value of his friendship, wholly disinterested, cannot be estimated or measured. Yet such is the heritage left by our departed chief to each of his associates.

"Justice ADAMS died at his home in Canandaigua, N. Y., on the 12th day of October, 1903.

"We rejoice because of his life, the influence of which will live a perpetual inspiration for good. We deeply mourn his death, but "Thy will be done.”

-

ACCOUNT STATED - Between debtor and creditor.
See DEBTOR AND CREDITOR.

ACCOUNTING- Between attorney and client.
See ATTORNEY AND CLIENT.

By executors and administrators.

See EXECUTOR AND ADMINISTRATOR.

By a general guardian.

See GUARDIAN AND WARD.

ACCORD AND SATISFACTION— Of debts.

See DEBTOR AND CREDITOR.

ACTION - To revive and be subrogated to satisfied mortgages.
See NEW YORK SECURITY & T. Co. v. SCHOENBER

A discontinuance of an action vacates an attachment.
See ATTACHMENT.

Issuing of attachments in.

See ATTACHMENT.

Election, when not made by the bringing of a suit.

See BILLS AND NOTES.

Right of a foreign corporation to sue in the State of New York.

See CORPORATION.

For divorce.

See HUSBAND AND WIFE.

Time for commencing.

See LIMITATION OF ACTION.

Misjoinder of causes of action.
See MISJOINDER.

For money received.

See MONEY RECEIVED.

- Relating to municipal corporations.

See MUNICIPAL CORPORATION.

Defense thereto of the pendency of another action for the same cause.
See PLEADING.

In forma pauperis.

See PLEADING.

At law and not in equity.

See PRINCIPAL AND AGENT.

PAGE.

262

ACTION

Continued.

PAGE.

Brought, without authority of a school district, by the trustees thereof —
costs, how collected.

See SCHOOL.

Proceedings on the trial of.

See TRIAL.

ADMINISTRATOR:

*

See EXECUTOR AND ADMINISTRATOR.

ADMISSION — Conditional promise in an affidavit — when it is not to be
treated, on a motion, as a concession.] The following statement, contained in
an affidavit submitted in opposition to a motion, "as to them, plaintiff will
consent that they reside at the respective places indicated by them - viz.
* * provided they admit that they are citizens of said cities, cantons
and Republic," is a mere conditional promise the possibility of the enforce-
ment of which upon the trial, in the absence of its incorporation into an
order or into a stipulation, is so problematical that the court should not treat
it as a concession and base its decision of the motion thereon.

ADVERSE POSSESSION - Judicial sale- purchaser at, when required
to take title to a right of way, sold thereat, founded upon adverse possession,
and also one of necessity. METZGER v. MARTIN..

ANIMAL Charge that proof that an owner of a dog allows it to run on the
highway dispenses with proof of its being vicious.] In an action to recover
damages for personal injuries sustained by the plaintiff in consequence of
being bitten by a dog owned or harbored by the defendant, it is error for
the trial judge to charge, "If this dog was running at large on the public
highway when this girl was bitten, providing you so find, it does away with
the necessity of proving actual knowledge of the vicious tendency and dis-
position of the dog, for he is chargeable with the vicious tendency and dis-
position of the dog, if the dog is running at large on the public highway,"
as there is no presumption that a dog which is permitted to run at large is
vicious. LEONARD v. DONOGHUE...

605

360

572

104

ANNUITY — Transfer and United States war revenue taxes on an annuity
-they are to be paid before any payment to the annuitant.

MATTER OF TRACY...

215

See TAX.

ANSWER:

See PLEADING.

-

PAGE.

APPEAL Where a judgment in equity is valueless the court cannot by a sup-
plemental interlocutory judgment provide for the payment of damages as a sub-
stitute - if no appeal be taken from such interlocutory judgment a final judg
ment conforming thereto will not be disturbed.

326

See KOEHLER & Co. v. BRADY...

-

From a judgment entered upon a decision to which no exception was filed
where no exceptions were taken on the trial nothing is presented for review.
See DUNLEAVEY V. DUNLEAVEY.

601

If a judgment has been entered but no decision has been made, the appel-
late court will remit the case to the trial court in order that the omission may be
supplied.

See SOMMER v. SOMMER...

Case on appeal in a criminal action when an appellate court may
require that questions asked by the court below be set forth in hæc verba -
remarks made in pronouncing sentence should not be inserted.

See PEOPLE v. CHILDS.

In reviewing a judgment entered upon a nonsuit, the plaintiff is entitled
to the most favorable view which the evidence warrants.

434

474

See GILLESPIE v. YONKERS RAILROAD CO..............
Denial of a motion for want of power · the Appellate Division cannot
compel the insertion of such a statement in the order of the Special Term.
See HALL v. GILMAN...

Settlement of a case on appeal - duty of the justice settling it — his deci-
sion, how far conclusive.

