INDEX. ABANDONMENT. Of attachment, see "Attachment," § 2. ABATEMENT. Pleas in abatement, see "Pleading," § 1. ABATEMENT AND REVIVAL. Election of remedy, see "Election of Remedies." Judgment as bar to another action, see "Judgment," § 5. Pleas in abatement, see "Pleading," § 1. Right of action by or against personal representative, see "Executors and Administrators." § 8. Substitution of parties, see "Parties," § 1. § 1. Another action pending. Defense of another action pending held not affected by a defect in complaint in such other action, where such defect was waived by failure to demur.-Romaine v. New York, N. H. & H. R. Co. (Sup.) 491. an accord and satisfaction. · Mack v. Miller (Sup.) 440. Facts held to show an accord and satisfaction.-Laroe v. Sugar Loaf Dairy Co. (Sup.) 609. Where defendant in good faith disputed the amount due under a contract with plaintiffs, plaintiffs' claim was not liquidated, so as to prevent the acceptance of a check, sent with a statement that it was to be in full, from operating as a satisfaction of plaintiffs' claim.-— Laroe v. Sugar Loaf Dairy Co. (Sup.) 609. Where a creditor had actual knowledge that a check sent by the debtor was regarded as in full satisfaction of the debt, the fact that the creditor did not read a statement to that effect, sent with the check, did not prevent acceptance of the check from operating to discharge the entire debt.-Laroe v. Sugar Loaf Dairy Co. (Sup.) 609. Where creditor accepts a check tendered as payment in full and retains the proceeds, there is an accord and satisfaction.-De Lovenzo v. Hughes (Sup.) 857. ACCOUNT. Accounting between partners, see "Partnership," § 5. Accounting by committee of insane person, see "Insane Persons," § 1. Accounting by executor or administrator, see "Executors and Administrators," § 9. § 1. Proceedings and relief. 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. ACCEPTANCE. Of goods sold in general, see "Sales," § 3. ACCORD AND SATISFACTION. See "Compositions with Creditors"; "Compromise and Settlement"; "Payment"; "Release." Acceptance of a check for an amount less than the bill claimed to be owing by plaintiff from defendant held not an accord and satisfaction of the account.-Terry & Tench Const. Co. v. Leeson (Sup.) 267. The acceptance of a check by a creditor, accompanied by a letter from the debtor, held not 84 N.Y.S.-73 ACKNOWLEDGMENT. Operation and effect of admissions as evidence, see "Evidence," § 4. (1153) and 118 New York State Reporter Review of proceedings, see "Appeal"; "Judg-| Rescission of contract for insurance, see "Insurment,' 84; "Justices of the Peace," § 2: "New Trial." Actions between parties in particular relations. Co-tenants, see "Partition," § 1. See "Associations"; "Brokers," § 4; "Carri- Particular causes or grounds of action. See "Bills and Notes," § 7; "Fraud," § 2; "Insurance," § 9; "Libel and Slander.' § 1; "Malicious Prosecution," § 1; "Negligence,' § 3; "Nuisance," § 1; "Trespass"; "Trover and Conversion"; "Work and Labor." Abuse of process, see "Process," § 3. Accounting by committee of insane person, see "Insane Persons," § 1. Breach of contract, see "Contracts," § 5; "Sales," §§ 6, 7; "Vendor and Purchaser," § 2. Breach of warranty, see "Sales." § 7. Compensation of referee, see "Reference," § 2. Discharge from employment, see "Master and Servant," § 1. Failure to deliver possession of leased premises, see "Landlord and Tenant," § 4. Fire caused by operation of railroad, see "Railroads," § 3. Injuries caused by overflowing of stream, see "Municipal Corporations," § 5. Injuries from use of automobile, see "Highways," § 1. see Loss of baggage, see "Carriers," § 2. Personal injuries, see "Carriers," § 2; "Land- Recovery of interest, see "Interest," § 1. ance," § 3. Sale of decedent's estate, see "Executors and Services, see "Work and Labor." Particular forms of special relief. See "Account"; "Creditors' Suit"; "Divorce"; "Injunction"; "Interpleader"; "Partition," § 1; "Specific Performance." Alimony, see "Divorce," § 2. Dissolution of partnership, see "Partnership," § 5. Enforcement or foreclosure of lieu, see "Mechanics' Liens," § 2. Reformation of written instrument, see "Reformation of Instruments." Removal of personal representative, see "Executors and Administrators," § 2. Revocation of liquor tax certificate, see "Intoxicating Liquors," § 2. Separate maintenance of wife, see "Husband and Wife," § 5. see Setting aside fraudulent conveyance, "Fraudulent Conveyances," § 3. Setting aside satisfaction of mortgage, see "Mortgages," § 2. Particular proceedings in actions. See "Appearance"; "Continuance"; "Costs"; "Damages"; "Depositions"; "Dismissal and Nonsuit"; "Evidence"; "Execution"; "Judg ment"; "Judicial Sales"; "Jury"; "Limitation of Actions"; "Motions": "Parties"; "Pleading"; "Process": "Reference"; "Stipulations"; "Trial"; "Venue." Bill of particulars, see "Pleading," § 4. Particular remedies in or incident to actions. See "Arrest," § 1; "Attachment"; "Discovery"; "Injunction"; "Receivers." Courts of limited jurisdiction in general, see ACTION ON THE CASE. See "Trespass," § 2. ADEQUATE REMEDY AT LAW. Effect on jurisdiction of equity, see "Injunetion," § 1; "Specific Performance," § 1. ADJUDICATION. Of courts in general, see "Courts." § 1. Operation and effect of former adjudication, see "Judgment," § 5. Of land sold at partition sale, see "Partition," See "Theaters and Shows." § 1. ADVERTISEMENT. Publication of process, see "Process," 1. AFFIDAVITS. See "Depositions." In particular proceedings. See "Game." ANIMALS. 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 v. Donoghue (Sup.) 60. ANSWER. See "Arrest," § 1; "Attachment," § 1; "Discov- In pleading, see "Pleading," § 1. ery," 1. Supplementary proceedings, see "Execution," § 2. Verification of pleading, see "Pleading," 3. AGENCY. See "Principal and Agent." AGREEMENT. See "Contracts." ALIENS. § 1. Disabilities. Under Code Civ. Proc. § 1902, an action may be maintained for the wrongful death of a resident alien, leaving nonresident alien next of kin.-Tanas v. Municipal Gas Co. of City of Albany (Sup.) 1053. Real property within the state passes under the provisions of the will of a foreign testator.In re Barandon's Estate (Sur.) 937. ALIMONY. See "Divorce," § 2. See "New Trial." APPEAL. Appellate jurisdiction of particular courts, see "Courts," § 3. Conclusiveness and effect of stipulations, see "Stipulations." Costs, see "Costs," § 6. Review in action for rent, see "Landlord and Review in criminal prosecutions, see "Criminal Review in habeas corpus proceedings, see "Ha- Review in proceedings to punish for contempt § 1. Decisions reviewable. An appeal lies from an order of reference and from an order denying a motion to vacate the order.-Albany Brass & Iron Co. v. Alton (Sup.) 180. Order denying motion to set aside a judgment 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, and leave motion must have been made within five days from time of rendition of judgment.Cohen v. Ridgewood Shirt Co. (Sup.) 188. and 118 New York State Reporter Under Laws 1902, pp. 1562, 1563, 1578, c. 580, §§ 253-256, 310, regulating appeals from the Municipal Court, an order making a party defendant is not appealable.-White v. Lawyers' Surety Co. (Sup.) 247. An order of the Special Term of the City Court, denying a motion by appellant to compel respondent to accept service of a notice of appeal, is appealable, under Code Civ. Proc. § 3189.-Masor v. Jacobus (Sup.) 270. On entry of an order denying a motion in general terms, the court cannot be compelled to state that the motion was denied for want of jurisdiction.-Hall v. Redington (Sup.) 279. No appeal lies from an order of the trial court dismissing a complaint.-Kromback v. Pennsylvania Steel Co. (Sup.) 297. Papers on appeal from an order vacating a judgment held to show that the order was not one opening a default, so as to be nouappealable, but was a vacation of the judgment, appealable under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 257.-Department of Health of City of New York v. Babcock (Sup.) 604. 