ROMAINE et al., Respondents, v. BREWSTER, Appellant. (City Court of New York, General Term. April 9, 1895.) Action by Benjamin F. Romaine and others against Thomas T. Brewster. H. W. Schmitz, for appellant. Davison & Chapman, for respondents. PER CURIAM. The judgment appealed from is affirmed, with costs, on the opinion of the common pleas, general term, filed November 5, 1894, and reported in 30 N. Y. Supp. 948. ROSS, Respondent, v. BRONNER, Appellant. (Supreme Court, General Term, Fourth Department. November, 1894.) Action by William M. Ross, as administrator, against Seckel Bronner. No opinion. Judgment and order affirmed, with costs. SEEBECK et al., Appellants, v. JOHNSON, Respondent. (Supreme Court, General Term, First Department. April 11, 1895.) Action by John H. Seebeck and others against Charles C. Johnson. G. A. Stearns, for appellants. H. Willis, for respondent. No opinion. Order modified by simply allowing service of affidavit of merits on payment of $10 costs and costs of this appeal. The question of amendment of answer to be left to special term upon application for that purpose. SINK et al., Respondents, v. LONG, Appellant. (Supreme Court, General Term. Fourth Department. November, 1894.) Action by George Sink and others against Eugene Long No opinion. Order affirmed, with $10 costs and disbursements. RUDDIMAN V. BARRETT. (Supreme Court, General Term, Second Department. SMALLWOOD et al., Appellants, May 13, 1895.) Action by John Ruddiman SCHWIETERING et al., Respondents. (Stagainst Reuben R. Barrett. No opinion. Judg- perior Court of New York City, General Term ment and order affirmed, with costs. DYK- May 6, 1895.) Action by John H. Smallwood MAN, J., not sitting. and others against Herman H. Schwietering and others. Preston Stevenson, for appellants. Larned, Warren & Knapp, for respondents. RUTHERFORD, Appellant, v. KRAUSE, Respondent. (Supreme Court, General Term, Fourth Department. November, 1894.) Action by James Rutherford against Leopold Krause. No opinion. Order affirmed, with $10 costs and disbursements. See 29 N. Y. Supp. 787. SAFFORD, Appellant, v. SAFFORD, Respondent. (Supreme Court, General Term, Third Department. May 29, 1895.) Action by Thomas S. Safford against Frank D. Safford. No opinion. Order affirmed, with costs and disbursements. -- SAXTON, Respondent, v. MANHATTAN RY. CO. et al., Appellants. (Supreme Court, General Term, First Department. May 17, 1895.) Action by James Saxton against the Manhattan Railway Company and another. G. T. Aldrich, for appellants. E. W. Tyler, for respondent. No opinion. Judgment modified by reducing fee damage to $1,500, and rental damage to $100 per year, and affirmed as modified, without costs. SCHOONOVER, Respondent, v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO., Appellants. (Supreme Court, Gen : Term, Fourth Department. November, 1804. Action by Christopher C. Schoonover against the president, managers, and company of the Delaware & Hudson Canal Company. No opinion. Judgment and order affirmed, with costs. SCRIVER, Respondent. v. FAIRBROTHER et al., Appellants. (Supreme Court, General Term, Third Department. May 14, 1895.) Action by Julius Scriver against Dore E. Fairbrother and others. No opinion. Judgment affirmed, with costs. In re SEAMAN. (Supreme Court, General Term, First Department. May 17, 1895.) No opinion. Order affirmed, with costs, on opinion of O'Brien, J., in Talmadge v. Seaman (Sup.) 32 N. Y. Supp. 906. FREEDMAN, J. Upon the facts as they ap peared upon the trial of the issues the plantiff's complaint was properly dismissed upon the grounds set forth by the learned trial judge. in the decision filed by him. Even if all others were open to some criticism, the last ground as signed, namely, that the contract upon which the plaintiffs rest their claim had been ter minated before the trial, is quite conclusive. One who invokes equitable relief, and demands a preventive remedy, becomes subject to the practice of courts of equity, where such relief only is administered as the nature of the case and the facts as they exist at the close of the litigation demand. Peck v. Goodberlett, 109 N. Y. 181, 16 N. E. 350. The record discloses no exception which calls for reversal. The complaint having been properly dismissed, no error was committed in denying plaintiff's motion for injunctive relief or the appointment of a receiver during their appeal. The judgment and order appealed from should be severally affirmed, with costs. On the appeal from the order, $10 costs and disbursements may be taxed. SMITH. Respondent, v. CENTRAL VERMONT R. CO., Appellant. (Supreme Court, General Term, Third Department. May 29, 1895.) Action by John A. Smith against the Central Vermont Railroad Company. No opinion. Judgment affirmed, with costs. SMITH, Respondent, v. CHAMPLIN, Appellant. (Supreme Court, General Term, Fourth Department. November, 1894.) Action by David F. Smith against Alvin B. Champlin No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. SOCIETE ANONYME DE MERBLES LE CHATEAU, Respondent, v. DAVIDSON SONS MARBLE CO., Appellant. (Superior Court of New York City, General Term. May 6, 1895.) Action by Société Anonyme de Mer bles le Chateau against Davidson Sons Marble Company. Edward C. O'Brien, for appellant. Omar Powell, for respondent. PER CURIAM. Order affirmed, with $10 costs and disbursements to be taxed. PER CURIAM. Judgment affirmed, with