Imágenes de páginas


$ 7.


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

Appeal from interlocutory judgment of county
See "Executors and Administrators," $ 8.

court, see "Appeal," $ i.

Coroner as county officer, see "Coroners."
In particular actions or proceedings.
See "Dismissal and Nonsuit," $ 1.

Accounting by personal representatives,
"Executors and Administrators," $ 9.

Judges, see “Judges."
Highway proceedings, see “Highways," $ 1.

Review of decisions, see "Appeal.”
On insurance policy, see "Insurance," § 12.

Right to trial by jury, see "Jury," $ 1.
§ 1. Nature, grounds, and extent of
right in general.

Jurisdiction of particular actions, proceedings,
Dismissal of complaint in injunction suit with

or subjects.
costs, held error.-Odell v. Bretney (Sup.) 655. Against foreign corporation, see "Corporations,"

Judgment obtained by plaintiff held more fa-
vorable than an offer of judgment made by de- Against personal representatives, see “Execu-
fendant, so that plaintiff was entitled to costs.

tors and Administrators,” $ 8.
--Smith v. Sheldon (Sup.) 1099.

§ 1. Nature, extent, and exercise of ju-
In determining the effect on liability for costs

risdiction in general.
of an offer to compromise, the condition of the It is not one of the privileges of citizenship
pleadings at the time the offer is served must to bring an action wherever one sees fit, re-
be considered.-Smith v. Sheldon (Sup.) 1099. gardless of residence or nature of action.-
$ 2. Amount, rate, and items.

Collard v. Beach (Sup.) 884.
An order granting an extra allowance can Calendars of the courts being congested, it is
only be made where the case is obviously with proper for them to refuse to assume jurisdic-
in the definition "difficult and extraordinary," tion of actions for tort properly cognizable in
under a rigid construction of the phrase.-Swan another forum.-Collard v. Beach (Sup.) 884.
v. Stiles (Sup.) 1089.

In an action between nonresidents for tort
§ 3. Taxation.

committed in the state of their residence, want
Under Code Civ. Proc. $ 3266, presence of of objection by defendant and expense of trial
party giving notice held not essential to pro- incurred by plaintiff held not sufficient grounds
ceedings for retaxation of costs.-Talcott v. for courts of this state to retain jurisdiction.-
Jonasson (Sup.) 521.

Collard v. Beach (Sup.) 881.
Under Code Civ. Proc. $ 3264, unsuccessful § 2. Establishment, organization, and
party held not entitled to second notice of re-

procedure in general.
taxation of costs, because of failure of party In an action on a judgment of a court of an-
giving notice to appear the first time; the prop- other state, held, whether it had jurisdiction
er remedy, being a motion for a new taxation, was a federal question, so that a decision of
under section 3265.-Talcott v. Jonasson (Sup.) | the Supreme Court of the United States should

be followed.--Johnston v. Mutual Reserve Fund

Life Ins. Co. (City Ct. N. Y.) 438.
§ 4. On appeal or error, and on new
trial or motion therefor.

§ 3. Courts of limited or inferior juris-
Where an appeal is dismissed ou a prelim-

inary motion before submission on the merits, A case held not removable from the municipal
respondent is not entitled to tax a fee for to the city court of New York, under Municipal
argument.-In re George Wray Drug Co. (Sup.) Court Act, Laws 1902, p. 1490, c. 580, $ 3, after

defendant had been granted an adjournment on
§ 5. Payment and remedies for collec. his application.-Syms v. American Automobile

Storage Co. (Sup.) 484.
Under Code Civ. Proc. $ 779, nonpayment Refusal to discontinue an action held to be
of interlocutory costs does not operate as in the discretion of the court.-Finkelstein v.
stay, unless copy of order is served on party Meenan (Sup.) 502.
obligated to pay same; and, when not so sery-
ed, he can place cause on calendar and it can-

§ 4. Courts of appellate jurisdiction.
not be stricken.--Sire v. Shubert (Sup.) 891.

