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ent. (Supreme Court, Appellate Division, p d Department. February 28, 1908.) Acy the Studebaker Bros. Company of New against John C. Calderwood. No opinion. nent of the Municipal Court reversed, ew trial ordered, costs to abide the event, e ground that the justice should have found vor of the plaintiff the fair and true value e items of the plaintiff's claim, in addition e two of $61 and $30.50 which were al1. and that the so-called counterclaim d have been disallowed.

TLE GUARANTEE & TRUST CO., Redent, V. DOBROEZYNSKI, Appellant. reme Court, Appellate Division, Second Dement. February 28, 1908.) Action by the Guarantee & Trust Company against or Dobroezynski. No opinion. Judgment he Municipal Court affirmed, with costs.

NDERWOOD, Appellant, V. UNDEROD, Respondent. (Supreme Court, AppelDivision, Fourth Department. March 4, 3.) Action by Mertie L. Underwood against rgaret E. R. Underwood, as executrix, etc. opinion. Judgment and order affirmed, with

S.

NITED MERCHANTS' REALTY CO. v. TH. (Supreme Court, Appellate Division, st Department. April 16, 1908.) Action by United Merchants' Realty Company against x J. Roth. No opinion. Motion granted, estions certified, and order filed.

UNITED STATES, Respondent, v. PAVEK al., Appellants. (Supreme Court, Appellate vision, Second Department. March 6, 1908.) tion by the United States of America against

hn G. Pavek and others.

PER CURIAM. Final order affirmed, with

sts.

RICH, J., dissents.

VON POIN v. MONTANYE. (Supreme Court, Appellate Division, First Department. April 16, 1908.) Action by Max A. Von Poin against Mary E. Montanye. No opinion. Motion granted, with $10 costs. Order filed.

VOUGHT et al., Respondents, v. BLAINE et al., Appellants. (Supreme Court, Appellate Division, First Department. March 20, 1908.) Action by Harry H. Vought and another against James Blaine and another. W. F. Severance, for appellants. F. M. Avery, for respondents. No opinion. Judgment affirmed, with costs. Order filed.

WADE, Respondent, v. CITY OF MT. VERNON, Appellant. (Supreme Court, Appellate Division, Second Department. February 28, 1908.) Action by Elizabeth Wade against the city of Mt. Vernon. No opinion. Motion denied.

WAGNER, Appellant, v. DOYLE, Respondond Department. ent. (Supreme Court, Appellate Division, Seetion by John Wagner against Anna J. Doyle, February 28, 1908.) Acas administratrix de bonis non of Charles Kinken, deceased. No opinion. Judgment and order affirmed, with costs.

WAGNER, Respondent, v. HUDSON VAL LEY RY. CO., Appellant. (Supreme Court, Appellate Division, Third Department. March 23, 1908.) Action by William C. Wagner against the Hudson Valley Railway Company. No opinion. Motion granted.

WARDEN, Appellant, v. CITY OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division, Second Department. March 11, 1908.) Action by Irene Warden, an infant, by William E. Warden, her guardian ad litem, against the city of New York and others. No opinion. Order of reversal amended to read as follows: "Judgment and order reversed on exceptions only, and the order is affirmed on all other grounds." See 108 N. Y. Supp. 305.

VAN GORDER, Respondent, v. HELMER, ppellant. (Supreme Court, Appellate Divion, Fourth Department. March 11, 1908.) ction by Greenleaf S. Van Gorder against rederick D. Helmer, as executor, etc. In re WARSAY HOTEL CO. (Supreme No inion. Motion to dismiss appeal granted. Court, Appellate Division, Fourth Department. th costs of the appeal, including $10 costs of March 11, 1908.) In the matter of the volunis motion. Held, that the costs and dis-tary dissolution of the Warsay Hotel Company. rsements should be taxed by the clerk in the No opinion. Order affirmed, with $10 costs and

-st instance.

disbursements.

ent.

