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tember 14, 1896.) Action by David F. Smith TOZIER, Respondent, V. PARKER, Appelagainst Alvin B. Champlin. No opinion. Mo- lant. (Supreme Court, Appellate Division, tion denied, with costs.

Fourth Department. March, 1896.) Action by

Lemuel L. Tozier against Le Roy Parker. No SMITH, Respondent, v. JUDSON et al., Ap- opinion. Judgment and order affirmed, with pellants. (Supreme Court, Appellate Division, costs. Third Department. September 22, 1896.) ACtion by J. Augustus Smith against John B. Judson and Alrah 11. Rogers. No opinion. Judg TRELFORD, Appellant, v. CONEY ISLAND ment of county court affirmed. All concur.

& B. R. CO., Respondent. LAKELAND V. SAME. (Supreme Court, Appellate Division,

Second Department. June 23, 1896.) On rearSOLOMON v. ISAAC. (Supreme Court, An- gument. For decision on appeal, see 39 N. Y. pellate Term, First Department. January 31, Supp. 20. 1896.) No opinion. Judgment affirmed, with costs.

PER CURIAM. When this case was last before us we did not overlook the questions dis

cussed by the appellant on the present motion STERNGLANZ V. HUNGERFORD. Su- for a reargument, though as to two of such preme Court, Appellate Division, First Depart- questions we regarded them as settled by concesment. January 14, 1896.) No opinion. Order sions of the respective counsel made on the arallirmed, with $10 costs and disbursements. gument. In our opinon, the removal by the de

fendant of its tracks from a part of the Coney STODDARD, Respondent, V. BRAZELL, Island plank road, and its abandonment of that Appellant. Supreme Court, Appellate Division, part of its road for a period, did not determine Fourth Department. March, 1896.) Action by or forfeit the defendant's franchise over such Priscilla Stoddard against Jane D. Brazell. No road, so as to prevent the defendant from relay. opinion. The justice's judgment modified by re- ing its tracks thereon. Such abandonment only ducing the same to $29.54 as to damages, and operated as a cause of forfeiture, of which the the judgment of the county court also modified people alone could take advantage, as was done so as to conform to justice's judgment as so

in the case of People v. Broadway R. Co., modified, with only $10 costs and disbursements 120 N. Y. 29, 26 N. E. 961. The principle that in that court to the responrient, and the jus- an abutter has sufficient special interest in a tice's judgment, as so modified, and the judg- street to restruin an unlawful structure therein ment of the county court, as so modified, af has no application to this case, for the defendfirmed, without costs to either party on the ap- ar!'s railroad is a lawful structure till the state peal in this court. See 37 N. Y. Supp. 1145, claims a forfeiture. The proceeding to open Nepand 39 N. Y. Supp. 1133.

tune avenue did not and could not affect the de. fendant's railroad franchise, whether an award

was made for it or not. The opening proceedSTONE. Appellant, v. STONE et al., Re-ling was to acquire all property rights necessary spondents. (Supreme Court, Appellate Division, to rest in the people of the state or the city of First Department. September 9, 1896.) Ac- Brooklyn the easement of a public highway in tion by Andros B. Stone against Georgiana C. the land taken. The railroad easement and Stone and others. No opinion. Motion grant franchise was not inconsistent, but consistent, ed unless appellant pays $10 costs. See 39 with the public easement, and there wis no 90:N. Y. Supp. 1133.

thority given by law to condemn it. It was

conceded by counsel for the defendant, and prop TOMPKINS, Respondent, v. SHEEHAN, erly, in our opinion, that the defendant could not Appellant. (Supreme Court, Appellate Division, use electric power in the operation of its railroad Third Department. September 22, 1896.) Ас

without the consent of the railroad commissiontion by Hiram Tompkins against Cornelius Shee-ers.

