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raised on the trial; hence we are of opinion that the judgment should be reversed, and a new trial granted, with costs of the appeal to the appellant.

WALLACH, Appellant, v. WALLACH et al., Respondents. (Supreme Court, Appellate Division, First Department. January 22, 1897.) Action by Karl M. Wallach against Samson Wallach and others. D. Gerber, for appellant. R. Foster, for respondents. No opinion. Order affirmed, with $10 costs and disbursements.

WALTERS, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. Janu ary 19, 1897.) Action by George B. Walters against the Brooklyn Heights Railroad Company. No opinion. Judgment and order reversed, and new trial granted, costs to abide the event, unless within 20 days plaintiff stipulates to reduce the verdict to $5,250. If plaintiff so stipulates, the judgment so reduced is unanimously affirmed, without costs.

WAMSLEY v. HORTON et al. (Supreme Court, Appellate Division, First Department. February 12, 1897.) Action by William E. Wamsley against H. L. Horton & Co. No opinion. Motion denied. See 42 N. Y. Supp. 767.

WARNE, Respondent, v. STANTON, Appellant. (Supreme Court, Appellate Division, Fourth Department. December 19, 1896.) Action by Edward Warne against Catherine Stanton. Richard Crowley, for appellant. Filkins & Coe, for respondent.

of. If the plaintiff shall stipulate to reduce the damages by $700, with interest thereon from November 1, 1892, the judgment may be modified, and, as modified, affirmed. Judgment reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff shall stipu late to reduce the damages by deducting $700, with interest thereon from November 1, 1892, to the date of the referee's report, in which event the judgment as so modified is affirmed, without costs of the appeal to either party.

WASHINGTON LIFE INS. CO., Respondent, v. CLASON et al., Appellants. (Supreme Court, Appellate Division, First Department. January 22, 1897.) Action by the Washington Life Insurance Company against Augustus Clason and others. P. M. Brett, for appellants. Foster & Thomson, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

WEEKS, Appellant, v. STATE, Respondent. (Supreme Court, Appellate Division, Third Department. March 3, 1897.) Action by Forest G.. Weeks against the state of New York. No opinion. Order affirmed, with $10 costs and disbursements.

WELD, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, cember 19, 1896.) Appellate Division, Fourth Department. DeAction by John L. Weld against the New York Central & Hudson River Railroad Company. firmed, with costs. No opinion. Order af

In re WHITNEY. late Division, First Department. February 5, (Supreme Court, Appel1897.) In the matter of Orrin R. Whitney. No opinion. Motion denied, with $10 costs.

WICKES et al., Respondents, v. BARNES et al., Appellants. (Supreme Court, Appellate Division, Third Department. March 3, 1897.) Action by Russell II. Wickes and others against German B. Barnes and others. No opinion. Judgment affirmed, with costs. All concur, except HERRICK and PUTNAM, JJ., dissenting.

HARDIN, P. J. Upon an inspection of the record we are of the opinion that the preponderance of evidence was in favor of allowing the payment made to the plaintiff of $200 on the 24th of September, 1891. A receipt was taken for that payment purporting to be executed by Division, Fourth Department. In re WHORF. (Supreme Court, Appellate the plaintiff. In the course of his cross-examina- 1896.) Application of Edgar J. Whorf. No December 19, tion, plaintiff admitted the signature to that receipt. A perusal of the evidence found the opinion. Motion denied, without prejudice to an appeal book leads to the conclusion that the application to the court of appeals. plaintiff failed in several particulars to comply with the requirements of the agreement. The referee, in his eighth finding of fact, states as follows: "That defendant has been damaged by reason of the failure of plaintiff to place a railing at attic stairs, and by leaving out a door at head of back stairs, and by reason of back stairs being made six inches narrower than plan called for; by putting a 30-gallon boiler in said house instead of a 40-gallon boiler; by leaving out flashings under windows, and omission to put Court, Appellate Division, Fourth Department. WILLIAMS v. COLWELL et al. (Supreme raised panels where called for in specifications. return pipe to boiler, and other minor variations February 9, 1897.) Action by Frank F. Wilfrom plans, in the sum of fifty dollars." Weliams against Henry S. Colwell, as administrator, are not satisfied with the allowance of only $50 by way of damages for the omissions of the plaintiff. The evidence does not very satisfactorily indicate just what sum should be allowed to the defendant for the omissions and variations shown by the evidence, although we are of the opinion that $50 is an inadequate sum. We have concluded, however, to allow the plaintiff to stipulate to reduce the damages $500 by reason there

etc.

