An action in which the complaint
prays an injunction against the
maintenance of an elevated rail-
road in the street in front of plaint-
iff's premises, and also asks judg-
ment for damages for such con-
struction and maintenance, is not
technically an action of trespass,
but one in equity for an injunction
in which incidentally damages for
the maintenance of the road are
demanded; and it does not abate
on the death of the plaintiff, but
may be revived in the name of the
devisee and executrix of plaintiff.
Sanders v. New York Elevated R.
Co., 388.
One of the partners of an embar-
rassed firm gave a chattel mort-
gage to plaintiffs, creditors, on all
the firm property, to secure their
claim. On the same day another
partner, without knowledge of
the chattel mortgage, transferred
to defendant, another creditor,
likewise without knowledge of the
mortgage, a part of the property
embraced therein, such property
being taken in full satisfaction,
and the debt cancelled on defend-
ant's books. The chattel mort-
gage was not filed until the
following day. Held, that the
transaction with defendant was
not a payment of an antecedent
debt, but an accord and satisfac-
tion, and that defendant's title
was good as against plaintiffs.
Weeks v. Zimmerman, 226.
1. Plaintiff, having presented to de-
fendants a bill for work done for
them, including items for extra
work, and having accepted as full
payment less than the amount
claimed, brought an action for
additional items of charges for the
same work. Held, that he could
not recover without proving that
the work mentioned in such items
was actually done, and was not
embraced in the bill that was paid,
and explaining the omission. Mc-
Namara v. McEntee, 212.
Evidence that plaintiff sent to
defendant two accounts, one for
moneys expended and the other
for services rendered, inclosed
with a letter demanding payment,
which were retained without ob-
jection or reply, and that subse-
quently defendant, on meeting
plaintiff, acknowledged receipt of
the letters and promised to pay
the accounts, will sustain an ac-
tion as upon an account stated.
Vernon v. Simmons, 399.
Where, in an action on an ac-
count stated, the court allows.
over defendant's objection, proof
of an item outside the account,
defendant cannot raise such ob-
jection on appeal unless he duly
excepted to the action of the court
in submitting such item to the
⚫jury. Ib.
A complaint alleging a cause of ac-
tion against an elevated railroad
company for damages for the con-
struction and operation of its road
in the street adjoining plaintiffs'
premises, and also a cause of ac-
tion on a bond given by the com-
pany with sureties to pay all dam-
1. Under the provisions of chapter
435 of the Laws of 1887 for appeals
to the Court of Appeals, from
judgments and orders of this
court, in cases originating in the
City Court of New York, no
judgment is to be entered in this
court, for the purpose of such ap-.
peal, on affirmance of a judgment
of the City Court; that act does
not amend or alter the provisions
of the Code regulating the practice
on appeals from the City Court to
this court (Code Civ. Pro. §§ 3194,
3195). Lyon v. New York, Sus-
quehanna, etc., R. Co., 5.
2. At the trial, the justice having
stated that, in his view, a certain
question of law was controlling,
plaintiff, believing that he was
almost certain to succeed on that
point, did not offer proof of dam-
ages, necessary to a recovery on
a different view of the case.
Held, on appeal from a judgment
against him, that his error of judg
ment was not ground for granting
a new trial. Feiber v. Manhattan
Dist. Tel. Co., 62.
3. That the jury believed the un-
corroborated testimony of one
witness, against the contradiction
of two or more, is not ground for
setting aside their verdict as
against the weight of evidence,
where there is nothing tending to
show that they were influenced
by passion or prejudice. Finney
v. Gallaudet, 66.
4. Where irrelevant testimony is
not excepted to at the time it is
given, the granting of a motion
to strike it out is always in the
discretion of the court, and a re-
fusal to grant such a motion is
not reversible error. Provost v.
Mayor, etc., of New York, 87.
5. Upon an appeal from an order of
the General Term of the City
Court of New York affirming an
order of a Trial Term of that
court granting a new trial, the
ground of such affirmance was not
indicated by the order, but it ap-
peared that, upon all the evi-
dence, which was before the Gen-
eral Term, the new trial might
have been granted on questions
of fact. Held, that the order
I could not be reviewed in this
court, and must be affirmed, and
judgment absolute ordered against
appellant on his stipulation.
Powell v. Lamb, 139.
6. Upon demurrer to a separate de-
fense in the answer in an action
in the City Court of New York,
the court overruled the demurrer
and, considering the whole record,
dismissed the complaint as defect-
ive, and ordered judgment for de-
fendant, and judgment was en-
tered accordingly. Held, that the
order dismissing the complaint
and directing final judgment was
an "intermediate order" affect-
ing the final judgment, within the
meaning of sections 1301 and 1316
of the Code of Civil Procedure, | 10. As section 3191 of the Code
and, therefore, on a notice of ap-
peal from the judgment to the
General Term which did not
specify such order, it was not re-
viewable by the General Term;
nor could such order be reviewed
by this court on appeal from the
judgment of affirmance of the
General Term, although the order
was specified in the notice of such
appeal, since it was not before the
General Term; and the judgment
must be affirmed as in accordance
with the order not appealed from.
Richards v. Brice, 144.
7. An appellant moving for reargu-
ment after dismissal of his ap-
peal. cannot claim that he was
surprised by the decision that the
order appealed from was not ap-
pealable, where the point was
raised in the printed brief of his
adversary, and he had an oppor-
tunity to argue the same on mo-
tion to resettle the order. Bush
v. Abrahams, 168.
