(176 N.Y.S.) Mandel YANOWITCH, respt., v. GENESED BREWING CO., applt. (Supreme Court, Appellate Division, Fourth Department. May 14, 1919.) Order affirmed with costs. All concur, except De Angelis, J., who dissents, and votes for reversal and reinstatement of the verdict. appellant has an adequate remedy at law. The | 1919.) Order affirmed with costs. All concur, questions it seeks to have decided in this action except De Angeles, J., who dissents, and votes may all be determined in the condemnation for reversal and reinstatement of the verdict. proceeding which plaintiff seeks to enjoin. Matter of the Mayor, 22 App. Div. 124, 47 N. Y. Supp. 965; Hooker v. City of Rochester, 57 App. Div. 530, 68 N. Y. Supp. 301, affirmed 172 N. Y. 665, 65 N. E. 1117; Matter of City of Rochester (In re Neun) 102 App. Div. 99, 92 N. Y. Supp. 478. In such condemnation proceeding an appeal may be taken from the order overruling plaintiff's objections, and upon such appeal all proceedings may be stayed. Matter of the Mayor, supra; Hooker v. City of Rochester, supra; Matter of City of Rochester (In re Neun), supra; Code of Civ. Proc. § 1351. This seems its proper remedy, because the questions involved in this action cannot be raised on objections to the commissioners' report or upon appeal from the order confirming the same. In the Matter of Dep't of Public Parks, 85 N. Y. 459; Matter of the Grand Boulevard, 33 App. Div. 210, 212, 53 N. Y. Supp. 331; Matter of the Mayor, etc., of New York, 186 N. Y. 237, 78 N. E. 952. Order affirmed, with $10 costs and disbursements. Jenks, P. J., and Mills, Putnam, Kelly, and Jaycox, JJ., concur. Louis YANOWITCH, respt., v. GENESEE BREWING CO., applt. (Supreme Court, Appellate Division, Fourth Department. May 14, Amelia F. ZENKEL, Respt., v. ONEIDA COUNTY CREAMERIES CO., Applt. (Supreme Court, Appellate Division, Fourth Department. April 30, 1919.) Judgment (104 Misc. Rep. 251, 171 N. Y. Supp. 676) and order affirmed, with costs. All concur. Joseph ZUKAS, respondent, v. LEHIGH VALLEY COAL COMPANY, appellant. (Supreme Court. Appellate Division, Second Department. May 9, 1919.) Motion to resettle order granted, and order signed. Frederico ZUNINO, Applt., v. PARODI CIGAR CO., Inc., Respt. (Supreme Court, Appellate Division, First Department. June 6, 1919.) Order (106 Misc. Rep. 521, 176 N. Y. Supp. 319) affirmed, with $10 costs and disbursements. No opinion. Order filed. END OF CASES IN VOL. 176 INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABANDONMENT. See Contracts, 93; Dedication, vorce, 326; Husband and Wife, Municipal Corporations, 657. 63; ABATEMENT AND REVIVAL. such payment; there having been no accord and satisfaction.-Id. Di-26(1) (N.Y.Sup.) Where a beneficiary sur19; rendered a benefit certificate and executed receipts in full settlement of any claim under the certificate, the presumption is that the defendant would not make payment without surrender of the certificate and receipts, and, although only for the amount of the conceded liability, it constituted accord and satisfaction.-Schwemmer v. Supreme Council Catholic Benev. Legion, 176 N. Y. S. 139. II. ANOTHER ACTION PENDING. 15 (N.Y.Sup.) Defendant's motion to dismiss the complaint, because at the commencement of the instant suit another action was pending, was properly denied, where defendant 26(2) (N.Y.Sup.) Beneficiary's surrender of conceded that the prior action was, after the commencement of the instant suit, discontinued on motion. Midland Trading Corporation v. Hechtkopf, 176 N. Y. S. 712. ACCORD AND SATISFACTION. See Appeal, 170; Compromise and Settlement; Insurance, 801; Stipulations, 14. life benefit certificate and receipt, stating they were in full payment, constituted prima facie evidence of an accord and satisfaction; but where the receipts were not in the form of releases under seal, and the certificate had not been canceled, the plaintiff beneficiary was at liberty to meet the presumptions with testimony showing a promise to pay the balance at a future time, which the defendant should have been permitted to controvert.