2. Right of review. A receiver of a corporation is not entitled to appeal from so much of an order refusing to discharge him as grants leave to renew the motion.-Union Surety & Guaranty Co. v. Greater' New York Amusement Co. (Sup.) 286. Where defendant admitted his liability for goods sued for, and, on a levy being made, promptly paid the judgment, an appeal therefrom was without merit.-Jouda v. Kaplan (Sup.) 863. § 3. Presentation and reservation in lower court of grounds of review. Objection, in an action for divorce, that the wife was incompetent, under Code Civ. Proc. § 831, to testify concerning the husband's property and income, cannot be made for the first time on appeal.-Valentine v. Valentine (Sup.) 37. The report of a referee, appointed in a proceeding for the dissolution of a corporation, not only to take proof and report, with his opinion, as to claims for costs, expenses, and counsel fees, but to admit and reject creditors' claims, can only be reviewed on exceptions.-People v. American Loan & Trust Co. (Sup.) 114; In re Simmons, Id. Where no exception was taken to any admission or exclusion of evidence, objection cannot be raised on appeal.-Huck v. Bischoff (Sup.) 173. Judgment for defendant will not be reversed because, had plaintiff sued on another theory, he could have recovered.-Twelfth Ward Bank v. Cohen (Sup.) 310. Objection to a verification, that the jurat did not show the petition was sworn to, but merely that it was subscribed, before the surrogate, cannot be made for the first time on appeal.In re Mahoney's Estate (Sup.) 329. The defense of payment, when not pleaded, cannot be considered on appeal.-McKean v. Scott (Sup.) 456. Party objecting to a line of incompetent evidence held entitled to take advantage of the admission of certain prejudicial evidence not specifically objected to.-Winans v. Demarest (Sup.) 504. No question is presented for review on appeal from a judgment entered on a decision containing separate conclusions of fact and of law, when no exceptions were taken.-Dunleavey v. Dunleavey (Sup.) 562. By moving for directed verdict and excepting to direction for opposite party, defeudant held precluded from urging on appeal the right to go to the jury.-Dearman v. Marshall (Sup.) 705. Where an order for change of venue was granted on one ground, other grounds, on appeal from such order, are immaterial.-Quinn v. Brooklyn Heights R. Co. (Sup.) 738. § 4. Requisites and proceedings for transfer of cause. A sufficient notice of appeal was not rendered ineffectual because it contained a notice that appellant intended to bring up for review another order in the action.-Masor v. Jacobus (Sup.) 270. Under Code Civ. Proc. § 1301, an appellant held not entitled, on appeal from a final judg ment, to review an interlocutory order.-H. Koehler & Co. v. Brady (Sup.) 457. § 5. Record and proceedings not in record. An order refusing to resettle a case on an appeal held not reversible, on conflicting affidavits and the negative evidence of stenographer's minutes.-Wallace v. Metropolitan St. Ry. Co. (Sup.) 253. An affidavit that demand for transfer was made will not prevail on appeal; the record not showing the demand, and the trial court haying decided it was not made.-Fischer v. Brooklyn Heights R. Co. (Sup.) 254. Whether certain items in a counterclaim should have been allowed will not be reviewed. where it does not affirmatively appear that the verdict included such items.-Page v. Brummer (Sup.) 268. The Supreme Court, on appeal, cannot take cognizance of the decision of the court below, not contained in the record.-Sommer v. Sommer (Sup.) 444. An order denying resettlement of the case on appeal may be reversed; there being no dispute as to the facts, and the matters desired to be inserted being material.-Marjulies v. Goldstein (Sup.) 475. Where the return on appeal from a judgment plaint or testimony, the merits could not be reof the Municipal Court did not contain the com viewed. O'Brien v. Kuntz (Sup.) 535. On appeal from an order denying a motion for retaxation of costs, the record must show what |