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FORMS OF ACTION.

FRAUDS, STATUTE OF.
See "Assumpsit, Action of"; "Replevin"; “Tres- 8 1. Real property and estates and in-
pass," $ 1; "Trover and Conversion."

terests therein.
Oral agreement of children of testator to give

their share in his estate to their mother held
FRANCHISES.

not to convey realty of an heir.-In re Sproule's

Estate (Sur.) 432.
Taxation, see “Taxation,” 88 1, 2.

8 2. Pleading, evidence, trial, and re-
The grant of a franchise presupposes a bene-

view.
fit to the public, and an equal right on every
member thereof' within the territory involved of in partition against a defendant who sets

That the statute of frauds may be availed
to participate in the benefit on the same terms
and conditions.-Rhinehart v. Redfield (Sup.) be set up by reply.-Pattat v. Pattat (Sup.)

up a contract for all the property, it need not
789.

140.
FRAUD.

FRAUDULENT CONVEYANCES.
See "Fraudulent Conveyances.”
Bill of particulars, see “Pleading," $ 5.

By bankrupt, see "Bankruptcy," 2.
Effect on limitation, see “Limitation of Ac-s 1. Transfers and transactions invalid.

tions," 8 2.
Evidence of similar facts and transactions, see

Failure of executors to pay off a mortgage
“Evidence," $ 2.

on property conveyed by the testatrix to her

son for life, under the provisions of her will,
By particular classes of persons.

held not fraudulent as against creditors of the

son.- Marshall v. United States Trust Co.
Bankrupt, see "Bankruptcy," $ 3.
Trustees, see “Trusts," $ 3.

(Sup.) 747.
In particular classes of conveyances, contracts,

FUNERAL EXPENSES.
or transuctions.
See “Contracts,” 1; "Insurance," g 5. Claims against decedent's estate for, see "Ex-
Particular remedies.

ecutors and Administrators," $ 5.
See “Equity,” $ 1.
Rescission of contract, see "Contracts," 8 4.

GAMING.
§ 1. Deception constituting fraud and See “Lotteries."
liability therefor.

8 1. Criminal responsibility.
In an action for fraud, actual damages need

In action for violation of Pen. Code, $ 351,
not be alleged nor proved.-Blumenfeld v. Stine prohibiting pool-selling, evidence held to sustain
(Sup.) 81.

finding that defendant assisted pool-selling.-
A grantee is not estopped to sue for dam- | People v. Canepi (Sup.) 773.
ages caused by false representations by his
grantor as to incumbrances on the land by the
fact that an examination of the public records

GARNISHMENT.
would have informed him as to the same.-
Blumenfeld v. Stine (Sup.) 81.

See “Attachment”; “Execution."
Vendee of premises held not put on inquiry
as to falsity of vendor's representation as to

GIFTS.
amount of rental.--Ettlinger v. Weil (Sup.)
1049.

Charitable gifts, see "Charities."
§ 2. Actions.

Transfer taxes, see “Taxation," $ 4.
Answer in action by grantee for damages: 1. Inter vivos.
for false representations as to liens held to
state no defense.-Blumenfeld v. Stine (Sup.)

Evidence nelu to show a gift inter vivos.-In
81.

re Sproule's Estate (Sur.) 432.
Evidence in an action for falsely representing their interest in his estate to their mother, the

Where children of testator agreed to give all
to a prospective vendee that the premises were surplus income paid to the mother in each year
leased at a certain rental held to warrant a of her life passed to her, and need not be ac-
recovery of $6,000.-Ettlinger v. Weil (Sup.)
1049.

counted for by her representative.-In re

Sproule's Estate (Sur.) 432.
Measure of damages for falsely represeuting
premises sold to be under lease at certain their interest in the estate to their mother, and

Where children of testator agreed to give all
rental stated.-Ettlinger v. Weil (Sup.) 1049.

subsequently delivered to her their shares in the
Evidence in actiou for falsely representing personalty, the interest in the undivided estate
premises sold to be under lease at a certain of the testator did not, on the death of one of
rental held to sustain verdict for plaintiff.- the children, pass to the mother, but to his
Ettlinger v. Weil (Sup.) 1049.

heirs.-In re Sproule's Estate (Sur.) 432.

and 121 New York State Reporter § 2. Causa mortis.

p. 351, c. 192, relating to the construction of Facts held to show a gift causa mortis.-Ma-Hooring in city buildings, is whether the floor hon v. Dime Sav. Bank (Sup.) 258.

ing is to be constructed of fireproof material, On an issue as to whether a certain bank and not whether the floor beams are wooden book had been included among a number of or iron.-Holzman v. Katzman (Sup.) 478. bank books which were the subject of a gift causa mortis, evidence considered, and held suf

HEARING. ficient to show_that such was the case.—Mahon v. Dime Sav. Bank (Sup.) 238.