No opinion. Order affirmed, with $10 costs and disbursements, on the opinion of Laughlin, J., delivered at special term (43 N. Y. Supp. 720).

WITTENBERG, Respondent, v. SEITZ_et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. February 9, 1897.) Action by Henry Wittenberg against Frederick

and 77 New York State Reporter.

C. Seitz, impleaded, etc. No opinion. Order | George Wood, Sr., against Charles P. Moody. denying motion for a new trial affirmed, with No opinion. Judgment and order of the county costs. Order denying motion for retaxation court of Wayne county affirmed, with costs. affirmed, with $10 costs. Motion denied, with $10 costs. See 40 N. Y. Supp. 899, and 41 N. Y. Supp. 1135.

WOOD, Respondent, v. MOODY, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 27, 1897.) Action by

ZEUZIUS, Respondent, v. LANCTOT et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. December 19, 18955 Action by Jacob Zeuzius against Henry H Lanctot and others. No opinion. Judgment affirmed, with costs.

END OF CASES IN VOL. 43

INDEX.

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ACKNOWLEDGMENT.

To toll statute of limitations, see "Limitation
of Actions."

ACTION.

See, also, "Account, Action on; "Attach-
ment"; "Death"; "Discovery"; "False Im-
prisonment": "Injunction"; "Interpleader”;
"Malicious Prosecution"; "Mandamus"; "Mon-
ey Received"; "Replevin"; "Trespass"; "Tro-
ver and Conversion."

Against firm, see "Partnership."

By administrator, see "Executors and Admin-
istrators."

By foreign corporation, see "Corporations."
By or against corporations, see "Corporations."
By stockholders, see "Corporations."

Effect of pendency of other action, see "Abate-
ment and Revival."

For alienating husband's affections, see "Hus-
band and Wife."

For breach of covenant, see "Covenants."
- of warranty, see "Sales."

For death by wrongful act, see "Death."
For fraud, see "Fraud."

For price of goods, see "Sales."

For trespass, see "Trespass."

In forma pauperis, see "Costs."

Injunction pending suit, see "Injunction."
Objections to form of action, time of taking.
see "Appeal.”

On bills and notes, see "Bills and Notes."
On contract, see "Contracts."
On policy, see "Insurance."

Revival of, see "Abatement and Revival."
Suit in equity, see "Equity."

To declare will void, see "Wills."
To set aside fraudulent conveyance, see "Fraud-
ulent Conveyances.

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To vacate assessment, see "Municipal Corpo-
rations."

Causes of action arising out of the same trans-
action cannot be joined when the claims are in-
consistent.-McClure v. Wilson (Sup.) 209.

Action for conversion of note may be brought
before maturity.-Boyer v. Fenn (City Ct. N.
Y.) 506.

Material men cannot sue on contractor's bead
to city.-Lyth v. Hingston (Sup.) 653.

ADEQUATE REMEDY AT LAW.

See "Mandamus."

(1169)

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An unpaid judgment against one of two de fendants does not bar an appeal as against the other.-Hurley v. New York & Brooklyn Brew

An adverse possession of land cannot be estab-ing Co. (Sup.) 259. lished under a tax lease.-Sanders v. Riedinger (Sup.) 127.

Mere possession is insufficient to establish adverse possession.-Sanders v. Riedinger (Sup.) 127.

Natural boundaries are sufficient to constitute inclosures. Sanders v. Riedinger (Sup.) 127. The burden of proof is on the person claiming adverse possession.-Sanders v. Riedinger (Sup.)

127.

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Claimant in interpleader cannot take advan tage of error which only diminished the recov ery of the other claimant.-Windecker v. Mutual Life Ins. Co. (Sup.) 358.

Defendant is not "aggrieved" by a judg ment dismissing the proceeding without prejudice to plaintiff's rights to begin other proceedings.-Village of Canandaigua v. Benedict (Sup.) 630.

No appeal lies from judgment of county court on appeal from a justice court in a special proceeding. In re Rafferty (Sup.) 760.

When order dismissing complaint is appealable. Requard v. Theiss (Sup.) 1066.

Notice.

Facts held not to show good cause for extending time to file return.-Goelet v. Lawlor (Sup.) 1071.

Record.

