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EWES, Respondent, v. NORTH GER- | against the American Law Book Company. No N LLOYD S. S. CO., Appellant. (Supreme opinion. Order affirmed, with $10 costs and rt, Appellate Division, Second Department. disbursements. il 28, 1905.) Action by Emma Tewes nst the North German Lloyd Steamship pany. No opinion. Judgment and order med, with costs.

EWES, Respondent, v. NORTH GERMAN YD S. S. CO., Appellant. (Supreme rt, Appellate Division, Second Department. 1 28, 1905.) Action by Theodore Tewes nst the North German Lloyd Steamship pany. No opinion. Judgment and order med, with costs.

TORY, Appellant, v. LINDSEY et al., ondents. (Supreme Court, Appellate Din, Second Department. April 21, 1905.) ou by Emma Thory (formerly Emma Lindagainst Thomas Lindsey, Harry Beeton, Louise Beeton. No opinion. Judgment ned, with costs.

GHE, Respondent, v. O'REILLY, Appel(Supreme Court, Appellate Division, First artment. April 20, 1905.) Action by EmF. Tighe against Thomas J. O'Reilly. J. Halsey, for appellant. J. E. Kelly, for redent.

CR CURIAM. Judgment reversed, and trial ordered, costs to appellant to abide t, unless plaintiff stipulates to reduce judgt as entered, including costs, etc., to the of $1,655.79, in which event, judgment, o modified, and order, affirmed, without

SDALE, Appellant, v. KARNS, Respond(Supreme Court, Appellate Division, First artment. April 20, 1905.) Action by EdI W. Tisdale against Benjamin F. Karus. M. Williams, for appellant. A. Ritchie, respondent. No opinion. Order affirmed, $10 costs and disbursements.

SDALE v. KARNS. (Supreme Court, Apte Division, First Department. May 20, ) Action by Edward W. Tisdale against amin F. Karns. No opinion. Motion dewith $10 costs.

MPKINS et al., Respondents, v. FONDA VE LINING CO., Appellant. (Supreme Appellate Division, Third Department. 3, 1905.) Action by Albert Tompkins and er against the Fonda Glove Lining ComNo opinion. Judgment and order unaniIy affirmed, with costs.

UMBULL, Respondent, v. PALMER et Appellants. (Supreme Court, Appellate on, Second Department. May 5, 1905.) n by Lena M. Trumbull against F. B. er. as president, etc., and others. No opinMotion denied.

DERHILL, Respondent, v. AMERICAN BOOK CO., Appellant. (Supreme Court, late Division, Second Department. April 1905.) Action by Harry C. Underhill

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UNDERWOOD et al., Respondents, V. GREENWICH INS. CO., Appellant. preme Court, Appellate Division, First Department. April 20, 1905.) Action by William J. Underwood and others against the Greenwich Insurance Company. J. Notman, for appellant. G. Richards, for respondents. No opinion. Judgment affirmed, with costs.

In re VAN WINKLE. (Supreme Court, Appellate Division, Second Department. April 28, 1905.) In the matter of the application of Kingsland Van Winkle for admission to the bar. No opinion. Application granted.

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VAN ZANDT, Respondent, v. NEW YORK CITY RY. CO., Appellant (five cases). (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Actions by Frederick N. Van Zandt against the New York City Railway Company. No opinion. Reargument ordered, and cases set down for June 7, 1905.

VERNON, Respondent, v. METROPOLITAN FIRE PROOFING CO., Appellant. (Supreme Court, Appellate Division, First Department. April 7, 1905.) Action by David Vernon against the Metropolitan Fire Proofing Company. H. B. Closson, for appellant. E. Crandall, for respondent.

PER CURIAM. Order affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., and LAUGHLIN, J., dissent.

VERNON V. METROPOLITAN FIRE PROOFING CO. (Supreme Court, Appellate Division, First Department. May 12, 1905.) Action by David Vernon against the Metropolitan Fire Proofing Company. No opinion. Motion denied, with $10 costs.

VILLANI, Appellant. v. ERIE R. CO.. Respondent. (Supreme Court, Appellate Division, First Department. April 20, 1905.) Action by Benedetto Villani against the Erie Railroad Company. H. Hindes, for appellant. F. B. Jennings, for respondent. No opinion. Exceptions overruled, and judgment ordered dismissing complaint, with costs.