In probate proceedings, see "Wills," $ 3.

GOOD FAITH.
Of purchaser, see "Bills and Notes," $ 3.

HEIRS.
See “Descent and Distribution."

GRAND JURY.

HIGHWAYS. See "Indictment and Information."

See "Bridges"; "Municipal Corporations," $ 6. Extent of examination of witness before Accidents at railroad crossings, see "Rail

roads," $ 2. grand jury defined.-In re Morse (Gen. Sess.) 721.

§ 1. Establishment, alteration, and disPerson accused of crime may be allowed to

continuance, testify before grand jury.-In re Morse (Gen.

County court, in proceedings to lay out highSess.) 721.

way, held to have authority, under Code Cis.

Proc. $ 3240, to allow costs and disbursements After indictinent found and returned, grand to petitioner on confirming commissioners' re jury cannot examine further in the matter.- port, notwithstanding Highway Law, Laws In re Morse (Gen. Sess.) 721.

1890, pp. 1195, 1205, c. 568, &92, 93, 152.Refusal of witness to testify, before grand. In re Peterson (Sup.) 1014. jury, on the ground that his evidence may con

Commissioners appointed to lay out a highvict him of the crime, held not guilty of con

way cannot materially depart from the route tempt.-In re Morse (Gen. Sess.) 721.

stated in the petition.-In re King (Co. Ct.) Grand jury can inquire as to a crime com- 236. mitted within the county only on complaint or Report of commissioners appointed to lay knowledge that such crime has been committed. out a highway set aside.-In re King (Co. Ct) -In re Morse (Gen. Sess.) 721.

236. HABEAS CORPUS.

HOLDING OVER. § 1. Jurisdiction, proceedings, and re

By tenant, see "Landlord and Tenant," $ 3. lief. Where there is no traverse to a return to a

HOLOGRAPHIC WILLS. writ of habeas corpus, such return must be accepted as true.-People v. New York Catho- See "Wills," $ 2. lic Protectory (Sup.) 557. Habeas corpus being a writ of right, the only

HOMICIDE. question brought up is the fact of commitment.

People v. New York Catholic Protectory 8 1. Indictment and information. (Sup.) 557.

An indictment for manslaughter caused by Where petition for habeas corpus alleged an negligence held to sufficiently allege that de agreement for detention, and return, which was cedent's death was the result of defendant's not traversed, alleged 'a commitment, relator negligent act.-People v. Murphy (Sup.) 786. should have been remanded.-People v. New An indictment for manslaughter as the result York Catholic Protectory (Sup.) 557.

of negligence held to sufficiently allege the date

of decedent's death.-People v. Murphy (Sup HACKS.

786.

HUSBAND AND WIFE.
Stands in cities, see "Municipal Corporations,"
8 6.

See "Divorce"; "Marriage."
HARMLESS ERROR.

8 1. Actions.

A married woman, living with her husband, In civil actions, see "Appeal," $ 5.

can recover in an action for personal injury

only for the pain and suffering.-Kimmel F. InHEALTH.

terurban St. Ry. Co. (Sup.) 466. § 1. Regulations and offenses.

ILLEGITIMATE CHILDREN. The test as to the application of Laws 1897, p. 468, c. 415, $ 20, as amended by Laws 1899, 'See "Bastards."

IMPAIRING OBLIGATION OF CON-

TRACT.
See “Constitutional Law," $ 1.

§ 2. Actions.

In an action by an infant for injury, there
can be no recovery for loss of wages; he not
being emancipated.-Nemorofskie v. Interurban
St. Ry. Co. (Sup.) 463.

IMPEACHMENT.
Of witness, see "Witnesses," $ 3.

INFERIOR COURTS.
See "Courts," $ 3.

IMPLIED CONTRACTS.

INHERITANCE.
See "Assumpsit, Action of"; "Use and Occu-See “Descent and Distribution.”
pation"; "Work and Labor."

INHERITANCE TAX.
IMPRISONMENT.

