Imágenes de páginas

and 121 New York State Reporter ACTION.

Wrongful death caused by operation of rail

road, see "Railroads," $ 2. Abatement, see "Abatement and Revival." Wrongful death caused by operation of street Accrual, see "Limitatiou of Actions," $ 2.

railroad, see "Street Railroads," § 1. Bar by former adjudication, see "Judgment," § 4.

Particular forms of action Counterclaim, see “Set-Off and Counterclaim." See “Assumpsit, Action of”; “Replevin"; "TresJurisdiction of courts, see "Courts."

pass," 1; “Trover and Courersion.' Limitation by statutes, see “Limitation of AC

tions." Pendency of action, see "Lis Pendens."

Particular forms of special relief.

See "Divorce"; "Injunction"; "Interpleader"; Actions between parties in particuiar relations. Partition," § 1; "Specific Performance." See "Attorney and Client," § 1; “Master and Accounting by trustee, see "Trusts," $ 4.

Servant," 88 1, 2, 8; “Vendor and Purchas- Alimony, see "Divorce," $ 3. er," $ 4.

Enforcement or foreclosure of lien, see "Ne Bailor and bailee, see “Bailment."

chanics' Liens," $ 2. Co-tenants, see "Partition," $ 1.

Establishment and enforcement of trust, see Partners, see "Partnership." § 4.

"Trusts," $ 5. Pledgor and pledgee, see "Pledges."

Establishment of will, see “Wills," $ 3.

Foreclosure of mortgage, see “Mortgages," $ 4 Actions by or against particular classes of Setting, aside award of insurance appraisers, parties.

see "Insurance," $ 10. See "Carriers,” 88 2, 3; “Executors and Ad- Setting aside will, see “Wills,” $ 3. ministrators," 8; "Factors"; "Husband

Particular proceedings in actions. aud Wife," $ 1; “Infants," 8 2; "Master and Servant," $ 9; "Partnership,"'$ 2; “Princi- See "Costs”; "Damages"; "Depositions" ; pal and Agent,” & 2; "Railroads," $ 2; "Re- “Dismissal and Nonsuit"; "Evidence"; "Es. ceivers," $ 3; "Street Railroads," § 1.

ecution"; "Judgment"; "Jury"; "Limitation Assignees, see "Assignments," $ 3.

of Actions"; "Motions" ; "Parties" ; "PleadCo-tenants, see “Tenancy in Common," $ 2.

ing"; "Reference"; "Trial"; "Venue." Dissolved corporation, see "Corporations," § 6. Bill of particulars, see "Pleading," $ 5. Foreign corporations, see “Corporations," $ 7. Default, see "Judgment," 1. Foreign insurance companies, see "Insurance," $ 1.

Particular remedies in or incident to actions. Stockholders, see "Corporations," $ 2.

See “Arrest," 81; "Attachment"; "Bail," $ 1; Trustees, see “Trusts," 88 4, 5.

"Discovery"; "Injunction"; "Receivers." Trustees in bankruptcy, see" "Bankruptcy,” $ 2. Notice of pendency of action, see “Lis Pen

Particular causes or grounds of action. dens." See “Assault and Battery;" & 1; “Bills and Proceedings in exercise of special jurisdictions. Notes," $ 4; "Death,"& 2; "Fraud," $ 2; "Insurance," $ 12; "Libel and slander," $ 2; Courts of ,limited jurisdiction in general, se

"Courts," $ 3. "Negligence," 3; "Nuisance," § 1; "Trespass"; "Use and Occupation"; ""Work and Criminal prosecutions, see "Criminal Law.” Labor."

Suits in equity, see "Equity." Bail bond, see "Bail," $ 1.

