tember 14, 1896.) Action by David F. Smith against Alvin B. Champlin. No opinion. Motion denied, with costs. SMITH, Respondent, v. JUDSON et al., Appellants. (Supreme Court, Appellate Division, Third Department. September 22, 1896) Action by J. Augustus Smith against John B. Judson and Alvah H. Rogers. No opinion. Judgment of county court affirmed. All concur. TOZIER, Respondent, v. PARKER, Appellant. (Supreme Court, Appellate Division, Fourth Department. March, 1896.) Action by Lemuel L. Tozier against Le Roy Parker. No opinion. Judgment and order affirmed, with costs. TRELFORD, Appellant, v. CONEY ISLAND & B. R. CO., Respondent. LAKELAND v. SAME. (Supreme Court, Appellate Division, Second Department. June 23, 1896.) On rearSOLOMON v. ISAAC. (Supreme Court, Ap-gument. For decision on appeal, see 39 N. Y. pellate Term, First Department. January 31, Supp. 20. 1896.) No opinion. Judgment affirmed, with costs. STERNGLANZ v. HUNGERFORD. Su preme Court, Appellate Division, First Department. January 14, 1896.) No opinion. Order affirmed, with $10 costs and disbursements. STODDARD, Respondent, v. BRAZELL, Appellant. Supreme Court, Appellate Division, Fourth Department. March, 1896.) Action by Priscilla Stoddard against Jane D. Brazell. No opinion. The justice's judgment modified by reducing the same to $29.54 as to damages, and the judgment of the county court also modified so as to conform to justice's judgment as so modified, with only $10 costs and disbursements in that court to the respondent, and the justice's judgment, as so modified, and the judgment of the county court, as so modified, affirmed, without costs to either party on the appeal in this court. See 37 N. Y. Supp. 1149, and 39 N. Y. Supp. 1133. PER CURIAM. When this case was last before us we did not overlook the questions discussed by the appellant on the present motion for a reargument, though as to two of such questions we regarded them as settled by concessions of the respective counsel made on the argument. In our opinon, the removal by the defendant of its tracks from a part of the Coney Island plank road, and its abandonment of that part of its road for a period, did not determine or forfeit the defendant's franchise over such road, so as to prevent the defendant from relaySuch abandonment only ing its tracks thereon. operated as a cause of forfeiture, of which the people alone could take advantage, as was done in the case of People v. Broadway R. Co., 126 N. Y. 29, 26 N. É. 961. The principle that an abutter has sufficient special interest in a street to restrain an unlawful structure therein has no application to this case, for the defendclaims a forfeiture. The proceeding to open Nepart's railroad is a lawful structure till the state tune avenue did not and could not affect the defendant's railroad franchise, whether an award was made for it or not. The opening proceedto vest in the people of the state or the city of Brooklyn the easement of a public highway in the land taken. The railroad easement and franchise was not inconsistent, but consistent, with the public easement, and there was no authority 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.) Ac 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. STONE, Appellant, v. STONE et al., Re-ing was to acquire all property rights necessary spondents. (Supreme Court, Appellate Division, First Department. September 9, 1896.) Action by Andros B. Stone against Georgiana C. Stone and others. No opinion. Motion granted unless appellant pays $10 costs. See 39 N. Y. Supp. 1133. TOWN OF FT. COVINGTON, Respondent, v. UNITED STATES & C. R. CO. et al., Appellants. (Supreme Court, Appellate Division, Third Department. September 14, 1896.) Action by the town of Ft. Covington against the United States & Canada Railroad Company and others. No opinion. Motion denied. See 40 N. Y. Supp. 313. TOWNSEND et al., Respondents, v. CHAPIN et al., Appellants. (Supreme Court, Appellate Division, First Department. September 9, 1896.) Action by Samuel C. Townsend and others against George A. Chapin and others. B. L. Winters, for appellants. C. H. Fuller, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. ney Island road; though we do not say that by the consent of the local authorities such location may not be changed to the new part of Neptune avenue. Such change would not be the grant of a new franchise. The injunction should, therefore, be not wholly vacated. but modified so as to restrain the defendant from operating its road with electricity except with the consent of the railroad commissioners, or on any part of Neptune avenue not lying within the limits of the old Coney Island road, except by the consent of the local authorities. VAN KEUREN, Appellant, v. VAN KEUREN, Respondent. (Supreme Court, Appellate Division, Third Department. September 22. 