Imágenes de páginas

For wages, see “Master and Servant,” 8 2. been precluded by order from giving, evidence
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," 8 4.

Defendant, denying plaintiff's allegation of
On bond of bank officer, see “Banks'and Bank- performance of contract, held not required to
ing," $ 1.

give bill of particulars.-Barreto v. Rothschild

(Sup.) 553.
§ 1. Declaration, complaint, petition, or

In action for false representations, inducing

plaintiff to invest and expend moneys, bill of
A complaint construed, and held to state but a particulars stating expenditures, advancements,
single cause of action, and was therefore not etc., held properly ordered.-Pruyn v. Ecua-
subject to a motion to separately, state and dorian Ass'n (Sup.) 970.
number.-Powell v. Hinkley (Sup.) 2.
Where complaint alleges three causes of ac-held properly required to furnish bill of partic-

In action for false representations, plaintiff
tion, plaintiffs cannot incorporate paragraphsulars as to the representations.-Pruyn v. Ec-
in first cause of action into third cause by al- uadorian Ass'n (Sup.) 970.
legations that they repeat the statements con-
tained therein.-Bigelow v. Drummond (Sup.) Plaintiff in action for materials furnished and

labor performed held not entitled to bill of par-

ticulars of breaches of contract therefor alleged
8 2. Plea or answer, cross complaint, in counterclaim.-Reitmayer v. Crombie (Sup.)
and affidavit of defense.

Answer construed, and several paragraphs
thereof, numbered separately, held to constitute

In an action against a gas company because
a single separate defense. -Blumenfeld v. Stine of the leakage of gas and resulting explosion,
(Sup.) 81.

held, that plaintiff should not be required to fur.

nish a bill of particulars as to the particular
A demurrer lies to new matter set up by way negligence claimed to have caused the explosion.
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.

§ 6. Motions.
§ 3. Demarrer or exception.

On a motion to compel plaintiff to separately
Demurrer to an answer for insufficiency may held not entitled to object to the sufficiency of

state and number causes of action, defendant
attack the complaint as not stating a cause of the complaint as stating a single cause of ac-
action.-Bigelow v. Drummond (Sup.) 581.

tion.- Powell v. Hinkley (Sup.) 2.
$ 4. Amended and supplemental plead- In an action by a purchaser of corporate stock
ings and repleader.

against directors for fraudulent representation,
Plaintiff, as a condition for service of amend it was held proper to require that the complaint
ed complaint, should be required to pay all

costs should be made more definite and certain.–Vi-
in the action.-Ross v. Bayer-Gardner-Hines ner v. James (Sup.) 257.
Co. (Sup.) 36.

A motion is a proper remedy to require a
The denial of a motion to amend a complaint complaint to be made more definite and certain.
to obviate a fatal variance, consisting of evi-|- Viner v. James (Sup.) 257.
dence seasonably objected to, held not error.-
Reilly v. Vought (Sup.) 492.

A demurrer will not be stricken, unless its

frivolousness appears on its face.-Rankin v.
Where a new defense arises after the action Bush (Sup.) 539.
is brought, the proper way to take advantage
of it is by leave to serve a supplemental com-

Under Code Civ. Proc. $ 798, and Gen. Rules
plaint.-Le Boeuf v. Gray (Sup.) 597.

Prac. No. 22, plaintiff has 40 days in which

to make his motion to compel defendant to
Where an amended complaint was served in make his answer more definite and certain, in
an action at law, facts stated therein, occur-

case the answer was served through the post
ring after the commencement of the action, office. Borsuk v. Blauner (Sup.) 851.
may nevertheless be considered in determining
the rights of the parties.-Industrial & General

In action against directors of a corporation
Trust v. Tod (Sup.) 687.

for false representations, inducing plaintiff to

leave his deposits with the corporation, com-
§ 5. Bill of particulars and copy of ac- plaint held to give defendant sufficient informa-

tion as to deposits to answer.-Warner v. James
In an action for injuries caused by one of (Sup.) 976.
defendants' drivers, plaintiff required to give
a bill of particulars.- Lachenbruch v. Cushman for false represcntations, inducing, plaintiff to

In action against directors of a corporation
(Sup.) 476.

| leave his deposits with the corporation, plaintiff
Indefiniteness in the complaint as to the in- could not be compelled by motion to make defi-
juries sued for can be taken advantage of by nite to set out certificates of deposit in his com-
motion to make the complaint more definite, plaint.-Warner v. James (Sup.) 976.
or by an application for a physical examination.

In action against directors of corporation for
-Lachenbruch v. Cushman (Sup.) 476.

false representations in regard to its affairs,
In action for rent, held, that defendants, fail. complaint held in certain particulars subject to
ing to furnish bills of particulars as to certain motion to make more definite and certain.-
defenses of payment, release, etc., should have Warner v. James (Sup.) 976.

and 121 New York State Reporter & 7. Issues, proof, and variance.

