and 100 New York State Reporter Actions by or against particular classes of See "Carriers," §§ 1, 2; "Corporations," § 3; Particular causes or grounds of action. Alienation of affections, see "Husband and Breach of contract, see "Contracts," 8 5; § 1. Nature and form. Where, in an action to recover royalties, equitable relief is asked by way of accounting etc., the fact that at the trial the parties agreed on the amount which might be found does not deprive the court of jurisdiction t render an accounting, since the nature of the action is determined by the complaint.-Bayis v. Bullock Electric Mfg. Co. (Sup.) 253. A complaint held to state a cause of action for fraud, and not for breach of contract.-Walter v. Belding (Sup.) 776. der contract by a consignee is based on con An action for proceeds of property sold us tract, and not in tort.-Fyfe v. Jackson (Sup) 972. § 2. Commencement, prosecution, and termination. In an action to have an absolute deed de clared a mortgage, and to redeem therefrom. proceedings on the part of the defendant to recover possession of the premises will be enjoined till the determination of the action_to redeem.-Murray v. Sweasy (Sup.) 72. ADEQUATE REMEDY AT LAW. Effect on jurisdiction of equity, see “Equity,” § 1. Infringement of trade-mark or trade-name, see Unfair competition in trade, see "Trade-Marks Particular forms of special relief. of boundaries, see "Boundaries," § 1. of will, see "Wills," § 4. ADJOINING LANDOWNERS. Where the cornices and shutters of defend ant's building overhung plaintiff's line above his roof, but defendant claimed no easement therefor, the proper judgment is an injunction against the maintenance of such encroachment whenever plaintiff shall desire to build.-Crocker v. Manhattan Life Ins. Co. (Sup.) 84. Where defendant's building overhung plaintiff's land very slightly above the roof of plaintiff's building, the encroachment being high in the air, and the value of plaintiff's prem ises being slightly, if at all, decreased, damages for the encroachment were allowed on condition of plaintiff's executing a release.-Crocker v. Manhattan Life Ins. Co. (Sup.) 84. Where defendant's building overhung plaintiff's line only a few inches, the encroachment Foreclosure of mortgage, see "Mortgages," § 6. being high in the air, and the cost of removing Setting aside fraudulent conveyance, see "Fraudulent Conveyances," § 2. will,, see "Wills," § 4. See Particular proceedings in actions. the wall would be very large, and the corre sponding benefit to plaintiff slight, the relief was confined to damages.-Crocker v. Manhat tan Life Ins. Co. (Sup.) 84. Injunction will not be granted against a con"Continuance": "Costs"; "Damages": tractor's allowing his employés to disturb the "Depositions"; "Dismissal and Nonsuit": "Evidence"; "Execution"; "Injunction," § 3; tenants of an apartment house by profane lar "Judgment"; "Jury"; "Limitation of Ac-guage.-Stevenson v. Pucci (Sup.) 712. tions"; "Motions"; "Parties"; "Pleading"; "Process"; "Reference"; "Trial"; "Venue." Bill of particulars, see "Pleading," § 6. Default, see "Judgment," § 1. Nonsuit, see "Trial," § 4. Revival, see "Abatement and Revival," § 1. Owner of dwelling held entitled to injunction against one blasting and using steam engines on adjoining land earlier than 7 o'clock a. m but not between that hour and 6 p. m.-Stevenson v. Pucci (Sup.) 712. Owner of building held entitled to injunction against blasting on adjoining land in a manner o injure the building. - Stevenson v. Pucci Sup.) 712. ADJUDICATION. Of courts in general, see "Courts," § 1. Operation and effect of former adjudication, see "Judgment," § 6. ADMINISTRATION. Of estate assigned for benefit of creditors, see "Assignments for Benefit of Creditors," § 1. of decedent, see "Executors and Administrators." Of property by receiver, see "Receivers," § 2. Of trust property, see "Trusts," § 2. ADMIRALTY. See "Collision"; "Shipping." ADMISSIONS. As evidence, see "Evidence," $ 3. ADOPTION. Specific performance of contract of adoption, see "Specific Performance," § 1. ADVERSE POSSESSION. § 1. Nature and requisites. Where possession was not adverse in its inception, in the absence of evidence, it will not be presumed, after 20 years, that the character of the possession has changed.-Monohan v. New York Cent. & H. R. R. Co. (Sup.) 37; Thoman v. Same, Id. Possession by a railroad of a city street held not adverse to the owner of a lot running to the center of the street.