VILLAUME, Appellant, v. CITY OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division. First Department. May 20, 1905.) Action by Henry Villaume against the city of New York and another. J. W. Bryant, for appellant. W. D. Gaillard, for respondents. No opinion. Judgment affirmed, with costs.

VINGUT et al. v. KETCHAM et al. (Supreme Court, Appellate Division, Second Department. May 5, 1905.) Action by George F. Vingut and Henry K. Vingut, as trustees, etc., against James W. Ketcham and others.

PER CURIAM. Motion to open default granted, on condition that the appellant perfect his appeal within 10 days, and give an undertak

and 127 New York State Reporter

ing, with an approved surety company as sure- | George W. Sickels against Joseph Ster No ty, to pay the costs of the appeal in the event opinion. Judgment and order unanimewaly afof an affirmance of the judgment. If these con- firmed, with costs. ditions are not complied with, the motion is denied, with $10 costs.

VOLLHART, Appellant, v. SEARLES, Respondent. (Supreme Court, Appellate Division, First Department. April 20, 1905.) Action by Rosina Vollhart against James H. Searles. C. E. Thornall, for appellant. F. H. Kellogg, for respondent. No opinion. Judgment affirmed, with costs.

WALSH, Respondent, v. FISHERIES CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by Jeremiah Walsh against the Fisheries Com

pany.

PER CURIAM. Judgment and order affirmed, with costs.

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WASHINGTON v. THOMAS et
DEN v. SAME. KNIGHT & WALL 00. v.
SAME. (Supreme Court, Appellate Divisiez
First Department. May 12, 1905.) Actions g
C. S. Washington, by one Virden, and by the
Knight & Wall Company against Orlando F.
Thomas and another. No opinion. Motions -
nied, with $10 costs in one case.

WASSERMAN, Appellant, v. BACON
spondent. (Supreme Court, Appellate Divis
Second Department. May 12, 1905.) Action y
Benoit Wasserman against Charles P. Beck.
No opinion. Judgment and order affirmed,

costs.

WATERMAN, Appellant, v. LEHIGH VA JENKS, J., dissents. LEY R. CO., Respondent. (Supreme Co Appellate Division, Third Department WANAMAKER et al. v. MEGRAW. (Su-3, 1905.) Action by Albert Waterman ag preme Court, Appellate Division, First Depart- the Lehigh Valley Railroad Company, No ment. April 14, 1905.) Action by John Wana-ion. Judgment and order unanimously až maker and others against Robert H. Megraw. with costs. No opinion. Motion for leave to appeal granted.

WANAMAKER, Respondent, v. POWERS, Appellant. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by John Wanamaker against Thomas J. Powers, Jr. No opinion. Motion denied.

WANAMAKER, Respondent, v. POWERS, Appellant. (Supreme Court, Appellate Division, Second Department. May 5. 1905.) Action by John Wanamaker against Thomas J. Powers, Jr. No opinion. Motion denied.

WARNER, Respondent, v. VERMEULE, Appellant. (Supreme Court, Appellate Division, First Department. May 5, 1905.) Action by William C. Warner against John D. Vermeule. W. H. Russell, for appellant. H. E. Deming, for respondent. No opinion. Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer, on payment of costs in this court and in the court below.

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WEBB, Appellant, v. RAPP, Respond (Supreme Court, Appellate Division. Frá Department. May 10, 1905.) Action by Ja Webb against Peter Rapp. No opinion. Appe dismissed, without costs, on stipulation.

WEILER, Appellant, v. NEW YORK MEL CANTILE EXCH., Respondent. (Sup Court, Appellate Division, First Departme May 5, 1905.) Action by Katherine Weller s administratrix, against the New York Merc tile Exchange. T. J. O'Neill, for appelant Notman, for respondent. No opinion. Jos ment affirmed, with costs.

WEIR et al. v. BARKER. (Supreme Com Appellate Division, Second Department r 12, 1905.) Action by John R. Weir and Fr erick Weir, composing the firm of James Wer Sons, against Frances E. Barker, trustee the will of Charles Barker, deceased.