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


and 121 New York State Reporter COVENANTS.

by false pretenses showed by its allegations

that the conspiracy was merged in the crime In insurance policies, see "Insurance,”' $.6. of false pretenses might have been taken at the In leases, see “Landlord and Tenant," 1. trial.- People v. Weichers (Sup.) 897. $ 1. Construction and operation.

$ 3. Evidence. Definition of tenement house, under Laws Accomplice testimony held sufficiently cor1867, p. 2273, c. 908, $ 17, held not applicable to 'roborated under Code Cr. Proc. $ 399.- People construction of a deed covenanting against the v. Ammon (Sup.) 358 erection of tenement houses on the land con

8 4. Trial. veyed.-Kitching v. Brown (Sup.) 75.

Explicit instructions covering the case har$ 2. Performance or breach.

ing been given, further requested instructions Modern apartment houses held, in action for may be refused.-People 7. Ammon (Sup.) 358. injunction against their occupancy, not within prohibition of a covenant in a deed against the court of the penalty prescribed by statute for

On a criminal trial, the statement by the erection of a tenement house on the land con- the crime charged is not error.-People T. veyed.---Kitching v. Brown (Sup.) 75.

Canepi (Sup.) 773. A building restriction in a deed construed, and held not violated by the construction of de $ 5. Motions for new trial and in ar

rest. fendant's building.--Stein v. Lyon (Sup.) 125.

An objection that an indictment for conspira. Covenant that property sold was subject to cy to obtain money by false pretenses showed monthly tenancies held to have been broken by that that crime had been merged in the crime agreement that, if tenants paid rent for certain of false pretenses held one that might have been months, they should have one month's rent free. taken in arrest of judgment, under Code Cr. -Toch v. Horowitz (Sup.) 455.

Proc. $ 331.-People v. Weichers (Sup.) 897. $ 3. Actions for breach,

86. Appeal and error, and certiorari. Vendee, to show damage by existence of leases

Under Const, art. 1, $ 6, providing for counon purchased property, must prove that rent re- sel to persons accused, and Code Or. Proc. $ 527, served is less than the rental value.- Toch v. allowing Appellate Division to reverse conrie Horowitz (Sup.) 455.

tion where justice demands, conviction reversed;

counsel being unprepared and refusing to take COVERTURE.

part in trial.- People v. Calabur (Sup.) 121.

On appeal from a conviction of conspiracy, See "Husband and Wife."

held, that an objection that the indictment show. ed that the conspiracy had been merged in the

crime of false pretenses might be considered. CREDIBILITY.

though the objection had not been made on trial

or in arrest of judgment, under Code Cr. Proc. Of witness, see "Witnesses," $ 3.

$ 331.-People v. Weichers (Sup.) 897.

Under Code Cr. Proc. $ 323, subd. 3, and set

tion 331, held, that an objection to an indictment CREDITORS.

on the ground that it charged, not only conspira

cy to obtain money by false pretenses, but false See “Bankruptcy"; “Fraudulent Conveyan- pretenses, could not be raised for the first time ces."

on appeal.-People v. Weichers (Sup.) 897. CRIMINAL LAW.

Contradiction of witness, see "Witnesses," $ 3.
Grand jury, see “Grand Jury."

See "Witnesses," & 2.
Indictment, information, complaint,
"Indictment and Information."
Particular offenses.

See “Conspiracy," $ 1; "Gaming," § 1;,'Homi- Ground for divorce, see “Divorce," $f 1, 3.

cide"; "Lotteries," $ 1; "Perjury"; "Receiving Stolen Goods"; "Rescue." Violation of liquor laws, see "Intoxicating Liq

DAMAGES. uors," $ 4. 8 1. Parties to offenses.

Damages for particular injuries. Under the express provision of Pen. Code & See “Death,” $ 2;, “Fraud," $ 2; “Libel and 29, one who aids and abets in the commission

Slander," '$ 2; "Nuisance," § 1; "Trespass," of a crime is liable as a principal.-People v.