Error cannot be predicated on refusal to admit letters in evidence where the letters do not appear in the record.-Ransom v. Wheelwright (Sup.) 244.

Statement that case contains "all the testimony taken on the trial" is not equivalent to a statement that the case contains all the evidence.-Hannon v. Gallagher (City Ct. N. Y.)

492.

Order striking matter from pronosed case will not be disturbed by appellate court in the absence of papers on which trial court acted.-Niles v. New York Cent. & H. R. R. Co. (Sup.) 734. Opinion of trial judge cannot be used to explain findings.-Prignitz v. McTiernan (Co. Ct.) 974.

Opinion of trial court cannot be considered on appeal, unless made part of the record.-Manning v. West (Sup.) 1070.

Review.

When appellate term of supreme court will
When a party cannot assign as error the ad-remand case to general term of New York City
mission in evidence of copies of accessible pa- court.-Manning v. West (Sup.) 1070.
pers.-Michaelis v. Wilshusen (Sup.) 273.

On appeal from denial of motion to set aside
execution, review cannot be had of previous or-

APPLICATION.

ders denying motion to set aside judgment. For insurance, see "Insurance."
Arkenburgh v. Arkenburgh (Sup.) 892.

Defendant held estopped to assert that the
case was submitted on wrong theory.-Corn Ex-
change Bank v. American Dock & Trust Co.
(Sup.) 1028.

Objections not raised below.
Objection to form of action not made below
will not be considered.-Campbell v. Muller
(Sup.) 233.

Objection not raised below cannot be urged
on appeal.-Tompkins v. City of New York
(Sup.) 878.

When objection that instructions were too mea-
ger, waived.-Felice v. New York Cent. & H. R.
R. Co. (Sup.) 922.

General term of city court of New York may
review exceptions where no exceptions were
taken at the trial.-Manning v. West (Sup.)
1070.

APPOINTMENT.

Of receiver, see "Receivers."
To office, see "Officers."

APPRAISAL.

Of loss under policy, see "Insurance."

ARBITRATION AND AWARD.

Authority of corporate officer to submit fire
loss to arbitration, see "Corporations."

Award cannot be set aside for mistakes not
apparent on its face.-Remington Paper Co. v.
London Assur. Corp. of England (Sup.) 431.

One who seeks to vacate an award must offer
Paper Co. v. London Assur. Corp. of Eng-
to restore benefits received under it.-Reming-
land (Sup.) 431.

Objection to question as "incompetent, imma-ton
terial, and irrelevant" held too general on ap
peal.-Brown v. Third Ave. R. Co. (Sup.) 1094.
Party failing to move for directed verdict
cannot contend on appeal that there is no evi-
dence to support verdict.-Steinau v. Scheuer
(Sup.) 1112.

ARGUMENT OF COUNSEL.

See "Trial."

ARREST.

Weight and sufficiency of evidence.
Finding of fact not supported by evidence
will be disregarded in order to sustain judg- Execution against the person,
ment, though not excepted to by respondent.-
Greene v. Smith (Sup.) 610.

On appeal from refusal to set aside execution,
sufficiency of evidence on which judgment was
directed cannot be reviewed.-Arkenburgh v. Ar-
kenburgh (Sup.) 892.

tion."

see "Execu-

When arrest without warrant is unlawful.-

Carpenter v. Pennsylvania R. Co. (Sup.) 203.
Complaint for money received in a fiduciary
capacity need not expressly allege that the mon-
Appellate division cannot review facts on ap-ey was so received to authorize an order of ar-
peal from judgment of county court rendered
on appeal from justice of the peace.-Norton
v. Vernam (Sup.) 1099.

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rest.-Cohen v. Rothschild (City Ct. N. Y.) 509.

Order of arrest will not be granted where
facts are alleged on information and belief, but
the source of the information is not shown.-

Cohen v. Rothschild (City Ct. N. Y.) 509.

Evidence held sufficient to justify order of ar-
rest in action for fraud.-Boyer v. Fenn (Sup.)
533.

ASSESSMENT.

For public improvements, see "Municipal Cor-
porations."
For taxes, see "Ta..ation."
Of damages, see "Damages."

ASSIGNMENTS.

See "Assignments for Benefit of Creditors."
Of bills and notes, see "Bills and Notes."
Of error, see "Appeal."
Of lease, see "Landlord and Tenant."
Of policy, see "Insurance."

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