The New York Supplement

been precluded by order from giving evidence

For wages, see "Master and Servant," § 2.
Indictment or criminal information or com- thereunder.-D'Anglemont v. Fischer (Sup.) 505.

plaint, see "Indictment and Information."
On bill or note, see "Bills and Notes," § 4.
On bond of bank officer, see "Banks and Bank-
ing," § 1.

§ 1. Declaration, complaint, petition, or
statement.

A complaint construed, and held to state but a
single cause of action, and was therefore not
subject to a motion to separately state and
number.-Powell v. Hinkley (Sup.) 2.

Where complaint alleges three causes of ac-
tion, plaintiffs cannot incorporate paragraphs
in first cause of action into third cause by al-
legations that they repeat the statements con-
tained therein.-Bigelow v. Drummond (Sup.)
581.

§ 2. Plea or answer, cross complaint,

and affidavit of defense.
Answer construed, and several paragraphs
thereof, numbered separately, held to constitute
a single separate defense.-Blumenfeld v. Stine
(Sup.) 81.

Defendant, denying plaintiff's allegation of
performance of contract, held not required to
give bill of particulars.-Barreto v. Rothschild
(Sup.) 553.

In action for false representations, inducing
particulars stating expenditures, advancements,
plaintiff to invest and expend moneys, bill of
etc., held properly ordered.-Pruyn v. Ecua-
dorian Ass'n (Sup.) 970.

In action for false representations, plaintiff
ulars as to the representations.-Pruyn v. Ec-
held properly required to furnish bill of partic-
uadorian Ass'n (Sup.) 970.

Plaintiff in action for materials furnished and
labor performed held not entitled to bill of par-
ticulars of breaches of contract therefor alleged
in counterclaim.-Reitmayer v. Crombie (Sup.)
973.

In an action against a gas company because
of the leakage of gas and resulting explosion,
held, that plaintiff should not be required to fur-
nish a bill of particulars as to the particular
negligence claimed to have caused the explosion.

A demurrer lies to new matter set up by way
of a defense, whether or not the facts are prov-Neuwelt v. Consolidated Gas Co. (Sup.) 1003.
able under a general denial.-Blumenfeld v.
Stine (Sup.) 81.

§ 3. Demurrer or exception.
Demurrer to an answer for insufficiency may
attack the complaint as not stating a cause of
action.-Bigelow v. Drummond (Sup.) 581.
§ 4. Amended and supplemental plead-
ings and repleader.

Plaintiff, as a condition for service of amend-
ed complaint, should be required to pay all costs
in the action.-Ross v. Bayer-Gardner-Hines
Co. (Sup.) 36.

The denial of a motion to amend a complaint
to obviate a fatal variance, consisting of evi-
dence seasonably objected to, held not error.-
Reilly v. Vought (Sup.) 492.

Where a new defense arises after the action
is brought, the proper way to take advantage
of it is by leave to serve a supplemental com-
plaint.-Le Boeuf v. Gray (Sup.) 597.

Where an amended complaint was served in
an action at law, facts stated therein, occur-
ring after the commencement of the action,
may nevertheless be considered in determining
the rights of the parties.-Industrial & General
Trust v. Tod (Sup.) 687.

§ 6. Motions.

On a motion to compel plaintiff to separately
held not entitled to object to the sufficiency of
state and number causes of action, defendant
the complaint as stating a single cause of ac-
tion.-Powell v. Hinkley (Sup.) 2.

In an action by a purchaser of corporate stock
against directors for fraudulent representation,
it was held proper to require that the complaint
should be made more definite and certain.-Vi-
ner v. James (Sup.) 257.

A motion is a proper remedy to require a
complaint to be made more definite and certain.
-Viner v. James (Sup.) 257.

A demurrer will not be stricken, unless its
frivolousness appears on its face.-Rankin v.
Bush (Sup.) 539.

Under Code Civ. Proc. § 798, and Gen. Rules
Prac. No. 22, plaintiff has 40 days in which
to make his motion to compel defendant to
make his answer more definite and certain, in
case the answer was served through the post
office.-Borsuk v. Blauner (Sup.) 851.

In action against directors of a corporation
for false representations, inducing plaintiff to
leave his deposits with the corporation, com-
tion as to deposits to answer.-Warner v. James
(Sup.) 976.

§ 5. Bill of particulars and copy of ac-plaint held to give defendant sufficient informa-

count.

In an action for injuries caused by one of
defendants' drivers, plaintiff required to give
a bill of particulars.-Lachenbruch v. Cushman
(Sup.) 476.