VAN NORDEN TRUST CO. v. MURPHY. WARREN, Appellant, v. BUNEL, RespondSupreme Court, Appellate Division, First De-ond Department. March 11, 1908.) Action by (Supreme Court, Appellate Division, Secartment. March 6, 1908.) Action by the Walter H. Warren against Caroline Bunel. an Norden Trust Company against Edward No opinion. Judgment affirmed, with costs. . Murphy, as executor. No opinion. Motion enied, without costs. Settle order on notice.

WARREN, Respondent, v. DEGNON CONTRACTING CO., Appellant. (Supreme Court, VILLAGE OF HAVERSTRAW, Respond- Appellate Division, Second Department. March at, v. ECKERSON et al., Appellants. (Su- 6, 1908.) Action by William Warren against reme Court, Appellate Division, Second De- the Degnon Contracting Company. No opinartment. February 28, 1908.) Action by the ion. Judgment of the Municipal Court reversed, illage of Haverstraw against J. Esler Ecker- on the ground that the present record shows on and others. No opinion. Motion granted. I that the negligence, if any, was that of a fel

and 143 New York State Reporter

low servant of the plaintiff in removing a lid, In re WEST ONE-HUNDRED AND SE which had been provided by the master, from the hole, and new trial ordered, costs to abide the event.

WARTH v. KASTRINER et al. (Supreme Court, Appellate Division, Second Department. March 11, 1908.) Action by Apollonia Warth, trading, etc., under the firm name of Albin Warth, against Jacob Kastriner and others. No opinion. Motion denied.

WATERFORD

ELECTRIC LIGHT, HEAT & POWER CO. v. REED et al. (Supreme Court, Appellate Division, Third Department. March 23, 1908.) Action by the Waterford Electric Light, Heat & Power Company against Kate E. Reed and others. No opinion.

Ordered that the order heretofore made herein

by this court shall be without prejudice to the right of the plaintiff to ask leave of the Special Term to vacate the judgment of condemnation herein and to make such amendment to its original petition as may be proper upon such terms and conditions as such court may determine; $10 costs of this motion to be paid by plaintiff.

TY-SECOND ST. (Supreme Court, Ap late Division, First Department. March 1908.) In the matter of West 162d stre No opinion. Motion granted. Order file

In re WEST TWO-HUNDRED AND ELET ENTH ST. AND WEST TWO-HUNDRE AND TWELFTH ST. (Supreme Court, A pellate Division, First Department. April 1 1908.) In the matter of West 211th street a West 212th street. No opinion. Motions granted. Orders filed.

In re WEST TWENTIETH AND TWEN TY-SECOND STREETS. (Supreme Cour Appellate Division, First Department. Mar 13, 1908.) In the matter of the West Tw No opinio tieth and Twenty-Second streets. Motion granted. Order filed.

WHALEN, Respondent, v. LESE, Appellant (Supreme Court, Appellate Division, First D Whalen, as sole surviving executor, etc., agains partment March 27, 1908.) Action by Jols Louis Lese. No opinion. Motion denied. c payment of $10 costs, and on condition that ap

WATERS, Respondent, v. METROPOLI- pellant have his appeal ready for the May tern. TAN LIFE INS. CO., Appellant. (Supreme | Order filed. Court, Appellate Division, Third Department. March 19, 1908.) Action by Kate Waters against the Metropolitan Life Insurance Company. No opinion. Motion denied.

WATTS, Respondent, v. FRANZ, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 25, 1908.) Action by Dora Post Watts against Frederick J. Franz. No opinion. Judgment and order affirmed, with .costs.

WHITE, Respondent, v. DOUGLAS, Ap pellant. (Supreme Court, Appellate Division First Department. March 27, 1908.) Action No opinion. Motion denied, on payment of $1 by Joseph White against James A. Dougla costs, and on condition that appellant have bi appeal ready for the May term. Order filed.

