and 88 New York State Reporter. In re TWELFTH WARD PARK. In re SCANGARELLA et al. (Supreme Court, Appellate Division, First Department. November 18, 1898.) In the matter of the Twelfth Ward Park and Scangarella and others. No opinion. The award being to unknown owners, the city is not liable for interest. The report in other respects is confirmed. VICTOR et al. v. LEWIS. (Supreme Court, Appellate Division, First Department. November 18, 1898.) Action by George F. Victor and others against Nathan Lewis. No opinion. Motion granted, with $10 costs. VICTOR et al., Respondents, v. LEWIS_et al., Appellants. (Supreme Court, Appellate Division, First Department. November 18, 1898.) Action by George F. Victor and others against Jacob Lewis and another. N. Lewis, for appellants. E. Blumenstiel, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. See 53 N. Y. Supp. 944. In re WEST. (Supreme Court, Appellate Division, Second Department. October 11, 1898.) In the matter of the petition of Edward W. West to amend the record of his admission to practice, etc. No opinion. Leave granted to take the oath of office and sign the roll. In re WESTCHESTER TRUST CO. (Supreme Court, Appellate Division, Second Department. October 4, 1898.) In the matter of the application of the Westchester Trust Company to be designated as a deposit bank. No opinion. Order signed. Wilson Brown. Jr., appointed referee. In re WESTCHESTER TRUST CO. (Supreme Court, Appellate Division. Second Department. October 18, 1898.) In the matter of the application of the Westchester Trust Company to be designated as a deposit bank. No opinion. Report of referee confirmed, and order signed. WESTERN NAT. BANK OF NEW YORK. VILLAGE OF CHAMPLAIN, Respondent, Respondent, v. FABER, Appellant. (Supreme v. MCCREA et al., Appellants. (Supreme Court, Court, Appellate Division, First Department. Appellate Divison, Third Department. November 29, 1898.) Action by the village of Cham-October 21, 1898.) Action by the Western Naplain against Matilda McCrea and the First Na- tional Bank of New York against Eberhard tional Bank of Champlain. No opinion. MoC. T. Haviland, for appellant. M. B. Clarke, for respondent. tion denied. See 53 N. Y. Supp. 1096. No opinion. Order affirmed, with $10 costs and disbursements. In re WHEELER. Faber. VILLAGE OF CHAMPLAIN, Respondent, (Supreme Court, Appel- See WHEELER, Respondent, v. WASHBON. WALSH v. THIRD AVE. R. CO. (Supreme Court, Appellate Division, First Department. sion, Third Department. November 16, 1898.) Appellant. (Supreme Court, Appellate DiviOctober 14, 1898.) Action by Thomas F. Walsh against the Third Avenue Railroad Com-Action by S. Augusta Wheeler against Andrew G. Washbon. No opinion. Judgment affirmNo opinion. Motion granted, with $10 ed, with costs. WEEHAWKEN WHARF CO., Appellant, v. WHITE, Appellant, v. FREYTAG et al., KNICKERBOCKER COAL CO., Respondent. Respondents. (City Court of New York. Gen pany. costs. In re PAUL. December 7, 1898.) Action by Henry White against Philip N. Freytag and another. (City Court of New York, General Term. eral Term. November 18, 1898.) Action by the Weehawken Wharf Company against the Knickerbocker Coal Company. In the matter of the application of Edward T. Paul, assignee of the Knickerbocker Coal Company. James R. Rogers, for appellant. Edwards & Bryan, for respondent. CONLAN, J. The facts presented upon the appeal herein are the same as those presented upon the appeal in action No. 1, argued and decided at this general term, and the opinion and decision of this court thereon is also the same. See opinion in action No. 1. 54 N. Y. Supp. Order appealed from affirmed, with costs. FITZSIMONS, C. J., concurs. 566. WEISS v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. November 18, 1898.) Action by Julius Weiss, as administrator, against the Metropolitan Street-Railway Company. No opinion. Motion denied. See 53 N. Y. Supp. 449. SCHUCHMAN, J. Order and judgment appealed from are affirmed, with costs. Me CARTHY, J., concurs. WHITE, Appellant, v. RHEIN et al., Respondents. (City Court of New York, General Term. November 18, 1898.) Action by Henry B. White against Myer L. Rhein and others. Blandy,, Mooney & Shipman, for appellant. Guggenheimer, Untermyer & Marshall, for respondents. PER CURIAM. We think that the order appealed from should be reversed. If affirmed. it would work perhaps irreparable harm to the plaintiff. while its reversal would do no injury to the defendant, in view of the fact that plaintiff has filed a sufficient undertaking to pay costs, which was filed at the time of the making of the motions upon which the order ap pealed from is based. It follows that the judgment entered upon said order must be reversed. Order appealed from and judgment reversed. No costs. All concur. WILCOCK, Respondent, v. HEERMANCE, Appellant. (Supreme Court, Appellate Division, Second Department. October 11, 1898.) Action by Richard Wilcock against Edmond V. N. Heermance. No opinion. Motion for leave to appeal to the court of appeals denied. WILLIAMS, Respondent, v. THIRD AVE. R. CO., Appellant. (Supreme Court, Appellate Division, First Department. October 14, 1898.) Action by Thomas C. Williams against the Third Avenue Railroad Company. E. Treadwell, for appellant. S. H. Barton, for respondNo opinion. Order affirmed, with $10 costs and disbursements. ent. WILMERDING v. DON et al. (Supreme Court, Appellate Division, First