-Monohan v. New York Cent. & H. R. R. Co. (Sup.) 37; Thoman v. Same, Id. Evidence held sufficient to show adverse possession in defendant's grantor.-Cornelius v. Hall (Sup.) 451. ADVERTISEMENT. Official newspapers, see "Newspapers." AFFIDAVITS. See "Attachment," § 1; "Discovery," § 2. AFFREIGHTMENT. Contracts, see "Shipping," § 1. AGENCY. See "Principal and Agent." AGREEMENT. See "Contracts." ALIENATION. of affections, see "Husband and Wife," § 4. Suspension of power of alienation of property, see "Perpetuities." ALIENS. § 1. Disabilities. Under Laws 1845, c. 115, § 4, as amended by Laws 1875, c. 38, a nonresident alien daughter of the nonresident alien devisee of a citizen takes land by perfect title.-Smith v. Reilly (Sup.) 40. § 2. Naturalization. A naturalized alien, who subsequently obtains an order of court changing his name, is not entitled to have his naturalization certificate amended to conform to the change.-In re Nigri (Sup.) 182. ALIMONY. See "Divorce," § 2. AMENDMENT. Of particular legal proceedings, see "Judgment," § 3; "Pleading," § 4; "Trial," § 7. ANIMALS. Where, in an action to recover for personal injuries caused by a kick from a horse, there that the horse was vicious, it was error to deny was no evidence that defendant had knowledge a motion for a nonsuit.-O'Connell v. Mooney (City Ct. N. Y.) 486. ANSWER. In pleading, see "Pleading," § 2. APPEAL. See "Certiorari"; "Justices of the Peace," § 2; "Negligence," § 4; "New Trial." Appellate jurisdiction of particular courts, see "Courts," § 4. Assessment of taxes, see "Taxation," § 3. From decree for payment of legacy, see "Executors and Administrators," § 2. § 1. Decisions reviewable. An appeal does not lie from an order of the municipal court denying a motion to open a default.-Sykes v. Knapp (Sup.) 1033. 2. Right of review. One interested in an action in two distinct capacities cannot sustain an appeal, taken only in one capacity, on grounds solely applicable to the other. Witherbee v. Witherbee (Sup.) 1039. and 100 New York State Reporter † 3. Presentation and reservation in lower court of grounds of review. Where special questions are referred to jury under Code Civ. Proc. § 1187, after motion for nonsuit, objections and exceptions of defendant, not having asked the submission of questions to jury, held not reviewable on appeal.Bank of State of New York v. Southern Nat. Bank (Sup.) 349. On appeal from a judgment in an action on a contract void at law, the court cannot sustain the recovery on equitable grounds, not raised either at the trial or in the pleadings.-Law. rence v. Lawrence (Sup.) 393. Where evidence was offered generally, and excluded, the contention that it was admissible for a particular purpose cannot be raised on appeal.-Stewart v. Long Island R. Co. (Sup.) 436 Objection that affidavits used on motion were not properly authenticated cannot be raised for the first time on appeal.-Rogers v. Rogers (Sup.) 512. the verdict was against the weight of the en dence.-Jacob v. Haefelien (Sup.) 1007. struction, without specifying whether it Where defendant excepted to a modified to the modification or the remarks of the cour it is not available on appeal.-Seifter v. Br lyn Heights R. Co. (Sup.) 1107. Where a question of nonjoinder or misjointe of parties is not raised by demurrer, it w not be reviewed on appeal from a ruling of 52 demurrer.-Campbell v. Heiland (Sup.) 1116. The failure of defendant to move for the be missal of the complaint at the close of plaintiff's evidence for plaintiff's failure to prove owne ship of the property involved in the action to be a waiver of such objection.-Klein v. Es River Electric Light Co. (City Ct. N. Y.) 472 Where a defense was submitted to the jap and no exceptions were taken to the instr tions, a verdict adverse to the defendant w shown to have been the result of prejudice. not be reviewed on appeal, when it was ! undue influence, or disregard of the evidenceGoodwin v. Washburn (City Ct. N. Y.) 473. An exception to the direction of a verdict for plaintiff entitled defendant to present the objection on appeal that there were questions of § 4. Effect of transfer of cause or pre- || fact for the jury.-Wierichs v. Innis (Sup.) 553. ceedings therefor. After an appeal from an order of the coUDY Where a brakeman sues for an injury receiv-court confirming the report of commissioners ed in coupling cars, but fails to call the atten- to lay out a highway, the return by the co tion of the trial court to the fact that the cars missioners as to the evidence taken cannot be did not have automatic couplings, as required amended.