Indefiniteness in the complaint as to the in-
juries sued for can be taken advantage of by
motion to make the complaint more definite,
or by an application for a physical examination.
-Lachenbruch v. Cushman (Sup.) 476.

In action for rent, held, that defendants, fail-
ing to furnish bills of particulars as to certain
defenses of payment, release, etc., should have

for false representations, inducing plaintiff to
In action against directors of a corporation
leave his deposits with the corporation, plaintiff
could not be compelled by motion to make defi-
nite to set out certificates of deposit in his com-
plaint.-Warner v. James (Sup.) 976.

In action against directors of corporation for
false representations in regard to its affairs,
complaint held in certain particulars subject to
motion to make more definite and certain.-
Warner v. James (Sup.) 976.

and 121 New York State Reporter

87. Issues, proof, and variance.

Answer of defendant in action to recover certificate of seat in produce exchange held sufficient to admit evidence of oral agreement contemporaneous with written one.-Hamblen v. German (Sup.) 642.

§ 8. Defects and objections, waiver, and aider by verdict or judgment. Court held justified, without regard to pleading, in submitting to jury question whether contract was as plaintiff testified, where the testimony was admitted without objection.Ceballos v. Munson S. S. Line (Sup.) 811.

PLEDGES.

See "Pawnbrokers."

The title to a thing pledged remains in the pledgor until devested by sale, judicial proceedings, or conversion by pledgee, in which latter case limitations runs from the actual conversion.-Brown v. Bronson (Sup.) 872.

Code Civ. Proc. § 410, subd. 2, providing that

limitations runs from demand in certain cases, held not to apply to a case of deposit of stock as collateral to be specifically returned at a certain time.-Brown v. Bronson (Sup.) 872.

PRACTICE.

Procedure of particular courts, see "Courts."

In particular civil actions or proceedings. See "Assumpsit, Action of"; "Habeas Corpus," § 1; "Interpleader"; "Quo Warranto," § 1; "Replevin."

Accounting by executor or administrator, see "Executors and Administrators," § 9. Condemnation proceedings, see "Eminent Domain," § 2.

Particular proceedings in actions. See "Abatement and Revival"; "Bail." § 1; "Costs"; "Damages," § 4; "Depositions" "Dismissal and Nonsuit"; "Divorce," § 2; "Evidence": "Execution": "Judgment": "Jury"; "Limitation of Actions"; "Motions" "Parties"; "Pleading"; "Reference"; "Trial"; "Venue."

Particular remedies in or incident to actions.

See "Arrest," § 1; "Attachment"; "Discov-
ery"; "Injunction"; "Receivers."

Procedure in criminal prosecutions.
See "Criminal Law."

Procedure in exercise of special jurisdictions.
In bankruptcy, see "Bankruptcy," § 1.
In equity, see "Equity."

Procedure on review.

Where a note was paid, right of the pledgee to demand collateral securing it was complete, within the meaning of Code Civ. Proc. § 410. providing limitations runs from time of right to make demand.-Brown v. Bronson (Sup.) 872. Possession by executors of creditor of a note See "Appeal"; "New Trial." and stock pledged as collateral held to impose on debtor's representatives burden of showing payment of note.-Brown v. Bronson (Sup.) 872.

PREFERENCES.

Effect of proceedings in bankruptcy, see "Bankruptcy," § 2.

PREJUDICE.

Ground for reversal in civil actions, see "Appeal," § 5.

PRELIMINARY INJUNCTION.

See "Injunction," § 1.

PRESENTMENT.

Of claims against estate of decedent, see "Executors and Administrators," § 5.

PRESUMPTIONS.

In civil actions, see "Evidence," § 1.

On appeal, see "Appeal," § 5.

PRINCIPAL AND ACCESSORY.

See "Criminal Law," § 1.

PRINCIPAL AND AGENT.

See "Attorney and Client"; "Brokers"; "Fac tors."

Admissions by agent, see "Evidence," § 3.

Corporate agents, see "Corporations," § 3.
Insurance agents, see "Insurance," §§ 2, 7.

PRIVATE NUISANCE.

Service of process on agent of foreign insur- See "Nuisance," § 1.
ance company, see "Insurance," § 1.

1. Mutual rights, duties, and liabili-
ties.

PRIVATE ROADS.

Plaintiff, under his contract of employment Rights of way, see "Easements."
with defendant, held chargeable with one-third
of a loss on a customer secured by plaintiff.-
Raynor v. Buttlar (Sup.) 119.

