INDEX. ABANDONMENT. Of contract, see "Contracts," § 4. ABATEMENT AND REVIVAL. ABDUCTION. § 1. Prosecution and punishment. Under Pen. Code, § 283, the testimony of a ABUTTING OWNERS. Compensation for taking of or injury to lands § 1. Right of action and defenses. Where there is no basis for a recovery until ACCOUNT STATED. Evidence held sufficient to show an account Testimony to impeach an account stated held Rulings on the reception of evidence in an Evidence considered, in an action to have ACCRUAL. Rights in streets in cities, see "Municipal Cor- of right of action, see "Limitation of Ac- porations," § 6. ACCESSION. Annexation of personal to real property, see ACCOMPLICES. Testimony, see "Criminal Law," § 2. ACCORD AND SATISFACTION. See "Novation." Acceptance by a vendor of merchandise of ACCOUNT. See "Account Stated." Accounting between partners, see "Partner- Accounting by executor or administrator, see 75 N.Y.S.-72 tions," § 1. ACKNOWLEDGMENT. Operation and effect of admissions as evi- § 3. ACQUIESCENCE. Grounds of estoppel, see "Estoppel," § 1. ACTION. Accrual, see "Limitation of Actions," § 1. Malicious actions, see "Malicious Prosecu- Review of proceedings, see "Appeal"; "Jus- (1137) and 109 New York State Reporter Actions between parties in particular relations. | Enforcement or foreclosure of ! en, see "Me See "Master and Servant," § 3; "Partnership," $ 3. Co-sureties, see "Principal and Surety," § 2. Co-tenants, see "Partition," § 2. Actions by or against particular classes of parties. See "Attorney and Client," § 3; "Brokers," § 1; "Carriers," §§ 1-3; "Corporations,' 84; "Executors and Administrators," § 8; "Infants." § 1; "Master and Servant." § 4; "Municipal Corporations," § 8; "Partnership," §§ 2, 4. Assignees, see "Assignments," § 2. Trustees in bankruptcy, see "Bankruptcy," $ 1. Actions relating to particular species of property or estates. See "Fixtures." Particular causes or grounds of action. See "Account Stated"; "Bills and Notes," § 1; "Death," § 2; "Insurance,' 88 4, 5; "Libel and Slander," § 2; "Malicious Prosecution," § 1; "Negligence," § 4; "Nuisance, § 1; "Rape," § 1; "Trespass"; "Work and Labor." Against street railway to recover penalty, see "Carriers," § 1. Alienation of affections, see "Husband and Wife," § 3. Breach of contract, see "Contracts," § 5; "Sales." § 4. Breach of covenant, see "Covenants," § 3. For injuries received in stopping runaway horse, see "Highways," § 2. Infringement of trade-mark or trade-name, see Trade-Marks and Trade-Names," § 2. chanics Liens," § 4. Establishment and enforcemen, of trust, see "Trusts," § 5. Establishment of will, see "Wills" § 4. Foreclosure of mortgage, see "M. rtgages,” § 4. Reformation of written instrument, see "Reformation of Instruments." Setting aside fraudulent conveyance, "Fraudulent Conveyances." § 3. Setting aside will, see "Wills," § 4. See see Particular proceedings in actions. "Costs"; "Damages": "Depositions"; "Dismissal and Nonsnit" "Evidence": "Execution"; "Judgment"; "Judicial Sales"; "Jury"; "Limitation of Actions"; "Motions"; "Parties"; "Pleading"; "Process"; "Reference"; "Trial"; "Venue." Bill of particulars, see "Pleading," § 6. Particular remedies in or incident to actions. See "Arrest," § 1; "Attachment"; "Discovery"; "Injunction"; "Receivers." Proceedings in exercise of special jurisdictions. 1. Joinder, splitting, consolidation, and severance. That an action for supplies furnished membership corporation is brought against more directors than are liable therefor held not a misjoinder of causes.-Pascekwitz v. Richards (Sup.) 291. ACTION ON THE CASE. Personal injuries, see "Carriers," § 3; "Elec- See "Trespass," § 2. Price of goods, see "Sales," § 3. Recovery of tax paid, see "Taxation." § 2. Rent, see "Landlord and Tenant." § 5. Services, see "Work and Labor." Violation of constitution of assessment life association, see "Beneficial Associations." Particular forms of action. See "Trespass," § 2. On bastardy bond, see "Bastards," § 1. To restrain members of association in violating agreement of association, see "Associations.' Particular forms of special relief. ADJUDICATION. Operation and effect of former adjudication, see "Judgment." § 4. ADMINISTRATION. Of estate of decedent, see "Executors and Administrators." Of property by receiver, see "Receivers," § 1. Of trust property, see "Trusts," § 4. 1. ADMISSION. See "Account"; "Creditors' Suit"; "Divorce"; To practice law, see "Attorney and Client," § "Injunction"; "Partition," § 2; "Specific Performance.' Cancellation of written instrument, see "Cancellation of Instruments." Dissolution of corporation, see "Corporations," $ 5. Dissolution of partnership, see "Partnership," § 3. ADMISSIONS. As evidence in civil actions, see "Evidence," { 3. As evidence in criminal prosecutions, see "Criminal Law," § 2. INDEX. 1139 ADVERSE POSSESSION. See "Limitation of Actions." See "New Trial." APPEAL. By co-tenant,, see "Tenancy in Common," § 1. In criminal prosecutions, see "Criminal Law," $ 4. In probate proceedings, see "Wills," § 4. § 1. Right of review. Under Laws 1895, c. 635, § 21 (charter of § 2. Presentation and reservation in A landlord, who did not claim trade fixtures, Though complaint was good for either of two 115. Where the objection that a proposed amend- The court, on the appeal from an order re- Where an order denying a new trial does not Failure of defendant's counsel to take steps Where an exception is not taken to a rul- In an action for damages caused by encroach- and 109 New York State Reporter There being a sharp conflict in the evidence as to how the accident occurred, erroneous admission of statement by plaintiff as to his condition before the accident is prejudicial, as affecting his credibility.