PER CURIAM. The order must be stra in accordance with the decision; but the dign ant may have an order of this court pr that her right to appeal to the Court of App shall not be affected by the payment of pending such appeal. The time to apply f appointment of a referee will be contite cordingly. Order to be settled before MI LER, J.

WELLING, Appellant, v. MAN, Re (Supreme Court, Appellate Division, Fis partment. April 20, 1905.) Action by Cra C. Welling against Alrick H. Man. P. E Jes for appellant. L. L. Delafield, for respondent, No opinion. Order affirmed, with $10 costs disbursements.

WEMPLE, Respondent, V. FEDERAL STOCK & GRAIN CO. OF NEW YORK, AP pellant. (Supreme Court, Appellate Division. Third Department. May 3, 1905.) Action

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VERNER CO. v. BONNELL et al. (Su- YOUNG, Respondent, v. NEW YORK CITY me Court, Appellate Division, First Depart- RY. CO., Appellant. (Supreme Court, Appelnt. April 14, 1905.) Action by the Werner late Term. May 29, 1905.) Appeal from Mumpany against J. Harper Bonnell and oth-nicipal Court, Borough of Manhattan. Action No opinion. Motion granted, so far as to by Samuel T. Young against the New York City miss appeal, with $10 costs. Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. William E. Weaver, for appellant. Carruth, Ziegler & Carruth, for respondent.

VHITE v. DAVENPORT et al. (Supreme irt, Appellate Division, Second Department. ril 21, 1905.) Action by Josiah J. White inst William B. Davenport and others. No nion. Motion denied, and stay vacated.

WHITNEY, Respondent, v. JOSEPH H. ULAND CO., Appellant. (Supreme Court, pellate Division, Second Department. April 1995.) Action by Sarah J. Whitney against Joseph H. Bauland Company. No opinion. gment and order unanimously affirmed, with

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VIIITNEY, Respondent, v. JOSEPH H. ULAND CO., Appellant. (Supreme Court. pellate Division, Second Department. April 1905.) Action by William A. Whitney inst the Joseph H. Bauland Company. No nion. Judgment and order unanimously afned, with costs.

nre WILDER et al. (Supreme Court, Apate Division, Fourth Department. May 10, 5.) In the matter of the application of ank P. Wilder and the Carthage Sulphite ip Company for the appointment of com. sioners to assess damages of riparian ownon Deer river, etc.

ER CURIAM. Order reversed, with $10 ts and disbursements, and motion denied, h $10 costs. Held that, without in any manpassing on the merits of the award herein, Boes not seem necessary, upon the facts dissed by the record in this proceeding, to send report back to the commissioners to have deed findings made by them.

WILLSEN V. METROPOLITAN ST. R. -(Supreme Court, Appellate Division, First

PER CURIAM. We are of the opinion that none of the exceptions were well taken. The objection on page 5 of the stenographer's minutes appears to have been made after the question had been asked and answered; and, moreover, under the circumstances disclosed by the evidence in the case, the plaintiff was entitled to recover, as one of the elements of the damages sustained by him, the amount paid by him for a wagon to take the place of the wagon destroyed by the defendant. The evidence warrants the finding of the justice. Judgment af firmed, with costs.

CONGER, Respondent, v. CONGER et al., Appellants. (Supreme Court, Appellate Division, First Department. December, 1904.) Action by Clarence R. Conger, as trustee under the last will and testament of Catherine Ann Hedges, deceased, against Theodore H. Conger and others. Judgment modified as directed in opinion, and, as modified, affirmed, without costs. Opinion by PATTERSON, J., in which O'BRIEN and LAUGHLIN, JJ., concur, withheld from publication by direction of the court. VAN BRUNT, P. J., and HATCH, J., dissent. Motion for reargument pending.

GOWANS et al., Appellants, v. JOBBINS, Respondent. (Supreme Court, Appellate Division, Fourth Department. January, 1905.) Action by John Gowans and others against Frances H. Jobbins, as ancillary executrix of William F. Jobbins, deceased.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, unless the defendant comply with the conditions contained in the per curiam memo

and 127 New York State Reporter

randum herewith filed with the clerk, in which event said order will be modified in conformity with said memorandum, and, as so modified, affirmed, with $10 costs and disbursements to the appellants.

