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NOTE. A star (*) indicates that the case referred to is annotated.

ABATEMENT AND RE- bring the question again before the court of

appeals.-Duffy v. Duffy, 533. VIVAL.

5. In an action by a receiver against a fraud.

ulent grantor and grantee as the only defend. Another action pending.

ants to set aside a fraudulent conveyance, a 1. In an action by the administrator of a lu- revival will be ordered against the executor natic's estate against his committee for an ac. of the latter without any supplemental sumcounting, defendant's plea that another action mons, under Code Civii Proc. N. Y. $ 157, between the parties for an accounting was which provides that, upon the death of a sole pending in the common pleas, where defend- plaintiff or defendant, if the cause of action ant was appointed. fails, where the evidence survives or continues, the court must, on moshows that plaintiff had that action discon- tion, allow or compel the action to be contintinued on the day he brought this; that on ued by or against his representative or sucdefendant's motion the order of discontinu. cessor in interest.-Palen v. Bushnell, 63. ance was vacated; and that plaintiff subse- 6. After an action to set aside a convey. quently moved for leave to discontinue, which ance as fraudulent has been referred, it is was finally, and before trial in this action, too late, on a motion to revive against defendobtained on appeal to the court of appeals. - ant's executor, to raise the objection that Butler v. Jarvis, 137.

plaintiff is a non-resident of the state, that his Death of party.

bond is void, or that the plaintiffs in the sup

plementary proceeding are dead, and have no 2. Under 2 Rev. St. N. Y. pp. 447, 448, $$ 1, personal representatives, as all such questions 2, providing that actions for wrongs to the will be assumed to have been determined beproperty, rights, or interests of another may fore the reference was ordered.-Id. be brought against the personal representa- 7. A revival by a receiver will not be pretives of the tort-feasor the same as actions forvented after issue joined, because the plainbreaches of contracts, except in cases of slan- tiff has not obtained leave of court to sue, as der, assault, and some other personal injuries, under Code Civil Proc. N. Y. $ 499, an objecan action by a receiver of a corporation against tion to plaintiff's capacity to sue is waived, if its trustees for an account of the assets of the not made by demurrer or answer.-Id. company alleged to have been misapplied by them does not abate by the death of one of the defendants, but may be revived against his

ABDUCTION. administratrix.-Pierson v. Morgan, 898.

Evidence. 3. Where, pending an action to foreclose a mortgage, defendant, the owner of the equity In a prosecution for abduction, the people of redemption, dies, and, without any steps cannot in the first instance, and for the purto make her heir a party, a reference is pose of making out a primi facie case, show taken, and a sale ordered and made, it is error that girls other than the person claimed to to require the heir, who asks to be substituted have been abducted were seen to visit defend. as a defendant without delay, upon learning ant's room.-People v. Gibson, 170. of the proceedings, to pay the whole costs incurred since the death of the ancestor, in

Accident Insurance. cluding those of the reference and sale, as a condition of permitting her to be made a par- See Insurance, 15-17. ty. -Van Loan v. Squires, 371. Motion to revive.

Accomplice. 4. The plaintiff in an equitable action died Evidence of, see Criminal Law, 5. in 1877, and nothing was done in the case until 1888, when her successors in interest moved to have the action revived and contin.

ACCORD AND SATISFACued. The application was denied on the

TION. ground of laches, under Code Civil Proc. N. Y. $ 757. Held that, as the two decisions of what constitutes, see Attorney and Client, 7. the court of appeals on the proper construction of this statute are in direct conflict, and What constitutes. as the later decision makes no reference to 1. Defendant agreed to accept certain propthe first, the order would be affirmed, so as to lerty of his debtor in satisfaction of a debt owv.4N.Y.s.—61


ing to him. The value of the property was

not agreed upon, and no bill of sale was exe-
cuted. The property was afterwards sold for Against administrator for payment of lega-
less than the amount of the debt. Held, that cies, see Executors and Administrators,
the transaction was not a sale of the property 9-11.
in payment of an antecedent debt, but consti-

envoys, immunity, see Ambassadors and
tuted an accord and satisfaction.-Weeks v. Consuls.
Zimmerman, 609.