-Schwemmer V. Supreme Council Catholic Benev. Legion, 176 N. 8(1) (N.Y.Sup.) Where a beneficiary sur-Y. S. 139. rendered a benefit certificate and executed receipts in full settlement of any claim under the certificate, the presumption is that the defendant would not make payment without surrender of the certificate and receipts, and, although only for the amount of the conceded liability, it constituted accord and satisfaction.Schwemmer v. Supreme Council Catholic Benev. Legion, 176 N. Y. S. 139. ACCOUNT. See Bankruptcy, 363; Brokers, 100; Executors and Administrators, 96, 97, 111, 314, 459, 506, 510, 514; Limitation of Actions, 165; Mortgages, 199; Specific Performance, 127; Tenancy in Common, 15; Trusts, 298. ACCOUNT STATED. 17 (N.Y.Sup.) An agreement between mother and son, in settlement of mother's claim against son, whereby mother agreed to (N.Y.Sup.) An action may be based on do certain things upon son's payment to her of an account stated, consisting of a single item.— certain sum on certain date, is not available Benjamin v. Levy, 176 N. Y. S. 454. as defense in mother's action against son, 3 (N.Y.Sup.) An action on account stated where agreement has not been executed by will lie, although the debt arises out of claim son's payment to mother, there being accord for damages for the loss of goods; the claim merely, without satisfaction.-Moers v. Moers, becoming a liquidated indebtedness by defend176 N. Y. S. 277. ants assenting to the correctness thereof.Benjamin v. Levy, 176 N. Y. S. 454. An agreement between mother and son in settlement of mother's claim against son, whereby mother agreed to do certain things upon son's payment to her of certain sum on certain date. cannot form basis of an action to enforce performance of its terms, where son has not made 176 N.Y.S.--59 14 (N.Y.Sup.) The cause of action in account stated is not the obligation originally created when the items of indebtedness arose, but the agreement of the parties that a certain balance remains due, and a promise of (929) the party found to be indebted to pay the oth-Law of any state, the Workmen's Compensaer the sum so ascertained.-Benjamin v. Levy, 176 N. Y. S. 454. ACKNOWLEDGMENT. See Limitation of Actions, 148; Wills, 133. ACTION. tion Law of New York, in so far as it gives a remedy for injuries or death of an employé engaged in work of a maritime nature, is not in violation of the federal Constitution, conferring jurisdiction on the federal courts in admiralty cases. Stewart v. Knickerbocker Ice Co., 123 N. E. 382, 226 N. Y. 302. 20 (N.Y.Sup.) In view of Code Civ. Proc. $ 1902, providing that an action for death by See Abatement and Revival; Dismissal and negligence is only maintainable when the party Nonsuit. sued would have been liable to an action in favor of decedent, if death had not ensjen, where stevedore is negligently injured on vessel, but dies from injuries on shore in state of New York, the tort is maritime, and his remedy is in rem in admiralty, or a common-law action. and the Workmen's Compensation Act could give no remedy.-Liverani v. John T. Clark & Son. 176 N. Y. S. 725. II. NATURE AND FORM. ≈25(2) '(N.Y.Sup.) Complaint based on contract whereby, in consideration of plaintiff's assignor having secured for defendants' testator a share of stock for a specified price, testator would pay assignor one-third of net profits when the same might be received by him, in case of sale, held to state a cause of action for 20 (N.Y.Sup.) In view of Judicial Code, breach of contract, cognizable at law, and not § 24, subd. 3, and section 256, subd. 3, as amendin equity; an obligation to sell within a rea-ed by Act Cong. Oct. 6, 1917, §§ 1, 2 (U. S. sonable time being implied.