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V.

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 ist, Appellate Division, Second Department. disbursements. il 28, 1905.) Action by Emma Tewes inst the North German Lloyd Steamship UNDERWOOD et al., Respondents, apany. No opinion. Judgment and order GREENWICH INS. CO., Appellant. '(Sumed, with costs.

preme Court, Appellate Division, First Depart

ment. April 20, 1905.) Action by William J. EWES, Respondeut, v. NORTH GERMAN Underwood and others against the Greenwich OYD S. S. CO., Appellant. (Supreme Insurance Company, J. Votman, for appelrt, Appellate Division, Second Department. lant. G. Richards, for respondents. No opinil 28, 1905.) Action by Theodore Tewes ion. Judgment affirmed, with costs. inst the North German Lloyd Steamship pany. No opinion. Judgment and order In re VAN WINKLE. (Supreme Court, Apmed, with costs.

pellate Division, Second Department. April 28,

1905.). In the matter of the application of HORY, Appellant, v. LINDSEY et al., Kingsland Van Winkle for admission to the pondents. (Supreme Court, Appellate Di- bar. No opinion. Application granted. in, Second Department. April 21, 1905.) on by Emma Thory (formerly Emma Lind VAN ZANDT, Respondent, V. NEW YORK against Thomas Lindsey, Harry Beeton, CITY RY. CO., Appellant (five cases). (SuLouise Beeton. No opinion. Judgment preme Court, Appellate Division, Second Demed, with costs.

partment. May 12, 1905.) Actions by Fred

erick N. Van Zandt against the New York City GAE, Respondent, v. O'REILLY, Appel- Railway Company. No opinion. Reargument

(Supreme Court. Appellate Division, First ordered, and cases set down for June 7, 1905. artment. April 20, 1905.) Action by EmF. Tighe against Thomas J. O'Reilly. J. VERNON, Respondent, v. METROPOLITAN Ialsey, for appellant. J. E. Kelly, for re- FIRE PROOFING CO., Appellant. (Supreme dent.

Court, Appellate Division, First Department. CR CURIAM. Judgment reversed, and April 7, 1905.) Action by David Vernon against trial ordered, costs to appellant to abide the Metropolitan Fire Proofing Company. H. t, unless plaintiff stipulates to reduce judg- B. Closson, for appellant. E. Crandall, for retas entered, including costs, etc., to the spondent.

of $1,655.79, in which event, judgment, PER CURIAM. Order affirmed, with $10 o modified, and order, affirmed, without costs and disbursements. to

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

dissent. SDALE, Appellant, v. KARNS, Respond(Supreme Court, Appellate Division, First VERNON METROPOLITAN FIRE Irtment. April 20, 1905.). Action by Ed- | PROOFING CO. (Supreme Court, Appellate | W. Tisdale against Benjamin F. Karns. Division, First Department. May 12, 1905.) M. Williams, for appellant. A. Ritchie, Action by David Vernon against the Metrorespondent. No opinion. Order affirmed, politan Fire Proofing Company. No opinion. $10 costs and disbursements.

Motion denied, with $10 costs. SDALE v. KARNS. (Supreme Court, Ap VILLANI. Appellant, v. ERIE R. CO., Rete Division, First Department. May 20, sponclent. (Supreme Court, Appellate Division, .) Action by Edward W. Tisdale against First Department. April 20, 1905.) Action by amin F. Karns. No opinion. Motion de Benedetto Villani against the Erie Railroad with $10 costs.

Company. H. Hindes, for appellant. F. B. Jen

nings, for respondent. No opinion. Exceptions MPKINS et al., Respondents, v. FONDA overruled, and judgment ordered dismissing VE LINING CO., Appellant. (Supreme complaint, with costs. t, Appellate Division, Third Department. 3, 1905.) Action by Albert Tompkins and VILLAUME, Appellant, v. CITY OF NEW her against the Fonda Glove Lining Com- | YORK et al., Respondents. (Supreme Court,

No opinion.. Judgment and order unani- Appellate Division, First Department. May 20, ly affirmed, with costs.

1905.) Action by Henry Villaume against the

city of New York and another. J. W. Bryant, LUMBULL, Respondent, F. PALMER et for appellant. W. D. Gaillard, for respondents. Appellants. (Supreme CourtAppellate No opinion. Judgment affirmed, with costs. ion, Second Department. May 5, 190.5.) on by Lena M. Trumbull against F. B. VINGUT et al. v. KETCHAM et al. (Suier, as president, etc., and others. No opin- preme Court. Appellate Division, Second DeMotion denied.

partment. May 5, 1905.) Action by George F.