1. Canepi (Sup.) 773.

Breach by seller of contract for sale of goods, 8 2. Former jeopardy.

see "Sales," $ 5. Under Code Cr. Proc. $ 331, an objection that Breach of bail bond, see "Bail," § 1. an indictment for conspiracy to obtain money | Breach of covenant, see “Covenants," I S.



Caused by public improvements, see “Munici- , inadmissible under the complaint.---Lockwood
pal Corporations,” | 4.

v. Troy City Ry. Co. (Sup.) 311.
Injuries to married woman, see "Husband and

Verdict exceeding amount established by evi-
Wife," § 1.

dence will be accordingly reduced. — Leavy v.
Recovery in particular actions or proceedings.

Manhattan Delivery Co. (Sup.) 499.
Discontinuance of injunction, see "Injunction,"
$ 1.

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

Caused by electricity, see "Electricity."
In a suit for an accounting of profits made Caused by fall from bridge, see "Bridges," $ 1.
by defendant in the operation of a certain print Caused by operation of railroad, see ""Rail-
ing press in the printing of tickets, it was not roads," 8 2
proper to allow interest on the damages which caused by operation of street railroad, see
plaintiff was found to have suffered.-New York "Street Railroads," $ 1.
Bank Note Co. v. Hamilton Bank Note En- Of partner, see “Partnership," $ 3.
graving & Printing Co. (Sup.) 200.

of party to action ground for abatement, see

“Abatement and Revival," $ 1.
$ 2. Liquidated damages and penalties. Or servant, se “Master and Servant,”. $$ 3-8.

One selling materials to contractor held not of tenant, see "Landlord and Tenant,” 8 4.
liable, because of his failure to deliver it at the
stipulated time, for penalty, of which he was 8 1. Evidence of doath and of survive
not informed, incurred by the contractor as a

consequence for delay in work.- Wendell v.

On an issue as to whether a son, who was
Walker (Sup.) 142.

joint owner with his mother of a deposit in a
§ 3. Measure of damages.

savings bank, had survived the mother, evidence
In suit for an accounting of profits made by held insufficient to show such survivorship.-
defendant in operation of a certain printing Farrelly v. Emigrant Industrial Sav. Bank
press, held, that defendant should have been al- (Sup.) 34.
lowed rent for the space occupied in carrying
on the branch of the business

in which the press 3 2. Aotions for causing death.
was used.-New_York Bank Note Co. v. Hamil. Gen. St. Conn. 1887, tit. 18, c. 73, 8 1008, rel-
ton Bank Note Engraving & Printing Co. (Sup.) ative to the maintenance of actions for death by

wrongful act, held sufficiently similar to Code
In suit for accounting for defendant's profits Oiv, Proc.8 1902 to authorize the bringing of
in operation of a certain printing press, held, an action in New York for death from injuries
that defendant should have been allowed a cer received in Connecticut.--Strauss v. New York,
tain percentage of its general expenses for man- N. H. & H. R. Co. (Sup.) 67.
agement of its business.- New York Bank Note In action for wrongful death, verdict of $18,-
Co. v. Hamilton Bank Note Engraving & Print- 000 reduced to $12,000 for excess.-Hoffman v.
ing Co. (Sup.) 200.

New York Cent. & H. R. R. Co. (Sup.) 617.
In suit for accounting of profits made by de- Complaint held insufficient to show right to
fendant in use of a certain printing press, held, recover for wrongful death, under Code Civ.
that defendant should have been allowed a prop- Proc. $ 1902.-Larocque v. Conheim (Sup.) 625.
er proportion of the general expenses of its
business.- New York Bank Note Co. v. Hamil-

Under Code Civ. Proc. 88 1902–1904, where a
ton Bank Note Engraving & Printing Co. (Sup.) father as his only next of kin, the measure of

son, wrongfully killed, left surviving him his
Admission of evidence of loss of wages by a the pecuniary injury to the father for the time

damages recoverable for the son's death was
daughter, she not being a minor, in an action by elapsing between the death of the son and the
a husband for injury to his wife, is error:- death of the father.–Pitkin v. New York Cent.
Dundon v. Interurban St. Ry. Co. (Sup.) 460.