An agent, entitled to commissions for orders
for goods procured by him, held not entitled to
recover for services in installing goods.-Taylor
v. Pullman Automatic Ventilating Co. (Sup.)
404.

PRIVILEGED COMMUNICATIONS.

Disclosure by witness, see "Witnesses," § 1.

PRIVITY.

§ 2. Rights and liabilities as to third See "Contracts," § 2.

persons.

Agent held to have authority to employ help
after date of his employment as manager, but
before his duties as such began.-Wanamaker
v. Megraw (Sup.) 331.

A lease, executed by an agent in his own name
under seal without authority, is voidable, but
not invalid.-Anderson v. Connor (Sup.) 449.

The authority of an alleged agent to accept
payment of goods sold cannot be proved by the
mere declarations of such agent.-Excelsior Con-
sumers' Cigar Co. v. Stracherjan (Sup.) 489.

Agents, having authority to modify leases,
held to have authority for a valuable considera-
tion to accept a surrender of the lease.-Gold-
smith v. Schroeder (Sup.) 558.

Evidence held to authorize a finding that a
landlord's agents had authority to modify leases
or to accept a surrender.-Goldsmith v. Schroe-
der (Sup.) 558.

An owner of real estate is not bound by a
contract for its sale made by an agent individ-
ually and under his own seal.-Blanchard v.
Archer (Sup.) 665.

Vendors' letter to agent, exhibited to vendee,
held admissible in latter's action for false rep-
resentations. Ettlinger v. Weil (Sup.) 1049.

An agent, whose only authority was to pur-
chase potatoes and ship them to his principal,
cannot bind his principal by a contract for their
sale.-Hogue v. Simonson (Sup.) 1065.

of traffic in intoxicating liquors, see "Intoxi-
cating Liquors."

PROMISSORY NOTES.

To constitute a ratification of unauthorized
acts of agent, principal must have had full
knowledge of transaction and have accepted its See "Bills and Notes."
fruits.-Hogue v. Simonson (Sup.) 1065.

Facts held insufficient to show ratification by
principal of agent's unauthorized act.-Hogue
v. Simonson (Sup.) 1065.

PRINCIPAL AND SURETY.

See "Bail."

Harmless error in action against sureties, see
'Appeal," § 5.

Liabilities of sureties on bonds in legal pro-
ceedings, see "Attachment," § 4: "Bail," §
1; "Injunction," § 4; "Replevin," § 2.

PRIORITIES.

PROOF.

Of death, see "Death," § 1.

PROPERTY.

See "Animals"; "Fixtures"; "Franchises."
Adverse possession, see "Adverse Posses-
sion."

Dedication to public use, see "Dedication.",
Taking for public use, see "Eminent Domain."

PROXIMATE CAUSE.

Between assignments, see "Assignments," § 1. Of injury, see "Negligence," § 2.

87 N.Y.S.-76

PUBLICATION.

and 121 New York State Reporter

In official newspapers, see "Newspapers." Of notice of meeting of village tax assessors, see "Municipal Corporations," § 8.

PUBLIC DEBT.

See "Towns," § 1.

PUBLIC IMPROVEMENTS.

By municipalities, see "Municipal Corporations," § 4.

PUBLIC NUISANCE.

See "Nuisance," § 2.

PUBLIC POLICY.

Affecting acts of public officers, see "Officers,"

$ 1. Discrimination by carrier as against public policy, see "Carriers," § 2.

PUBLIC USE.

Dedication of property, see "Dedication." Taking property for public use, see "Eminent Domain."

PUNISHMENT.

For violation of injunction, see "Injunction," § 3.

QUANTUM MERUIT.

Form, requisites, and sufficiency of instructions in action for personal injuries, see "Trial,” § 6. Negligence in use of bridge, see "Bridges," § 1. § 1. Location of road, termini, and stations.

Under Railroad Law, Laws 1890, p. 1082. c. 565, § 2, certificate of approval of route, grauted by railroad commissioners, held not authorized.People v. Board of Railroad Com'rs of New York (Sup.) 334.

2. Operation.

Facts as to manner of accident on defendant's railroad, used in connection with its docks and warehouse, by the car, from which plaintiff was removing freight, being struck by one which was derailed, defendant having complete management and control of the cars, held, unexplained, to warrant a finding of defendant's negligence.Fisher v. New York Dock Co. (Sup.) 117.

In an action against a railway company. deLe Duc v. New York Cent. & H. R. R. Co. cedent held guilty of contributory negligence. (Sup.) 364.

On the issue whether a railroad company had acquiesced in the use by the public of a path across its track, evidence held not to show such acquiescence. Le Duc v. New York Cent. & H. R. R. Co. (Sup.) 364.

