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COSTS.

COUNTERCLAIM.

Payment of, as condition to amendment of See "Set-Off and Counterclaim."
pleading, see "Pleading," § 4.

Review of discretionary order denying resettle-
ment, see "Appeal," § 5.

In actions by or against particular classes of

parties.

See "Executors and Administrators," § 8.

In particular actions or proceedings.

See "Dismissal and Nonsuit," § 1.

Accounting by personal representatives, see
"Executors and Administrators," § 9.
Highway proceedings, see "Highways," § 1.
On insurance policy, see "Insurance," § 12.
§ 1. Nature, grounds, and extent of

right in general.

Dismissal of complaint in injunction suit with
costs, held error.-Odell v. Bretney (Sup.) 655.
Judgment obtained by plaintiff held more fa-
vorable than an offer of judgment made by de-
fendant, so that plaintiff was entitled to costs.
-Smith v. Sheldon (Sup.) 1099.

In determining the effect on liability for costs
of an offer to compromise, the condition of the
pleadings at the time the offer is served must
be considered.-Smith v. Sheldon (Sup.) 1099.
§ 2. Amount, rate, and items.

An order granting an extra allowance can
only be made where the case is obviously with-
in the definition "difficult and extraordinary,"
under a rigid construction of the phrase.-Swan
v. Stiles (Sup.) 1089.

3. Taxation.

Under Code Civ. Proc. § 3266, presence of
party giving notice held not essential to pro-
ceedings for retaxation of costs.-Talcott v.
Jonasson (Sup.) 521.

Under Code Civ. Proc. § 3264, unsuccessful
party held not entitled to second notice of re-
taxation of costs, because of failure of party
giving notice to appear the first time; the prop-
er remedy being a motion for a new taxation,
under section 3265.-Talcott v. Jonasson (Sup.)
521.

4. On appeal or error, and on new
trial or motion therefor.

Where an appeal is dismissed on a prelim-
inary motion before submission on the merits,
respondent is not entitled to tax a fee for
argument. In re George Wray Drug Co. (Sup.)
676.

§ 5. Payment and remedies for collec-
tion.

Under Code Civ. Proc. § 779, nonpayment
of interlocutory costs does not operate as a
stay, unless copy of order is served on party
obligated to pay same; and, when not so serv-
ed, he can place cause on calendar and it can-
not be stricken.--Sire v. Shubert (Sup.) 891.

CO-TENANCY.

COUNTIES.

Appeal from interlocutory judgment of county
court, see "Appeal," § 1.

Coroner as county officer, see "Coroners."

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Against foreign corporation, see "Corporations,"
$ 7.
Against personal representatives, see "Execu-
tors and Administrators," § 8.

§ 1. Nature, extent, and exercise of ju-
risdiction in general.

It is not one of the privileges of citizenship
to bring an action wherever one sees fit, re-
gardless of residence or nature of action.-
Collard v. Beach (Sup.) 884.

Calendars of the courts being congested, it is
proper for them to refuse to assume jurisdic-
tion of actions for tort properly cognizable in
another forum.-Collard v. Beach (Sup.) 884.

In an action between nonresidents for tort
committed in the state of their residence, want
of objection by defendant and expense of trial
incurred by plaintiff held not sufficient grounds
for courts of this state to retain jurisdiction.-
Collard v. Beach (Sup.) 884.

§ 2.

Establishment, organization, and
procedure in general.

In an action on a judgment of a court of an-
other state, held, whether it had jurisdiction
was a federal question, so that a decision of
the Supreme Court of the United States should
be followed.-Johnston v. Mutual Reserve Fund
Life Ins. Co. (City Ct. N. Y.) 438.

3. Courts of limited or inferior juris-
diction.

A case held not removable from the municipal
to the city court of New York, under Municipal
Court Act, Laws 1902, p. 1490, c. 580, § 3, after
defendant had been granted an adjournment on
his application.-Syms v. American Automobile
Storage Co. (Sup.) 484.

Refusal to discontinue an action held to be
in the discretion of the court.-Finkelstein v.
Meenan (Sup.) 502.

$ 4.

Courts of appellate jurisdiction.
A complaint filed in the City Court of Yon-
kers held to state a cause of action involving
more than $100, so as to justify an appeal to
the Appellate Division of the Supreme Court,
under Laws 1893, p. 873, c. 416, tit. 9, § 1.-

See "Joint Tenancy"; "Tenancy in Common." Richardson & Boynton Co. v. Schiff (Sup.) 672.