Vingut and Henry K. Vingut, as trustees, etc., DERHILL, Respondent, r. AMERICAN against James W. Ketcham and others. | BOOK CO., Appellant. (Supreme Court, PER CURIAM. Motion to open default grantJlate Division, Second Department. April ed, on condition that the appellant perfect his 1903.) Action by Harry C. Underhill 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 Stones ty, to pay the costs of the appeal in the event opinion. Judgment and order unanimuat of an affirmance of the judgment. If these confirmed, with costs. ditions are not complied with, the motion is denied, with $10 costs.

WASHINGTON V. THOMAS et TIE

DEN V. SAME. KNIGHT & WALL 0.1 VOLLHART, Appellant, v. SEARLES, Re- SAME. (Supreme Court, Appellate Direct spondent. (Supreme Court, Appellate Division, First Department. May 12, 1905.) Artis ! First Department. April 20, 1903.) Action by C. S. Washington, by one Virden, and on Rosina Vollhart against James H. Searles. C. Knight & Wall Company against 0:landa I E. Thornall, for appellant. F. H. Kellogg, for Thomas and another. So opinion. Vodots 2 respondent. No opinion. Judgment atfirmed, nied, with $10 costs in one case. with costs.

WASSERMAN, Appellant, v. BACON 2 WALSH, Respondent, v. FISHERIES CO., spondent. (Supreme Court, Appellate Dios! Appellant. '(Supreme Court, Appellate Division, Second Department. May 12, 1905.) Acta Second Department. April 21, 1905.) Action by Benoit Wasserman against Charles P. EJeremiah Walsh against thé Fisheries Com. No opinion. Judgment and order afirmed. pany.

costs. PER CURIAM. Judgment and order affirmed, with costs.

WATERMAN, Appellant, , LEHIGH TL JENKS, J., dissents.

LEY R. CO., Respondent. (Supreme Cor

Appellate Division, Third Departınel L WANAMAKER et al. V. MEGRAW. (Su-3, 1905.), Action by Albert Waterma3 a3 preme Court, Appellate Division, First Depart- the Lehigh Valley Railroad Company: x ment. April 14, 1905.) Action by John Wana- ion. Judgment and order unanimously at: maker and others against Robert H. Megraw.

with costs. No opinion. Motion for leave to appeal granted.

WEBB, Appellant, V. RAPP, Respon WANAMAKER, Respondent, v. POWERS, (Supreme Court, Appellate Division 10 Appellant. (Supreme Court, Appellate Division, Department. May 10, 1905.) Action by Second Department. April 21, 1905.) Action by Webb against Peter Rapp. No op:o:on 4 John Wanamaker against Thomas J. Powers, dismissed, without costs, on stipulation. Jr. No opinion. Motion denied.

WEILER, Appellant, v. NEW YORK JE WANAMAKER, Respondent, v. POWERS, CANTILE EXCH., Respondent. Appellant. (Supreme Court, Appellate Division, Court, Appellate Division, First Degeri Second Department. May 5. 1905.) Action by May 5, 1905.) Action by Katherine is John Wanamaker against Thomas J. Powers, administratrix, against the New York VE :: Jr. No opinion. Motion denied.

tile Exchange. T. J. O'Neill, for appeler

Notman, for respondent. No opinion. Jads WARNER, Respondent, v. VERMEULE, ment affirmed, with costs. Appellant. (Supreme Court, Appellate Divi. sion, First Department. May 5, 1905.) Action WEIR et al. v. BARKER. (Supreme Chat by William C. Warner against John D. Ver-Appellate Division, Second Department. meule. W. H. Russell, for appellant. H. E. 12, 1905.) Action by John R. Weir an T: Deming, for respondent. No opinion. Judgment erick Weir, composing the firm of James allirmed, with costs, with leave to the defendant Sons, against Frances E. Barker, trustee to withdraw demurrer and to answer, on pay- the will of Charles Barker, deceased. ment of costs in this court and in the court be PER CURIAM. The order must be low.

in accordance with the decision; but the

ant may have an order of this court WARREN V. STRATTON et al. (Supreme that her right to appeal to the Court of 4; Court, Appellate Division, First Department. shall not be affected by the payment April 14, 1903.) Action by Charles J. Warren pending such appeal. The time to apply far against Harry L. Stratton and others. No opin- appointment of a referee will be ccotis ion. ·Motion denied.

cordingly. Order to be settled betos

LER, J. WARREN, Appellant, v. STRATTON et al., Respondents. (Supreme Court, Appellate Divi WELLING, Appellant, y. MAX, RX sion, First Department. April 20, 1905.) AC (Supreme Court, Appellate Division, is tion by Charles J. Warren against Henry L. partment. April 20, 1903.) Action by in Stratton and others. I. N. Miller, for appel- | C. Welling against Alrick H. Man. PER lant. A. M. Silber, for respondents. No opin- for appellant. L. L. Delafield, for resoordat ion. Order affirmed, with $10 costs and dis. No opinion. Order affirmed, with $10 bursements.

disbursements. WASHBURN et al., Respondents, WEMPLE. Respondentv. FEDERA! STORCH, Appellant. (Supreme Court, Appel- STOCK & GRAIN CO. OF NEW YORK late Division, Second Department. April 21, pellant. (Supreme Court, Appellate Dirt 1905.) Action by Cyrus V. Washburn and Third Department. May 3, 1903.) Accia ?