A person on a railroad track held a trespasser.-Le Duc v. New York Cent. & H. R. R. Co. (Sup.) 364.

In an action for death at a railroad crossing.

evidence of the absence of any signals at the crossing held evidence of defendant's negligence. -McSweeney v. Erie R. Co. (Sup.) 836.

In an action for death at a railroad crossing.

See "Assumpsit, Action of"; "Work and La- evidence held insufficient to show that deceased bor."

was not guilty of contributory negligence.McSweeney v. Erie R. Co. (Sup.) 863.

RATIFICATION.

Of act of agent, see "Principal and Agent," § 2.
Of corporate lease, see "Corporations," § 3.
Of unauthorized acts of trustee, see "Trusts,"
§ 3.

REAL-ESTATE AGENTS.

See "Brokers."

RECEIVERS.

In bankruptcy proceedings, see "Bankruptcy," § 2. Of corporations in general, see "Corporations," § 4.

1. Nature and grounds of receivership.

On an interlocutory judgment for an accourting of plaintiff's share of the profits from the sale of stock, it was not necessary to appoint a receiver to protect plaintiff's rights.-Spier v. Hyde (Sup.) 285.

REGISTRATION.

2. Title to and possession of property.
The lien acquired by a beneficiary in a life pol-
icy by attaching property belonging to the in- Authority of corporate officer to change regis-
surer, a foreign corporation, and found in New
tration of bonds, see "Corporations," § 3.
York, held not defeated by the subsequent ap-
pointment of a receiver in New York of the
company.-National Park Bank v. Clark (Sup.)

185.

RECEIVING STOLEN GOODS.

Facts held to constitute receiving stolen
money, within Pen. Code, § 550.-People v.
Ammon (Sup.) 358.

Evidence held sufficient to show that defend-
ant, in receiving stolen money, received it with
knowledge that it had been stolen.-People v.
Ammon (Sup.) 358.

Admission in evidence, on a trial for receiving
stolen money, of a conversation with defend-
aut, held not ground for reversal, even if it was
immaterial on the question of defendant's
knowledge of the theft.-People v. Ammon
(Sup.) 358.

RECORDS.

As evidence, see "Evidence," § 4.
Estoppel by record, see "Estoppel," § 1.

Of chattel mortgages, see "Chattel Mortgages,"
§ 1.

REDEMPTION.

From mortgage, see "Mortgages," § 5.

REDIRECT EXAMINATION.

Of witnesses, see "Witnesses," § 2.

REFERENCE.

In divorce proceedings, see "Divorce," § 2.
In proceedings to revoke liquor license, see "In-
toxicating Liquors." $ 2.

REHEARING.

See "New Trial."

REINCORPORATION.

See "Corporations," § 5.

RELEASE.

See "Accord and Satisfaction"; "Payment."
Of particular classes of rights and liabilities.
Equity of redemption, see "Mortgages." § 5.
Rights of co-tenants, see "Tenancy in Com-
mon," § 2.

1. Construction and operation.
Release of one tort feasor, reserving right to
sue joint tort feasors, does not discharge the
latter.-Walsh v. Hanan (Sup.) 930.

RELEVANCY.

Of evidence in civil actions, see "Evidence," § 2.

RELIGIOUS SOCIETIES.

Bequests to, see "Wills," § 4.

REMAINDERS.

Creation by deed, see "Deeds," § 2.

REMEDY AT LAW.

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

REMITTITUR.

Of claims against decedent's estate, see "Ex-Of damages, see "Damages," § 4.
ecutors and Administrators," § 5.

To determine damages on injunction bond, see
"Injunction," § 4.

REMOVAL.

§ 1. Nature, grounds, and order of ref- Of judge from office, see "Judges,” § 1.

erence.

In action for an accounting of profits made
by defendant in use of a certain printing press,
held, that it was the duty of the referee to deter-
mine what profits defendant could have made by
using some other variety of machine.-New York
Bank Note Co. v. Hamilton Bank Note Engrav-
ing & Printing Co. (Sup.) 200.

§ 2. Report and findings.

Where the evidence is undisputed, a finding
of fact by a referee is in effect a conclusion of

REMOVAL OF CAUSES.

Change of venue or place of trial, see "Venue,"
$ 1.
Transfer of causes in courts of same state, see
"Courts," § 3.

RENEWAL.

law.-Mt. Sinai Hospital v. Hyman (Sup.) 276. Of lease, see "Landlord and Tenant," § 3.

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