Second Department, June, 1906. [Vol. 113 In the Matter of the Application of Henry Escher. Jr., as Special Guardian of Edythe M. Kainer, an Infant, for the Removal of Hugo Wantzelius as General Guardian of Said Infant, Respondent. Hugo Wantzelius and Etna Indemnity Company, Appellants. In the Matter of the Application of Henry Escher, Jr., as Special Guardian of Camille J. N. Kainer, etc., Respondent. Hugo Wantzelius and Etna Indemnity Company, Appellants.- Motions granted. PresentWoodward, Jenks, Gaynor and Miller, JJ. In the Matter of the Judicial Settlement of the Account of Proceedings of Hugo Wantzelius, as General Guardian of Camille J. N. Kainer, an Infant. Hugo Wantzelius and Etna Indemnity Company, Appellants. In the Matter of the Judicial Settlement of the Account of Proceedings of Hugo Wantzelius, as General Guardian of Edythe M. Kainer, an Infant. Hugo Wantzelius and Ætna Indemnity Company, Appellants. Motions granted. Present - Woodward, Jenks, Gaynor and Miller, JJ. In the Matter of the Estate of Henry Waterman, Deceased.- We are of the opinion that it was not necessary in this case to grant a new trial upon a reversal. (Code Civ. Proc. § 2586, 2587.) The motion is denied, without costs. Present -Woodward. Jenks, Gaynor and Miller, JJ. The People of the State of New York ex rel. William M. Lawson, Appellant, v. Lena L. Lawson, Respondent.-Motion denied. Present- Woodward, Jenks, Hooker, Gaynor and Miller, JJ. Harris Yacknowitz, Respondent, v. Isaac W. Spiro, Appellant. Motion denied. Present - Woodward, Jenks, Gaynor and Miller, JJ. Johanna Driscoll, as Administratrix, etc., of Jeremiah P. Driscoll, Deceased, Respondent, v. The Long Island Railroad Company, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ. The First National Bank of Sing Sing. Appellant, v. The Sing Sing Gas Manufacturing Company and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred. In the Matter of the Supplementary Proceedings: Rosa Absalon, Judgment Creditor, Respondent, v. Rudolph Sickinger, Judgment Debtor, Appellant.Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, J.J., concurred. Catherine Schuttler, as Administratrix, etc., of Ralph Schuttler, Deceased, Respondent, v. Daimler Manufacturing Company, Appellant.— Orders affirmed, without costs. No opinion. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Andrew Whyte, Respondent, v. William H. Reynolds, Appellant, Impleaded with Edward Johnson and Others, Defendants. — Örder affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Mary Ann Blanck, Respondent, v. Charles M. Preston, as Receiver of the New York Building-Loan Banking Company, Appellant.- Motion granted. Present Woodward, Jenks, Gaynor and Miller, JJ. Conrad Doersch, Respondent, v. Central Paper Box Company, Appellant.Motion granted, with leave to the appellant to withdraw its appeal to the Court of Appeals, without costs, within ten days; and on the further condition that the respondent pay ten dollars motion costs and the disbursements of the said appeal, provided the same be withdrawn. Present-Woodward, Jenks, Gaynor and Miller, JJ. The First National Bank of Sing Sing, Appellant, v. The Sing Sing Gas Manufacturing Company and Others, Respondents. Motion denied. Present Woodward, Jenks, Gaynor and Miller, JJ. Louise R. Fowler, Executrix, etc., of George R. Fowler, Appellant, v. Northrup Durham, Respondent.- Motion for reargument denied. Present — Woodward, Jenks, Hooker, Gaynor and Miller, J.J. In the Matter of the Application of Philip Bux, Appellant, for a Peremptory Writ of Mandamus, v. James G. Tighe, as Magistrate, Second Division, City of New York, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred. App. Div.] Second Department, June, 1906. In the Matter of the Judicial Settlement of the Account of Benjamin Parr and Susie L. Parr, as Executors, etc., of Susan P. Lilienthal, Deceased. Benjamin Parr and Susie L. Parr, as Executors, etc., of Susan P. Lilienthal, Deceased, and Others, Appellants; Albert W. Lilienthal, Jr., Respondent.- Decree of the Surrogate's Court of Westchester county in so far as appealed from affirmed, without costs. No opinion. Hirschberg, P. J., Woodward, Hooker and Gaynor, JJ., concurred. In the Matter of the Estate of Henry Waterman, Deceased. Order of the Surrogate's Court of Kings county reversed on argument, with ten dollars costs and disbursements, and motion for stay denied. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred." Chauncey Kelton, Appellant, v. Mary L. Kelton, Respondent.-Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ., concurred. William Knipe, as Administrator, etc., Respondent, v. William A. Kissick, Appellant Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred. Abraham Lefkowitz and Max Horowitz, Respondents, v. Nathan Jacobovitch and Jonas Eber, Appellants.- Judgment of the Municipal Court unanimously affirmed, with costs. No opinion. Present - Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ. The People of the State of New York ex rel. Henry Hurlbut, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant. Order affirmed on the authority of People ex rel. Metcalf v. McAdoo (184 N. Y. 268), with ten dollars costs and disbursements. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Rockland Light and Power Company, Respondent, v. Max Buhler and Others, Defendants, Impleaded with Ann Maria Smith and Louisa Smith, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred. In the Matter of the Application of Paul Jones & Company to Compel the Payment by Their Attorney, Frederick L. Gilbert, of Money Received by Him as Such.- Judgment affirmed by default, with costs. Woodward, Jenks, Gaynor and Miller, JJ., concurred. Benjamin W. Johnson, Respondent, v. David Ravitch and Others, Defendants, Impleaded with Alfred C. Cowan, Appellant.-Order affirmed, on authority of Johnson v. Ravitch (ante, p. 810), decided herewith, with ten dollars costs and disbursements. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Edward J. McGowan, Appellant, v. John Mitchell Clark, Respondent. — Order setting aside verdict and granting new trial affirmed, with costs, on the ground that the verdict was against the weight of evidence on the question of an account stated. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Michael Moore, Respondent, v. New York and Queens County Railway Company, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. Simy B. Pinto, Respondent, v. Interurban Street Railway Company, Appellant. Judgment and order affirmed, with costs. No opinion. Hirschberg, P. J., Hooker and Miller, JJ., concurred; Woodward and Jenks, JJ., dissented. The People of the State of New York, Respondent, v. Nellie Nickerson, Appellant. Judgment of conviction affirmed. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. Herman Reinheimer, Respondent, v. Thomas Cunningham and Mary J. Cunningham, Appellants.-Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, Hooker, Gaynor, Rich and Miller, JJ. Minnie Rohman, Appellant. v. Max Cohen and Sarah Cohen, Respondents. Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Elizabeth Rogers, as Administratrix, etc., of Andrew Rogers, Deceased, Respondent, v. The Green Fuel Economizer Company of Matteawan, N. Y., Second Department, June, 1906. [Vol. 113, App. Div.] Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Present Jenks, Hooker, Gaynor, Rich and Miller, JJ. Joseph Schirmer and Emma L. Schirmer, Respondents, v. George N. Dean and Harvey Dean, Appellants. Judgment affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Melinda P. Schmidt, as Executrix, etc., of Bache McEvers Schmidt, Deceased, Appellant, v. Elise M. Jewett and Others, Impleaded with Fritz Leopold Schmidt, Jr., Respondent.-Judgment reversed on the ground that the trial court had no right on the pleadings to give final judgment on overruling the demurrer to the defenses, and an interlocutory judgment overruling the demurrer is directed, with costs to the appellant, the same to be settled before Mr. Justice Gaynor. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Gertrude Smith, as Administratrix, etc., of Harry A. Smith, Deceased, Appellant. v. The Long Island Railroad Company, Respondent.- Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred; Hooker, J., dissented. Irene Warden, an Infant, by William E. Warden, Her Guardian ad Litem, Plaintiff, v. The City of New York and Others, Defendants.- Plaintiff's exceptions sustained and motion for new trial granted, costs to abide the event. No opinion, Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ., concurred. THIRD DEPARTMENT, MAY, 1906. C. Arthur Parker, in His Own Right and as Survivor, etc., Respondent, v. Lyman Rhoades and Others, Appellants.- Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of costs of demurrer and of this appeal. All concurred, except Parker, P. J., not voting. Opinion by Kellogg, J.