Department. October 14, 1898.) Action by John G. Wilmerding against John B. Don and others. No opinion. Motion granted, with $10 costs. WILSON et al., Respondents, v. CROSS et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 25, 1898.) Action by J. Victor Wilson and Charles D. Wilson against Alonzo Cross and Frank E. Burch. No opinion. Order reversed on argument, with $10 costs and disbursements, and plaintiffs granted five days to serve answer in cross ac tion. WOOD, Respondent, v. CITY OF ELMIRA, Appellant. (Supreme Court, Appellate Division, Third Department. November 16, 1898.) Ac END OF CASES IN VOL. 54. INDEX. ABATEMENT AND REVIVAL.. Of claim by executor, see "Executors and Ad- § 1. Death of party and revival of ac- Under Code Civ. Proc. § 757, the court has ACCIDENT. Accident insurance, see "Insurance," § 12. ACCOMMODATION PAPER. See "Bills and Notes." ACCORD AND SATISFACTION. See, also, "Compromise and Settlement"; "Pay- A consignee of goods held to have waived a ACCOUNT. See, also, "Account Stated." 1. Right of action. Plaintiff suing a husband and wife for an ac- § 2. Proceedings and relief. A bill for an accounting and readjustment All members of a syndicate to consolidate cor- 54 N.Y.S.-71 ACCOUNT STATED. Where the existence of an account stated is ACTION. See, also, "Master and Servant," § 3; "Part- Actions between parties in particular relations See "Banks and Banking," § 1; "Carriers," §§ 1, Assignees, see "Assignments," § 2. Particular causes or grounds of action. Breach of warranty, see "Sales," § 8. Discharge from employment, see "Master and Infringement of trade-mark or trade-name, see of tax paid, see "Taxation," $ 4. Unfair competition in trade, see "Trade-Marks Particular forms of action. (1121) and 88 New York State Reporter. Particular forms of special relief. "Account"; "Divorce"; "Interpleader”; "Partition." See Cancellation of written instrument, see "Cancellation of Instruments." Construction of will, see "Wills," § 5. Removal of cloud on title, see "Quieting Title." Setting aside fraudulent conveyance, see "Fraudulent Conveyances," § 2. Particular proceedings in actions. See "Appearance"; "Costs"; "Damages"; "Depositions"; "Evidence"; "Execution"; "Judgment"; "Jury"; "Motions"; "Pleading" "Process"; "Reference"; "Trial"; "Venue.' Bill of particulars, see "Pleading," § 7. Default, see "Judgment." § 2. Offer of judgment, see "Judgment," § 1. Particular remedies in or incident to actions. See "Attachment"; "Discovery"; "Injunction"; "Receivers." Proceedings in exercise of special jurisdiction. Criminal prosecutions, see "Criminal Law." Suits in equity, see "Equity." in justices' courts, see "Justices of the Peace," § 2. Review of proceedings. See "Appeal"; "Certiorari"; "New Trial." $ 1. Nature and form. A complaint held to state an action for conversion, and not an action for breach of contract, notwithstanding the demand for judgment was for the specific valuations fixed by the contract.-Yardum v. Wolf (Sup.) 192. § 2. Joinder, splitting, consolidation, and severance. Injunction against an illegal issue of preferred stock, and relief for a refusal to enter a transfer on the corporate books, may be joined in the same action.-Ernst v. Elmira Municipal Imp. Co. (Sup.) 116. A complaint held not subject to a demurrer for misjoinder of causes of action.-Gates v. Gates (Sup.) 454. A cause of action to foreclose a mortgage held not properly united with a cause of action for a breach of an agreement to have the mortgagor erect certain buildings on the premises as based on the same transaction, within Code Civ. Proc. § 484, subd. 9.-Olin v. Arendt (Sup.) 820. Causes of action held not properly united, where one of them did not affect all the parties to the action.-Olin v. Arendt (Sup.) 820. A cause of action to foreclose a mortgage and one for a breach of an agreement to have the mortgagor erect buildings on the premises held not properly joined, since inconsistent. Code Civ. Proc. § 484.-Olin v. Arendt (Sup.) 820. § 3. Commencement, prosecution, and termination. day of his successor's term held an attempt to commence an action, within section 399.Littlejohn v. Leffingwell (Sup.) 536. ADMINISTRATION. Of estate of decedent, see "Executors and Administrators." ADMISSIONS. Of attorney binding client, see "Attorney and Client," § 1. ADULTERY. As ground for divorce, see "Divorce," § 1. ADVERSE POSSESSION. Sufficiency of, to show title, see "Vendor and Purchaser," § 3. Under Laws 1896, c. 610, providing that a building extending not more than 4 inches on a street should not be removed, the fact of such encroachment does not create a flaw in the title. -Harrison v. Platt (Sup.) 842; In re Ottenberg, Id. Where a building encroaching on adjoining land, the title to which was in persons not under disability, had stood there without objection for 30 years, there is no flaw in the title. -Harrison v. Platt (Sup.) 842; In re Ottenberg, Id. AFFIDAVITS. See "Attachment," § 1; "Depositions." In particular proceedings. See "Principal and Agent." AGREEMENT. See "Contracts." ALIENATION. Suspension of power of alienation of property. see "Perpetuities." ALTERATION. Alteration of bond as discharge of surety, see "Principal and Surety," § 2. ALTERATION OF INSTRUMENTS. See "Reformation of Instruments." AMENDMENT. Under Code Civ. Proc. §§ 182, 183, a delivery of a summons by mail to a sheriff on the first See "Judgment," § 3; "Pleading," § 5. |