones," $ 1.

Separate maintenance of wife, see "Husband Trustees in bankruptcy, see "Bankruptcy," $ 1.

and Wife," $ 5.

Setting aside fraudulent conveyance, see Particular causes or grounds of action. "Fraudulent Conveyances," $ 3. See "Bills and Notes," $ 7; “Fraud," $ 2; Setting aside, satisfaction of mortgage "Insurance," 8 9; "Libel and Slauder," š 1;

"Mortgages," $ 2. "Malicious Prosecution," $ 1; "Negligence,"

Particular proceedings in actions. $ 3; “Nuisance," 1;' "Trespass”; “Trovers and Conversion"; "Work and Labor."

er See “Appearance"; "Continuance"; "Costs”;

"Damages"; _“Depositions"; "Dismissal and Abuse of process, see "Process," $ 3.

Vonsuit"; "Evidence"; "Execution"; "Judg. Accounting by committee of insane person, see ment"; "Judicial Sales"; "Jury"; "Limita"Insane Persons," $ 1.

tion of Actions"; "Motions"; ""Parties”; Breach of contract, see “Contracts," $ 5;

“Pleading"; "Process"; "Reference"; "Stip"Sales," 88 6, 7; "Vendor and Purchaser,"

ulations"; "Trial”; “Venue." $ 2. Breach of warranty, see "Sales," $ 7.

Bill of particulars, see "Pleading," $ 4. · Certified check, see "Banks and Banking," $ 1.

Default, see "Judgment," $ 1. Compensation of brokers, see "Brokers," $ 4.

Notice of action, see “Process," $ 1. Compensation of physician, see “Physicians and Particular remedies in or incident to actions.

Surgeons."
Compensation of referee, see "Reference,"" 2.

See “Arrest," $ 1; "Attachment”; “Discovery";

"Injunction"; "Receivers." Discharge from employment, see "Master and Servant," $ 1.

Proceedings in exercise of special jurisdictions Failure to deliver possession of leased premises, see "Landlord and Tenant,” $ 4.

Courts of limited jurisdiction in general, see Fire caused by operation of railroad, see "Rail

"Courts," $ 2. roads," $ 3.

Criminal prosecutions, see “Criminal Law.” Injuries caused by overflowing of stream, see

"Municipal Corporations,' $ 5. Injuries from use of automobile, see "High

ways," $ 1. Loss of baggage, see "Carriers," & 2. See "Trespass," $ 2. Negligence in transmission of telegram, see "Telegraphs and Telephones," $ 1.

ADEQUATE REMEDY AT LAW. Obstruction of water supply, see "Waters and

Water Courses," 8 1.
Personal injuries, see "Carriers," $ 2: "Land. Effect on jurisdiction of equity, see "Injune

lord and Tenant," 84; "Master and Sery- tion," $ 1; "Specific Performance," $ 1. ant," $ 6; "Municipal Corporations," $ 5;

"Railroads," $ 3; “Street Railroads," $ 2. Price of goods, see “Sales," $ 6.

ADJUDICATION. Recovery of goods delivered by seller, see “Sales," $ 6.

Of courts in general, see “Courts," g 1. Recovery of interest, see "Interest," $ 1. Operation and effect of former adjudication, see Reut, see "Landlord' and Tenant," $ 5.

"Judgment," $ 5.

ACTION ON THE CASE.

ALLOWANCE.

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ADVERSE POSSESSION.

ADMINISTRATION. Of estate of decedent, see "Executors and Ad-Of claims against decedent's estate, see "Exministrators."

|_ecutors and Administrators," $ 5. Of property of insolvent corporation, see "Cor To surviving wife, husband, or children of deporations," $ 5.

cedent, see "Executors and Administrators," Of trust property, see “Trusts,” $ 2.

$ 4. ADMIRALTY.

ALTERATION OF INSTRUMENTS. See “Shipping."

See "Reformation of Instruments."
ADMISSIONS.