By and against corporations, see Corpora-

tions, 7-9.

assignee, see Assignment for Benefit of
2. One who presents his bill for a certain Creditors, 16.
amount, and compromises for a smaller

banking corporations, see Banks and
amount, signing a receipt in full on payment Banking, 6.
thereof, cannot recover for additional items

executors, etc., see E.recutors and ad-
of the same account not included in the origi. ministrators, 15, 16.
nal bill, without proving them, and their receivers, see Receivers, 5, 6.
omission from such bill, and explaining the servant, for discharge, see Muster and
omission.- McNamara v. McEntee, 620.

Servant, 2.

For breach of bond, see Bonds, 2.

damages, see Conspiracy, 1, 2.

rent, see Landlord and Tenant, 9, 10.
See Account Stated.

On guaranty, seo Guaranty, 4, 5.

Particular forms, see Assumpsit; Creditors
By assignee, see Assignment for Benefit of Bill; Deceit; Ejectment; libel and Slan
Creditors, 9–15.

der; Partition; Specific Performance;
committee of lunatic, see Insanity, 3-10. Trover and Conversion.
executors, etc., see Executors and Admin- Power of trustee to sue, see Trusts, 13.
istrators, 3-8.

To set aside assignment, see Assignment for
guardian, see Guardian and Ward, 9-15. Benefit of Creditors, 17, 18.
trustee, see Trusts, 16, 17.

fraudulent conveyance, see Fraudulent

Conveyances, 3-7.
ACCOUNT STATED. Severance-Death of party.

In an action to foreclose, a prior mortgagee
What is.

was made a party defendant, and answered.
1. Defendant bought goods of plaintiff, and setting up his mortgage as a superior lien.
afterwards returned a portion of them, on the Pending a reference, he died, and plaintiff
ground that they were defective. After some proceeded with the reference without an ora
correspondence a proposition made by him, der reviving or continuing the action against
that if plaintiff would give him credit for the his representatives. On filing the referee's
goods returned he would pay the balance of report, which sustained the superiority of the
the bill, was accepted. Heid, that an account deceased mortgagee's lien, plaintiff waived
became stated between the parties, and that, all claim to priority over such lien, and mored
although plaintiff brought an action on the for judgment of foreclosure, according to the
original bill to recover such balance, he was report, and, in effect, that the action be ser.
having been made to evidence of the account Civil Proc. N. Y. $$ 1204, 1205, providing that
pot precluded from a recovery,

no objection ered, so far as the deceased defendant was

concerned. Held proper practice, under Code
stated.- Aylsworth v. Gallagher, 853.

where, in an action against two or more, a
Impeachment for mistake.

several judgment is proper, the court may re-
2. In an action for commissions on sales, it quire plaintiff to take judgment against one
appeared that defendant shipped goods to

or more of the defendants, and direct that tbe
plaintiff, and to purchasers procured by him. action be severed, and proceed against the
Of the goods shipped to plaintiff, several lots others.-Ferris v. Hard, S.
were seized by the customs officers for viola-
tion of the revenue laws, and plaintiff had to Adjoining Land-Owners.
pay sums by way of penalties, increase of du-
ties, etc., to effect their release. The miscon- Liability for fires, see Negligence, 8.
duct of defendant's employés in putting upin-
voiced goods in the packages, for which plain-
tiff was not responsible, occasioned the ex-

pense. By an error this expense was included See Executors and Administrators.
in an account stated between the parties at a
less sum than the actual amount. Held, that
plaintiff should, on proof of such mistake, be

allowed the correct amount, as the effect of an
account stated may be avoided by showing a Agreement Signature of county
mistake therein.-Ract v. Duviard-Dime, 156.


i. Laws N. Y. 1873, c. 830, relating to the

adoption of children, provides by section 13

that any agreement in respect to such ajop-
Of debt, see Limitation of Actions, 7. tion shall be in writing, signed by the county

judge or judge of the supreme court, and the instrument under which defendant claimed as
same, or a duplicate, filed with and recorded mortgagee, did not deprive plaintiff of the
by the county clerk, may be used as evidence. right to enforce his agister's lien as against
Held to relate to the manner of evidencing defendant, where the rights of the latter were
the adoption, and not to the facts on which superior to those of plaintiff under the mort-
the order of adoption was to be maže, and a gage.-Id.
strict compliance with the terms of the act
was pot essential to the validity of the pro-
ceedings, in the absence of such requirement

by the statute.-People v. Bloedel, 110.