PEOPLE ex rel. SALLADIN et al., Respondents, v. CITY OF OSWEGO et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January, 1905.) Proceedings by the people of the state of New York, on the relation of Anthony Salladin, Jr., and others, against the city of Oswego, N. Y., and the department of works of the city of Oswego, N. Y.

PER CURIAM. Order reversed, with cos and application for writ denied, with t Held, that the relators did not establish y such clear right upon the law and facts be entitled to a peremptory writ.

WARNER v. THOMPSON et al. Some Court, Appellate Division, First Departeeta May 5, 1905.) Action by William C. Warr against Edward Thompson and others. From a judgment overruling a demurrer to the plaint, defendants appeal. Reversed. John L Hill, for appellants. Horace E. Deming, for respondent. No opinion. Judgment armed

END OF CASES IN VOL. 93.

INDEX.

ABANDONMENT.

demised premises, see "Landlord and Ten-
nt," § 3.

street railroad franchise, see "Street Rail-
oads," § 1.

ABATEMENT.

nuisance, see "Nuisance," § 1.

ABATEMENT AND REVIVAL.

Igment as bar to another action, see "Judg-
ent," § 6.

ht of action by or against personal repre-
entative, see "Executors and Administra-
ors," § 3.

. Death of party and revival of ac-
tion.

an action to set aside plaintiffs' transfer
his interest in a copartnership, held, that the
on should have been revived against the
resentatives of one of the new partners,
o died after joinder of issue.-Hausling v.
infrank (Sup.) 121.

nder Code Civ. Proc. §§ 757, 765, the re-
of a referee stating the account of an as-
ee for the benefit of creditors cannot be
I after the assignee's death and before his
onal representative is made a party.-In re
able (Sup.) 1074.

eneral Assignment Act, Laws 1877, p. 545,
166, § 10, gives the referee appointed to
e the account of an assignee no authority
erform any act after the death of the as-
ee and before his personal representative
uccessor in interest is substituted.-In re
able (Sup.) 1074.

here a report of a referee appointed to
e the account of an assignee for the benefit
reditors was filed after the death of the as-

ABUTTING OWNERS.

See "Navigable Waters," § 1.
Assessments for expenses of public improve
ments, see "Municipal Corporations," § 2.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," § 3.

Rights in streets in cities, see "Municipal Cor-
porations," § 3.

ACCEPTANCE.

Of goods sold in general, see "Sales," § 4.
Of goods sold within statute of frauds, see
"Frauds, Statute of," § 2.

ACCIDENT.

Cause of personal injuries, see "Negligence,"
§ 1.

ACCORD AND SATISFACTION.

See "Compromise and Settlement"; "Pay-
ment"; "Release."

ACCOUNT.

See "Account Stated."

Accounting between partners, see "Partner-
ship," § 5.
Accounting by executor or administrator, see
"Executors and Administrators," § 4.
Accounting by receiver, see "Receivers," § 4.
§ 1. Right of action and defenses.
Complaint alleging defendants' violation of
an agreement to procure letters patent for plain-
tiff and a conspiracy between defendants to
prevent the grant of such letters held not to
state facts sufficient to entitle plaintiff to an
accounting.-Griffith v. Dodgson (Sup.) 155.

ee and before his personal representative
been made a party, the subsequent appoint-
t of the representative of the deceased as-
e's estate in place of the assignee did not
Hate the report. In re Venable (Sup.) 1074. | Merger and bar of causes of action in judg-

ABSENCE.

ension of running of statute of limitation,
"Limitation of Actions," § 2.

ABUSE OF PROCESS.

"Process," § 2.

93 N.Y.S.-73

ACCOUNT STATED.

ment, see "Judgment," § 6.

Retention without answer of bill rendered
held not to create a liability for the occupa-
tion of premises on the theory of an account
stated. Benedict v. Jennings (Sup.) 464.

In an action on an account stated, evidence
held insuflicient to justify a finding that an ac-
count was stated.-Pavero v. Howard (Sup.)
1115.

(1153)

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