We also think that it must be confined, in han. No opinion. Judgment and order affirm- relaying its road, to the location of the old Coed, with costs. All concur.

ney Island road; though we do not say that by the consent of the local authorities such location

mav not be changed to the new part of Neptune TOWN OF FT. COVINGTON. Respondent, uvenue. Such change would not be the grant v. UNITED STATES & C. R. CO. et al., Ap- of a new franchise. The injunction shoulu. pellants. (Supreme Court, Appellate Division, therefore, be not wholly vacated, but modified Third Department. September 14, 1896.) AC- so as to restrain the defendant from operating tion by the town of Ft. Covington against the its road with electricity except with the consent United States & Canada Railroad Company and of the railroad commissioners, or on any part of others. No opinion. Motion denied. See 40 Neptune avenue not lying within the limits of N. Y. Supp. 313.

the old Coney Island road, except by the con

sent of the local authorities. TOWNSEND et al., Respondents, v. CHAPIN et_al., Appellants. (Supreme Court, Appellate Division, First Department. September VAN KEUREN, Appellant, v. VAN KEU9. 1896.) Action by Samuel C. Townsend and REN, Respondent. (Supreme Court, Appellate others against George A. Chapin and others. Division, Third Department. September 22, B. L. Winters, for appellants. Č. H. Fuller, for 1896.) Action by Peter E. Van Keuren against respondents. No opinion. Order affirmed, with William W. Van Keuren. No opinion. Judg. $10 costs and disbursements.

ment and order affirmed, with costs. All concur.

ments.

VAN OLINDA, Appellant. v. HALL, Re WILDS'et al., Respondents, v. WILCOX et spondent. (Supreme Court, Appellate Division, al., Appellants. (Supreme Court, Appellate DiThird Department. September 22, 1896.) Ac- vision, First Department. September 9, 1896.) tion by Josephine Van Olinda against Mary B. Action by Judson B. Wilds and others against Hall. No opinion. Judgment attirmed, with Mary P. Wilcox and others. D. Welch, for apcosts. All concur.

pellants. G. C. Holt, for respondents. No opin

ion. Order affirmed, with $10 costs and disWALSH, Respondent, v. WALSH, Appellant. bursements. (Supreme Court, Appellate Division, Fourth Department. March, 1896.) Action by Anna

In re WILLIAMS. (Supreme Court, AppelWalsh against Andrew J. Walsh. •No opinion. late Division, Fourth Department. March, Order affirmed, with $10 costs and disburse- 1896.) Application by Harry D. Williams to

compel the county clerk of Erie county to file certificates of nominations. No opinion.

OrWALSMANN v. TAMSEN. (Supreme Court, der reversed, with costs. Appellate Division, First Department. January 14, 1896.) No opinion. Order affirmed, with WOOD v. CHARDON. (Supreme Court, $10 costs and disbursements.

Appellate Division, First Department. January

14, 1876.) No opinion. Order affirmed, with WARD v. BURGHER. (Supreme Court, Ap- $10 costs and disbursements. peilate Division, Third Department. September 14, 1896.) Summary proceedings by J. Q. WOODBRIDGE, Respondent, V. MARKS, A. Ward against Homer Burgher, No opinion. Appellant. (Supreme Court, Appellate Division, Motion for a reargument, or for leave to go to Thir Department. July 7, 1896.) Action by the court of appeals, denied. See 35 N. Y. William R. Woodbridge against William D. Supp. 961.

Marks. No opinion. Motion for leave to go to

the court of appeals denied, without costs. See WHITE V. ANDREWS. (Supreme Court,

36 N. Y. Supp. 81, aflirmed in 40 N. Y. Supp. Appellate Term, First Department. January

728. 31. 1896.) No opinion. Motion to add causes to calendar granted.