-Scher v. Metropolitan St. Ry. Co. (Sup.) 625. judgment in an equitable suit to compel removal of the wall established that defendant's act was wrongful, entitling plaintiff at least to damages for loss of rent during the repair of the wall where no exception was taken to an instruction that the prior judgment established that defendant wrongfully permitted the encroachment, but that fact did not necessarily in an action for breach of a building contract An instruction upon the measure of damages produce the damages for which plaintiff in-held erroneous.-Walter v. Hangen (Sup.) (83. tended.-Hofferberth v. Myers (Sup.) 1116. 3. Requisites and proceedings for transfer of cause. Notice of appeal from judgment of affirmance by the general term held sufficient.-Engel-Heller Co. v. Henry Elias Brewing Co. (Sup.) 1080. § 4. Record and proceedings not in rec ord. Where the formal statement of the case on appeal recited that judgment of nonsuit was rendered December 9th, and the justice's return states that trial was had on December 7th, but also states that it contains all the proceedings, and shows on its face that judgment was entered immediately, it will be presumed that Code Civ. Proc. 3015, was complied with.-Erdman v. Upham (Sup.) 241. An order directing the filing of a bill of particulars of property converted, only to such extent as may be ascertained from inventories in a bankruptcy case, will be held sufficient on appeal, when the inventories are not before the court.-Handy v. J. B. Orcutt Co. (Sup.) 385. Where defendant excepted "to the qualification of the charge," but the record did not show what part of the charge was qualified, or to what the exception related, the exception was unavailing.-Manthey v. Rauenbuehler (Sup.) 714. § 5. Review. On appeal from an order granting a new trial on all of defendant's exceptions, the court cannot say that the new trial was not properly ordered, when exceptions are not in reeord.-Serwer v. Serwer (Sup.) 842. The conclusion of the jury on conflicting evidence will not be disturbed on appeal.-Clifford v. Braun (Sup.) 856. Under Code Civ. Proc. § 2545, a surrogate's decree will not be reversed for the admission of improper evidence, unless without it respondent could not have succeeded.-In re Benton (Sup.) 859; In re Gridley's Will, Id. Where a court granted a new trial, and certain evidence was improperly admitted, it will be assumed on appeal that the court granted the new trial, because of such error. in its discretion.-Rembt v. Roehr Pub. Co. (Sup) 861. Objections to evidence cannot be deemed indefinite where, because of error in admitting it, the trial court thereafter granted a new trial.-Rembt v. Roehr Pub. Co. (Sup.) 861. Plaintiffs in suit to set aside a conveyance of real estate cannot claim that an accounting is not a proper determination of the facts.Goetting v. Weber (Sup.) 890. In a civil action for assault with intent to rape, admission of testimony that defendant was living apart from his wife held presuma Any error in remark of judge held cured by bly prejudicial.-Haulisch v. Boller (Sup.) 992. charge expressly correcting it.-Yunkeich v. Brooklyn Heights R. Co. (Sup.) 86. Requisite facts for an order for the examination of a party before trial having been presented by affidavit, the appellate court will not interfere with the discretion of the county court in granting the order, or of the supreme court refusing to set it aside.-In re Porter Screen Mfg. Co. (Sup.) 286. An action to set aside an alleged fraudulent conveyance, in which the material facts were On application for an order for the examina-missed, held a proper case for the supreme found by trial court and the complaint distion of a party before trial, the opinion wheth- court to award appropriate judgment on the er certain questions called for answers crimi- facts as found in the decision on which judgnating witness should be reserved until the exment was entered.-Lazarus v. Rosenberg amination. In re Porter Screen Mfg. Co. (Sup.) (Sup.) 11. 286. Error in admitting evidence of permanent injury, when not alleged in complaint, held not prejudicial under the charge.-Crow v. Metro politan St. Ry. Co. (Sup.) 377. A finding which is a conclusion dependent upon many facts found will not be sustained on appeal, if the detailed facts do not support it. -Chester v. Buffalo Car Mfg. Co. (Sup.) 428. Admissions of opinion in answer to a certain question held harmless. Hedges v. Metropolitan St. Ry. Co. (Sup.) 532. the jury, without imposing the costs of the An order granting a new trial for mistake of first trial, will be affirmed only on payment of those costs and the costs of an appeal therefrom.-Helgers v. Staten Island Midland R. Co. (Sup.) 34. Where a lien claimant, in a suit for the foreclosure of a mechanic's lieu, admitted that he had no claim against two defendants, and the counsel of the third admitted the claim's validity as against his client, a deficiency jud ment against the three will be reversed on the |