Review of proceedings. Bond of bank officer, see "Banks and Bank- See “Appeal" ; "New Trial”; “Judgment," { 3.

ing," $ 1. Bond of liquor dealer, see "Intoxicating Liq. & 1. Joinder, splitting, consolidation, uors," $ 2.

and severance. Breach of contract, see "Contracts," $ 6; The consolidation of an action for damages “Sales," 5.

and injunction to restrain a nuisance and a Breach of contract to make bequest or devise, subsequent action for damages alone, and trans see "Wills," $ 1.

fer of the actions to the Trial Term, held to Breach of covenant, see “Covenants," $ 3.

have waived the equitable relief asked for, and Breach of warranty, see "Sales," § 5.

to render the consolidated action one for dam Conversion by factor, see "Factors. Discharge from employment, see "Master and ages, Pritchard v. Edison Electric Illuminating

Co. (Sup.) 225. Servant," $ 1. Personal injuries, see "Carriers," $ 3; "Elec- Action under Stock Corporation Law, Lats

tricity”; “Landlord and Tenant," °8 4; "Mas- 1892, p. 1833, c. 688, $ 31, relating to misrep.

ter and Servant," $ 8; "Railroads," § 2. resentations by officers in sale of stock, and Price of goods, see “Sales," 4.

common-law action for same damage, keld to be Price of land, see “Vendor and Purchaser,” 4. properly joined.-Hutchinson v, Young (Sop.) Recovery of payment, see “Payment," $ 3.

678. Rent, see "Landlord and Tenant," $ 5. Services, see "Master and Servant," $ 2; "Work

ACTION ON THE CASE. and Labor." Wages, see “Master and Servant," 8 2.

See 'Trespass," § 1.


Effect on jurisdiction of equity, see “Equity," See “Contracts."
§ 2.

Of court pending trial, see “Trial," $ 2. Criminal responsibility, see “Criminal Law,"

g 1.


§ 1. Disa bilities.
Of courts in general, see "Courts," 8.2.
Operation and effect of former adjudication, see

A negro born in Africa held not entitled to
"Judgment," 88 4, 5.

recover a penalty, under Civil Rights Law,
Laws 1895, c. 1042, (Laws 1895, p. 974), in the

absence of proof of his citizenship.-Fuller y.

McDermott (Sup.) 536.
Of loss within insurance policy, see "Insur-

ance," 8 10.

See “Divorce," $ 3.
Of estate of bankrupt, see "Bankruptcy," $ 2.

Of estate of decedent, see "Executors and Ad-

Of particular legal proceedings.
Of trust property, see “Trusts," $ 3.

See "Pleading,” & 4; "Trial," $ 7.
Pleading after appeal, see "Appeal," $ 6.

Pleading in action on contract, see "Contracts,"

8 6.

As evidence, see “Evidence," $ 3.


Jurisdictional amount, see “Courts,” 4.
See “Descent and Distribution," § 1.


Charging one with being an anarchist as slan-

der, see “Libel and Slander," § 1.
See "Limitation of Actions."

By holder of tax title, see “Taxation," $ 3.
By tenant, see “Landlord and Tenant," 8 2. Petition of person who had seized animals
Of easement, see "Easements," § 1.

pasturing on lot occupied by him, under Code

Civ. Proc. 88 3084, 3085, held insufficient.--
$ 1. Nature and requisites.

Burns v. Morrow (Co. Ct.) 719.
Inclosure of lot on three sides held adverse
possession, under Code Civ. Proc. $$ 370, 372.-
Brown v. Doherty (Sup.) 563.

The mere fact of 20 years' possession does not of will, see “Wills,” $ 3.
defeat the assertion of the paper title, but to
accomplish such result the possession must be
inconsistent with the rights of paper title hold-

er.-Miller v. Warren (Sup.) 1011.

In pleading, see “Pleading,” $ 2.

Official newspapers, see "Newspapers."

Covenants as to erection, see “Covenants," $ 2.
See “Depositions."

In particular proceedings, see “Arrest,” § 1; See "New Trial.”
Attachment,” 8 2.

Appellate jurisdiction of particular courts, see

"Courts," $ 4.

Costs, see "Costs," $ 4.

Review of criminal prosecutions, see "Criminal
See "Principal and Agent.”

Law," $ 6.

and 121 New York State Reporter Review in particular civil actions. benefit of the most favorable inferences deduFor dispossession of tenant, see “Landlord and cible from the evidence.- New York Hydraulic Tenant," $ 6.

Press Brick Co. v. Cunn (Sup.) 168. Foreclosure suits, see “Mortgages,” g 4.