V.

in H. Wemple against the Federal Stock & Department. April 20, 1905.) Action by Julius ain Company of New York.

Willsen against Metropolitan Street Railroad PER CURIAM. Order affirmed, with $10 Company. No opinion. "Motion denied. its and disbursements. CHASE, J., dissents, on the ground that the WOLF V. MANHATTAN CONSUMERS' intiff claims $400 for money deposited, CO. (Supreme Court, Appellate Division, First ount not stated, and profits, pursuant to a Department. April 20, 1905.) Action by Martract which is not produced, and the con garet Wolf, as administratrix, against the Mants of which are not shown; facts showing a hattan Consumers' Company. No opinion. Mod cause of action not being stated.

tion denied. VEMPLE V. FEDERAL STOCK & GRAIN

WRIGHT v. HART._(Supreme Court, Ap(Supreme Court, Appellate Division, Third pellate Division, First Department. April 26, partment. May 16, 1905.) Action by John 1905.) Action by Edmund Wright, as trustee, Temple against the Federal Stock & Grain against Edward Hart. No opinion. Motion mpany. No opinion. Motion denied.

granted. VENDELL V. WENDELL. (Supreme Court, Appellate Division, First Department. May 12,

YANNUZZI V. GRAPE. (Supreme Court, pellate Division, First Department. April 7, 1905.) Action by Pasquale Yannuzzi against 1.) Action by Frank L. Wendell against James E. Grape. No opinion. Motion denied, ira M. Wendell. No opinion. Motion denied. with $10 costs. 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 plain

tiff, defendant appeals. Affirmed. William E. VHITE . DAVENPORT et al. (Supreme Weaver, for appellant. Carruth, Ziegler & Carart, Appellate Division, Second Department. ruth, for respondent. ril 21, 1905.) Action by Josiah J. White PER CURIAM. We are of the opinion that inst William B. Davenport and others. No none of the exceptions were well taken. The obnion. Motion denied, and stay vacated. jection on page 5 of the stenographer's minutes

appears to have been made after the question VHITNEY, Respondent, V. JOSEPH H. had been asked and answered; and, moreover, ULAND CO., · Appellant. (Supreme Court, under the circumstances disclosed by the evi. pellate Division, Second Department. April dence in the case, the plaintiff was entitled to 1905.) Action by Sarah J. Whitney against recover, as one of the elements of the damages Joseph H. Bauland Company. No opinion. sustained by him, the amount paid by him fo: Igment and order unanimously affirmed, with

a wagon to take the place of the wagon de. stroyed by the defendant. The evidence war

rants the finding of the justice. Judgment af. PHITNEY. Respondent, V. JOSEPH H.

firmed, with costs. I'LAND CO., Appellant. (Supreme Court, pellate Division, Second Department. April CONGER, Respondent, v. CONGER et al.,

1905.) Action by William A. Whitney Appellants. (Supreme Court, Appellate Diviinst the Joseph H. Bauland Company. No sion, First Department. December, 1904.) ACnion. Judgment and order unanimously af- tion by Clarence R. Conger, as trustee under aed, with costs.

the last will and testament of Catherine Ann

Hedges, deceased, against Theodore H. Conger n re WILDER et al. (Supreme Court, Ap- and others. Judgment modified as directed in late Division, Fourth Department. May 10. opinion, and, as modified, affirmed, without 1.5.)

In the matter of the application of costs. Opinion by PATTERSON, J., in which ank P. Wilder and the ('arthage Sulphite O'BRIEN and LAUGHLIN, JJ., concur, withip Company for the appointment of com- held from publication by direction of the court. sioners to assess damages of riparian own

VAN BRUNT, P. J., and HATCH, J., dissent. on Deer river, etc.

Motion for reargument pending. 'ER CURIAM. Order reversed, with $10 ts and disbursements, and motion denied, GOWANS et al., Appellants, v. JOBBINS, h $10 costs. Held that, without in any man- Respondent. (Supreme Court, Appellate Divi

passing on the merits of the award herein, sion, Fourth Department. January, 1905.) ACdoes not seem necessary, upon the facts dis- tion by John Gowans and others against zed by the record in this proceeding, to send Frances H. Jobbins, as ancillary executrix of

report back to the commissioners to have de- William F. Jobbins, deceased. led findings made by them.