2. The signature of the county judge who
executed the adoption papers appeared in Immunity from service of process.
three places, -once after the consent of the

An envoy extraordinary from Venezuela to
mother of the child, again at the time of the France, recognized as such by the United
order of adoption, and finally at its foot, -and States, while passing through the United
the whole was attached together, making one States, on his way to France, is exempt from
paper. The consent of tbe person adopting service of process in a civil action.- Wilson v.
the child, and that of his wife, was not signed Blanco, 714.
by the judge. Held that, if it was essential
for the judge to sign each consent, his failure

to do so would not render the adoption papers
void, but voidable only by persons not bound Of pleading, see Pleading, 12–17.
by reason of such failure; and as the mother statute, see Statutes.
executed her consent, and the judge signed it,
she cannot allege the infirmity of the papers.


See Pleading, 5.
Adverse Possession.
Of cemeteries, see Boundaries.

Right to divert stream, see Waters and
Water-Courses, 1, 2.

See, also, Certiorari; New Trial.

Appealable judgments, see Judgment, 2.

In condemnation proceedings, see Eminent

Domain, 3, 4.
Of sale for delinquent taxes, see Taxation, 18. criminal cases, see Criminal Law, 10.

When lies—Waiver.

1. In an action for rent against a lessee and
For arrest in civil action, see Arrest, 3-6. her sureties, the complaint alleged that de-
attachment, see Attachment, 1-5.

fendants executed a joint and several bond,

conditioned for the payment of the rent. The

bond offered in evidence was signed by all the

defendants except the lessee, and its admis-
See Principal and Agent.

sion was objected to. Plaintiff then asked

leave to amend so as to conform to the facts.

The complaint was then dismissed as to the
lessee, without objection, and plaintiff stipu-

lated to serve an amended complaint on a cer-
Lien for keeping animal.

tain day. Held, that plaintiff waived the
1. Laws N. Y. 1872, c. 498, § 1, as amended right to appeal from the order of dismissal. –
by Laws 1880, c. 145, provide that a person City of New York v. Kent, 802.
keeping any animals at livery or pasture, or
boarding the same, for hire, under any agree- To court of appeals.
ment with the owner thereof, may detain such 2. Code Civil Proc. $ 1336, which provides
animals until all charges for their keeping for an appeal directly to the court of appeals
shall have been paid. Held, that a mortgagor from a final judgment entered at a trial term,
of certain horses, who, after having defaulted, after exceptions, heard in the first instance
in the performance of the conditions of the at general term, have been overruled, is not
mortgage, but being still in the possession of made applicable to appeals from the city court
the horses, entered into an agreement with of New York to the court of common pleas.-
the plaintiff for their keeping, was an “own. Mayer v. American Ins. Co., 617.
er” of the horses, within the meaning of the 3. Code Civil Proc. $ 3191, does not permit
statute.-Corning v. Ashley, 255.

an appeal to the New York court of common
- Priority over mortgage.

pleas, from a final determination of the gen-
2. Such statute having been in force when determination was made upon an appeal to

eral term of the city court, unless that final
the mortgage in question was executed to de- that court.-ID.
fendant, and the required notice of the lien
arising under such statute and agreement

having been given to the mortgagee, such lien 4. The questions whether the fact that one
took precedence over the mortgage.-Id. lot of goods sold is faulty raises a presump-

3. The fact that plaintiff had a mortgage in- tion that another lot is also faulty, and wheth-
terest in the horses by the terms of the same er a buyer may reject the goods purchased

whenever they happen to be in the custom-, upon their judgments are appealable in the
house, without examination or proof that they same manner as orders in actions in said
are defective, are not of sufficient novelty or courts, while such orders in other courts are
importance to justify the granting of leave to reviewable in the first instance by motion op-
appeal to the court of appeals.-Wallace v. ly,-an order made by the county court in
Blake, 557.

proceedings on a judgment so docketed, re-
5. In an action against an express company quiring the defendant to pay money to the
by the sender of a package alleged to have sheriff, is appealable to the general term. -
been lost, for its value, it appeared that the Billington v. Billington, 504.
package was tendered to the consignee, who
refused it on the ground that she had not

bought it. The consignee's daughter after 11. A reargument will not be granted ut-
wards called at defendant's office, and di- less it appear that some question decisive of
rected the package to be sent to her mother's the case, and duly submitted by counsel, was
store. No authority in the daughter to give overlooked, or that the decision is in conflict
the order was shown. The package was then with an express statute, or with a controlling
carried to the consignee's store, and delivered decision to which the court's attention was
to one W., who was behind the counter, and not called.-Duncan v. Root, 613.
appeared to be a clerk. W. receipted for the 12. Where appellant is advised of the ques-
package in his own name. The consignee de- tion of the appealability of an order by the
nied that W. had any authority to receive opinion of the court below, and has ample op-
goods for her. It was held by the common portunity to be heard thereon, and the appeal
pleas that the evidence was not sufficient to is dismissed on that question, he is not en.
prove W. an agent of the consignee. Held, titled to a reargument. -Uhler v. Ryer, 534.
that leave to appeal to the court of appeals