WYOMING VALLEY SUIT CO., Respond

ent, v. SEARS et al., Appellants. (Supreme In re WHITNEY. (Supreme Court, Appel. Court, Appellate Division, Fourth Departinent. late Division, First Department. September 9, July 30, 1896.) Action by the Wyoming Val1896.) No opinion. Order affirmed, with $10 ley Suit Company against William Ě. Sears and costs and disbursements, on the authority of Walter R. Westbrook. No opinion. Judgment People v. Waring, 1 App. Div. 594, 37 N. Y. and order affirmed, with costs. GREEN, J. Supp. 478; Id., 149 N. Y, 621, 44 N. E.

not sitting.

END OF CASES IN VOL. 40.

INDEX.

see

Abandonment.

tions, unless they were made pursuant to some

special statite.-Carroll v. Collins (Sup.) 54.
As ground for divorce, see "Divorce."

Laws 1887, c. 703, conferring the right of in-

heritance on adopted children, applies to chil-
Accident Insurance.

dren theretofore adopted.-Dodin v. Dodin (Sup.)

748.
See "Insurance."
Accounting

ADVERSE POSSESSION,
By committee of lunatic, see "Insane Persons."

Evidence held not sufficient to show adverse
By executors and administrators, see "Exec-possession.-Erkson v. Johnston (Sup.) 401.
utors and Administrators.”

Affidavits.
Action.

Admissions of, see "Contempt."
See, also, “Assumpsit, Action of”; “Breach of For attachment, see “Attachment.”

Marriage Promise"; "Libel and Slander"; For change of renue, see "Venue."
"Malicious Prosecution”; “Replevin”; “Spe- For discovery, see "Discovery."

cific Performance”; “Trespass.'
Against city, see "Municipal Corporations."

Agents.
corporation, see "Corporations.".

savings bank, see “Banks and Banking." See “Corporations”; “Principal and Agent."
Appearance in, see "Appearance."
By assignee of contract, see “Assignments."

Alienation.
By cestui que

trust against trustee,
*Trusts."

Suspending power of, see "Wills.”
By employé on indemnity policy issued to em-

ployer, see “Insurance."
By town, see "Towns."

Amendment.
For bite of vicious dog, see “Animals.".

Of judgment, see "Judgment."
For injury to passenger, see “Carriers."

Of pleadings, see "Pleading."
On contract, see “Contracts."
On draft, see “Negotiable Instruments."
On insurance policy. see "Insurance.”
On notes, see "Negotiable Instruments."

ANIMALS.
To foreclose murtgage, parties, see “Parties."
When commenced, see "Limitation of Actions."

Complaint in action for bite of vicious dog
Wrongful delivery of goods, see "Carriers."

need not expressly allege that defendant was
negligent in keeping the dog.--Woodbridge v.

Marks (Sup.) 728.
Adequate Remedy at Law.
See "Equity."

Annexation.
Administrators.

Annexing territory to city, see "Municipal Cor-

porations."
See "Executors and Administrators."

Answer.
Admissions.

See "Pleading.”
See "Evidence."

APPEAL.
ADOPTION.

See, also, “Certiorari."
Right of adopted children to inherit, see “Stat- From judgment of the peace, return, see "Jus-

Costs on appeal, see “Costs."
utes.'

tices of the Peace."
Laws 1873, c. 830. as amended by Laws In condemnation proceedings, see “Eminent
1887, c. 703, does not validate previous adop Domain."
v.40N.Y.S.—73

(1153)

In proceeding to open highway, see “High-Discretion of trial court.
ways."

It is discretionary with the trial court to re-
Right of mother bastardy proceeding, see fuse to vacate service of summons.-Timolat v.
“Bastards."

S. J. Held Co. (Sup.) 692; Oakland Chemical

Co. v. Same, Id.
Jurisdiction.