In re WHITE'S ESTATE. (Supreme Court Appellate Division, Second Department. FebWEBBER, Respondent, v. EISLER, Appel-ruary 28, 1908.) In the matter of the estate of lant. No opinion. Order (Supreme Court, Appellate Division, Patrick White, deceased. First Department. March 6, 1908.) Action of the Surrogate's Court of Kings county affirm by Richard Webber against Nathan A. Eisler. ed, without costs. W. L. Stone, Jr., for appellant. R. L. Weaver, for respondent. No opinion. Judgment affirmed, with costs. Appeal from decision dismissed, with costs. Order filed.

WELCH, Respondent, v. WELCH, Appellant. (Supreme Court, Appellate Division, Second Department. February 28, 1908.) Action by John Welch against Albert Welch. No opinion. Motion granted, on condition that the parties agree that the bonds be deposited pending the action in escrow with some person or corporation, to be chosen by them within five days, in default of which an undertaking to be approved by a justice of this court must be given; otherwise, motion denied, with $10 costs.

WELLS, Respondent, v. TAYLOR et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 6, 1908.) Action by Frank Wells against Edna V. Taylor and others. No opinion. Judgment affirmed, with

costs.

WHITMORE, Respondent, v. WHITMORE, Appellant. (Supreme Court, Appellate Division, First Department. April 10, 1908.) Action by Ida Whitmore against Louis Whitmore. J. Wilkenfeld, for appellant. L. A. Snitkin, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

WIARD MFG. CO., Respondent, v. WATKINS, Appellant. (Supreme Court, Appellate Division, Third Department. March 11, 1948) Action by Wiard Manufacturing Company against E. Fred Watkins. No opinion. Judg. ment affirmed, with costs.

In re WILCOX. (Supreme Court, Appellate Division, Fourth Department. March 11, 1908.) In the matter of the application of Frank Z. Wilcox for a peremptory writ of mandamus, etc. No opinion. Motion for leave to appeal to the Court of Appeals denied, with $10 costs.

WILLIAMS, Appellant, v. CITY OF NEW ORK, Respondent. (Supreme Court, Appelte Division, First Department. April 10, 08.) Action by Agnes M. Williams against e city of New York. W. L. Bunnell, for apllant. T. Connoly, for respondent. No opinn. Order affirmed, with $10 costs and disirsements. Order filed.

WILSON, Appellant, v. HAFF, Respondent. Supreme Court, Appellate Division, Second epartment. February 28, 1908.) Action by harlotte M. Wilson against William P. W. aff. No opinion. Judgment of the Municipal ourt reversed, and new trial ordered, costs to bide the event, on the ground that it was error > nonsuit the plaintiff, for as much as she had iven evidence tending to establish the connecon of the defendant with the contract sued

pon.

WINANS, Appellant, v. ROCHESTER RY. O., Respondent. (Supreme Court, Appellate Division, Fourth Department. March 25, 908.) Action by Harriet E. Winans against he Rochester Railway Company. No opinion. he case having been twice passed, the said apeal was in each case dismissed, under rule 39 f the general rules of practice.

In re WOODRUFF. WOODRUFF, Appellant, v. WHIPPLE, Com'r, Respondent. (Supreme Court, Appellate Division, Third Department. March 11, 1908.) In the matter of the application of Timothy L. Woodruff for a writ of mandamus against James S. Whipple, as forest, fish, and game commissioner of the state of New York. Action by Timothy L. Woodruff against James S. Whipple, as forest, fish, and game commissioner of the state of New York. No opinion. Order unanimously affirmed, with costs.

WYLIE, Respondent, v. CORTLAND FORGING CO., Appellant. (Supreme Court, AppelMarch 11, late Division, Third Department. 1908.) Action by George A. Wylie against the Cortland Forging Company.