See “Taxation," $ 4.
See “Arrest”; “Bail"; "Execution," $ 2.
Habeas corpus, see “Habeas Corpus."

INJUNCTION.

Consolidation of action for damages and in-
IMPROVEMENTS.

junction and action for damages alone, see

'Action," $ 1.
Liens, see “Mechanics' Liens."

Costs on dismissal, see “Costs," $ 1.
Public improvements, see "Municipal Corpora-
tions," $ 4.

Restraining particular acts or proceedings.

Use of street for hack stand, see “Municipal
INDEMNITY.

Corporations,” § 6.
Production of books showing amounts paid em-

Voting corporate stock, see “Corporations," $8

2, 7.
ployés in action for indemnity insurance, see
“Discovery," § 1.

8 1. Preliminary and interlocutory in-

junctions.

Defendants held entitled to counsel fees on
INDEPENDENT CONTRACTORS.

voluntary discontinuance of injunction.-Mc-

Gown v. Barnum (Sup.) 605.
See “Master and Servant," $ 9.

Services of counsel for defendant held to be on

account of injunction, entitling him to an order
INDICTMENT AND INFORMATION.

of reference to ascertain his damages.-Perlman

v. Bernstein (Sup.) 862.
See "Grand Jury."
Necessity of objections to, for purpose of re- $ 2. Permanent injunction and other

relief.
view, see “Criminal Law," § 6.

Court held to have power, after suspension of
For particular offenses.

injunction for one year, to grant a further ex-
See "Conspiracy,” § 1; "Homicide,” 1; “Per- tension thereof..Sponenburgh v. City of Glo-

versville (Sup.) 602.
jury," § 1.

§ 3. Violation and punishment.
§ 1. Motion to quash or dismiss, and One held improperly adjudged guilty of con-

demurrer.
An objection to an indictment for conspiracy posing of property; the receiver in supplemen-

tempt for violating an injunction against dis-
that the allegations thereof showed that there tary proceedings, entitled thereto, not having
was a merger of the crime of conspiracy to pro- made a demand therefor.-Gerson v. Berti
cure money by false pretenses in the crime of (Sup.) 458.
false pretenses itself might have been raised
by demurrer, under Code Cr. Proc. g 323, subd. 8 4. Liabilities on bonds or undertak-
4.-People v. Weichers (Sup.) 897.

ings.
Where, in injunction suit, defendants have

unsuccessfully moved to vacate the injunction,
INDORSEMENT.

they are not barred, on subsequent discontinu-

ance, from seeking damages.-McGown v. Bar-
Of bill of exchange or promissory note, see
“Bills and Notes," $ 3.

num (Sup.) 605.

Where plaintiff voluntarily discontinues suit,

held, a reference should be had to determine
INFANTS.

damages for injunction obtained.—McGown v.

Barnum (Sup.) 605.
Survival of right of action by infant, see
“Abatement and Revival," $ 1.

INNKEEPERS.
§ 1. Contracts.

Infancy of payees of note held not to affect Restaurant keepers are liable for negligence
its validity.-Yarwood y. Trusts & Guarantee of servant in course of employment.-Block v.
Co. (Sup.) 947.

Sherry (Sup.) 160.

and 121 New York State Reporter Whether spilling a glass of water on a guest Jefferson County Patrons' Fire Relief Ass's by a waiter in a crowded restaurant is negli- (Sup.) 5. gence depends on the circumstances of the case.

Where a married woman was appointed ageut -Block v. Sherry (Sup.) 160.

of a life insurance company, but her husband

acted for her with the knowledge of the officers INSOLVENCY.

of the company, he had the authority of a get

eral agent.-Peck v. Washington Life Ins. Co. See "Bankruptcy.."

(Sup.) 210. Of corporation, see “Corporations," I £

Broker's contract to furnish insurance held

not terminated by dissolution of combination of INSPECTION.

insurance companies mentioned therein.-Tan

enbaum v. Josephi (Sup.) 839. By employer, see "Master and Servant," & 4. Insurance broker's contract to furnish insurOf writings, see “Discovery," $ 1.

ance held rescinded.—Tanenbaum v. Josephi

(Sup.) 839. INSTRUCTIONS.

§ 3. The contract in general.

Where a director of a mutual insurance assoIn civil actions, see "Trial," 8 6.

ciation had agreed that plaintiff should be inIn criminal prosecutions, see “Criminal Law." sured pending action on his application, and he

suffered loss during such time, defendant could

not escape liability by subsequently rejecting INSURANCE.

such application.Loomis . Jefferson County

Patrons' Fire Relief Ass'n (Sup.) 5. Attachment of funds of insurance company, see "Attachment," $ 1.

