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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.

COUNTIES.
In actions by or against particular classes of
parties.

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.

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

Judges, see "Judges."
Higlıway 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-

| $ 7.
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-

nsidered.-Smith y. 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 bad jurisdiction
er remedy being a motion for a new taxation, was a federal question, so that a decision of
under section 3263.-Talcott v. Jonasson (Sup.) the Supreme Court of the United States should
521.

be followed.-Johnston v. Mutual Reserve Fund
8 4. On appeal or error, and on new

Life Ins. Co. (Oity Ct. N. Y.) 438.
trial or motion therefor.

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

diction.
inary motion before submission on the merits. I

| 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, 83, after
676.

defendant had been granted an adjournment on
§ 5. Payment and remedies for collec-

his application.-Syms v. American Automobile
tion.

Storage Co. (Sup.) 484.
Under Code Civ. Proc. 8 779, nonpayment

Refusal to discontinue an action held to be
of interlocutory costs does not operate as a 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-

§ 4. Courts of appellate jurisdiction.
ed, he can place cause on calendar and it can-
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

CO-TENANCY.

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," 8 1. | trial.-People v. Weichers (Sup.) 897.
§ 1. Construction and operation.

8 3. Evidence.
Definition of tenement house, under Laws Accomplice testimony held sufficiently cor.
1867, p. 2273, c. 908, § 17, held not applicable to roborated under Code Čr. Proc. $ 399.- People
construction of a deed covenanting against the v. Ammon (Sup.) 358
erection of tenement houses on the land con- le

1 & 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 v. Ammon (Sup.) 358.
injunction against their occupancy, not within On a criminal trial, the statement by the
prohibition of a covenant in a deed against the court of the penalty prescribed by statute for
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,

§ 5. Motions for new trial and in ar.
and held not violated by the construction of de-

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.

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

Under Const. art. 1, § 6, providing for coun-
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.

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 shos-
ed 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.
Of witness, see "Witnesses," $ 3.

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

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

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

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

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

w See "Witnesses," $ 2.
Indictment, information, or complaint, see
"Indictment and Information.'
Particular offenses.

CRUELTY.
See “Conspiracy," $ 1; "Gaming," $ 1; "Homi-
cide”; “Lotteries," & 1; “Perjury''; “Re-Gr

Ground for divorce, see “Divorce," $f 1, 3.
ceiving 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," į S.

CREDIBILITY.

ces."

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," g 1.

dence will be accordingly reduced. — Leavy v.
Recovery in particular actions or proceedings. | Manhattan Delivery Co. (Sup.) 499.
Discontinuance of injunction, see "Injunction,”
8 1.

DEATH.
§ 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," § 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
§ 2. Liquidated damages and penalties. Los

“Abatement and Revival," & 1.

ties. Of servant, see “Master and Servant," 88 3-8.
One selling materials to a contractor held not of

l'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 $ 1. Evidence of doath and of surviv-
not informed, incurred by the contractor as a

orship.
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.) 54.
lowed rent for the space occupied in carrying
on the branch of the business in which the press

§ 2. Actions for causing death.
was used. --New_York Bank Note Co. v. Hamil. Gen. St. Conn. 1887, tit. 18, c. 73, $ 1008, rel-
ton Bank Note Engraving & Printing Co. (Sup.) ative to the maintenance of actions for death by
200.

wrongful act, held sufficiently similar to Code
In suit for accounting for defendant's profits

Oiv, Proc. $ 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. & . 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- 1000 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 adlowed a prop- Proc. & 1902.-Larocque v. Conheim (Sup.) 625.
er proportion of the general expenses of its

Under Code Civ. Proc. 88 1902–1904, where a
business.- New York Bank Note Co. v. Hamil-
ton Bank Note Engraving & Printing Co. (Sup.)

| son, wrongfully killed, left surviving him his
200.

father as his only next of kin, the measure of

damages recoverable for the son's death was
Admission of evidence of loss of wages by a

the pecuniary injury to the father for the time
daughter, she not being a minor, in an action by elapsing het we

elapsing between the death of the son and the
a husband for injury to his wife, is error:- death of the father.-Pitkin y. 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. $$ 1214, 1215, held
that, on default by defendant in an action for

DEBTOR AND CREDITOR.
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

DECEDENTS.
term.-Elsey v. International Ry. Co. (Sup.) 28.

