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INDEX.

ABATEMENT AND REVIVAL.
ection of remedy, see "Election of Remedies."
dgment as bar to another action, see "Judg-
ment," § 7.

ght of action by or against personal repre-
sentative, see
"Executors and Administra-
cors, § 3.

1. Death of party and revival of ac-
tion.

Code Civ. Proc. § 757, held not to authorize
vival and continuance of an action against a
reign executor.-McGrath v. Weiller (Sup.)
0; Appeal of Fernberger, Id.

ABUTTING OWNERS.

ssessments for expenses of public improve-
ments, see "Municipal Corporations," § 6.
ompensation for taking of or injury to lands
or easements for public use, see "Eminent Do-
main." §§ 1, 3.

ights in highways in general, see "Highways,"
§ 1.

ights in streets in cities, see "Municipal Cor-
porations," § 8.

ACCEPTANCE.

f goods sold in general, see "Sales," § 3.

ACCOMMODATION PAPER.

?e "Bills and Notes."

ACCORD AND SATISFACTION.

e "Compromise and Settlement"; "Nova-
tion"; "Payment."

The acceptance by the creditor of a check
om the debtor, written as "in full payment,"
ith immediate notice to the debtor that action
ould be brought for the balance claimed, is
t an accord and satisfaction. - Harby v.
enes (Sup.) 461.

Acceptance of check without objection held
complete accord and satisfaction of disputed
aim. Le Page v. Lalance & Grosjean Mfg.
D. (Sup.) 676.

ACCOUNT.

ccounting by corporate officers, see "Corpora-
tions," $3.

ccounting by executor or administrator, see
"Executors and Administrators," §§ 4, 13.

90 N.Y.S.-71

Discovery in actions for accounting, see "Dis-
covery," 1.

Examination of account as ground for compul-
sory reference, see "Reference," § 1.

ACCRUAL.

Of transfer tax, see "Taxation," § 4.

ACKNOWLEDGMENT.

As evidence of time of delivery of deed, see
"Deeds," § 3.

Of indebtedness barred by limitation, see "Lim-
itation of Actions," § 2.
Operation and effect of admissions as evidence,
see "Evidence," § 5.

ACTION.

Abatement, see "Abatement and Revival."
Bar by former adjudication, see "Judgment,"
§ 7.
Commencement within period of limitation, see
"Limitation of Actions," § 1.

Counterclaim, see "Set-Off and Counterclaim."
Election of remedy, see "Election of Remedies."
Jurisdiction of courts, see "Courts."
Limitation by statute, see "Limitation of Ac-
tions."

Malicious actions, see "Malicious Prosecution."
Restraining action at law, see "Injunction," § 2.
Submission of controversy to court without ac-
tion, see "Submission of Controversy."

Actions between parties in particular relations.
Sec "Landlord and Tenant," § 3; "Master and
Servant," §§ 2, 5.

Co-tenants, see "Partition," § 1.
Joint debtors, see "Contribution."

Actions by or against particular classes of
parties.

See "Brokers," § 3; "Carriers," §§ 1-3. 5; "Cor-
porations," §§ 6, 9; "Druggists"; "Executors
and Administrators," § 3; "Husband and
Wife," § 2; "Infants," § 1; "Insane Per-
sons," § 1; "Master and Servant," § 6; "Mu-
nicipal Corporations," § 10; "Principal and
Agent," § 3; "Street Railroads," § 2; "Towns,"
§ 3.

Foreign corporations, see "Corporations," § 9.
Savings banks, see "Banks and Banking," § 2.
Stockholders, see "Corporations," § 3.

Particular causes or grounds of action.
See "Bills and Notes," §§ 2, 3; "Contribution";
"Death," § 1; "Insurance," §§ 9, 11; "Judg

(1121)

and 124 New York State Reporter

ment," 11; "Libel and Slander," § 2; "Malicious Prosecution," § 1; "Money Lent"; "Negligence," § 3; "Trespass"; "Trover and Conversion," § 1.

Breach of contract, see "Contracts," § 5; "Vendor and Purchaser," $ 2.

Breach of contract to devise or bequeath, see "Wills," § 2.

Breach of contract to furnish electricity, see
"Electricity."

Breach of covenant, see "Covenants," § 4.
Breach of warranty. see "Sales," $ 6.

Civil damages for sale of liquors, see "Intoxi-
cating Liquors," § 1.

Compensation of attorney, see "Attorney and
Client." 3.

Compensation of broker, see "Brokers," § 3.
Diversion of water course, see "Waters and
Water Courses," § 2.

Foreign judgment, see "Judgment." § 11.
Loss of baggage, see "Carriers." § 5.
Personal injuries, see "Bridges," § 2; "Car-
riers," §§ 2, 3; "Landlord and Tenant," § 3;
"Master and Servant." § 5; "Municipal Cor-
porations." §§ 8, 10; "Railroads," § 5; "Street
Railroads," § 2.

Price of goods, see "Sales," § 5.