& H. R. R. Co. (Sup.) 906.
$ 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,
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 Estates, see "Descent and Distribution”; “Ex-
fendant in use of a certain printing press, the Testimony as to transactions with persons since
burden of showing what profits they could have
made without it held on defendant.-New York

deceased, see “Witnesses,” $ 1.
Bank Note Co. v. Hamilton Bank Note Engrav.
ing & Printing Co. (Sup.) 200.

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

and 121 New York State Reporter DEDICATION.

DEPOSITIONS. § 1. Nature and requisites.

See "Witnesses." Owners of lands held to have dedicated them to the public use, to the extent of a sewage sys

A defendant held not entitled to bare a subtem erected thereon. --Sherman Lime Co. v. Vil pæna requiring him to appear and give his deplage of Glens Falls (Sup.) 95.

osition set aside, because other defendants were

not given notice.-In re Shawmut Min. Co. 8 2. Operation and effect.

(Sup.) 1059; Appeal of Miller, Id.
Village restrained from discharging sewage
on plaintiff's land.-Sherman Lime Co. v. Vil-
lage of Glens Falls (Sup.) 95.


In bank, see "Banks and Banking," $ 3.
Joint ownership of bank deposits, see "Joint

Absolute deed as mortgage, see “Mortgages,”

$ 1. Covenants in deeds, see “Covenants."

DESCENT AND DISTRIBUTION. Creation of joint tenancy, see "Joint Tenancy.'

See “Executors and Administrators”; “Wills."

Inheritance and transfer taxes, see "TaxaDeeds by or to particular classes of parties. tion," $ 4. See "Executors and Administrators," $ 4. Inheritance dependent on legitimacy, see “BasDevisees, see "Wills," $ 5.

tards," 8 1. Deeds of particular species of property.

§ 1. Rights and liabilities of heirs and

distributees. See "Easements," $ 1.

Children of intestate held by agreement to Water rights, see "Waters and Water Courses," have waived the right to have advancements § 1.

charged against one of their number on partiParticular classes of deeds.

tion of property.-Hoerle v. Hoerle (Sup.) 1007. Of trust, see “Mortgages."

DESCRIPTION. § 1. Requisites and validity.

That written papers do not sufficiently con- of devisees or legatees in will, see "Wills," (4. vey legal record title is not sufficient to defeat Of parties in action, see "Parties," $ 2. intention that title should vest, where contract of property devised or bequeathed, see “Wills, has been performed and consideration paid. - $ 4. Lueseuhop v. Einsfeld (Sup.) 268.

Of property insured, see "Insurance," $ 3. A deed to the children of the grantor requires Of property mortgaged, see “Mortgages," § 2 no pecuniary consideration to support it.-Russ v. Maxwell (Sup.) 1077.

DETINUE. § 2. Construction and operation.

See "Replevin." 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

DEVISES. deed.-Russ v. Maxwell (Sup.) 1077.

See "Wills."



See "Libel and Slander."

Of aliens, see "Aliens," $ 1.



From employment, see "Master and Servant.** Judgment by, see "Judgment," § 1.

$ 1. From indebtedness, see "Accord and Satisfac

tion"; "Bankruptcy," $ 3; “Release." DEMAND. For jury, see “Jury," 8 1.


Of action, see "Dismissal and Nonsuit," $ 1. DEMURRER.

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

$ 1. . Under statutory provisions. In pleading, see "Pleading," $ $ 2, 3, 6.

