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and 120 New York State Reporter other. No opinion. Motion for reargument to be primarily considered on either side en granted, and case set down for the first day for those who are in themselves vecessary witness the hearing of municipal appeals.

es in the case, and not those for whom, presus

ably, adequate substitutes are at band. See WATKINS et al., Respondents, v. BROWN, Jordan v. Garrison, 6 How. Prac. 6. I think Appellant. (Supreme Court, , Appellate Divi- that none of the five is within the description

. sion, Second Department. March 11, 1904.) for the reason that all are described as but wit Actiou by Edward Watkins and others against nesses to the character and repute of the plaisWilliam Brown. No opinion. Judgment of the tiff. It cannot be presumed but that many othMunicipal Court affirmed by consent, without ers of equal standing, who reside in the cits costs.

where the plaintiff transacts his business, are equally available to testify upon this subject.

None of the five, save one, is eren a witness in i WEIDENFELD, Appellant, v. MCCLURE, the vicinage of the plaintiff. The hypercritica Respondent. (Supreme Court, Appellate Divi; might suggest that not alone the high standsion, Second Department. December 30, 1903.) ing, but the residential qualificatious, of the Action by Camille Weidenfeld against William witnesses, prompted their nomination in the opMcClure. Herbert R. Limburger (Edward posing papers. I think, then, that the learned Lauterbach and Henry L. Scheuerman, on the Special Term had a right to conclude, and that brief), for appellant. Lewis Cass Ledyard, for

we have a right to conclude, that there are pran respondent.

tically no witnesses named by the platitif p! PER CURIAM, Order reversed, with $10 whose convenience need be compared by the costs and disbursements, and motion denied, court with that of the witnesses named by the with costs, on the authority of Quinu v. Brook. defendant. This is an action against the sectelyn Heights R. Co. (decided Nov. 20, 1903) 84 tary of the New York Stock Exchange for libel N. Y. Supp. 738.

The plaintiff, a stockbroker, courted an investi. JENKS, J. (dissenting). I dissent. This is gation at the hands of the governing committee an appeal from an order changing venue from of that body, and the defendant, as an official, Nassau county to New York county on a motion after a preliminary investigation by the las based on the convenience of witnesses and the committee and the governing committee, and at promotion of justice. In Sparks v. United their instance, preferred the charges opou Traction Co., 66 App. Div. 205, 206, 73 V. Y. which the hearing was based, and which resultSupp. 103, the court, per Adams, P. J., said: ed in the suspension of the plaintiff. All of the “The determination of a motion to change the proceedings, including the preliminary investi place of trial on the ground of the convenience gation, the preference of the charges, the tearof witnesses often resolves itself into the exering, and all other germane matters, were held cise of the discretionary power of the Special in the city of New York, where the plaintiff has Term, and, when thus exercised, it should not his place of business, and where the stock erbe disturbed by an appellate tribunal, unless change is located. It is fairly well settled, in it is made clearly to appear that there has transitory actions, when the even relative (03been an abuse of that power. Fitzgerald v. venience of witnesses is open to question, that l'ayn, 78 Hun, 38 (28 N. Y. Supp. 1033); Payne the county of the occurrence should be prev. E. Electric Co., 88 Hun, 250 (34 N. Y. ferred as that of the trial. Payne v. Eureka Supp. 657).” At all events, our discretion on re- Electric Co., 88 Hun, 250, 31 N. Y. Supp. 637 view should not be exercised as if the motion Osterhout v. Rabe, 39 App. Div. 413, 57 X I. now came up for a second hearing as of first in- Supp. 336; Kubiac v. Clement, 35 App, Div, stance, regardless of the exercise of the discre- 196, 54 N. Y. Supp. 773. See, too, Ballstoy tion by the Special Term. I see no reasou for Storage Co. v. Defeo, 67 App. Div. 341, 73.X. the exercise of our discretion counter to that of Y. Supp. 772; Jacobs v. Davis, 65 App. Dir. the Special Term. I am well aware of the 144, 72 N Y. Supp. 558; Thompsou v. Mac rules laid down in Daley v. Hellman (Sup.) 16 Kinnon, 57 App. Div. 329, 67 N. Y. Supp. 111", N. Y. Supp. 6S9, approved in Navratil v. And in Browne v. Town of Mount Hope, 13 Bohm, 26 App. Dir. 460, 50 N. Y. Supp. 225, App. Div. 599, 001, 77 N. Y. Supp. 1, 2, this McCready v. Haight, 22 App. Div. 632, 48 N. court, per Willard Bartlett, J., said: "In KobY. Supp. 39, and Tuthill v. Long Island R. R. iac v. Clement, 35 App. Div. 186 154 N. F. Co., 75 Hun, 536, 26 N. Y. Supp. 1029. Let us Supp. 773), it was held that, where a case is compare the convenience of witnesses. First. evenly balanced as to witnesses, the locality There is the plaintiff, who resides in the county in which the cause of action arose is an imporof Nassau, but who does business as a stock. tant element in the determination of an applibroker in the city of New York. In Hedges v. cation to change the venue; and it is still more Bemis, 38 App. Div. 319, 56 N. Y. Supp. 566, important in a case like this, where the wit. the court, per Van Brunt, P. J., says: “But nesses of the moving party outuumber those of where the cause of action has arisen in another the other side in the proportion of more than county, and the convenience of the witnesses two to one." The learned counsel, in anster to will be promoted by a change of venue to that this contention, states in his affidarit: "While county, we are not aware of any rule which the jury would have the right to infer male will permit the inconvenience to the plaintiff to from the language of the libelous article which prevent its removal to the proper county." charges the plaintiff with the crime of eston Second. There are the five witnesses named by tion, I did state, in the affidarit referred to in the plaintiff. Of the five, three reside in Oys- the defendant's moving papers, that it was as ter Bay, one at Port Washington, and one at intention to show by the statements of the Hempstead. It seems to me that the witnesses I defendant before the governing committee air