1896.) Action by Peter E. Van Keuren against William W. Van Keuren. No opinion. Judgment and order affirmed, with costs. All concur. WILDS et al., Respondents, v. WILCOX et al., Appellants. (Supreme Court, Appellate Division, First Department. September 9, 1896.) Action by Judson B. Wilds and others against Mary P. Wilcox and others. D. Welch, for appellants. G. C. Holt, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. In re WILLIAMS. (Supreme Court, Appellate Division, Fourth Department. March, 1896.) Application by Harry D. Williams tocompel the county clerk of Erie county to file certificates of nominations. No opinion. Order reversed, with costs. WOOD v. CHARDON. (Supreme Court, Appellate Division, First Department. January 14, 1896.) No opinion. Order affirmed, with $10 costs and disbursements. WOODBRIDGE, Respondent, v. MARKS, Appellant. (Supreme Court, Appellate Division, Third Department. July 7, 1896.) Action by William R. Woodbridge against William D. Marks. No opinion. Motion for leave to go to the court of appeals denied, without costs. See 36 N. Y. Supp. 81, affirmed in 40 N. Y. Supp. 728. WYOMING VALLEY SUIT CO., Respondent, v. SEARS et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. July 30, 1896.) Action by the Wyoming Valley Suit Company against William E. Sears and Walter R. Westbrook. No opinion. Judgment and order affirmed, with costs. GREEN, J., not sitting. END OF CASES IN VOL. 40. INDEX. Abandonment. As ground for divorce, see "Divorce." Accident Insurance. See "Insurance." Accounting. By committee of lunatic, see "Insane Persons.” Action. See, also, "Assumpsit, Action of"; "Breach of Against city, see "Municipal Corporations." tions, unless they were made pursuant to some ADVERSE POSSESSION. Evidence held not sufficient to show adverse Admissions of, see "Contempt." Agents. savings bank, see "Banks and Banking." See "Corporations"; "Principal and Agent." By assignee of contract, see "Assignments." By cestui que trust against "Trusts." trustee, see For bite of vicious dog, see "Animals." On draft, see "Negotiable Instruments." Adequate Remedy at Law. Administrators. See "Executors and Administrators." Alienation. Suspending power of, see "Wills." Amendment. Right of adopted children to inherit, see "Stat- Costs on appeal, see "Costs." utes. From judgment of the peace, return, see "Jus- Laws 1873, c. 830, as amended by Laws In condemnation proceedings, see "Eminent In proceeding to open highway, see "High-Discretion of trial court. Right of mother in bastardy proceeding, see Jurisdiction. When order was not taken by default, so as Sole defendant may appeal from order bring- Running of time for appeal is not interrupted Notice. Notice of appeal from final order which states 258. Bond. When appeal bond does not stay judgment.-- Record. Where special term, on settling case, refuses Opinion of the court below is not properly a Trial court has no power to strike from papers on appeal a paper which was read before the Review. Refusal to dismiss complaint at close of plain- On an accounting between tenants in common, Objections not raised below. Where a summary proceeding was tried on It is discretionary with the trial court to re- Weight and sufficiency of evidence. The appellate term on appeal from the gen- Where no exceptions were taken to the ad- Appellate term on appeal from affirmance by Appraisement. Objection that evidence did not warrant sub- Objections that evidence did not justify sub- Assessment. For public improvements, see "Municipal Cor Of shares of stock, see "Corporations." |