AMENDMENT.

On appeal, see "Appeal and Error," $ 8. As evidence in civil actions, see "Evidence,"

of particular legal proceedings. In pleading, see "Pleading," § 1.

See "Judgment," $ 3; "Parties," $ 2; "Plead

ing," $8 2, 5.

Pleading in municipal court, see “Courts," $ 2. See “Limitation of Actions."

AMUSEMENTS.
Of land sold at partition sale, see “Partition," See “Theaters and Shows."
$ 1.
ADVERTISEMENT.

ANIMALS.

See "Game." Publication of process, see “Process," $ 1. It cannot be presumed, from the fact that a

dog was allowed to be at large in a highway,

that its owner knew it was vicious.-Leonard AFFIDAVITS.

v. Donoghue (Sup.) 60. See "Depositions."

ANSWER.
In particular proceedings.
See "Arrest," 81; "Attachment,” 8 1; "Discov- In pleading, see "Pleading," $ 1.

ery," $ 1.
Supplementary proceedings, see “Execution,”

APPEAL. $ 2. Verification of pleading, see “Pleading," $ 3. See "New Trial.”

Appellate jurisdiction of particular courts, see

Courts," $ 3.
AGENCY.

Conclusiveness and effect of stipulations, see

"Stipulations." See “Principal and Agent."

Costs, see "Costs," $ 6.
Review in action' for rent, see "Landlord and

Tenant," $ 5.
AGREEMENT.

Review in criminal prosecutions, see "Criminal

Law," $ 4. See “Contracts.”

Review in habeas corpus proceedings, see "Ha

beas Corpus," $ 1.

Review in proceedings to punish for contempt ALIENS.

of court, see "Contempt," $ 1.

Review of proceedings before justices of the $ 1. Disabilities,

| peace, see "Justices of the Peace," $ 2. Under Code Civ. Proc. $ 1902, an action may be maintained for the wrongful death of a res- | $ 1. Decisions reviewable. ident alien, leaving nonresident alien next of An appeal lies from an order of reference and kin-Tanas v. Municipal Gas Co. of City of from an order denying a motion to vacate the Albany (Sup.) 1053.

order.-Albany Brass & Iron Co. V. Alton (Sup.)

180. Real property within the state passes under the provisions of the will of a foreign testator.

Order denying motion to set aside a judgIn re Barandon's Estate (Sur.) 937.

ment of dismissal and for costs in favor of defendant is appealable, if at all, under Municipal

Court Act, Laws 1902, p. 1563, c. 580, $ 254, ALIMONY.

and leave motion must have been made within

five days from time of rendition of judgment.See "Divorce," § 2.

| Cohen v. Ridgewood Shirt Co. (Sup.) 188.

and 118 New York State Reporter Under Laws 1902, pp. 1562, 1563, 1578, c. The defense of payment, when not pleaded, 580. 88 253–256, 310, regulating appeals from cannot be considered on appeal.-McKean v. the Municipal Court, an order making a party Scott (Sup.) 456. defendant is not appealable.-White v, Lawyers'

Party objecting to a line of incompetent eviSurety Co. (Sup.) 247.

dence held entitled to take advantage of the An order of the Special Term of the City admission of certain prejudicial evidence not Court, denying a motion by appellant to compel specifically objected to.-Winans v. Demarest respondent to accept service of a notice of ap- (Sup.) 504. peal, is appealable, under_Code Civ. Proc. 81 No question is presented for review on appeal 3189.-Masor v. Jacobus (Sup.) 270.

from a judgment entered on a decision containOn entry of an order denying a motion in ing separate conclusions of fact and of law, general terms, the court cannot be compelled to when no exceptions were taken.--Dunleavey .

that the motion was denied for want of | Dunleavey (Sup.) 562. jurisdiction.-Hall v. Redington (Sup.) 279. By moving for directed verdict and except

ing to direction for opposite party, defendant No appeal lies from an order of the trial court

held precluded from urging on appeal the right dismissing a complaint.-Kromback v. Pennsyl

to go to the jury.-Dearman v. Marshall (Sup.) vania Steel Co. (Sup.) 297.