-Beaty v. Bacon, Comp. St. 1918, §§ 991, 1233), the Workmen's 176 N. Y. S. 136. Compensation Law held enforceable by mari 25(2) (N.Y.Sup.) In a suit by a creditor, time workers covered by section 2. groups & suing for himself and others, to set aside as- 9, and section 3, subds. 1, 4.-Ruddy v. Morse signments by deceased debtor of life insurance Dry Dock & Repair Co., 176 N. Y. S. 731. policies as being in fraud of creditors, and to 2! (N.Y.Sup.) Plaintiff, whose intestate, a compel the assignee to pay the money received longshoreman in the employ of defendant, was by her to the administrator, the cause of ac- engaged in loading a steamship from a lighter tion stated is equitable, and not legal.--Gould alongside a steamship, and who, while descend v. Fleitmann, 176 N. Y. S. 631. ing a companionway attached to the side of and belonging to the ship, but which was being used by defendant, was thrown into the water and drowned when the companionway broke, in view of the Judicial Code, might elect whether to take an award under the Workmen's Compensation Law of New York or to bring an action at common law for damages.-Dziengel ewsky v. Turner & Blanchard, 176 N. Y. S 729. III. JOINDER, SPLITTING, CONSOLI- 45(4) (N.Y.Sup.) Causes of action for money had and received, based on rescission of contract pursuant to which money was paid, because of (1) defendant's failure to perform, (2) fraud in procurement of contract, and (3) in tention on defendant's part not to perform, but to defraud plaintiff, were all based on rescis-21 (N.Y.Sup.) Despite the Workmen's Cor sion and promise to pay back money implied by law, and could be joined in one complaint. Trempe v. Perlman, 176 N. Y. S. 130. 531) (N.Y.Sup.) Where husband is in default under separation agreement for wife's maintenance, wife cannot bring action on agreement for arrears to certain date, and simultaneously sue for separation, based upon husband's failure to provide support subsequent to such date.-Crim v. Crim, 176 N. Y. S. 68. ADJOINING LANDOWNERS. See Boundaries; Eminent Domain, 136. ADMINISTRATION. See Executors and Administrators. ADMIRALTY. See Master and Servant, 353; Shipping. I. JURISDICTION. pensation Act, a servant, for injuries sustained while engaged in maritime work, may come in to the state courts and assert his common-law right to recover damages, particularly where the Compensation Act is not pleaded as a de fense.-Simpson v. Atlantic Coast Shipping Co., 176 N. Y. S. 731. ADULTERATION. See Food, 5. ADVERSE POSSESSION. See Pleading, 194; Quieting Title, I. NATURE AND REQUISITES. (F) Hostile Character of Possession. 58 (N.Y.) Mere lapse of time without hos tile holding will not give title to real estate by adverse possession.-Trimboli v. Kinkel, 123 N. E. 205, 226 N. Y. 147. 20 (N.Y.) In view of the amendment to Judicial Code, § 24 (U. S. Comp. St. §§ 991[1] to 991[25]), which saves from the jurisdiction of the federal courts to claimants the rights and remedies under Workmen's Compensation See Contracts, 309. ADVERTISEMENT. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER AFFIDAVITS. See Appeal, 1202; Attachment, 241; See Principal and Agent. ALIEN PROPERTY CUSTODIAN. ALIENS. See Citizens, 8; Costs, 9; Executors 2 (N.Y.Sup.) Alleged addition of words to ANIMALS. See Shipping, 132. APPEAL. See Certiorari; Costs, 247; Courts, V. PRESENTATION AND RESERVA- TION IN LOWER COURT OF (A) Issues and Questions in Lower Court. 139. (B) Objections and Motions, and Rulings 212 (N.Y.Sup.) Where defendant did not 222 (N.Y.Sup.) Where plaintiff failed to 230 (N.Y.Sup.) Where the trial judge stat- 237(4) (N.Y.Sup.) Where defendant's attor- 241 (N.Y.Sup.) In action for injuries to 241 (N.Y.Sup.) In buyer's action for sell- and Questions Reserved or 173(14) (N.Y.) In action to recover cash XVI. REVIEW. (A) Scope and Extent in General. 843(2) (N.Y.Sup.) Where a case must be |