Volume 30 — New York State Reporter

<p>Appeal from order vacating an order for the examination of the plaintiff before answer.</p>

<p>Motion by appellants for a re-argument. The case is reported in 116 K Y!, 19; 26 1ST. Y. State Bop., 445.</p>

of the city of Ithaca, commanding him forthwith to appoint the relator, the said Henry W. Stephens, collector of taxes of the city of Ithaca, and that said writ of mandamus be made returnable at a special term appointed to be held at the court house in the village of Watkins, in and for Schuyler county, on the 18th day of June, ,1889.” On the 6th day of May, 1889, pursuant to the order a writ was issued to John Barden, as mayor of the city of Ithaca, commanding him to “…

court without a jury. Action to recover upon an insurance policy.

<p>Limitations—Bar.</p> <p>The only question determined in this case by the court of appeals, 28 TT. Y. State Rep., 761, was that during the pendency of the action in the supreme court of the District of Columbia, prior to the final decree referred to, the plaintiffs, as against the defendants, had no concurrent remedy by action at law, with that in equity, subject to the operation of the statute of limitations, and that during that time the statute did not run in favor of the defendants, and therefore was no bar to the relief sought by this action.</p>

<p>Appeal from judgment in favor of defendant</p>

<p>Appeal from judgment entered upon an order dismissing the -complaint</p> <p>Action by plaintiff to recover $2,000 damages from defendant, and to procure the setting aside of a chattel mortgage made by plaintiff to defendant on the ground of fraud.</p>

<p>1. Party wall—Characteristics or.</p> <p>Capability of substantially similar use by each of the adjoining owners is an essential characteristic of a party wall in the absence of a special agreement or controlling custom to the contrary.</p> <p>2. Saids.</p> <p>Unless a wall of that character has been erected, the agreement cannot be enforced.</p>

The amendment in each instance consists simply in the insertion in the said findings, respectively, of the words “ except as hereinafter found.” The said findings relate to the opening of Second avenue and Sixty-fifth street under the provisions of the act of 1813.

<p>Pleading—Frivolous demurrer.</p> <p>An appellate court will not reverse an order denying motion for judgment on a demurrer as frivolous when the pleadings are not brought before it.</p>

Action brought by plaintiffs to recover from defendants, who are auctioneers, the cost' price of certain goods which plaintiffs had delivered to defendants for sale under what was claimed to be an express agreement.

<p>Foreclosure—Service or husbard alore sufficient to bird wife ir charcert.</p> <p>In an action of foreclosure brought in 1838, plaintiffs husband was served with subpoenas for himself and for plaintiff, who was a minor. Held, that the court acquired jurisdiction to proceed against both and that she was bound by the decree.</p>

<p>Motion to dismiss appeal.</p>

<p>Motion for reargument</p>

<p>Motion to amend record.</p>