13. An order of the city court, special term,
would be refused. - Nebenzahl v. Fargo, 554. denying, for want of jurisdiction, a motion to

6. An order of the city court, special term, consolidate five actions, the amount in contro-
denying, for want of jurisdiction, a motion to versy aggregating over $2,000, was rerersed
consolidate five actions, the amount in contro- on appeal to the general term, and the motion
versy aggregating over $2,000, was reversed remitted to be heard on its merits, and for the
on appeal to the general term, and the motion exercise of the discretion of the special tern.
remitted to be heard on its merits, and for the On appeal from that order to the common pleas,
exercise of the discretion of the special term. general term, the appeal was dismissed on the
On appeal from that order to the common ground that the order was not appealable.
pleas, general term, the appeal was dismissed This point was raised in the printed brief of
on the ground that the order was not appeal- appellee, and the decision was made after a
able. Held that, as the order of the city court, full hearing. It was also argued on a motion
general term, did not affect any substantial to resettle the order dismissing the appeal.
right, or determine the action, the motion for Held, that the appellant's motion for reargu-
leave to appeal to the court of appeals must ment on the ground of surprise must be de-
also be denied. -Bush v. Abrahams, $33.

nied.-Bush v. Abrahams, $33.
Appealable judgments and orders. Review.
7. Under Code Civil Proc. $ 1022, providing

14. On appeal from an order, the determina-
that in trials without a jury the decision of tion of the judge below, as to whether all the
the court must state separately the facts papers used on the motion for the order were
found and the conclusions of law, where the printed, and as to whether they were correet-
record shows a judgment entered on a decis-ly printed, will not be reviewed. —Shipherd v.
ion which refers to another paper in the case

Čohu, 393.
as containing the facts found, the appeal will

15. Where an appeal from an interlocutors
be dismissed.-Furber v. McCarthy, 274.

judgment is not taken in the proper time it
8. Under Code Civil Proc. $ 1300, allowing can only be reviewed, if at all, on appeal from
an appeal from an order, or a specified part the final judgment.–Fales v. Lawson, 254.
thereof," an appeal will lie from so much of

Second appeal.
an order as requires a party substituted as a
defendant in lieu of her deceased ancestor to cided that the complaint was erroneously dis-

16. Where, on a former appeal, it was de-
pay the costs of the action, though no appeal missed, the ruling of the trial court on the
be taken from the residue thereof.-Van Loan second' trial, denying a motion to dismiss a
v. Squires, 371.
9. An order of a surrogate refusing to dis- National Thread Co. v. Mansfield Silk &

similar complaint, will not be disturbed. -
miss a petition for the revocation of a will, Thread Co., 226.
for the omission of a legatee as a party, is not
appealable.-In re Phalen's Will, 408.

Objections not raised below.
10. Under Code Civil Proc. $$ 1342, 2433, 17. Objections to the admissibility of eri-
3017, providing that appeals from orders af- dence not made at the trial will not be heari
fecting substantial rights, made by county on appeal.-Davis Sewing Machine Co. v. Best,
courts in actions brought therein or pending 510.
therein on appeal, may be taken to the gener-

18. Where evidence is objected to on a cer-
al term of the supreme court; that justices' tain ground, another and different objection,
judgments docketed in the county clerk's of raised for the first time in the appellate court.
fice become judgments of the county court; will not be considered. -Devereux v. Sun Fire
and that orders made by county courts in pro- Office of London, 655.
ceedings supplementary to executions issued 19. Where no motion is made in the trisi

court for new trial on the facts, or to set aside the deceased being to the effect that the in-
the verdict for any cause, and no exception is sured made true answers to inquiries made
taken to the charge, a verdict for defendant on his application for life insurance, while
will not be disturbed. -Schoonmaker v. Niver, that of the agent and medical examiner is di.