-In re Baker (Sup.) 242. by Laws 1893, c. 544, § 3, Laws 1890, c. 565, § 49, subd. 4, Pen. Code, § 424, subd. 2, and 27 Stat. 531, such question will not be considered on appeal.-Cleary v. Long Island R. Co. (Sup.) 568. An objection to the admission of certain evidence on the ground of contradicting a writing held not available on appeal, where such objection was not well taken, though the evidence was incompetent on other grounds.-Dimon v. Keery (Sup.) 817. An objection to the exclusion of certain evidence on the ground that the issue on which it was offered was raised between the same parties in another action, in which judgment was against defendant, is not available on appeal, where the evidence and judgment are not included in the record.-Dimon v. Keery (Sup.) 817. Question whether verdict is contrary to the evidence will not be considered on appeal, in the absence of an appeal from the order denying a new trial.-Ten Eyck v. Whitbeck (Sup.) 921. The defense that the deed of plaintiff was void under Laws 1896, c. 547, § 225, is waived by failure to plead it.-Ten Eyck v. Whitbeck (Sup.) 921. A judgment on a verdict in the form suggested by the trial judge at the conclusion of the charge will not be considered on appeal, where no exceptions or objections were taken.-Ten Eyck v. Whitbeck (Sup.) 921. Plaintiff's failure to move that a verdict be directed in his favor did not constitute waiver of his right to insist, on appeal, that a § 5. Record and proceedings not in ree ord. Where the record does not show any rulir: made in refusing to strike out certain evidenc or any instruction requested, error based on such refusal will not be considered.—Stewart v. Long Island R. Co. (Sup.) 436. Where plaintiffs have prevailed on the tria. and the appeal is from an order granting de fendants a new trial on the minutes, excep tions by plaintiff to rulings on evidence my be stricken out.-Naul v. Naul (Sup.) 447. Under Code Civ. Proc. § 997, striking out relevant matter in the stenographer's notes, it cluded in the proposed settlement of the case and assented to by plaintiff, was not errorWierichs v. Innis (Sup.) 553. Under Code Civ. Proc. § 992, the fact that the trial court struck out of defendant's case, as proposed for appeal, matter which occurred after the verdict, did not entitle defendant to a resettlement of the case.-Wierichs v. Ianis (Sup.) 553. An exception to the exclusion of certain evidence is not available on appeal, where no ques tion was asked which the court excluded, a there was no offer of proof on which the court made a ruling.-Dimon v. Keery (Sup.) 817. On appeal from decision of court of claims. the grounds therefor must be found in the de cision itself. - Lakeside Paper Co. v. Stap (Sup.) 959. Where the record does not contain the plead ings, nor anything from which a right to pre› rence on the calendar can be determined, an [ Where an action of ejectment has been tried A judgment for plaintiff for injuries received Refusal of the court to punish for contempt 6. Dismissal, withdrawal, or aban-9. An appeal not perfected within the time pro- Questions of fact, verdicts, and Where the evidence before a referee is con- Where the evidence was conflicting, a finding Loughran v. Kenyon (Sup.) 310. Verdict directed in favor of plaintiff after 359. Where, at close of plaintiff's case, motion was Proceedings at the trial of a case may be re- tion for a new trial, though a separate appeal Where, on a prior appeal, it had been deter- On a second appeal from decision of court of Where it appears jury were fully instructed, A judgment based on conflicting evidence on dence will not be disturbed on appeal.-Mills A finding of fact by the trial court is con- Verdict in favor of plaintiff for injury by Findings of a referee as to the existence of Where, at close of testimony, both parties A verdict of jury should be set aside, where Where a motion for a directed verdict has Discretion of the trial judge in refusing to set Where there was no evidence of any other and 100 New York State Reporter evidence, though conflicting, was sufficient to Where a complaint in an action to foreclose a mechanic's lien alleges that defendant firm was composed of certain persons, when it was composed of other persons, the error is not ground of reversal, where the only personal judgment recovered was against one who signed the contract in his individual capacity.-Fisher v. Jordan (Sup.) 286. Error in admitting evidence held not prejudicial, where same facts were established by proper evidence.