The court on appeal is not justified in interReview in special proceedings.

fering with the findings of the trial court, based Order denying new trial, see "New Trial,” 8 3. on,

satisfactory evidence. -Smith v. Kissel Probate proceedings, see "Wills," $ 3.

(Sup.) 176. 8 1. Decisions reviewable.

On appeal from an order sustaining excep

tions to a referee's report, a question as to An order denying a motion to resettle another whether there was a clerical error in the report order is not appealable.-Garofalo v. Prividi couid not be considered, since any such mis(Sup.) 467.

take should have been corrected in the lower An order vacating an attachment is not ap- court.-New York Bank Note Co. F. Hamilton pealable.-Feldman v. Siegel (Sup.) 538. Bank Note Engraving & Printing Co. (Sup.)

200. Written stipulation that appeal from interlocutory judgment of county court may be treat- On appeal in mortgage foreclosure, the appeled as a motion for new trial on exceptions lant held entitled to a determination, on the held to give the Supreme Court jurisdiction, not- theory of the trial, to the effect that failure withstanding Code Civ. Proc. $ 1340.-Russ v. to pay interest had been excused, though such Maxwell (Sup.) 1077.

failure was not pleaded.-Schieck v. Donohue

(Sup.) 206. § 2. Right of review. A judgment of dismissal, rendered at the

Parties consenting to the trial of an action request or by the consent of the plaintiff, is not as a suit in equity cannot, on appeal, raise the appealable.-Bacon v. Abbey Press (Sup.) 165. question that the action was triable at law only. An appeal from an order held dismissible.- peake & O. Ry. Co. (Sup.) 348.

-Jennie Clarkson Home for Children v. ChesaLevy v. Fidelity & Deposit Co. (Sup.) 437.

The testimony being conflicting, the verdict $ 3. Presentation and reservation in will not be disturbed on appeal.-Berliner F.

lower court of grounds of review. Interurban St. Ry. Co. (Sup.) 455. Fact that bill of particulars had not been served as demanded held not of itself ground In an action for injuries, exclusion of tes. for reversal.-Block v. Sherry (Sup.) 160. timony impeaching a physician who testified for Final carrier, not having objected at the time St. Ry. Co. (Sup.) 461.

plaintiff held prejudicial.-Brown v. Interurbas to competency of declarations of initial carrier as evidence against it, held precluded from after- In an action against sureties on a bail bord. wards raising objections. -Thyll v. New York & denial of sureties' motion for a new trial an L. B. R. Co. (Sup.) 345.

an erroneous ground held harmless.-Garofalo

v. Prividi (Sup.) 467. Permitting the jury to find for plaintiff for an amount not justified by his own evidence In the absence of an appeal from an order held error, which will be corrected, even in the denying a motion to vacate an order of arabsence of an exception.--Spinner v. Klinger rest, whether the affidavit on which the arrest (Sup.) 453.

was granted was sufficient could not be revief§ 4. Dismissal, withdrawal, or aban- Smith (Sup.) 479.

ed on appeal from the judgment.-Anker t. donment. Trial court held to have had authority to make

A judgment of dismissal at the close of plainan order declaring an appeal abandoned. - Levy tiff's case requires the court on appeal to find v. Fidelity & Deposit Co. (Sup.) 487.

the most favorable inferences in favor of the

plaintiff.- Edwards v. Firemen's Ins. Co. (Sup. § 5. Review.

507. The admission of evidence as to the condition of a building some six weeks before an

The admission of evidence that defendant is accident thereon is not so erroneous as to re- reversible error.-Blumberg v. Marks (Sup.

indemnified against a recovery in the action is quire a reversal.-Nelson v. Young (Sup.) 69.

511. A judgment depending on the credibility of witnesses will not be disturbed on appeal.- into the opinion of the trial judge, to ascertain

On appeal the appellate court may examine Litzky v. Horowitz (Sup.) 136.

the grounds on which he set aside the rerdict There being evidence which, if believed, war- of the jury.-Fox v. Metropolitan St. Ry. Co. ranted the judgment, it will be presumed on (Sup.) 754. appeal that it was based thereon. --Wendell v. Walker (Sup.) 142.