rectly to the contrary, a verdict for plaintiff
20. Where the verdict in conversion in jus- will not be set aside as against the evidence.
tice court is simply "for the plaintiff for the -O'Brien v. Home Ben. Soc., 275.
return of the property,” without assessing its 29. In an action for conversion of chattels,
value, and judgment is entered on the verdict, by a wife who claims as mortgagee of her
and no attempt is made to have the verdict husband, against a sheriff selling the same
corrected, plaintiff, on appeal from the judg- under an execution against the husband,
ment, cannot have it reversed for such defect where the evidence of the husband and wife,
in the verdict. DYKMAN, J., dissenting.– corroborated by some circumstances, tends to
Mitchell v. Mitchell, 72.

establish the good faith of the mortgage,
21. It cannot be objected on appeal that a while other facts tend to show that it is
certain contempt proceeding was erroneous, fraudulent, the finding of the referee in favor
because the court received testimony on the of plaintiff will be upheld on appeal; such
bearing, where the order for oral testimony is testimony, if believed, being sufficient to
made and the testimony taken without objec- meet the requirement of 2 Rev. St. Ņ. Y. p.
tion from defendant, it will be presumed 136, § 5, imposing the burden of proof in such
that the whole proceeding was by consent.- case on the wife. – Manchester v. Tibbetts, 23.
King v. Barnes, 247.
22. Where evidence as to a personal trans-

Matters not apparent on record.
action with a decedent is admitted in viola.

30. An order denying a motion for a new
tion of the statute, under a general objection, trial will not be reviewed unless it has been
the causes rendering such evidence improper

formally entered, and appears in the printed
not being called to the attention of the court, case. - Victory v. Foran, 392.
such objection will not be considered on ap- findings are not available where the requests

31. Exceptions to a refusal to make certain
peal.-Sheil v. Muir, 272.

23. Error in refusing to direct a verdict in to find are set out, but there is nothing to
favor of plaintiff is available to plaintiff al- show what disposition was made of such re-
though there was no exception to such refusal. quests, or that they were ever passed upon.-
- Benson v. Gerlach, 273.

Mooney v. Fagan, 21.

Harmless error.
Discretion of trial court.
24. Under Code Civil Proc. N. Y. $ 2546, au- the question is afterwards decided properly.

32. An erroneous ruling is harmless, where
thorizing a surrogate in a special proceeding -Butler v. Jarvis, 137.
other than one for the probate or revocation of
the probate of a will in his discretion to appoint Objections waived.
a referee to report on a specific question of fact, 33. Where no objection is made to the as-
subject to the confirmation of the surrogate, sumption of certain facts by the court in in.
an order appointing a referee to report on the structing the jury, and no request made for
question of the legitimacy of the petitioner in the jury to pass on them, any objection will
a proceeding to revoke letters testamentary, be considered waived.-O’Laughlin v. George
that issue being raised by the pleadings, and H. Hammond & Co., 582.
material to the right of the petitioner to main 34. Remarks of the court to the counsel rel-
tain the proceeding, is discretionary with the ative to the examination of a witness should
surrogate, and not reviewable on appeal.-In be made the basis of a motion for a new trial,
re Pearsall, 365.

or they cannot be taken advantage of on ap-

peal. ---O'Connor v. National Ice Co., 537.
25. Where the case on appeal does not show Effect of appeal.
that it contains all the evidence bearing on 35. The pendency of an appeal from an or-
the findings sought to be reviewed, it will be der of a surrogate enjoining a guardian from
assumed that the evidence was sufficient to acting as such until the final determination of
sustain the findings. - Davis Sewing Machine proceedings for his removal will not oust the
Co. v. Best, 510.

surrogate of jurisdiction to make a proper
Weight of evidence.

modification of the injunction order.-In re
26. The findings of the trial court on the is. Plumb, 831.
sue of fraud against creditors in a conveyance

of property by a debtor will not be disturbed
on appeal, unless unsupported by or clearly For insurance, see Insurance, 7-11.
against the weight of the evidence.-Murray
Hill Bank v. Van Antwerp, 364.
27. Plaintiff's claim for a yearly salary be-

Argument of Counsel.
ing supported only by his own testimony, See Criminal Law, 1.
which was contradicted by that of defendant
and his agent, as well as by certain yearly
statements of account between the parties, a

finding by the referee for defendant on that
issue is warranted by the evidence.-Ract v. Liability of attorney for arrest of judgment
Duviard-Dime, 156.

debtor, see Attorney and Client, 1.
28. The evidence of the son and daughter of l of debtor, stay of execution, see Escape, 1,

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