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POPPER, Appellant, o. COTTE et al., Respondents.

(Common Pleas of New York City and County, General Term. May 6, 1890.) Appeal from first district court.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

H. Cooper, for appellant. J. Callahan, for respondents.

No opinion. Ordered that the final order be affirmed, with costs.

ODELL, Respondent, v. NEW YORK EL. R. Co., Appellant, (two cases.) (Common Pleas of New York City and County, General Term. May 7, 1890.) Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Davies & Rapallo, for appellant. Sackett & Bennett, for respondent. No opinion. Motion to dismiss appeals from special term granted, with $10 costs. See 8 N. Y. Supp. 951.

MCKAY, Respondent, v. BREWSTER, Appellant.

(Common Pleas of New York City and County, General Term. May 7, 1890.) Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Chas. E. Le Barbiere, for appellant. Thomas D. Rambaut, for respondent.

No opinion. Motion to strike case from calendar denied, with $10 costs.

STREPPONE, Respondent, v. LENNON, Appellant.

(Common Pleas of New York City and County, General Term. May 9, 1890.) Appeal from special term.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Jas. Kearney, for appellant. Ullo & Ruebsamen, for respondent.

No opinion. Order reversed, with costs to abide the event.

MCKAY, Respondent, v. BREWSTER, Appellant.

(Common Pleas of New York City and County, General Term. May 12, 1890.) Appeal from judgment of the city court.

Argued before LARREMORE, C. J., and BoOKSTAVER, J.

Charles E. Le Barbiere, for appellant. Thomas D. Rambaut, for respondent.

No opinion. Ordered that the judgment be affirmed, with costs.

SCHWAN, Respondent, v. KNOOP, Appellant.

(Common Pleas of New York City and County, General Term. May 12, 1890.) Appeal from order setting aside a verdict of the trial term, city court. Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Frederick H. Ernst, for appellant. Cook & Schuck, for respondent.
No opinion. Order affirmed, with costs.

BAUMGARTEN, Appellant, v. EDESHEIMER, Respondent.

(Common Pleas of New York City and County, General Term. May 13, 1890.) Appeal from special term.

Argued before LARREMORE, C. J., and BоOKSTAVER, J.

A. P. Wagener, for appellant. Hamilton R. Squier, for respondent.
No opinion. Ordered that the order be affirmed, with costs.

FRANK, Appellant, v. PosT, Respondent.

(Common Pleas of New York City and County, General Term. May 13, 1890.) Appeal from city court, general term.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Herman H. Shook, for appellant. Nathaniel S. Smith, for respondent. No opinion. Ordered that the order appealed from be affirmed, with costs.

ROBINSON, Respondent, v. BROADWAY & S. A. R. Co., Appellant. (Common Pleas of New York City and County, General Term. May 13, 1890.) Appeal from special term.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Root & Clarke, for appellant. William J. Leitch, for respondent.

No opinion. Ordered that the judgment and order be affirmed, with costs.

GAYLORD et al., Respondents, v. RINALDO, Appellant.

(Common Pleas of New York City and County, General Term. May 14, 1890.) Appeal from city court, general term.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

Hays & Greenbaum, for appellant. John E. Eustis, for respondents. No opinion. Ordered that the judgment be affirmed, with costs.

LANE, Respondent, v. ROBINSON et al., Appellants.

(Common Pleas of New York City and County, General Term. May 15, 1890.) Appeal from city court, general term.

Argued before LARREMORE, C. J., and BOOKSTAVER, J.

P. C. Talman, for appellants. Hascall, Clarke & Vanderpoel, for respondent.

No opinion. Ordered that the judgment be affirmed, with costs.

RECTOR, ETC., OF THE PROTESTANT EPISCOPAL CHURCH OF ST. STEPHEN, Respondent, v. Blackhurst, Appellant.

(Common Pleas of New York City and County, General Term. May 15, 1890.) Appeal from district court.

Booraem, Hamilton & Beckett, for appellant. A. J. Shipman, for respondent.

No opinion. Ordered that the judgment be affirmed, with costs.

RAMSEY, Appellant, v. BARNES, Respondent.

(Common Pleas of New York City and County, General Term. June, 1890.) Argued before LARREMORE, C. J., and BOOKSTAVER, J.

J. M. Williams, for appellant. J. H. Frost, for respondent.

No opinion. Motion for reargument granted.

VON WEIN v. LION FIRE INS. Co.

(Superior Court of New York City, General Term. March 4, 1890.)

No opinion. Motion granted, with $10 costs.

VON WEIN v. SCOTTISH UNION & NAT. INS. Co.

(Superior Court of New York City, General Term. March 4, 1890.)

No opinion. The motion should be denied, with $10 costs. The action of the court in affirming the order denying the motion for a new trial was deliberate and advised. The decision involved familiar and often-applied rules.

JAMES, Appellant, v. MCCREERY, Respondent.

(Superior Court of New York City, General Term. April 7, 1890.)