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Nonsuit, see "Trial," § 5.
Notice of action, see "Process." § 1.
Revival, see "Abatement and Revival," § L
Particular remedies in or incident to actions.
See "Arrest," § 1; "Attachment"; "Discor
ery"; "Injunction"; "Receivers."

Proceedings in exercise of special jurisdictions.
Courts of limited jurisdiction in general, see
"Courts," § 3.

Criminal prosecutions, see "Criminal Law.”
Suits in justices courts, see "Justices of the
Peace," § 2.

Review of proceedings.

See "Appeal"; "Certiorari"; "Judgment,” § 5: "New Trial."

§ 1. Nature and form.

Where complaint states cause of action in law or equity, its nature is determined by the prayers.-Zeiser v. Cohn (Sup.) 66.

Allegations as to tortious conduct do not make action on contract one in tort.-Price v. Parker (Sup.) 98.

Plaintiff may waive cause of action in tort and proceed in assumpsit, when facts authorize

Price of land, see "Vendor and Purchaser."82
Recovery of money lost at gaming, see "Gam-it.-Price v. Parker (Sup.) 98.
ing," § 1.

Recovery of payment, see "Payment," § 3.
Recovery of price paid for goods, see "Sales,"
§ 6.

Services, see "Master and Servant," § 2.
Taking of or injury to property in exercise of
power of eminent domain, see "Eminent Do-
main," § 3.

Wages, see "Master and Servant," § 2.

Particular forms of action.

See "Replevin"; "Trover and Conversion."

Particular forms of special relief.

See "Creditors' Suit";

"Divorce"; "Injunction"; "Interpleader"; "Partition," § 1; "Specific Performance."

Abatement of nuisance, see "Nuisance," § 1. Admeasurement or assignment of dower, see "Dower," § 1.

Alimony, see "Divorce," § 3.

Under Code Civ. Proc. § 549, subd. 2, an allegation entitling plaintiff to an order for ar rest cannot be rejected as surplusage.-Frid v. Freudenthal (Sup.) 344.

Although the prayer for judgment may be r sorted to, to ascertain the pleader's intention. it cannot control the nature of the action as against an expressed intention to the contrary. -Frick v. Freudenthal (Sup.) 344.

Equitable principles held applicable in action for money had and received. Merino v. Munoz (Sup.) 985.

§ 2. Joinder, splitting,

and severance.

consolidation.

Complaint in action by judgment creditor held one to set aside alleged fraudulent conveyances only.-Zeiser v. Cohn (Sup.) 66.

In action to set aside fraudulent conveyances.

Cancellation of written instrument, see "Can- allegations as to promises by grantee to pay

cellation of Instruments.)

Construction of will, see "Wills," § 5.
Dissolution of corporation, see "Corporations,"
§ 8.
Enforcement of municipal tax, see "Municipal
Corporations," § 12.

Establishment of attorney's lien, see "Attor-
ney and Client," $ 3.

Establishment of will, see "Wills." $ 4.
Foreclosure of mortgage, see "Mortgages," § 4.
Reformation of written instrument, see "Ref-
ormation of Instruments."

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grantor's debts held not to constitute a separate cause of action on contract.-Zeiser v. Coha (Sup.) 66.

Code Civ. Proc. § 484, subd. 9, held not to authorize the joinder of a cause of action for converting plaintiff's horse and buggy with an action for a subsequent assault on plaintiff.Campbell v. Hallihan (Sup.) 432.

§ 3. Commencement, prosecution, and termination.

Acts of plaintiff after the commencement of suit may preclude him from maintaining it, and be pleaded by the answer for that purpose.Wormser v. Metropolitan St. Ry. Co. (Sup.) 714.

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity, see "Injune tion," § 1.

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As evidence in civil actions, see "Evidence,"
$ 5.

AGREED CASE.

Submission of controversy to court, see "Sub-
mission of Controversy."

AGREEMENT.

See "Contracts."

AGRICULTURE.

Venue of action for penalty for unauthorized
use of milk cans, see "Venue," § 1.

ALIENATION.

Suspension of power of alienation of property,
see "Perpetuities."

ALIMONY.

See "Divorce," § 3.

ALLOWANCE.

Authority of attorney to make, see "Attorney Of claims against town, see "Towns," § 2.

and Client," § 1.

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In particular proceedings.

See "Arrest," § 1; "Injunction," § 3.
Accounting by executor or administrator, see
"Executors and Administrators," § 4.
Application for discovery, see "Discovery," § 1.
Attachment by foreign corporations, see "Cor-
porations," § 9.

Criminal prosecutions, see "Criminal Law,"
§ 2.

For commission to take testimony, see "Dep-
ositions."

Foreclosure, see "Mortgages," § 4.
Proceedings supplementary to execution, see
"Execution," § 4.

Verification of pleading, see "Pleading," § 5.

AGENCY.

See "Principal and Agent."

ALTERATION.

Of geographical or political divisions, see "Mu-
nicipal Corporations," § 1.

Of highways, see "Highways," § 1.

ALTERATION OF INSTRUMENTS.
See "Reformation of Instruments."