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cumstances from which the jury could find the Frederic Hall White for an allowance to prose-
existence of express malice. Inasmuch as there cute his studies. No opinion. Motion to dis-
is a stenographic record of the statements of miss appeal denied, with $10 costs.
the plaintiff, this fact can be established by
the stenographer of the committee, or by any WHITE, Respondent, NEW YORK
one member of the committee, all of whom are DOCK CO. Appellant. (Supreme Court, Ap-
friendly to the defendant, and the testimony of pellate Division, Second Department. March
one of whom, Mr. Heaton, I attempted to take 4, 1904.) Action_by Alexander White against
before a referee, under the order of the court, the New York Dock Company. No opinion.
as hereinbefore stated. The testimony of all of Judgment and order unanimously afirmed,
these witnesses must, under the circumstances, with costs.
necessarily be cumulative.”. Without prejudg-
ing the case, I may say that there is grave
question whether the plaintiff can prevail Appellate Division, First Department.

In re WHITLOCK AVE. (Supreme Court,

Febagainst this defendant without evidence of express malice. Remington v. Congdon, 2 Pick.ruary 11, 1904.). In the matter of Whitlock 310, 13 Am. Dec. 431; O'Donaghue v. McGov: Avenue. No opinion. Motion granted as to ern, 23 Wend. 26; Streety v. Wood, 15 Barb. questions 1 and 2. 105, 110. I think, then, that it may be fairly said that the defendant is entitled at least to Appellants. (Supreme Court, Appellate Divi:

WILEY, Respondent, v. FARRAND et al., bare at hand the testimony both of the memsion, Fourth Department. January 26, 1904.) bers of the law committee who investigated Action by Eleanora Wiley against Isaac T. preliminarily, and also of those who tried the Farrand and others. charges, in order to disprove, if possible, that which the plaiutiff may be bound to prove as

PER CURIAM. Judgment affirmed, with

costs. part of his case. It may be that the testimony of many of these members may be held cumu- STOVER, J., dissenting. lative or unnecessary upon the trial; but we (annot forecast the scope or trend of the trial WILHELM, Respondent, v. WILHELM_et to the extent of excluding or limiting the num- al., Appellants. (Supreme Court, Appellate Diber of such witnesses. Snyder v. Mack, 35 App. vision, Fourth Department. January 29, 1904.) Div. 97, 54 N. Y. Supp. 534, is also an author- Action by Caro Wilhelm against Emil Wilhelm ity that sustains the learued Special Term. I and another. think that the order should be affirmed.