87 N.Y.S.-74

COVENANTS.

and 121 New York State Reporter

In insurance policies, see "Insurance," § 6. In leases, see "Landlord and Tenant," § 1. § 1. Construction and operation.

Definition of tenement house, under Laws 1867, p. 2273, c. 908, § 17, held not applicable to construction of a deed covenanting against the erection of tenement houses on the land conveyed.-Kitching v. Brown (Sup.) 75.

2. Performance or breach.

Modern apartment houses held, in action for injunction against their occupancy, not within prohibition of a covenant in a deed against the erection of a tenement house on the land conveyed.-Kitching v. Brown (Sup.) 75.

A building restriction in a deed construed, and held not violated by the construction of de fendant's building.-Stein v. Lyon (Sup.) 125.

Covenant that property sold was subject to monthly tenancies held to have been broken by agreement that, if tenants paid rent for certain months, they should have one month's rent free. -Toch v. Horowitz (Sup.) 455.

§ 3. Actions for breach.

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Vendee, to show damage by existence of leases on purchased property, must prove that rent re-sel to persons accused, and Code Cr. Proc. § 527, served is less than the rental value.-Toch v. Horowitz (Sup.) 455.

COVERTURE.

See "Husband and Wife."

CREDIBILITY.

Of witness, see "Witnesses," § 3.

CREDITORS.

§ 6. Appeal and error, and certiorari. Under Const. art. 1, § 6, providing for counallowing Appellate Division to reverse convic tion where justice demands, conviction reversed; counsel being unprepared and refusing to take part in trial.-People v. Calabur (Sup.) 121.

On appeal from a conviction of conspiracy, held, that an objection that the indictment showed that the conspiracy had been merged in the crime of false pretenses might be considered. though the objection had not been made on_trial or in arrest of judgment. under Code Cr. Proc. § 331.-People v. Weichers (Sup.) 897.

Under Code Cr. Proc. § 323, subd. 3, and section 331, held, that an objection to an indictment on the ground that it charged, not only conspirscy to obtain money by false pretenses, but false on appeal.-People v. Weichers (Sup.) 897.

See "Bankruptcy"; "Fraudulent Conveyan- pretenses, could not be raised for the first time

ces."

CRIMINAL LAW.

Contradiction of witness, see "Witnesses," § 3.
Grand jury, see "Grand Jury."
Indictment, information, or complaint, see
"Indictment and Information."

Particular offenses.

See "Conspiracy," § 1; "Gaming," § 1; "Homi

CROSS-EXAMINATION.

See "Witnesses," § 2.

CRUELTY.

cide"; "Lotteries," § 1; "Perjury"; "Re- Ground for divorce, see "Divorce," §§ 1, 3. ceiving Stolen Goods"; "Rescue."

Violation of liquor laws, see "Intoxicating Liquors," § 4.

§ 1. Parties to offenses.

Under the express provision of Pen. Code, & 29, one who aids and abets in the commission of a crime is liable as a principal.-People v. Canepi (Sup.) 773.

2. Former jeopardy. Under Code Cr. Proc. § 331, an objection that an indictment for conspiracy to obtain money

DAMAGES.

Damages for particular injuries.

See "Death," § 2; "Fraud," § 2; "Libel and Slander," § 2; "Nuisance," § 1; "Trespass,” § 1.

Breach by seller of contract for sale of goods,
see "Sales," § 5.

Breach of bail bond, see "Bail." § 1.
Breach of covenant, see "Covenants," § 3.

Caused by public improvements, see "Munici-
pal Corporations," 4.

Injuries to married woman, see "Husband and
Wife," § 1.

Recovery in particular actions or proceedings.
Discontinuance of injunction, see "Injunction,"
§ 1.

§ 1. Grounds and subjects of compen-
satory damages.

In a suit for an accounting of profits made
by defendant in the operation of a certain print
ing press in the printing of tickets, it was not
proper to allow interest on the damages which
plaintiff was found to have suffered.-New York
Bank Note Co. v. Hamilton Bank Note En-
graving & Printing Co. (Sup.) 200.

§ 2. Liquidated damages and penalties.
One selling materials to a contractor held not
liable, because of his failure to deliver it at the
stipulated time, for penalty, of which he was
not informed, incurred by the contractor as a
consequence for delay in work.-Wendell v.
Walker (Sup.) 142.

§ 3. Measure of damages.