-Lewis v. Hoffman (Sup.) 428. Where plaintiff claimed he had been employed until 1st of following May, and defendant denied his employment for such term, held not error to exclude testimony to show that defendant's other employés were hired by the week; defendant himself having testified that he had never hired but one man for a period ending the 1st of May.-Sagalowitz v. Pellman (Sup.) 433. Exclusion of evidence that sidewalk, adjoining that on which plaintiff was injured by reason of failure to remove snow, had been cleared at time of the accident, held harmless.-Hawkins v. City of New York (Sup.) 623. Where certain sum was erroneously included in judgment, the judgment will be affirmed, since mistake could be corrected at any time on motion.-Rosenthal v. Weir (Sup.) 841. peal by deducting such item, and otherwise affirmed.-Messer v. Hatkoff (Sup.) 381. The submission of a case on a retrial hdd e roneous, as in variance with the decision on former appeal.-Bueb v. Geraty (Sup.) 385. Where a judgment is reversed for lack of a sufficient decision to support it, and the tra judge is no longer sitting, there must be a De trial.-Burnham v. Denike (Sup.) 396. Defendant held not entitled to an order grant ing leave to strike out admissions in his swer on which the cause has been tried, in th absence of an affidavit by defendant himsel or a sufficient reason for not furnishing the same.-Rodgers v. Clement (Sup.) 593. plaintiff reduced the amount of the recovery, Where a judgment was excessive, and the by the direction of the court, to that warranted by the evidence, the defendant cannot object. on appeal, that the verdict was excessive.-MeGowan v. Giveen Mfg. Co. (Sup.) 708. The fact that an order, directing a receiver to turn over assets in his hands, did not require vouchers to be given, is not ground for reversing the order.-Witherbee v. Witherlee (Sup.) 1039. Where the court of appeals makes a fini judgment in an equity case, and the case is rejudgment, the trial court has no power to manded for the purpose of carrying out its grant an extra allowance, though the question of extra allowance has not been raised in the appellate court.-Hascall v. King (Sup.) 1112 Where the court of appeals makes an order in an equity case taxing costs to appellant. and the case is remanded to the trial court for the purpose of carrying out the judgment of the court of appeals, the trial court has no power to award separate bills of costs to each appellant. Exclusion of evidence tending to establish location of property conveyed by deed is harm--Hascall v. King (Sup.) 1112. less, where the court found the location to be substantially as claimed by the parties offering the evidence.-Deuterman v. Gainsborg (Sup.) 1009. Where a question was subsequently substantially answered by a witness, an erroneous exclusion of the question is not reversible error.Wiberg v. Nassau Electric R. Co. (Sup.) 1098. A ruling striking out evidence held not prejudicial, where otherwise in the case.-Bower v. Cushman (Sup.) 1103. § 11. Determination and disposition of cause. A judgment for a defendant will be reversed, although plaintiff is entitled to recover nominal damages only, where such recovery is necessary to preserve his future rights under a covenant.-Skinner v. Allison (Sup.) 288. Where an action was dismissed on the ground that the copy summons served on defendant did not contain date of return, but on appeal the record failed to show that such copy served, but did show that a copy of the summons was served, the judgment will be reversed. Caldwell v. De Korven (Sup.) 309. was Where judgment included item as to which no proof was given, it will be modified on ap § 12. Liabilities on bonds and undertakings. Payment, by a surety on an appeal bond in foreclosure proceedings, of a portion of a bid made at a sale under the judgment which was not completed, held not to discharge his liabi ity in such bond.-Leopold v. Epstein (Sup) 414. An amendment to a foreclosure judgment. directing that the proceeds of sale should first be applied to the payment of the mortgage debt and then to the costs and expenses, keld not to release sureties on an appeal bond from costs of appeal; the proceeds being insufficient to pay the mortgage and expenses.-Leopold v. Epstein (Sup.) 414. Sureties on an appeal bond in foreclosure proceedings held liable on their bond for costs. where the proceeds of sale were insufficient to pay both the mortgage debt and the costs.Leopold v. Epstein (Sup.) 414. APPLIANCES. Liability of employer for defects, see "Master and Servant," § 3. |