PER CURIAM. Judgment and order affirmGOODRICH, P. J., concurs.

ed, with costs.

STOVER, J., dissents. McLENNAN, P. J.,

not sitting.
WELDON V. BROWN et al. (Supreme
Court, Appellate Division, First Deparuent.
February 19, 1904.) Action by Walter S. Wel- WILSON, Appellant,

BROOKLYN don against James'n. Brown and another. No HOMEOPATHIC HOSPITAL, Respondent. opinion. Motion denied.

(Supreme Court, Appellate Division, Second
Department. January 22, 1904.). Action by

Alexander Wilson against the Brooklyn Homeo-
WELLS, Respondent, NEW YORK pathic Hospital. No opinion. Motion, in so
CENT. & H. R. R. CO., Appellant. (Supreme far as it asks to dismiss the appeal from the
Court, Appellate Division, Fourth Department. order refusing resettlement of the case on ap-
January 29, 1904.) Action by Emma J. Wells peal, granted, with $10 costs. Motion to dis-
against the New York Central & Hudson River miss the appeal from the judgment denied, on
Railroad Company.

condition that the appeal be perfected, and the PER CURIAM. Judgment and order re

case be brought on for argument at the next

term. versed, and new trial ordered, with costs to the appellant to abide event, unless the plaintiff stipulates to reduce the verdict to the sum of WITMARK et al., Respondents, v. TAMS, $3,500 as of the date of rendition thereof, in et al., Appellants. (Supreme Court, Appellate Diwhich event the judgment, as so modified, and vision, First Department. February 19, 1904.) the order, are affirmed, without costs of this Action by Marcus Witmark and others against appeal to either party.

Arthur W. Tams and Benno Loewy. B.
Loewy, for appellants. A. S. Gilbert, for re-

spondents.
In re WHITE. (Supreme Court, Appellate
Division, Second Department. January 29,

PER CURIAY. Order affirmed, with $10 1904.), In the matter of the application of Jo- costs and disbursements. siah J. White as guardian of the person of

VAN BRUNT, P. J., and O'BRIEN, J.,

disFrederic Hall White, an infant, for the pay- sent. ment of funds, etc. No opinion. Motion to dismiss appeal denied.

WOOD, Respondent, V. WHELEN, Appel

lant. (Supreme Court, Appellate Division, In re WHITE. (Supreme Court, Appellate Second Department. March 4, 1904.) Action Division, Second Department. January 29, by John J. Wood against Susie V. Whelen. No 1904.) In the matter of the application of l opinion. Judgment affirmed, with costs.

v.

and 120 New York State Reporter WOODRUFF, Appellant, V. ALGER, Re-J. W. Searing, for respondent. No opinion, $pondent. (Supreme Court, Appellate Division, Order affirmed, with $10 costs and disburze First Department. January 22, 1904.) Action ments. by Amos E. Woodruff against William G. Alger. A. E. Woodruff, for appellant. J. F. Kernochan, for respondent. No opinion. Order af- ZIMMERMAN, Respondent, V. T. H. SI. firmed, with $10 costs and disbursements. MONSON & SON CO., Appellant. (Supreme

Court, Appellate Division, First Deparime WOOLWORTH, Appellant, LEADER February 5, 1904.) Action by Jacob A. Zim. CO., Respondent.' (Supreme Court, Appellate merman against the T. H. Simonson & Sun Division, First Department. March 11, 1901.) Company. S. H. Stuart, for appellant. F. M. Action by Frank W. Woolworth against the Avery, for respondent. No opinion. Judgment Leader Company. J. B. Handy, for appellant. I and order affirmed, with costs

v.

END OF CASES IN VOL. 86

INDEX.

1

ABATEMENT AND REVIVAL. an allegation of an account stated.-Coons v.

Sanguinetti (Sup.) 367.
Election of remedy, see "Election of Remedies."

The rule that an account stated can only be
Judgment as bar to another action, see “Judg-attacked for fraud, mistake, or manifest error
ment," $ 4.

does not apply to a case where the existence of
Revival of judgment, see "Judgment," $ 6. the account stated is denied.-Baker v. Grif-
Right of action by or against personal repre- tin (Sup.) 579.
sentative, see "Executors and Administra-
tors," $ 3.