In suit for an accounting of profits made by
defendant in operation of a certain printing
press, held, that defendant should have been al-
lowed rent for the space occupied in carrying
on the branch of the business in which the press
was used.-New York Bank Note Co. v. Hamil-
ton Bank Note Engraving & Printing Co. (Sup.)
200.

In suit for accounting for defendant's profits
in operation of a certain printing press, held,
that defendant should have been allowed a cer-
tain percentage of its general expenses for man-
agement of its business.-New York Bank Note
Co. v. Hamilton Bank Note Engraving & Print-
ing Co. (Sup.) 200.

In suit for accounting of profits made by de-
fendant in use of a certain printing press, held,
that defendant should have been allowed a prop-
er proportion of the general expenses of its
business.-New York Bank Note Co. v. Hamil-
ton Bank Note Engraving & Printing Co. (Sup.)

200.

Admission of evidence of loss of wages by a
daughter, she not being a minor, in an action by
a husband for injury to his wife, is error.-
Dundon v. Interurban St. Ry. Co. (Sup.) 460.
§ 4. Pleading, evidence, and assessment.
Under Code Civ. Proc. 88 1214, 1215, held
that, on default by defendant in an action for
personal injuries, it was proper for the court,

inadmissible under the complaint.-Lockwood
v. Troy City Ry. Co. (Sup.) 311.

Verdict exceeding amount established by evi-
dence will be accordingly reduced. Leavy v.
Manhattan Delivery Co. (Sup.) 499.

DEATH.

Caused by electricity, see "Electricity."
Caused by fall from bridge, see "Bridges," § 1.
Caused by operation of railroad, see "Rail-
roads," 2

Caused by operation of street railroad, see
"Street Railroads," § 1.

Of partner, see "Partnership," § 3.
Of party to action ground for abatement, see
Of servant, see "Master and Servant," §§ 3-8.
"Abatement and Revival," § 1.
Of tenant, see "Landlord and Tenant," § 4.

1. Evidence of death and of surviv-
orship.

On an issue as to whether a son, who was
joint owner with his mother of a deposit in a
savings bank, had survived the mother, evidence
held insufficient to show such survivorship.-
Farrelly v. Emigrant Industrial Sav. Bank
(Sup.) 54.

8 2. Actions for causing death.

Gen. St. Conn. 1887, tit. 18, c. 73, § 1008, rel-
ative to the maintenance of actions for death by
wrongful act, held sufficiently similar to Code
Civ. Proc. § 1902, to authorize the bringing of
an action in New York for death from injuries
received in Connecticut.-Strauss v. New York,
N. H. & H. R. Co. (Sup.) 67.

In action for wrongful death, verdict of $18,-
000 reduced to $12,000 for excess.-Hoffman v.
New York Cent. & H. R. R. Co. (Sup.) 617.

Complaint held insufficient to show right to
recover for wrongful death, under Code Civ.
Proc. § 1902.-Larocque v. Conheim (Sup.) 625.

Under Code Civ. Proc. §§ 1902-1904, where a
father as his only next of kin, the measure of
son, wrongfully killed, left surviving him his
the pecuniary injury to the father for the time
damages recoverable for the son's death was
elapsing between the death of the son and the
death of the father.-Pitkin v. New York Cent.
& H. R. R. Co. (Sup.) 906.

DEBTOR AND CREDITOR.

DECEDENTS.

Estates, see "Descent and Distribution"; "Ex-

on issuing a writ of inquiry, to order that the See "Bankruptcy"; "Fraudulent Conveyances."
writ be executed in open court, with the judge
presiding, and that the jury be drawn from the
panel of jurors in attendance at a regular trial
term.-Elsey v. International Ry. Co. (Sup.) 28.
In suit for accounting of profits made by de-
fendant in use of a certain printing press, the
burden of showing what profits they could have
made without it held on defendant.-New York
Bank Note Co. v. Hamilton Bank Note Engrav-
ing & Printing Co. (Sup.) 200.

Testimony as to transactions with persons since
ecutors and Administrators."
deceased, see "Witnesses," § 1.

Testimony that plaintiff was suffering from
kidney disease, resulting from his injury, held See "Fraud."

DECEIT.

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DESCENT AND DISTRIBUTION.

See "Executors and Administrators"; "Wills." Inheritance and transfer taxes, see "Taxation," § 4. Inheritance dependent on legitimacy, see "Bastards," § 1.

1. Rights and liabilities of heirs and distributees.

Children of intestate held by agreement to

Water rights, see "Waters and Water Courses," have waived the right to have advancements § 1.