PER CURIAM. Judgment and order reversed, and new trial granted, with costs to appellant to abide event, on the ground that there is no evidence of defendant's negligence. KELLOGG, J., concurs in result.

AMUSEMENT KING, Respondent, v. WILL J. BLOCK CO., Appellant. (Supreme Court, Appellate Division, First Department. April 24, 1908.) Action by Alice F. H. King against the Will J. Block Amusement ComWINSLOW, Respondent, v. MAYO, Appel-pany. D. Gerber, for appellant. P. N. Turner, ant. (Supreme Court, Appellate Division, Sec- for respondent. No opinion. Order affirmed, nd Department. March 11, 1908.) Action by with $10 costs and disbursements. Order filed. Harry F. Winslow against Marcellus F. Mayo. o opinion. Motion denied.

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MOSSA, Appellant, v. MOSSA, Respondent. (Supreme Court, Appellate Division, First Department. January, 1908.) Action by Mary P. Mossa against Rudolph Mossa. No opinion. Order affirmed, with $10 costs and disburse

ments.

END OF CASES IN VOL. 109.

INDEX.

ABANDONMENT.

Of husband or wife, see "Husband and Wife,"
§ 1.

ABATEMENT.

Of nuisance, see "Nuisance," § 1.

ABATEMENT AND REVIVAL.

Election of remedy, see "Election of Remedies."
Right of action by or against personal repre-
sentative, see "Executors and Administra-
tors," § 5.

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

*Husband held entitled to an order reviving
suit for partition brought by the wife, he be-
ing successor in interest to the wife, under Code
Civ. Proc. § 757.-Duke v. Abel (Sup.) 662.

ABETTORS.

Criminal responsibility, see "Criminal Law," -
§ 1.

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 6.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," §§ 2, 9.

Rights in streets in cities, see "Municipal Cor-
porations," § 8.

ACCESSORIES.

Criminal responsibility, see "Criminal Law,"
§ 1.

ACCOMPLICES.

Criminal responsibility, see "Criminal Law,"
§ 1.

ACCORD AND SATISFACTION.

See "Payment"; "Release."

Facts held to show an accord and satisfaction
of a claim for services. Gribble v. Raymond
Van Praag Supply Co. (Sup.) 242.

A contract held unilateral and without con-
sideration.-Colt v. O'Connor (Sup.) 689.

109 N.Y.S.-73

*The word "other" in a contract held to mean
"additional."-Colt v. O'Connor (Sup.) 689.

Plaintiff, under a contract, held not to have
released her cause of action against defendant's
testator, but merely to have agreed that she
would settle the claim on the happening of cer-
tain things.-Colt v. O'Connor (Sup.) 689.

*Accord and satisfaction defined.--Cochenour
v. Rieser (Sup.) 807.

In an action to recover for repairs made on
defendant's boilers, evidence held insufficient to
show that an accord and satisfaction had been
established.-Cochenour v. Rieser (Sup.) 807.

ACCOUNT.

Copies of accounts alleged or annexed in plead-
ing, see "Pleading," § 6.

Accounting by particular classes of persons.
See "Executors and Administrators," § 6.
Corporate officers, see "Corporations," § 2.
Partners, see "Partnership," § 4.
Trustee, see "Trusts," §§ 3, 5.

ACCOUNT, ACTION ON.

Computation of limitations, see "Limitation of
Actions," § 2.

Copies of accounts alleged or annexed in plead-
ing, see "Pleading," § 6.

ACCOUNT STATED.

Competency of witnesses in action on, see "Wit-
nesses," § 2.

ACCRUAL.

Of right of action, see "Limitation of Ac-
tions," § 2.

ACKNOWLEDGMENT.

Operation and effect of admissions as ground
of estoppel, see "Estoppel," § 2.

ACTION.

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 2.
Election of remedy, see "Election of Remedies."
Jurisdiction of courts, see "Courts."
*Point annotated. See syllabus.
(1153)

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