Plaintiff, entitled to an inspection of defendTo indictment, see "Indictment and Informa- ant's books, showing the amount paid employés tion," $ 1.

on which premiums for indemnity insurance

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were to be calculated, held not entitled to an or- unreasonable delay.-MeMann v. Brown (Sup.)
der for the inspection of certain other books.- 38.
Fidelity & Casualty Co. v. Wendell & Evans
Co. (Sup.) 477.

Where do jurisdiction of defendant is ob-

tained, judgment of dismissal is proper.-Bacon
An order granting an application to examine v. Abbey Press (Sup.) 165.
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 Of attachment, see "Attachment," $ 3.
to foreclose a mechanic's lien, an order for his Of corporation, see "Corporations," $ 6.
examination before trial held error.-Knight v. Of partnership, see "Partnership,” Š 4.
Morgenroth (Sup.) 693.


Of estate of decedent, see "Descent and Dis-
As to discontinuance of action, see "Courts," tribution"; "Executors and Administrators,"
8 3.

§ 6.
As to exercise of jurisdiction, see “Courts,"
$ 1.

As to order of proof, see "Trial," $ 3.
Review in civil actions, see "Appeal and Er- 8 1. Grounds.
ror," $ 5.

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.
By carrier, see "Carriers," 88 1, 2.

§ 2. Jurisdiction, proceedings, and re-


Where referee's report in divorce is not con-
firmed, a new referee will be appointed.-Bauer

v. Bauer (Sup.) 607.
Appealability of order of dismissal, see "Ap-
peal," $ 2.

$ 3. Alimony, allowances, and disposi.
At trial, see "Trial," $ 5.

tioa of property.
Costs on dismissal, see "Costs," $ 1.

Where ground for separation was husband's
Discontinuance of injunction proceedings, see charges of wife's infidelity, order granting coun-
"Injunction," $ 1.

sel fees held proper.-Smith v. Smith (Sup.)
Dismissal of action against partnership, see 137.
"Partnership," $ 2.

Where ground for separation was husband's
Dismissal of appeal, see "Appeal," $ 2.

charges of wife's infidelity, order giving alimony
§ 1. Voluntary.

pendente lite on condition that she quit his resi-
Action of the trial judge in marking a cause

dence held improper.-Smith v. Smith (Sup.)
"settled" held equivalent to a discontinuance of

the action.-Pomeranz v. Marcus (Sup.) 941; Code Civ. Proc. & 2435, held not to authorize
Appeal of Rogers, Id.

supplementary proceedings on execution on or-
Where an agreement between the parties to a

der for support, pending suit for separation or
cause for a discontinuance is collusive, to de- divorce.-Weber v. Weber (Sup.) 519.
fraud defendant's attorney, it should not be Code Civ. Proc. $ 779, held not to authorize
granted, save on condition that defendant's at execution on order, under sections 1769, 1771,
torney be paid his costs.-Pomeranz v. Marcus for support pending suit for divorce or separa-
(Sup.) 941; Appeal of Rogers, Id.

tion; provision for its enforcement being made
$ 2. Involuntary,

by sections 1772, 1773.-Weber v. Weber (Sup.)

Affidavit in opposition to motion to dismiss
for unreasonable neglect of plaintiff in pressing On second reference in divorce, further allow-
trial held insufficient to excuse such neglect. ance for counsel fees granted wife.-Bauer v.
Fisher Malting Co. v. Brown (Sup.) 37.

Bauer (Sup.) 607.
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 See “Wharves."
unreasonable neglect to proceed in the action, Municipal ownership and regulations, see “Mu-
and throw the burden of excusing the same on nicipal Corporations," $ 6.
plaintiff.-Fisher Malting Co. v. Brown (Sup.)

Under Code Civ. Proc. $ 822, and Gen. Rules
Prac. No. 36, inadvertence is not an adequate As evidence in civil actions, see "Evidence,"
excuse for failing to bring issues to trial, and

$ 4.
furnishes no ground for exercise of judicial dis- Production and inspection of writings, see
cretion in refusing to dismiss the complaint for “Discovery," $ 1.

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