Particular classes of deeds.

Of trust, see "Mortgages."

§ 1. Requisites and validity.

That written papers do not sufficiently convey legal record title is not sufficient to defeat intention that title should vest, where contract has been performed and consideration paid.Luesenhop v. Einsfeld (Sup.) 268.

A deed to the children of the grantor requires no pecuniary consideration to support it.-Russ v. Maxwell (Sup.) 1077.

§ 2. Construction and operation.

Children of grantor of a deed to a life tenant and then to children of the grantor held to include children born after the execution of the deed.-Russ v. Maxwell (Sup.) 1077.

DEFAMATION.

See "Libel and Slander."

DEFAULT.

Judgment by, see "Judgment," § 1.

DEMAND.

For jury, see "Jury," § 1.

DEMURRER.

As remedy for defect of parties, see "Parties," § 3.

In pleading, see "Pleading," §§ 2, 3, 6.

To indictment, see "Indictment and Information," § 1.

charged against one of their number on partition of property.-Hoerle v. Hoerle (Sup.) 1007.

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were to be calculated, held not entitled to an or-
der for the inspection of certain other books.
Fidelity & Casualty Co. v. Wendell & Evans
Co. (Sup.) 477.

An order granting an application to examine
the defendant before trial held erroneous, where
the papers did not show the necessity therefor.-
Richardson & Boynton Co. v. Schiff (Sup.) 672.
In an action against the owner of a building
to foreclose a mechanic's lien, an order for his
examination before trial held error.-Knight v.
Morgenroth (Sup.) 693.

DISCRETION OF COURT.

As to discontinuance of action, see "Courts,"
§ 3.

As to exercise of jurisdiction, see "Courts,"
§ 1.

unreasonable delay.-McMann v. Brown (Sup.)
38.

Where no jurisdiction of defendant is ob-
tained, judgment of dismissal is proper.-Bacon
v. Abbey Press (Sup.) 165.

DISSOLUTION.

Of attachment, see "Attachment," § 3.
Of corporation, see "Corporations," § 6.
Of partnership, see "Partnership," § 4.

DISTRIBUTION.

Of estate of decedent, see "Descent and Dis-
tribution"; "Executors and Administrators,"
$ 6.

As to order of proof, see "Trial," § 3.
Review in civil actions, see "Appeal and Er- 81. Grounds.
ror," § 5.

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§ 2. Involuntary.

Affidavit in opposition to motion to dismiss
for unreasonable neglect of plaintiff in pressing
trial held insufficient to excuse such neglect.-
Fisher Malting Co. v. Brown (Sup.) 37.

Under Code Civ. Proc. § 822, and Gen. Rules
Prac. No. 36, failure of plaintiff to bring about
trial for three years, and intervening trial of
younger issues, make out a prima facie case of
unreasonable neglect to proceed in the action,
and throw the burden of excusing the same on
plaintiff.-Fisher Malting Co. v. Brown (Sup.)

37.

Under Code Civ. Proc. § 822, and Gen. Rules
Prac. No. 36, inadvertence is not an adequate
excuse for failing to bring issues to trial, and
furnishes no ground for exercise of judicial dis-
cretion in refusing to dismiss the complaint for

DIVORCE.

Repeated charges of wife's infidelity held
cause for separation, under Code Civ. Proc. §
1762, providing for separation for cruel and
inhuman treatment.-Smith v. Smith (Sup.) 137.
§ 2. Jurisdiction, proceedings, and re-
lief.
Where referee's report in divorce is not con-
firmed, a new referee will be appointed.-Bauer
v. Bauer (Sup.) 607.

§ 3.

Alimony, allowances, and disposi-
tion of property.

Where ground for separation was husband's
charges of wife's infidelity, order granting coun-
sel fees held proper.-Smith v. Smith (Sup.)
137.

Where ground for separation was husband's
charges of wife's infidelity, order giving alimony
pendente lite on condition that she quit his resi-
dence held improper.-Smith v. Smith (Sup.)
137.

Code Civ. Proc. § 2435, held not to authorize
supplementary proceedings on execution on or-
der for support, pending suit for separation or
divorce.-Weber v. Weber (Sup.) 519.

Code Civ. Proc. § 779, held not to authorize
execution on order, under sections 1769, 1771,
for support pending suit for divorce or separa-
tion; provision for its enforcement being made
by sections 1772, 1773.-Weber v. Weber (Sup.)

519.

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