costs, on the opinion of the special term (32 N. Y. Supp. 838), and on the opinion reported in 13 N. Y. Supp. 17. VAN WIE, Respondent, v. EMMONS et al., In re SOUTHERN BOULEVARD RY. CO. Appellants. (Supreme Court, General Term, (Supreme Court, General Term, First Depart-Fourth Department. November, 1894.) Action ment. May 17, 1895.) No opinion. Order af- by Irvin Van Wie against Stephen A. Emmons firmed, with costs, on opinion of Van Brunt, and John Y. McKane. No opinion. Judgment P. J., 58 Hun, 597, 12 N. Y. Supp. 466. affirmed, with costs. STANDARD FERTILIZER CO., Appellant, V. CHENEY, Respondent. (Supreme Court, General Term, Third Department. May 14, 1895.) Action by the Standard Fertilizer Company against Edward D. Cheney. No opinion. Judgment affirmed, with costs. STYNE v. NEW YORK, L. E. & W. RY. CO. (Supreme Court, General Term, Second Department. May 13, 1895.) Action by William Styne against the New York, Lake Erie & Western Railway Company. No opinion. Judgment affirmed, with costs. CULLEN, J., not sitting. TALCOTT, Respondent, V. NATIONAL CREDIT INS. CO., Appellant (two cases). (Supreme Court, General Term, First Department. April 11, 1895.) Action by James Talcott against the National Credit Insurance Company. J. B. Green, for appellant. T. G. Strong, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. THIELE, Appellant, v. PIERSON et al., Respondents. (Supreme Court, General Term, First Department. April 11, 1895.) Action by Emil Thiele against William G. Pierson and another. No opinion. Order affirmed, with $10 costs and disbursements. TOWN OF ANDES, Appellant, v. GLEASON et al., Respondents. (Supreme Court, General Term, Fourth Department. November, 1894.) Action by the town of Andes against John B. Gleason and others. No opinion. Judg ment affirmed, with one bill of costs to respondents, and printing disbursements to all respond ents. UNION INS. CO. OF PHILADELPHIA et al., Respondents, v. CENTRAL TRUST CO. OF NEW YORK et al., Appellants. (Supreme Court. General Term, First Department. May 17, 1895.) Action by the Union Insurance Company of Philadelphia and the Insurance Company of the State of Pennsylvania against the Central Trust Company of New York, the Continental Insurance Company of the City of New York, impleaded with Kate E. Dimick, as executrix under the last will and testament of Lorenzo Dimick, deceased. William Allen Butler, for appellants. Treadwell Cleveland, for respondents. WADE, Respondent, v. GOLDSMI Appellant. (Supreme Court, General Term, First Department. April 11, 15.) Action by Charles H. Wade against Solomon Goldsmith. L. Marshall, for appellant. No opinion. Order reversed, and motion granted, with costs. WALLACE, Appellant, v. KAEMPF, Respondent. (Common Pleas of New York City and County, General Term. March, 1895.) Action by Thomas P. Wallace, surviving partner, etc., against Herman Kaempf. George William Wallace, for appellant. Hahn, Myers & Bronner, for respondent. No opinion. Judgment affirmed, with costs. See 31 N. Y. Supp. 1134. END OF CASES IN VOL. 33. INDEX. Abandonment. Of wife, see "Husband and Wife." ABATEMENT AND REVIVAL. Action against corporation for personal inju- Action for conversion of bill of exchange will ABUSE OF PROCESS. Good faith in calling posse to aid in executing Acceptance. Of offer, see "Contracts." ACCORD AND SATISFACTION. ACCOUNTING. By executors, see "Executors and Administra- By trustees, see "Trusts." Complaint held not to show a cause of action ACCOUNT STATED. Balanced account in book does not constitute Acknowledgment. Of deed, see "Deeds." V.33N.Y.S.-72 ACTION. Abatement of, see "Abatement and Revival." Peace." On appeal bond, see "Appeal." When person for whose benefit promise is Plaintiff may bring assumpsit for value of 497. Conversion of goods may be waived, and as- When denial of motion to consolidate made Consolidation of actions will not be granted Plaintiff may sue defendant on promise by de- Adequate Remedy at Law. ADJOINING LANDOWNERS. See "Evidence." Admissions. Advancement. See "Descent and Distribution." (1137) ADVERSE POSSESSION. One who claims title by adverse possession Entry under color of title makes adverse pos- Affidavit. See "Attachment." Age. Proof of, see "Evidence." Agents. See "Principal and Agent." Alienation. Suspending power of, see "Wills." Ambiguity. substantial right."-Blake v. Bolte (Com. Pl.) Order denying motion to compel acceptance of When notice sufficiently shows which of sev- Time of taking. Time within which appeal from justice court Bonds. Code Civ. Proc. § 1309, providing that an ac When application for order fixing amount of Amendment. Of claim against decedent, see "Executors and Of pleading, see "Pleading"; "Eminent Do- Of record, see "Records." Animals. Reargument. Reargument for error in papers on appeal will Appeal from order denying motion for new When record presents only questions of law.- Injury caused by runaway horse, see "Negli- Chaimson v. Henshing (City Ct. N. Y.) 271. Matters not apparent on record. When stipulation between parties not in record Question of fact will not be reviewed unless ap- Objections not raised below. Order denying motion to require attorney to Order of county judge in supplementary pro- Order denying motion to dismiss petition in con- Objection that jury, in replevin for goods Objection that court charged as fact matter Objection that defense in action in district court |