In action on account stated, where the ex-

istence of the account was put in issue by gen-
& 1. Another action pending.

eral denial, defendant could show payment,
Pendency of an action by an agent against failure of plaintiff to complete transactions for
his principal for the determination of the value which items were charged, or any facts showing
of his services, etc., held no bar to an action by improbability of stating account.–Baker v.
the principal against the agent for an account. Griffin (Sup.) 579.
ing.-Jordan v. Underhill (Sup.) 620.
ABUTTING OWNERS.

ACKNOWLEDGMENT.
Assessments for expenses of public improve Operation and effect of admissions as evidence,
ments, see "Municipal Corporations," $ 3.

see "Evidence," 5.
Compensation for taking of or injury to lands8 1. Taking and certificate.
or easements for public use, see "Eminent A foreign acknowledgment to a power of at-
Domain," $82, 4.

torney held to sufficiently show that the consular
Rights in highways in general, see "High- agent taking the same resided within the coun-
ways," $ 1.

try, as required by Real Property Law, Laws

1901, p. 1476, c. 611, $ 250, subd. 2.-Jordan
ACCIDENT.

v. Underhill (Sup.) 620.
Accident insurance, see "Insurance," $8 5, 7.

ACTION.
ACCORD AND SATISFACTION. Abatement, see "Abatement and Revival."

Bar by former adjudication, see "Judgment,”
Se: "Novation"; "Payment"; "Release.”

8 4.
A receipt for a payment on a policy "under Election of remedy, see "Election of Reme-

Counterclaim, see “Set-Off and Counterclaim.”
protest" held insufficient to support a plea of dies.”
accord and satisfaction.-Mitterwallner v. $u- Jurisdiction of courts, see "Courts."
preme Lodge Kinights and Ladies of the Golden Limitation by statute, see "Limitation of ac-
Star (Sup.) 786.

tions."

Pendency of action, see “Abatement and Re-
ACCOUNT

vival," $ 1.

Set-off, see “Set-Off and Counterclaim."
See "Account Stated."
Accounting between partners, see “Partner- Actions between parties in particular relations.
ship," $ 5.

See "Attorney and Client,” $ 3; "Landlord
Accounting by agent, “Principal and and Tenant," $8 4, 5; “Master and Servant,"
Agent," $ 2.

1

see

88 1, 3.
Accounting by executor or administrator, see Co-tenants, see “Partition," § 1.
"Executors and Administrators," 4.

Joint debtors, see “Contribution."
Accounting by receiver, see “Receivers,” $ 3.

Partners, see “Partnership," § 5.
Accounting by trustee, see “Trusts," $ 6.

Actions by or against particular classes of
ACCOUNT STATED.

parties.

See “Carriers," $$ 2-4; “Corporations," $ 3;
Harmless error in action on, see "Appeal," $ 7. "Executors and Administrators," $ 3; “In-

fants," $ 1; “Master and Servant," $ 4; "Mu-
In an action to recover the balance due for nicipal Corporations," $ 6;. "Partnership,” &
goods sold, evidence held insufficient to support 4; "Principal and Agent," $ 3; "Principal
86 N.Y.S.—73

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and 120 New York State Reporter and Surety,” $ 1; "Receivers," $ 2; "Schools Foreclosure of mortgage, see "Mortgages," $ 2. and School Districts," § 1; "Street Railroads,” | Reformation of written instrument, see "Ref$ 1; "Towns," $ 1.

ormation of Instruments." Assignees, see “Assignments," $ 2.

Removal of cloud on title, see "Quieting Title." Devisees, see "Wills," $ 5.

Revocation of liquor license, see "Intoxicating Ferryboat companies, see “Ferries," $ 1.

Liquors," $ 1. Foreign corporations, see “Corporations," $ 6. Setting aside assessment for public improve Foreign insurance companies, see "Insurance," ment, see "Municipal Corporations," $ 3. $ 1.

Setting aside fraudulent conveyance, Heirs, see “Descent and Distribution," $ 1.

"Fraudulent Conveyances," $ 2. Officers of association, see "Associations." Reorganized corporation, see "Corporations,"

Particular proceedings in actions. 8 4.