PER CURIAM. Order reversed, with $10

costs and disbursements, and motion denied, with VILLSEN . METROPOLITAN ST. R. $10 costs, unless the defendant comply with the • (Supreme Court, Appellate Division, First I conditions contained in the per curiam memo

ts.

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and 127 New York State Reporter randum herewith filed with the clerk, in which PER CURIAM. Order reversed, with me. event said order will be modified in conformity and application for writ denied, with with said memorandum, and, as so modified, af- Held, that the relators did not estabisu firmed, with $10 costs and disbursements to the such clear right upon the law and facts as le appellants.

entitled to a peremptory writ. PEOPLE ex rel. SALLADIN et al., Respond WARNER v. THOMPSON et al. SCO ents, v. CITY OF OSWEGO et al., Appellants. Court, Appellate Division, First Deparo: (Supreme Court, Appellate Division, Fourth De- May 5, 1903.) Action by William C. Wars partment. January, 1905.) Proceedings by the against Edward Thompson and others. Fus people of the state of New York, on the relation a judgment overruling a demurrer to che of Anthony Salladin, Jr., and others, against plaint, defendants appeal. Reversed. Jal. the city of Oswego, N. Y., and the department of Hill, for appellants. Horace E. Bait works of the city of Oswego, N, Y.

respondent. No opinion. Judgment afirmzi

END OF CASES IN VOL. 93.

INDEX.

ABANDONMENT.

ABUTTING OWNERS.
demised premises, see "Landlord and Ten- See "Navigable Waters," $ 1.
.nt," $ 3.
street railroad franchise, see "Street Rail-

Assessments for expenses of public inprove

ments, see "Municipal Corporations," $ 2.
oads," i 1.

Compensation for taking of or injury to lands
ABATEMENT.

or easements for public use, see “Eminent

Domain," $ 3.
puisance, see “Nuisance,” 1.

Rights in streets in cities, see "Municipal Cor-

porations," $ 3.

ABATEMENT AND REVIVAL.

ACCEPTANCE.
dgment as bar to another action, see "Judg. Of goods sold in general, see “Sales," $ 4.
ient," § 6.

Of goods sold within statute of frauds, see
ght of action by or against personal repre "Frauds, Statute of," $ 2.
jentative, see "Executors and Administra-
ors," $ 3.

ACCIDENT,
1. Death of party and revival of ac-
tion.

Cause of personal injuries, see “Negligence,"
an action to set aside plaintiffs' transfer $ 1.
his interest in a copartnership, held, that the
tion should have been revived against the ACCORD AND SATISFACTION.
presentatives of one of the new partners,
10 died after joinder of issue.-Hausling v.

See "Compromise and Settlement”; “Pay-
seinfrank (Sup.) 121.

ment”; “Release."
Under Code Civ. Proc. 88 757, 765, the re-
rt of a referee stating the account of an as-

ACCOUNT.
nee for the benefit of creditors cannot be
d after the assignee's death and before his

See “Account Stated."
rsonal representative is made a party.--In re
inable (Sup.) 1074.

Accounting between partners, see "Partner-
General Assignment Act, Laws 1877, p. 515, Accounting by executor or administrator, see

ship,” $ 5.
466, § 10, gives the referee appointed to

"Executors and Administrators," $ 4.
ate the account of an assignee no authority Accounting by receiver, see “Receivers," $ 4.
perform any act after the death of the as-
znee and before his personal representative S 1. Right of action and defenses.

successor in interest is substituted.-In re Complaint alleging defendants' violation of
enable (Sup.) 1074.

an agreement to procure letters patent for plain-
Where a report of a referee appointed to tiff and a conspiracy between defendants to
ate the account of an assigvee for the benefit prerent the grant of such letters held not to
creditors was filed after the death of the as-

state facts sufficient to entitle plaintiff to an
knee and before his personal representative accounting.–Grillith v. Dodgson (Sup.) 155.
id been made a party, the subsequent appoint-
ent of the representative of the deceased as-

ACCOUNT STATED.
mre's estate in place of the assignee did not
ilidate the report.-In re Venable (Sup.) 1074. Verger and bar of causes of action in judg-

ment, see "Judgment," $ 6.
ABSENCE

Retention without answer of bill rendered

held not to create a liability for the occupa-
uspension of running of statute of limitation, tion of premises on the theory of an account
see "Limitation of Actions," $ 2.

stated.--Benedict v. Jennings (Sup.) 461.

In an action on an account stated, evidence
ABUSE OF PROCESS.

held insuficient to justify a finding that an ac-

count was stated.-Parero y. Howard (Sup.)
lee “Process," $ 2.

1115.
93 N.Y.S.-73

(1153)

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