705. Papers on appeal from an order vacating a Where an order for change of venue was judgment held to show that the order was not' granted on one ground, other grounds, on apone opening a default, so as to be nouappeal- peal from such order, are immaterial.-Quinn able, but was a vacation of the judgment, ap- v. Brooklyn Heights R. Co. (Sup.) 738. pealable under Municipal Court Act, Laws 1902, p. 1563, c. 580, $ 257.-Department of Health § 4. Requisites and proceedings for of City of New York v. Babcock (Sup.) 604.

transfer of cause.

A sufficient notice of appeal was not rendered $ 2. Right of review.

ineffectual because it contained a notice that apA receiver of a corporation is not entitled to pellant intended to bring up for review another appeal from so much of an order refusing to order in the action.--Masor v. Jacobus (Sup.) discharge him as grants leave to renew the mo- 270. tion.-Union Surety & Guaranty Co. v. Greater Under Code Civ. Proc. $ 1301, an appellant New York Amusement Co. (Sup.) 286.

I held not entitled, on appeal from a final judgWhere defendant admitted his liability for

for ment, to review an interlocutory order.-H. goods sued for, and, on a levy being made, Loebler & Co.

Koehler & Co. v. Brady (Sup.) 457. promptly paid the judgment, an appeal there-! 8 5. Record and proceedings not in recfrom was without merit.-Jouda v. Kaplan"

ord. (Sup.) 863.

1 An order refusing to resettle a case on an $ 3. Presentation and reservation in ?

om in appeal held not reversible, on conflicting affilower court of grounds of review.

davits and the negative evidence of stenog

rapher's minutes.-Wallace v. Metropolitan St. Objection, in an action for divorce, that the R

the Ry, Co. (Sup.) 253. wife was incompetent, under Code Civ. Proc. $ 831, to testify concerning the husband's prop-'

the husband's pron: An affidavit that demand for transfer was erty and income, cannot be made for the first made will not prevail on appeal; the record not time on appeal.-Valentine v. Valentine (Sup.). showing the demand, and the trial court har37.

ing decided it was not made.-Fischer v. Brook

lyn Heights R, Co. (Sup.) 254. The report of a referee, appointed in a proceeding for the dissolution of a corporation, not

1 Whether certain items in a counterclaim only to take proof and report, with his opinion,

his oninion should have been allowed will not be reviewed, as to claims for costs, expenses, and counsel where it does not affirmatively appear that the fees. but to admit and reject creditors' claims. verdict included such items.-Page v. Brummer can only be reviewed on exceptions.-People v. (Sup.) 268. American Loan & Trust Co. (Sup.) 114; In re The Supreme Court, on appeal, cannot take Simmons, Id.

cognizance of the decision of the court beWhere no exception was taken to any admis-, low, not contained in the record.—Sommer v. sion or exclusion of evidence, objection cannot Sommer (Sup.) 444. be raised on appeal.-Huck v. Bischoff (Sup.) An order denying resettlement of the case 173.

on appeal may be reversed; there being no Judgment for defendant will not be reversed dispute as to the facts, and the matters desired because had plaintiff sued on another theory. I to be inserted being material.-Marjulies V. he could have recovered.-Twelfth Ward Bank

Goldstein (Sup.) 475. v. Cohen (Sup.) 310.

Where the return on appeal from a judgment Objection to a verification, that the jurat did

ia of the Municipal Court did not contain the comnot show the petition was sworn to, but mere

plaint or testimony, the merits could not be rely that it was subscribed, before the surrogate,

viewed.-O'Brien v. Kuntz (Sup.) 535. cannot be made for the first time on appeal. On appeal from an order denying a motion for In re Mahoney's Estate (Sup.) 329.

retaxation of costs, the record must show what

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