The erroneous admission of evidence is no

ground for reversal, where the only point on The court held not justified in holding com- which it bears is abundantly proren by conplaint defective for nonjoinder of parties, where petent evidence-Buckley v. Westchester Lightthere was no showing that the parties not join-ing Co. (Sup.) 763. ed were alive when the action was commenced. -Ullman v. Cameron (Sup.) 148.

Orders denying resettlement of another orier

and retaxation of costs is within discretion of On an appeal from a judgment on a directed trial court, and will not be reversed, in the verdict, the appellant is entitled to have the absence of controlling reasons affecting the in

terests of justice.-In re Locust Ave. (Sup.) Where, after decision by Appellate Division,
798; Theall v. Village of Port Chester, Id. Court of Appeals places different construction
Allegations in answer to which demurrer was

on similar instrument, the Appellate Division, on
sustained cannot be considered on appeal as

reargument, must overrule its former decision.

-Walsh v. Hanan (Sup.) 930.
admissions, especially where not offered in evi-
dence.--International Money Box Co. v. South-
ern Trust & Deposit Co. (Sup.) 881.

An appellate court should not reverse a judg-
ment and order a new trial on questions of Liability of employer for defects, see "Master
fact, unless there is a reasonable probability

and Servant," $ 4.
that the result would be changed by such new
trial.-Sternaman v. Metropolitan Life Ins. Co.

(Sup.) 904.

On appeal from a judgment entered on a re- of payment, see “Payment,” g 2.
port of a referee, incompetent evidence admit-
ted by the referee, but subsequently struck out,
is not to be considered in disposing of the ap-

peal.-Hurley v. Macey (Sup.) 924.
§ 6. Determination and disposition of Esecutor or administrator, see “Executors and

Administrators,” $ 2.
Fifty dollars held adequate terms to be im-
posed, on amendment of complaint as neces-

sitated by defendant's successful appeal to
Court of Appeals.-Steinbach v. Prudential Ins. or loss under insurance policy, see “Insur-
Co. (Sup.) 107.

ånce," $ 10.
A decision on appeal, unappealed from, held
the law of the case on a second trial; the evi-
dence, though of greater length, not being ma- ARBITRATION AND AWARD.
terially different.-Hall v. State (Sup.) 338.

The judgment of the court of claims held not See “Reference.”
to be modified on appeal, by increasing its
award, where there are no findings, and the evi-
dence may be materially changed on a new trial.

-Hall v. State (Sup.) 338.

Certificate as to completion of contract, see
On a trial of a case after the court on appeal Contracts," 8 5.
has decided that the complaint of plaintiff
states a cause of action, it is only necessary to
determine whether plaintiff's evidence fairly es- ARGUMENT OF COUNSEL.
tablishes the allegations of the complaint.-Kel-
logg v. Sowerby (Sup.) 412.

See “Trial," $ 4.
Where, on appeal from Municipal Court, the
evidence is lost, judgment will be reversed.-

Brody v. Katz (Sup.) 452.
Judgment for $250, where plaintiff claimed

See "Bail"; "Rescue."
only $200, properly recoverable, reduced.-Dun- On execution, see "Execution," $ 2.
don v. Interurban St. Ry. Co. (Sup.) 452.

§ 1. In civil actions.
Judgment reversed for defects in record. Affidavit held insufficient to authorize an ar-
United States Title Guarantee & Indemnity Co. rest for obtaining goods on a false statement
v. Royal (Sup.) 457.

as to financial condition.-Price v. Levy (Sup.)
Under Municipal Court Act, Laws 1901, p.

1560, C. 580, $ 326, held, that a judgment on
notes would not be disturbed on appeal, though

the verdict was not in compliance with sec-
tion 239, p. 1583; its provisions being waived. - In criminal prosecutious, see “Criminal Law,”
Steinhart v. Enteen (Sup.) 482.

$ 5.
Surplusage in surrogate's order, made on re-
mittitur from Court of Appeals, in proceed-

ings to probate a will, held not to vitiate order.
Code Civ. Proc. § 194.-In re Hopkins' Will On tenant as eviction, see “Landlord and Ten-
(Sup.) 793.

ant," $ 4.
Reversal of order denying motion for refer-8 1. Civil liability.
ence to ascertain defendant's damages by is- In an action for an assault committed in tak-
suance of injunction held an adjudication that ing possession of property, evidence held not
defendant, was entitled to damages.--Perlman sufficient to raise a question as to the use
v. Bernstein (Sup.) 862.

of excessive force.-Mattice v. Scutt (Sup.) 1009.

and 121 New York State Reporter ASSESSMENT.

