LE GRAW, Respondent, v. GUIRAUD, Appellant.

(Common Pleas of New York City and County, General Term. December 18, 1890.)

Appeal from eighth district court.

Argued before BOOKSTAVER and BISCHOFF, JJ.

H. B. Van Trouk, for appellant. R. Lyon, for respondent.

No opinion. Judgment affirmed, with costs.

LEVY, Respondent, v. KRAKOWSKI et al., Appellants.

(Common Pleas of New York City and County, General Term. December 18, 1890.)

Appeal from fifth district court.

Argued before BOOKSTAVER and BISCHOFF, JJ.

G. C. Eldridge, for appellants. J. Fennell, for respondent.

No opinion. Judgment affirmed, with costs.

SCHUMACHER, Respondent, v. NICHOLS et al., Appellants.

(Common Pleas of New York City and County, General Term. December 18. 1890.)

Appeal from seventh district court.

Argued before BOOKSTAVER and BISCHOFF, JJ.

Mr. Goodhart, for appellants. L. J. Conlan, for respondent.
No opinion. Appeal dismissed, without costs.

HARNETT v. WESTCOTT.

(Superior Court of New York City, General Term. May 5, 1890.)

No opinion. Motion for reargument granted, upon defendant paying costs of motion. FREEDMAN, J., dissenting. See 2 N. Y. Supp. 10; 3 N. Y. Supp. 7.

TOWNSIIEND v. MCGUIRE et al.

TOWNSHEND v. LOEW et al.

(Superior Court of New York City, General Term. July 8, 1890.)

PER CURIAM. The exceptions taken by the plaintiff are overruled, and judgment is ordered for the defendants on the verdict, on the authority of Townshend v. Frommer, 5 N. Y. Supp. 442, with costs. See 10 N. Y. Supp. 918.

BURTIS v. CASSIDY.

(City Court of Brooklyn, General Term. October 27, 1890.)

Appeal from trial term.

Action by Henry M. Burtis against John Cassidy. There was a verdict for plaintiff. From the judgment entered thereon, defendant appeals. Argued before CLEMENT, C. J., and OSBORNE, J.

Jackson & Burr, for appellant. Jacob Brenner, for respondent.

PER CURIAM. The plaintiff alleges that he was employed by defendant to exchange his farm and stock thereon for city property that would be accept

able to defendant; that plaintiff procured one Donohue to offer certain property for defendant's farm and stock; and that said offer was accepted by defendant. The defense of defendant was twofold: First. That defendant did not accept such offer; second, that he was not to be liable for commissions until the exchange should be actually consummated by delivery of deeds. There was a conflict of evidence on both of these questions, which were submitted to a jury. They decided both in favor of plaintiff. After careful examination of the testimony, we think these questions were properly submitted to the jury, and see no reason for disturbing the verdict. Judg. ment and order must be affirmed, with costs.

NATIONAL UNION BANK v. REED.

(Common Pleas of New York City and County, General Term. June 2, 1890.) Argued before LARREMORE, C. J., and DALY, J. Reargument ordered on account of division of opinion.

END OF VOLUME 11.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

Abatement.

Of nuisance, see Nuisance.

ACCORD AND SATISFAC-
TION.

See, also, Payment.

What constitutes.

In an action to foreclose a mortgage for
$1,700, it appeared that, at the time it was
given, the mortgagee had a lien on the
property for over $2,000, and that $200 was
then paid to the mortgagee. Several wit.
nesses testified that, at the time of the pay-
ment and the giving of the mortgage, both
parties thereto stated that the payment and
mortgage were in full settlement of mort-
gagee's claim. The mortgagee testified
to the same effect. The mortgagor testi-
fied that the mortgage was given merely to
secure mortgagee's claim, and that the
amount thereof was to be thereafter ad-
justed. Held, that it was properly found
that there was a full settlement.-Parker v.
Collins, 11 N. Y. S. 109.

Accounting.

By executors, etc., see Executors and Ad-
ministrators, 10-20.

In equity, see Equity, 5.

ACCOUNT STATED.

What constitutes.

ADVERSE POSSESSION.

The retention by defendant of several Ground for divorce, see Divorce, 1.
bills for goods delivered by plaintiff with-
out authority, and without any previous
dealings between the parties, does not ren-
der defendant liable on account stated
where he repudiated the sale, and returned
the goods as soon as he discovered them
on his premises.-Austin v. Wilson, 11 N.

Y. S. 565.

Action.

See Limitation of Actions; Parties; Plead-
ing; Practice in Civil Cases; Venue in Civil
Cases.

v.11N.Y.S.-61

What constitutes.

1. Cutting ice on a pond, and occupying
a part of the surface with men and horses
for this purpose during a few weeks of
every winter, is not sufficient possession or
occupation to constitute an adverse pos-
session, which will, in 20 years, ripen into
a title.-Gouverneur v. National Ice Co., 11
N. Y. S. 87.