A failure to indorse a mutual fire policy to Effect of receivership on lien acquired by ben- the mortgagee of the property as his interest eficiary, see "Receivers," $ 2.

may appear, under one of insurer's by-laws, held Laws relating to change of persons on whom not to relieve insurer from liability on the pol

process shall be served in actions against for-icy:- Loomis : Jefferson County Patrons' Fire eign insurance companies as impairing obli

Relief Ass'n (Sup.) 5. gation of contract, see “Constitutional Law,” Description of location of goods held sufficient § 1.

to entitle plaintiff to recover in action on fire Production of books showing amounts paid em- insurance policy.- Edwards v. Fireman's Ins.

ployés in action for indemnity insurance, see Co. (Sup.) 507. *Discovery," $ 1. Transfer of 'policies by bankrupt as unlawful injunction, no longer existed at time of trial,

Where plaintiff's interest, entitling him to an preference, see "Bankruptcy," "$ 2.

dismissal of complaint was proper.-Odell 5. § 1. Control and regulation in general. Bretvey (Sup.) 655.

Laws N. C. 1899, p. 175, c. 54, 8 62, held to $ 4. Assignment or other transfer of authorize service of process on the insurance

polioy. commissioner in au action against a foreign insurance company on a policy issued before the and under seal, held to require proof by one

An assignment of a lite policy, acknowledged statute was passed.-Johnston v. Mutual Re serve Fund Life Ins. Co. (City Čt. N. Y.) 438. disputing it that it was not for a valid considera

tion.-Von Schuckmann v. Heinrich (Sup.) 673. A foreigu insurance company held still doing business in the state, so that jurisdiction could : 5. Avoidance of policy for misreprebe acquired by service on an agent.-Johnston

sentation, fraud, breach of v. Mutual Reserve Fund Life Ins. Co. (City

warranty or condition. Ct. N. Y.) 438.

In an action on a life insurance policy, facts Where a foreign insurance company, pursu- made the application that a sore on his tongue

held not to show that insured knew when be ant to Laws N. C. 1899, p. 175, c. 54, § 62, appointed the insurance commissioner to receive Co. (Sup.) 210.

was a cancer.-Peck v. Washington Life Ins. process in actions against it, held, it could not revoke the appointment.-Johnston v. Mutual Accident insurance policy, containing warranty Reserve Fund Life Ins. Co. (City Ct. N. Y.) that assured was married, held forfeited, and 438.

beneficiary could not recover thereon after Act N. C. June 1, 1899 (Laws 1899, p. 197, Gaines v. Fidelity & Casualty Co. of New

assured's death; he having had no wifec. 62), prohibiting every insurance company York (Sup.) 821. transacting business, unless it became a corporation of the state, held not to affect prior poli- & 6. Forfeiture of policy for breach of cies and the remedy thereon.-Johnston v. Mu

promissory warranty, covenant, tual Reserve Fund Life Ins. Co. (City Ct. N.

or condition subsequent. Y.) 438.

The assignment of a life insurance policy to § 2. Insurance agents and brokers.

a person nominally acting as general agent of Under by-laws of a mutual fire insurance as

the

insurer held not to vitiate the policy. -Perk sociation, one of its directors held authorized to

v. Washington Life Ins. Co. (Sup.) 210. make an oral contract to insure a member, Acceptance of premium on life policy with pending action on his application.-Loomis v. I knowledge of an assignment held to bare given

[graphic]
[graphic]

or

complete force and effect to the policy on the of insured at the time of the application was a
date of delivery.-Peck v. Washington Life Ins. cancer, or that he believed it to be such.-Peck
Co. (Sup.) 210.

v. Washington Life Ins. Co. (Sup.) 210.
Continuing insurance, in force at the time of Whether insured in a life policy used liquor
the issuance of a policy, held not other insur-"to excess," within the meaning of the applica-
ance, within the meaning of its stipulations as tion, is a question of fact.-Moore v. Prudential
to other insurance.-Lewis v. Guardian Fire & Ins. Co. (Sup.) 368.
Life Assur. Co. (Sup.) 525.