Estates, see “Descent and Distribution"; "Ex-
In suit for accounting of profits made by de-

ecutors and Administrators."
fendant in use of a certain printing press, the

Testimony as to transactions with persons since
burden of showing what profits they could have

deceased, see "Witnesses," $ 1.
made without it held on defendant.-New York
Bank Note Co. v. Hamilton Bank Note Engrav-
ing & Printing Co. (Sup.) 200.

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

cy."

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 have a sub-
tem erected thereon.--Sherman Lime Co. v. Vil- | pana requiring him to appear and give his ded-
lage of Glens Falls (Sup.) 95.

osition set aside, because other defendants were

not giren notice.-In re Shawmut Min. Co.
$ 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.

DEPOSITS.

In bank, see "Banks and Banking," $ 3.
DEEDS.

Joint ownership of bank deposits, see "Joint

Tenancy."
Absolute deed as mortgage, see "Mortgages,"

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

DESCENT AND DISTRIBUTION.
Creation of joint tenancy, see "Joint Tenan-

See "Executors and Administrators”; “Wills."

Inheritance and transfer taxes, see “Taxa-
Deeds by or to particular classes of parties.

tion," $ 4.
See "Executors and Administrators," $ 4. Inheritance dependent on legitimacy, see “Bas-
Devisees, see "Wills," $ 5.

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

§ 1. Rights and liabilities of heirs and
See "Easements," $ 1.

distributees.

Children of intestate held by agreement to
Water rights, see "Waters and Water Courses,"

| bave waived the right to have advancements

charged against one of their number on parti-
Particular classes of deeds.

tion of property.-Hoerle y. Hoerle (Sup.) 10.
Of trust, see "Mortgages."

DESCRIPTION.
8 1. Requisites and validity.

That written papers do not sufficiently con- 1 Of devisees or legatees in will, see “Wills." $ £
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.-
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 in-
clude children born after the execution of the

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

See "Wills.”

§ 1.

DEFAMATION.

DISABILITIES.
See “Libel and Slander."

Of aliens, see "Aliens," $ 1.
DEFAULT.

DISCHARGE.

From employment, see "Master and Serrant.*
Judgment by, see "Judgment,” s 1.

$ 1.
From indebtedness, see “Accord and Satisfac

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

DISCONTINUANCE.

Of action, see "Dismissal and Nonsuit," 3 1.
DEMURRER.

DISCOVERY.
As remedy for defect of parties, see "Par-
ties," $ 3.

13 1. Under statutory provisions.
In pleading, see "Pleading," $82, 3, 6.

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

Ton which premiums for indemnity insurance

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

Where do jurisdiction of defendant is ob-
Co. (Sup.) 477.

tained, judgment of dismissal is proper.-Bacon
An order granting an application to examinev. 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.

DISSOLUTION.
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,” Ž 4.
Morgenroth (Sup.) 693.

DISTRIBUTION.
DISCRETION OF COURT.

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

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

DIVORCE.
As to order of proof, see “Trial," $ 3.
Review in civil actions, see "Appeal and Er- 82. Grounds.
ror," $ 5.

Repeated charges of wife's infidelity held
cause for separation, under Code Civ. Proc. $

1762, providing for separation for cruel and
DISCRIMINATION.

inhuman treatment.-Smith v. Smith (Sup.) 137.
By carrier, see "Carriers,” $1, 2.

§ 2. Jurisdiction, proceedings, and re-

lief.

Where referee's report in divorce is not con-
DISMISSAL AND NONSUIT.

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
$ . Voluntary.

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

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

137.
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.)

519.
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

DOCKS.
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.)
37.

DOCUMENTS.
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 1 $ 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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