* *No opinion was written in this case. INDEX. ABATEMENT. Of action for personal injuries — Code of Civil Procedure, section 764, construed -death of defendant after reversal of judgment for plaintiff abates action. Section 764 of the Code of Civil Procedure, as amended in 1890, should be construed to mean that a cause of action for personal injuries survives the death of a party only in case a verdict, report or decision is reversed, upon questions of law only, after the death of the party; that such action abates when the ver dict of a jury is set aside or the judgment entered thereon is reversed, if the party against whom the same was rendered dies before another trial is had. Such amendment preserves the action only when the judgment is reversed on questions of law only subsequent to the death of a party. If a reversal is upon questions of fact as well as of law the action abates at the death of a party before a new trial is had. Hughes v. Russell, 744. Tort complaint alleging breach of contract to guard plaintiff's insane wife whereby she committed suicidestates action in tort - such action to recover damages for death does not lie at common law or under the statute. Duncan v. St. Luke's Hospital, 68. ACCORD AND SATISFACTION. When part payment received by seller does not constitute accord and satisfaction. A vendee purchased a machine at an agreed price independent of accessories, and thereafter, finding an accessory of the machine defective, sent the vendor a check less the value of the accessory, stating we are compelled to deduct same from the purchase price." The check was used by the vendor, who however, notified the vendee that he must pay the balance. Held, that as the sum due the vendor was set by the terms of the contract, there was no accord and satisfaction; That the meeting of the minds essential to an accord and satisfaction was wanting, and that there was no consideration to support a contract of settlement. Bowery Bay Building Co. v. Rossiter, MacGovern & Co., 652. Of debts. See DEBTOR AND CREDITOR. See CONTRACT. ACCOUNTING. 1. Partnership— reference to state accounts. When a complaint asks for a partnership accounting and the answer admits the facts which show that an accounting is necessary, the plaintiff is entitled to an interlocutory judgment appointing a referee, or the court may direct such reference under section 1015 of the Code of Civil Procedure. Blun v. Mayer (No. 1) 242. 2. When defendants after judgment estopped from objecting that order of reference was made on ex parte application. Although the order of reference was made on an ex parte application by the plaintiff, when the defendants have appeared before the referee and filed their accounts, and have also appeared on motions for a substituted referee, they cannot object to the form of the appointment on an appeal from a final judgment entered on the report of the referee. Id. 3. Remedy. Defendants objecting to such reference because not made in the form of an interlocutory judgment should have moved to set it aside, if ex parte, or have appealed from the order, if made upon notice. Id. Partnership accounting - when accommodation note is chargeable against former partnership and not against an individual partner - when costs of litigation chargeable against firm - allowance of interest on balances due partners of old firm. ACCOUNTING- Continued. tuted trustee-when expenses caused by unfortunate investments should be Matier of Pitney, 845. Patents State courts have no jurisdiction of action for infringement — com- Moore v. Coyne, 52. Executor and administrator-assignment of legacy by order on fund- when Citizens' Central National Bank v. Toplitz, 73. - Foreign judgment of foreclosure-conclusive on heirs of mortgagor — if such Nunnally v. Robinson, 848. Surrogate's Court — practice — referee to take account should make findings Executors and administrators-surrogate may compel executrix of deceased Matter of Collyer, 468. Effect of failure of guardian to account on title to property on which ward Costs Forbes v. Reynard, 306. when extra allowance not imposed as condition on discontinuance in Weidenfeld v. Byrne, 410. When beneficiary of trust not entitled to. Matter of Kirby, 705. By executor and administrator. See EXECUTOR AND ADMINISTRATOR. Between partners. See PARTNERSHIP. ACTION. Attorney and client-attorney has no right to continue action to protect his Election of remedies. See ELECTION. ADDITIONAL ALLOWANCE. ADMISSIONS. See EVIDENCE. ADVERTISEMENT. Containing libel on patient. AFFIDAVIT. See DEPOSITION. AGENCY. Generally. See PRINCIPAL AND AGENT. ALIENATION. Suspension of power of. See TRUST, |