AMENDMENT.

Of designation of parties to action, see "Par-
ties," § 2.

Of judgment, see "Judgment," § 4.

Of judgment by consent, affecting right of re-
view, see "Appeal," § 1.

Of pleading, see "Pleading," §§ 4, 9.

Of record on appeal or writ of error, see "Ap-
peal," § 4.

ANCILLARY ADMINISTRATION.
See "Executors and Administrators," § 5.

ANIMALS.

Evidence in action involving ownership of
dog examined, and held not to support verdict
for plaintiff.-Ross v. Healy (Sup.) 391.

ANNUITIES.

Will construed, and annuities provided for
held payable out of the general estate, or by
the setting apart of specific funds.-Smith v.
Havens Relief Fund Soc. (Sup.) 168.

1124

ANSWER.

In pleading, see "Pleading," § 2.

and 124 New York State Reporter

APOTHECARIES.

See "Druggists."

APPEAL.

See "Certiorari"; "New Trial."

riously affect the value of the land.-Scudder v. Watt (Sup.) 605.

Trial of an action at a place in a county where the judge had no authority to try the same held a jurisdictional defect, which was not waived by failure to object thereto in the tria. court.-Armstrong v. Loveland (Sup.) 711.

Objection to variance must be first raised be low. Stern v. Westchester Electric Ry. Co. (Sup.) 870.

Submission of a wife's liability for goods de

Denial of adjournment pending trial as preju- livered to her husband on the theory that she dicial error, see "Trial," § 2.

Review in particular civil actions.

See "Mandamus," § 3.

Review in special proceedings.

On claim against town, see "Towns," § 2.
Taxation of costs, see "Costs," § 1.
To alter highway, see "Highways," § 1.

Review of criminal prosecutions.

See "Criminal Law," § 4.

§ 1. Right of review.

A plaintiff held not entitled to appeal from a judgment for defendant, amended on his motion, making it a judgment of dismissal. Reichenberg v. Interurban St. Ry. Co. (Sup.)

384.

Appellee in the county court on appeal from a justice held not entitled to appeal from a judgment of reversal, which had been modified by consent by ordering a new trial.-Flewellin v. Lent (Sup.) 417.

§ 2. Presentation and reservation in lower court of grounds of review. Where the trial proceeded on the theory of nonacceptance of goods sold, plaintiff could not, on appeal, contend that defendant waived plaintiff's default in failing to make delivery within the required time.-Birkett v. Nichols (Sup.) 257.

Criticism of the charge with regard to matters which should have been called to the attention of the justice on the trial, if prejudicial. cannot avail on appeal.-Vacca v. Martucci (Sup.) 356.

The failure of the trial court to require preliminary proof of the genuineness of the record of a judgment admitted in evidence will not avail on appeal, where the only objection to its admission on the trial was its competency. Sampson v. Mayer (Sup.) 379.

A party, on appeal from an order dismissing his complaint, held entitled to review only the matter raised below.-Eckes v. Stetler (Sup.) 473.

Objection that an order allowing a preference in the trial of a case was in violation of a City Court rule could not be made for the first time on appeal.-Cohen v. Interurban St. Ry. Co. (Sup.) 479.

Plaintiffs in action to enforce specific performance of contract for the purchase of real estate held to be in no position on appeal to urge that a certain agreement did not inju

was his undisclosed principal, not objected to on the trial, cannot be urged for reversal on appeal.-Mollineaux v. Clapp (Sup.) 880.

§ 3.

Requisites and proceedings
transfer of cause.

for

On an order denying a motion to resettle an order disapproving an undertaking on appeal, appellant was entitled to a full recital in the order of all papers used or read on the motion. -Davis v. Reflex Camera Co. (Sup.) 877.

§ 4. Record and proceedings not in record.

Under the facts, held, that the record would be returned to the files to allow appellant to move that it be returned to the trial court for nicipal Court Act, Laws 1902, p. 1581, c. 580. § settlement of the case, in accordance with Ma318.-Hillman v. De Rosa (Sup.) 409.

The sufliciency of a judgment roll to justify dismissal under a plea of former recovery candoes not appear in the case on appeal.-Muller not be determined, where the judgment roll v. Bendit (Sup.) 433.

Where plaintiffs excepted to dismissal on the ground that a judgment roll showed a former rate the judgment roll in the case on appeal.— recovery, it was defendant's duty to incorpoMuller v. Bendit (Sup.) 433.

On appeal from an order denying a motion to resettle an order disapproving an undertaking on appeal, appellant held not entitled to have the order amended by stating the specifie ground of disapproval.-Davis v. Reflex Camera Co. (Sup.) 877.

Where a case on appeal from the City Court does not affirmatively show that it contains all the evidence, the Appellate Term will not review it.-Empire Trust Co. v. Devlin (Sup.)

1066.

Where a case on appeal from the City Court does not affirmatively show that it contains all the evidence, the Appellate Term will not inquire into the weight of the evidence.-Hilgert v. Black (Sup.) 1067.

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