See “Continuance"; *Costs"; *Damages": Savings bank, see “Banks and Banking," $ 3. "Dismissal and Konsuit"; "Evidence"; "EsStockholders, see "Corporations," $ 1.

ecution"; "Judgment"; "Limitation of de

tions"; "Motions"; "Parties": "Pleading": Particular causes or grounds of action. "Process"; "Reference"; "Trial"; "Venue." See “Account Stated”; “Bills and Notes," $ 5; Bill of particulars, see "Pleading," $ 6.

“Contribution"; "Forcible Entry and Detain- Default, see "Judgment," § 1. er,". $. 1; "Fraud,” $ 1; “Insurance," 8 10; Xonsuit, see "Trial," 8 3. “Libel and Slander," $ 2; “Money Lent"; Revival of judgment, see "Judgment," $ 6. "Negligence," $ 4; "Taxation," 8 5; “Torts"; "Trespass"; "Trover and Conversion," $ 1;

Particular remedies in or incident to actions. “Work and Labor."

See “Attachment"; "Injunction"; "Receivers”; Bonds for payment of alimony, see “Divorce,"

"Tender." $ 2. Bonds of liquor dealers, see “Intoxicating Lig- Procecdings in exercise of special jurisdicions. uors," 8 1.

Couts of limited jurisdiction in general, see Bonds of personal representatives, see "Exec

"Courts," $ 2. utors and Administrators," $ 5.

Criminal prosecutions, see "Criminal Law." Breach of contract, Contracts," $ 4; Suits in equity, see "Equity." *Sales," 8 4.

Review of proceedings.
Breach of covenant, see “Covenants," $ 1.
Breach of warranty, see “Sales," $ 5.

See "Appeal"; "Justices of the Peace," $ 1: Compensation of attorney, see "Attorney and

“New Trial." Client." $ 3.

1. Nature and form. Compensation of broker, see “Brokers," $ 3.

Complaint alleging personal injuries by reaCorporate bonds, see "Corporations," $ 3. Injuries due to defective premises, see “Land- a breach of contract and not cause of action in

son of breach of corenant to repair held to state lord and Tenant," 4.

tort.-Spero v. Levy (Sup.) 869. Injury to bridge, see “Bridges," $ 1. Malpractice, see “Physicians and Surgeons." 2. Commencement, prosecution, and Negligence of carrier, see "Carriers," $ 2.

termination. Personal injuries, see "Animals";' "Carriers," Assignee of the owner of a building held el

8 4; "Electricity”; “Ferries," $ 1; “Master titled to sue for damages for breach of the conand Servant," 8 3; "Railroads," $ 3.

struction contract in a county where a more Price of goods, see "Sales," $ 4.

expeditious trial could be obtained in order to Rent, see "Landlord and Tenant," $ 5.

forestall the trial of a suit by the contractor in Services, see "Master and Servant," $ 1; "Work another county for the balance of the contract and Labor."

price.-Ogden v. Pioneer Iron Works (Sup! Taking of or injury to property in exercise of 955. power of eminent domain, see “Eminent Do

An order staying an action to recorer dammain," $ 4.

ages for breach of a building contract until Wages, see "Master and Servant,” g 1.

determination of a prior action by the contractor Waste impairing security of mortgage, for a balance of the contract price held error “Mortgages," $ 1.

--Ogden v. Pioneer Iron Works (Sup.) 955. Wrongful conversion of property held under conditional contract of sale, see "Sales," $ 6.

An order staying proceedings in an action

pending the determination of another soit Particular forms of action.

should not be granted before issue joined.-02.

den v. Pioneer Iron Works (Sup.) 9.5. See "Ejectment"; "Replevin"; "Trespass,” $ 2; "Trover and Conversion.

Where two actions are independent of each

other and a decision in one will not determine Particular forms of special relief. the other, a stay of the second will not be See "Divorce Injunction Partition,” \ 1; granted, pending an appeal in the first.–Jea

“Quieting Title”; “Specific Performance. kins v. Baker (Sup Alimony, see "Divorce," $ 2.

Stay of proceedings in another action between Determination of adverse claims to real prop- plaintiff and defendant in another county caserty, see “Quieting Title."

not be obtained in an action at law for damEstablishment of will, see "Wills," $ 3.

ages.-Purdy v. Baker (Sup.) 1065.

see

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