When order was not taken by default, so as Weight and sufficiency of evidence.
to preclude appeal therefrom.-Moyer v. Moyer Verdict or finding on contlicting evidence will
(Sup.) 258.

not be disturbed.-Gadd v. United States Sar-
Sole defendant may appeal from order bring. ings & Loan Bank (City Ct. X. Y.) 358; O'Dowd
ing in new defendant, and directing service of v. Bonnell (Sup.) 650.
supplemental complaint.-Heffern v. Hunt (Sup.) The appellate tern on appeal from the gen-
914.

eral term of the New York City_court cannot
Running of time for appeal is not interrupted consider the weight of evidence.-Pollatschek r.
by irregularity in entry of judgment.-New Goodwin (Sup.) 682.
York City Baptist Mission Soc. v. Tabernacle Where no exceptions were taken to the ad-
Baptist Church (Sup.) 1032.

mission or exclusion of evidence, the appellate

division cannot consider the weight of the evi-
Notice.

dence.-Cox v. Davis (Sup.) 761.
Notice of appeal from final order which states
that certain intermediate orders will also be Appellate term on appeal from affirmance hy
brought up for review, need not be served general term of New York city court cannot con-
within any particular time after entry of such sider weight of evidence.-Schuster v. Ganzen-
intermediate order.- Moyer v. Moyer (Sup.) muller (Sup.) 1116; Carney V. Reilly (Sup.)
258.

1123.
Bond.

Stay of proceedings.
When appeal bond does not stay judgment. Stay will not be granted pending appeal from
Dwyer v. Rorke (Sup.) 934.

judgment which has been unanimously affirmed

by the appellate division.-Connolly v. Manhat-
Record.

tan Ry. Co. (Sup.) 1007; De Balaine v. Same,
Where special term, on settling case, refuses | Id.
to include papers, party may print them for
consideration by appellate court.-Evans v. Sil-

Errors cured.
bermann (Sup.) 298.

Error in denying motion to dismiss complaint
Opinion of the court below is not properly a

for insufficiency of evidence is cured by sulises

quent introduction of evidence.-Pollatschek v.
part of the record on appeal.-Pollutschek v.

Goodwin (Sup.) 682.
Goodwin (Sup.) 682.
Trial court has no power to strike from papers

Decision-Dismissal.
on appeal a paper which was read before the

Appeal will be dismissed where appellant his
trial court.-People v. Collis (Sup.) 934.

his own act has rendered a reversal una railing

to him.--Haggerty v. Ryan (City Ct. X. 1.)
Review.

384.
Refusal to dismiss complaint at close of plain-
tiff's case is not available unless motion to dis-

Reversal.
miss was renewed at close of whole case.-Hel.

Erroneously refusing to vacate attachment is
muth v. Apgar (Sup.) 651.

no ground for reversing judgment on the merits.

-Tuller v. Howard (Co. Ct.) 739.
On an accounting between tenants in common,
one tenant cannot complain that he was charged Appellate division may grant a new trial
by his co-tenant with use and occupation, where where case was submitted to jury on wholly er-
amount to which he was entitled was not re roneous theory, though no exception was taken.
duced thereby.--Collins v. Collins (Sup.) 902. -Griebel v. Rochester Printing Co. (Sup.) 739.

Objections not raised below.
Where a summary proceeding was tried on

APPEARANCE.
theory that lease was written, and petition was
dismissed because such lease was not proved,
petitiones cannot on appeal claim that the pro- a general appearance for defendant.-(lood v.

Service of motion to vacate attachment is not
ceeding was founded on oral lease.-Lazarus v. Furtick (Sup.) 687.
Ludwig (Sup.) 97.
Objection that evidence did not warrant sub-

Appraisement.
mission of case to jury, or that verdict was
against weight of evidence, cannot be raised For taxation, see “Descent and Distribution."
for the first time ou appeal.-Carrere v. Dun
(City Ct. N. Y ) 372.

Assessment.
Objections that evidence did not justify sub-
mission of case to the jury cannot be raised For public improvements, see "Municipal Cor
for the first time on appeal.--Lowenthal v. porations,
Copland (City Ct. N. Y.) 379.

Of shares of stock, see "Corporations."

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