See DITMAS v. McKANE.

54

A judgment entered on a remittitur must conform thereto --the court
below cannot authorize any change therefrom.
See PARISH v. DELAFIELD.

430

Variance between pleading and proof-when not in the first instance
available on appeal.

See COLES v. NEW YORK CASUALTY Co.

41

An appeal does not lie from so much of an order denying a motion as
authorizes its renewal.

See UNION SURETY Co. v. GREATER N. Y. AM. Co

287

Error in the rejection of evidence on a trial before the court, when

Review of the denial of a motion to quash an indictment.
See PEOPLE v. MARTIN. (No. 1)....

ARREST - Abuse of process · an offer to release a party from imprisonment,
- if he would induce his father to withdraw a claim in litigation and pay certain
mileage fees, constitutes an abuse.

116

..... 487

A release of a debtor from arrest and an assignment of property con-
verted by him constitute a good consideration for a promise to pay the debt.
See BERG 7. SPITZ.....

602

Sale by a debtor of his entire stock without notice to his creditors — when
it is not a fraud which will authorize his arrest.

ASSIGNMENT - Liquor tax certificate- an assignment thereof with the con-
sent of a special deputy commissioner — it does not protect the assignee where his
assignor has violated the statute the special deputy is not chargeable with the
knowledge of the State Commissioner.

-

See MATTER OF CULLINAN (DAVIDOFF CERT.). . . . .

APP. DIV.-VOL. LXXXVII. 41

47

PAGE.

ASSOCIATION - Unincorporated association — when a partnership.] 1. An
unincorporated association, formed for pecuniary profit, is a partnership.
UNITED PRESS v. ABELL Co. (No. 1)

-

2. A judgment against one member, on a contract made by the associa-
tion the cause of action against all the members is merged in it.] Where an
action brought against one of the members of such an association, upon a con-
tract executed in the name of the association, results in a judgment against
such member, the cause of action against all of the members is merged in
such judgment. Id.

ASSUMED NAME:
See NAME.

ASSUMPTION OF RISK:

Se NEGLIGENCE.

ATTACHMENT - Judgment by default in the New York Municipal Court
where an attachment has been issued and the summons has not been personally
served.] 1. A judgment cannot be rendered by default pursuant to section
91 of the New York Municipal Court Act (Laws of 1902, chap. 580) or sec-
tion 2918 of the Code of Civil Procedure, in an action where the defendant
has not appeared or been personally served with the summons, but in which,
however, his property has been attached, unless it appears that the affidavits
upon which the warrant of attachment was issued were sufficient to authorize
it. MOHLMAN Co. v. LANDWEHR........

2. Burden of proof that the defendant fraudulently disposed of his
property.] On an application for a warrant of attachment on the ground that
the defendant has disposed of his property with intent to cheat and defraud
his creditors, the burden of proving the fraudulent intent is upon the party
applying for the writ, and circumstances which create a strong suspicion of
fraud, but yet fall short of prima facie proof thereof, are not sufficient. Id.
3. What is not sufficient to establish that a sale of merchandise in bulk is
void under chapter 528 of the Laws of 1902.] An averment in the moving
affidavits that, upon a sale by the defendant of his entire stock of merchandise
in bulk, the defendant and the purchaser did not do the things required by
chapter 528 of the Laws of 1902, which provides that the sale of an entire
stock of merchandise in bulk is fraudulent and void against the creditors of
the seller, unless, at least five days before the sale, the seller and purchaser
do certain things, is insufficient to establish the violation of the statute in
question, where it is evident that the averment is not based upon personal
knowledge and the situation of the parties is not such as to create a pre-
sumption of knowledge and no sources of information are disclosed. Id.

4. The fraud which will justify an attachment must be an actual not a
mere statutory one.] Semble, that the fraud, which, by the Code of Civil
Procedure, is made the ground for an attachment, is an actual and intentional
or moral fraud, and not one which is declared to be such by statute because
of the omission of certain specified formalities. Id.

5. Requisites of a levy under an attachment.] A substantial com-
pliance with the requirements of section 649 of the Code of Civil Procedure,
which prescribes the method in which a levy under a warrant of attachment
shall be made, is essential to the validity of the levy. BARTON v. PALMER

6. Proof of service on "the treasurer or managing agent of the defend-
ant," not alleging that it was a corporation, is insufficient.] A complaint in an
action brought against "Albert Palmer Company," in aid of an attachment,
which alleges that the attachment papers were served upon 'Cornelius
A. Palmer, who then was the treasurer or managing agent of the defendant
herein," but which does not allege that the defendant is a corporation, is
fatally defective, as, in the absence of such an allegation, it does not
appear that service upon the said Cornelius A. Palmer was sufficient service
upon the defendant. Id.

7.

-An execution supersedes the attachment lien.] An execution issued
in the form prescribed by section 1370 of the Code of Civil Procedure, upon

344

83

35