Finding that insured in a life policy did not
Where the insured in a fire policy could not use liquor to excess held against the weight of
recover for a loss, a mortgagee of the property the evidence.-Moore V. Prudential Ins. Co.
insured could not enforce the provision in the (Sup.) 368
policy stipulating that the loss, if any, should
be payable to him as his interest might appear. giving the insurer 60 days after potice of loss

The provision, in a policy of fire insurance,
-Lewis v. Guardian Fire & Life Assur. Co.

in which to pay the insurance, is waived by
(Sup.) 525.

denial of all liability under the policy.-Edwards
$ 7. Estoppel, waiver, or agreements v. Fireman's Ing Co. (Sup.) 507.

affecting right to avoid or for- The questiou whether a firm was the agent

feit polioy.
Mutual insurance association held estopped to dence, for the jury.-Lewis v. Guardian Fire &

of an insurance company held, under the evi-
claim nonliability for an alleged misstatement of Life Assur. Co. (Sup.) 525.
interest, written in an application by one of in-
surer's directors.Loomis v. Jefferson County mestic corporation from a foreign insurance

In an action on a policy procured by a do-
Patrons' Fire Relief Ass'n (Sup.) 5.

company authorized to do business in New York
The general agent of a life insurance com- on property located in Canada, the assignee of
pany has authority to waive immediate payment the mortgagee held a necessary party, though
of premium on delivery of a policy.-Peck v. a resident of Canada.-Lewis v. Guardian Fire
Washington Life Ins. Co. (Sup.) 210.

& Life Assur. Co. (Sup.) 525.
An insurance company held to have waived Where, in an action on a life policy by the
the stipulation in its policy with reference to assignee thereof, insured's administrator was
other insurance.-Lewis v. Guardian Fire & brought in by an order of interpleader, held,
Life Assur. Co. (Sup.) 525.

that costs should not be awarded against him.

Code Civ. Proc. $$ 1835, 1836.-Von Schuck-
$ 8. Risks and causes of loss.

mann v. Heinrich (Sup.) 673.
The rupture of a blood vessel, caused by
lifting, heid not an "accident," within the mean-

In an action on an insurance policy, on the
ing of that term in a certificate of a beneficial issue of false warranty, it was for the jury to
association.-Niskern v. United Brotherhood of decide whether insured lost consciousness in the
Carpenters & Joiners of America (Sup.) 640. spells to which witnesses testified. Sternaman

v. Metropolitan Life Ins. Co. (Sup.) 904.
8 9.

Extent of loss and liability of in-
surer.

8 13. Mutual benefit insurance.
Burglary insurance policy construed, and held

Where neither the statute, constitution, nor
to limit liability of company to $250 on any one by-laws of a benefit order, in force at the time
article of jewelry.-Wormser v. General Acc. testator became a member and at the time of
Assur. Corp. (Sup.) 974.

his death, authorize a designation of a benefici-

ary by will, a designation of that character
$ 10. Adjustment of loss.

is insufficient.-In re Smith's Estate (Sur.) 725.
The resignation of an appraiser appointed of
a fire loss, after the award, was ineffectual to

Desiguation of beneficiary of death benefit
invalidate the same.-Eisenberg v. Stuyvesant as payable to estate” held insufficient.-In re
Ins. Co. (Sup.) 463.

Smith's Estate (Sur.) 725.
Appraisal of loss on fire policy by umpire
and one appraiser held invalid.-

New York
Mut.

INTEREST.
Savings & Loan Ass'n V. Manchester Fire
Assur, Co. (Sup.) 1075.

See “Usury."
An action may be maintained to set aside Application of payments on principal, see “Pay-
an award by insurance appraisers, and, if suc-

ment," $ 2.
cessful in that regard, then for a recovery on

Element of damages, see “Damages," $ 1.
the policy of the actual loss sustained.-New Foreclosure for default in payment, see "Mort-
York Mut. Savings & Loan Ass'n v. Manches- gages," $ 4.
ter Fire Assur. Co. (Sup.) 1075.

On particular classes of liabilities.
$11. Right to proceeds.

Benefits to landowner from municipal improve-
The administrator of insured held entitled to
allowance against the assignee of the life polo Compensation for property taken for public

ments, see "Municipal Corporations," $ 4.
icy for a premium paid after insured's death.-
Von Schuckmann v. Heinrich (Sup.) 673.

use, see "Eminent Domain," $ 2.
$ 12. Actions on policies.

Pecuniary interest in particular subjects.
In an action on a life policy, the burden was Effect as to credibility of witness, see "Wit-
on the insurer to show that a sore on the tongue nesses," & 3.

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