8. A motion to consolidate actions
in the City Court of New York
having been denied at Special
Term on the ground that the ag-
gregate amount in controversy
would exceed $2.000, the General
Term, on appeal, reversed the
order, and remitted to the Special
Term the motion for consolida-
tion to be heard upon the merits.
Held, that the order of the Gener-
al Term was not a final order,
and did not involve the merits,
nor affect a substantial right, nor
determine the action, within the
meaning of subdivision 3 of section
3191 of the Code of Civil Proced-
ure, and was not appealable to
this court. Ib.
9. In an action for conversion, the
jury were instructed that, in esti-
mating the damages, the
value of the property was to be
taken as of the time of the con-
version. Held, that this was not
ground for reversal, on defend-
ant's contention that the rule
should have been the highest
price of the property within a
reasonable time after the conver-
sion; as the instruction given
was more favorable to defendants.
Kilpatrick v. Dean, 182.
of Civil Procedure does not per-
mit an appeal to this court from
a final determination of the Gen-
eral Term of the City Court of
New York, unless such final de-
termination was made upon an
appeal to that General Term, an
appeal cannot be taken from a
judgment of the City Court en-
tered where exceptions ordered to
be heard in the first instance at
the General Term have been over-
ruled. An appeal from such
judgment lies to the General
Term of the City Court, and on
appeal from its determination
thereon, the overruling of the ex-
ceptions may be reviewed by this
court. Section 1336, providing
for an appeal directly to the
Court of Appeals from a final
judgment entered at a Trial Term,
after the overruling of exceptions
heard at the General Term in the
first instance, is inapplicable to
cases originating in the City
Court. Mayer v. America Ins.
Co., 215.
11. Where an order refusing a re-
settlement of a case on appeal re-
cites that it is made upon the affi-
davits of the parties, it will not
be assumed, on appeal from such
order, that there was any other
proof before the trial judge which
warranted the omission from the
case of the matter in question,
as to which the affidavits show
there was no dispute. Green v.
Shute, 361.
12. In an action to recover a deposit
on a contract for the sale of realty,
judgment was given for plaintiff,
which was affirmed on appeal to
the General Term, and satisfied
by defendant paying the amount
thereof. Subsequently the judg
ment was reversed by the Court
of Appeals, and the only issue in-
volved finally determined in de-
fendant's favor. Heid, that the
court, in the exercise of its dis-
cretion, would award restitution.
Hays v. Nourse, 364.
13. Where, in an action on an account
stated, the court allows, over de-
fendant's objection, proof of an
item outside the account, defend-
ant cannot raise such objection on
appeal unless he duly excepted to
the action of the court in submit-
ting such item to the jury. Vernon
v. Simmons, 399.
14. A motion to dismiss an appeal
for a failure to serve the printed
papers, as required by rules of
court, will be granted, where the
only excuse alleged is that negotia-
tions were pending for a settle-
ment, and where appellant did
not print his papers after notice
of the motion, or come prepared
to say when they could be ready
for the argument, but merely al-
leged in his affidavit that he did
not wish to undergo the expense
of the appeal, if the matters in
difference could be settled ami-
cably. People ex rel. Clark v.
Flack, 442.
15. In an action to recover for in-
juries to plaintiff while a passen-
ger on defendant's elevated rail-
road, caused by a collision during
the great snow and wind storm of
March 12th, 1888, the exclusion of
a question to a witness, a United
States signal service officer, as to
whether, during his service as
such, he had known such a storm,
is no ground of reversal, the de-
tails of the storm having been
given in figures by him, and its
severity being well known to the
jurors. Dlabola v. Manhattan R.
Co., 470.
16. The action of the court in with-
holding from the jury a ques-
tion of noise or privacy as an ele-
ment of damage, is no ground of
reversal, where it appears that
the jury allowed nothing for the
greater injury of deprivation of
air, light and access. Moore v.
New York Elevated R. Co., 510.
17. A stipulation, given on appeal
from a judgment of the General
Term of the City Court reversing
a judgment and ordering a new
trial, that if the judgment is
affirmed judgment absolute shall
be given against appellant, pre-
cludes an appeal to the Court of
Appeals. Saling V. German
Savings Bank, 527.
18. Where, on appeal from a judg-
ment of a district court, there is
nothing in the record or papers to
show that the action was not
originally one for conversion, it
will be presumed that an amend-
ment allowing the action to pro-
ceed as an action for conversion
was prudential merely and wholly
unnecessary, and not that the ac-
tion was changed from one on
contract. Whitmark v. Lorton,
548.
See Costs, 1, 2.
DAMAGES, 3-5.
MECHANIC'S LIEN, 6.
1. Parties to a building contract,
the work under which had not
been completed, although the
time fixed therefor by the con-
tract had expired, made a sub-
mission in writing to arbitrators
of "all questions in dispute aris-
ing and to arise under said con-
tract, including all claims of
either party for damages for non-
performance, delay, or otherwise."
The contractor was allowed by
the owners to complete the work,
subject to the latter's claim for
delay. The arbitrators subse-
quently made their award, reciting
that they had heard the proofs
and allegations of the parties, and
awarding to the contractor a sum
of money, allowing a deduction
for damages for his delay. Held,
that, in the absence of evidence to
the contrary, it must be presumed
that the arbitrators passed upon
the contractors' claim for dam-
ages by reason of the owners' de-
lay, interference, or misconduct.
New York Lumber & Woodwork-
ing Co. v. Schneider, 15.
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