(961)

2. A sale of a decedent's land on fore-
closure proceedings within two years and
four months after her death is a sale with-
in a "reasonable time," within the mean-
ing of the above treaty provision; and de-
cedent's adult male heirs, citizens of Prus-Y. S. 133.
sia. are entitled to share in the surplus
arising from such sale.-In re Beck, 11 N.

Taxation of bequest to, see Descent and materials, filed after payment by the owner
Distribution, 9.

court of appeals in a case originating in alexpresses a willingness or desire that the
district court, although a similar question remittitur shall be returned.-Hillyer v.
had been decided under the law previously Vandewater, 11 N. Y. S. 167.
in force.-French v. Bauer, 11 N. Y. S.
703.

IL REQUISITES.

Time of taking.

Appeal from order modifying ref-
eree's report.

12. Code Civil Proc. N. Y. § 2546, pro-
vides that the reports of referees appoint-
6. The time to appeal from a judgmented by a surrogate's court are subject to
may be extended by consent of the par- confirmation or modification by the surro-
ties.-Bagley v. Jennings, 11 N. Y. S. 386. gate. Section 2545 provides that "either
7. Laws N. Y. 1890, c. 450, S7, amending party may, upon the settlement of a case,
Code Civil Proc. N. Y. § 1841, relating to request a finding upon any question of
appeals to the supreme court from inferior fact, or a ruling upon any question of law;
courts, and changing the limit of time and an exception may be taken to such a
within which such an appeal could be taken finding or ruling, or to a refusal to find or
from 60 days to 30 days, operated, as to a rule accordingly.' Held, on application to
case in which the time to appeal was not settle the case on appeal from an order
then exhausted, from the date of its pas- modifying the referee's report, that,
sage, so that notice of such an appeal served though a formal decision of the surrogate
more than 30 days after the passage of the was necessary where the referee's report
amendment, although less than 60 days was modified, this was not to be made un-
after the time to appeal began to run, un- til after the parties had presented their
der the former law, was too late.-Bailey proposed findings and rulings on the set-
v. Kincaid, 11 N. Y. S. 294.
tlement of the case.-In re Prout's Estate,
11 N. Y. S. 160.

Rehearing.

III. PRACTICE.

8. A reargument of an appeal will be de-
nied where a careful examination of the
record and an inspection of the original
opinion fail to show any misconception
concerning the questions presented.
Goodman v. Cohen, 11 N. Y. S. 65.

9. A motion for reargument of an appeal
must be denied where the grounds for re-
versal urged received due consideration in
the decision, and none of the grounds for
which a rehearing is allowed. under the
rules of the court, are shown.-Eagle Tube
Co. v. Edward Barr Co., 11 N. Y. S. 712.

10. Where, on appeal, judgment has
been reversed because of the erroneous ex-
clusion of evidence, a rehearing will be
granted upon a showing by respondent
that similar evidence to that excluded was
admitted upon the trial without objection,
and that the excluded evidence was merely
cumulative.-Doyle v. Manhattan Ry. Co.,
11 N. Y. S. 65.

In general.

IV. REVIEW.

13. An exception to the refusal to order
a new trial is unavailing where no order is
entered upon the decision.-National Park
Bank v. Steele & Johnson Manuf'g Co., 11
N. Y. S. 538.

14. An appeal from a judgment rendered
on the verdict of a jury, where no excep
tions were taken by appellant at the trial,
presents no question for review.-Zust v.
Smithiemer, 11 N. Y. S. 727.

15. Findings of fact will not be reviewed
on appeal unless it is stated in the case
that all the evidence given upon the trial
is contained within it.-Baker v. Crosby,
11 N. Y. S. 575.

16. An executrix elected to have her ap-
peal from the decree of a surrogate on her
accounting, "heard on the decision of the
surrogate, and the decree and questions of
law only;" and no case containing the evi-
dence was presented. Held, that findings
11. A motion at special term to vacate of fact by the surrogate could not be re-
the judgment entered on the remittitur from viewed, nor exceptions thereto considered,
the court of appeals, and to return the re- though mentioned in the notice of appeal
mittitur to the court of appeals for the pur--In re Clark, 11 N. Y. S. 911.
pose of reargument, will not be granted,
on the grounds that a majority of the
judges of the court of appeals did not unite
in a single opinion, and that one of the
judges was absent during part of the argu-
ment, but it is evident that the point on
which the reargument is sought was con-
sidered by the different judges, and it ap-
pears that the absent judge wrote a sepa-
rate opinion, placing his vote upon the
very point in question, as such motion will
be granted only when the court of appeals

Objections not made below.

17. A statement of the evidence in the
charge to the jury, even if incorrect, does
not require a reversal, if no request for a
correction was made by appellant.-Arn-
stein v. Haulenbeek, 11 N. Y. S. 701.

18. An action was brought on a bond
which had some years yet to run, and on
several past-due interest coupons attached
thereto. A condition in the bond provided
that the principal sum should become due