Appeal from special term.

Action by Ada L. James against James McCreery. Plaintiff appeals from order staying proceedings.

Argued before SEDGWICK, C. J., and DUGro, J.
Edward F. James, for appellant.

W. F. Dunning, for respondent.

PER CURIAM. Order affirmed, with $10 costs and disbursements to be taxed.

BROWN, Appellant, v. NEY et al., Respondents.

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

Appeal from trial term.

Action by Samuel G. Brown and Emil Ney and Theresa Stiefel to recover $3,500, as damages for the defendants' breach of their contract, by which they agreed to hire him as traveling salesman.

Argued before SEDGWICK, C. J., and FREEDMAN, J.

Morris S. Wise, for appellant. Charles Strauss, for respondents.

PER CURIAM. None of the exceptions taken by the plaintiff appears to be tenable. The issues were fully and fairly submitted to the jury under a charge to which no exception was taken, and no reason appears for a disturbance of the verdict. The judgment and order should be affirmed, with costs on the opinion delivered by the trial judge on denying plaintiff's motion for a new

trial.

HOPKINS, Respondent, v. NIAGARA MACH. Co., Appellant.
(Superior Court of Buffalo, General Term. November 19, 1889.)

No opinion. Appeal from municipal court. Judgment affirmed, with costs, on opinion of HATCH, J., in Brown v. Machine Co., 7 N. Y. Supp. 514.

LENIHAN, Respondent, v. BRONNER, Appellant.

(Superior Court of Buffalo, General Term. November 19, 1889.)

Argued before BECKWITH, C. J., and HATCH, J.

No opinion. Judgment affirmed, with costs.

RAUCH, Respondent, v. NEW YORK, L. & W. R. Co., Appeliant.

(Superior Court of Buffalo, General Term. November 19, 1889.)

Argued before BECKWITH, C. J., and HATCH, J.

No opinion. Judgment reversed, and new trial ordered, with costs to abide the event, on opinion of TITUS, J.,in Reming v. Railroad Co., 7 N. Y. Supp. 516.

REICHEL, Respondent, v. NEW YORK CENT. & H. R. R. Co., Appellant. (Superior Court of Buffalo, General Term. November 19, 1889.) Argued before BECKWITH, C. J., and HATCH, J.

No opinion. Exceptions overruled, and judgment ordered for plaintiff, on verdict. See ante, 414, 415.

SULLIVAN et al., Appellants, v. PORTINGTON, Respondent.

(Superior Court of Buffalo, General Term. November 19, 1889.) Argued before BECKWITH, C. J., and TITUS and HATCH, JJ.

No opinion. Judgment of municipal court modified, by making judgment herein in favor of plaintiff for the sum of $157.72, and, as so modified, affirmed, without costs.

FOLEY, Respondent, v. WOMEN'S MUT. INS. & Acc. Co., Appellant.

(Supreme Court, General Term, Fifth Department. January 24, 1890.) Argued before DWIGHT, P. J., and MACOMBER and CORLETT, JJ. No opinion. Judgment affirmed.

END OF VOLUME 9.

INDEX.

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

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2. Code Civil Proc. N. Y. § 1296, gives
the right of appeal to a person aggrieved
by an order, who, though not a party to
the suit, is entitled to be substituted in
place of a party, or who has acquired, since
the order was made, an interest which, if
previously acquired, would have entitled
him to be so substituted. Held that, where
plaintiff dies pending appeal from an order
dismissing his complaint, and awarding
costs against him, in a suit that from its
nature abates on his death, his administra-
trix may have the suit revived in her
name, and prosecute the appeal to relieve
herself from liability for the costs.-Camp-
bell v. Gallagher, 9 N. Y. S. 432.

3. The words "successor in interest," as
used in Code Civil Proc. N. Y. § 757, provid-
ing that, "in case of the death of a sole
plaintiff or sole defendant, if the cause of
action survives, the court must allow or
compel the action to be continued by or
against his representative or sucessor in in-
terest," have no reference to an interest
gained by an assignment by the party in
his life-time.-Northrop v. Smith, 9 N. Y.
S. 802.

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A complaint, in an action on a bond exe-
4. Where a person moving to be sub-cuted to plaintiff by one W., with defend-
stituted as plaintiff claims under assign- ants K. and P. as sureties, to secure per-
ments made by the administratrix of the formance of a contract, which alleges that
deceased plaintiff, the assignments should on a day named plaintiff and defendants
be put in evidence, so that the court may agreed that W. should be released from lia-
judge if they have the efficacy claimed; bility on the bond and contract, he having
and a petition which alleges that the cause transferred all his interest in the contract
of action was duly assigned by the admin to K., who assumed performance thereof;
istratrix by an instrument duly executed that P. agreed to be surety for K., consented
to a third person, who thereafter trans- to the assignment, and agreed that his obli-
ferred the same to petitioner, states mere gation of surety should continue to be the
V.9N.Y.S.-61
(961)

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