ASSUMPTION. Of compensation for property taken for public Of risk by employé, see “Master and Servant," use, see "Eminent Domain," $ 2.

8 6. Of damages, see "Damages," $ 4. Of expenses of public improvements, see "Mu

ATTACHMENT. nicipal Corporations," $ 4. Of tax, see "Taxation," $ 2.

See “Execution."

Effect of receivership on attachment lien, see ASSETS.

"Receivers," $ 2.

Order vacating, whether appealable, see "ApOf estate of decedent, see "Executors and Ad- peal," $ 1. ministrators," $ 3.

§ 1. Property subject to attachment.

The fund of a life insurance company deASSIGNMENTS.

posited in a bank held the property of the con

pany, subject to attachment.-National Park Necessary parties in action by assignee, see Bank v. Clark (Sup.) 185. “Parties," $ 1.

§ 2. Proceedings to procure. Transfers of particular species of property,

A creditor held justified in asserting on inrights, or instruments.

formation and belief, in an attachment affidavit See "Insurance," 88 4, 6; "Mortgages," $ 3.

under Code Civ. Proc. $ 636, that defendant bad

not designated a person on whom service might Corporate shares, see "Corporations," § 1. be made on his remaining absent from the state 8 1. Operation and effect.

for more than six months.-Ennis v. Untermyer Priorities between equitable assignments de

(Sup.) 695. termined.-Weeks v. City of New York (Sup.) 8 3. Quashing, vacating, dissolution, of 98.

abandonment. § 2. Rights and liabilities of parties.

An attachment in an action against a foreign A contractor held not liable on his acceptance corporation should not be vacated on motion of the order of the subcontractor, who aban- of a domestic corporation of the same name, doned the work, so that no last payment became that property of the latter corporation bad

party to the action, on the ground due to him.-Miller v. Yorcross (Sup.) 56.

been attached.-Bacon v. Abbey Press (Sup.) An assignee of a contract is bound by the 165. act of his assignor releasing the other party to the contract from his obligation thereunder,

An objection to attachment warrants, Dot where the latter had no notice of the assign: specified in defendant's motion to vacate on the ment.-Smith v. Kissel (Sup.) 176.

papers, held unavailable.- Ennis v. Untermyer

(Sup.) 695. 83. Actions.

A complaint held to state a cause of action for $ 4. Liabilities on bonds or undertakwork and labor.-Schilling Co. v. Robert H.


The vacation of an attachment having been Reid & Co. (Sup.) 1115.

improper, held, there was no liability on the A complaint held demurrable, as not showing bond given to obtain the attachment.-Steuer existence of condition precedent to payment.- v. Rockwood (Sup.) 144. Schilling Co. v. Robert H. Reid & Co. (Sup.) 1115.


Allowance for counsel fees on discontinuance

of injunction, see “Injunction," § 1. CREDITORS.

Argument and conduct of counsel at trial in

civil actions, see "Trial," $ 4. See "Bankruptcy.”

Attorney's fees in divorce proceedings, see "Di

vorce," $ 3.

Attorneys in fact, see "Principal and Agent." ASSOCIATIONS.

Authority of attorney to represent dissolved

corporation, see "Corporations," § 6. See "Clubs"; "Trade Unions."

Competency of attorney as witness, see "Wit

$ 1.

Payment of attorney's fees by personal repre ASSUMPSIT, ACTION OF.

sentative, see "Esecutors and Administra

tors," $ 4. See "Use and Occupation”; “Work and Labor."

81. Duties and liabilities of attorney

to client. In an action to recover a balance remaining In an action by a client against the attorney unpaid for materials furnished and labor per- for damages because of the negligent investment formed in a plumbing job, eridence held suffi- of her funds by defendant, evidence held insuficient to sustain the referee's report for plain- cient to support a finding that a written agree tiffs.-Hurley v. Macey (Sup.) 924.

ment for the loan, purporting to be erecuted by



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