PRACTICE. Answer of defendant in action to recover certificate of seat in produce exchange held suf. Procedure of particular courts, see "Courts." ficient to admit evidence of oral agreement contemporaneous with written one.-Hamblen In particular civil actions or proceedings. v. German (Sup.) 642.

See "Assumpsit, Action of"'; “Habeas Corpus," $ 8. Defects and objections, waiver, and $ 1; . "Interpleader"; "Quo Warranto," § 1; aider by verdict or judgment.

“Replevin.” Court held justified, without regard to plead- Accounting by executor or administrator, see ing, in submitting to jury question whether "Executors and Administrators," $ 9. contract was as plaintiff testified, where the Condemnation proceedings, see “Eminent Dotestimony was admitted without objection.- main," $ 2. Ceballos v. Munson S. S. Line (Sup.) 811.

Particular proceedings in actions.

See “Abatement and Revival”; “Bail," § 1;

"Costs"; "Damages," $ 4; “Depositions": See "Pawnbrokers."

"Dismissal and Nonsuit"; "Divorce," $ 2;

"Evidence"; "Execution": ""Judgment"; "JuThe title to a thing pledged remains in the ry”; “Limitation of Actions"; "Motions"; pledgor until devested by sale, judicial proceed

"Parties”; “Pleading"; "Reference"; "Trial"; ings, or conversion by pledgee, in which latter

“Venue." case limitations runs from the actual conver

Particular remedies in or incident to actions. sion.---Brown v. Bronson (Sup.) 872.

Code Civ. Proc. $ 410, subd. 2, providing that See Arrest," . 1;,, "Attachment”; “Discor. limitations runs from demand in certain cases,

ery"; "Injunction"; "Receivers.” held not to apply to a case of deposit of stock as Procedure in criminal prosecutions. collateral to be specifically returned at a certain See “Criminal Law." time.-Brown v. Bronson (Sup.) 872.

Where a note was paid, right of the pledgee Procedure in exercise of special jurisdictions. to demand collateral securing it was complete, In bankruptcy, see "Bankruptcy," $ 1. within the meaning of Code Civ. Proc. $ 410, In equity, see "Equity." providing limitations runs from time of right to make demand.-Brown v. Bronson (Sup.) 872.

Procedure on review. 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

PREFERENCES. payment of note.-Brown v. Bronson (Sup.) 872.

Effect of proceedings in bankruptcy, see POLICE.

"Bankruptcy," $ 2. See "Municipal Corporations," $ 1.


Ground for reversal in civil actions, see “Ap

peal," $ 5.
Of municipality, see "Municipal Corporations,"
$ 5.


See “Injunction," $ 1.
Of insurance, see "Insurance."


Of claims against estate of decedent, see "Ex.

ecutors and Administrators," $ 5. Of corporate interests, see "Corporations," $ 5.


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

On appeal, see "Appeal," $ 5.

PRINCIPAL AND ACCESSORY. See “Adverse Possession."

See "Criminal Law," $ 1.
Of demised premises, see "Landlord and Ten-
ant," $ 6.


See "Attorney and Client”; “Brokers"; "Fac Right of sheriff, see "Sheriffs and Constables,"

tors." $ 1.

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

Corporate agents, see "Corporations," $ 3.

Insurance agents, see "Insurance," $82, 7.
Service of process on agent of foreign insur- See “Nuisance," $ 1.

ance company, see "Insurance," $ 1.
i 1. Mutual rights, duties, and liabili.

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 y, Buttlar (Sup.) 119.

An agent, entitled to commissions for orders
for goods procured by him, held not entitled to Disclosure by witness, see "Witnesses,” $ 1.
recover for services in installing goods.--Taylor
V. Pullman Automatic Ventilating Co. (Sup.)

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

Agent held to have authority to employ help
after date of his employment as manager, but

before his duties as such began.-Wanamaker Of will, see “Wills,” $ 3.
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.) 419.

Laws changing persons on whom process shall
The authority of an alleged agent to accept

be served in action against foreign insurance
payment of goods sold cannot be proved by the

company as impairing obligation of con-
mere declarations of such agent.-Excelsior Con-

tract, see “Constitutional Law," $ 1.
sumers' Cigar Co. v. Stracherjan (Sup.) 489.

Agents, having authority to modify leases, In actions against particular classes of parties.
held to have authority for a valuable considera- See “Partnership," $ 2.
tion to accept a surrender of the lease.--Gold- Insurance companies, see “Insurance,” $$ 1, 12.
smith v. Schroeder (Sup.) 558.
Evidence held to authorize a finding that a

Particular forms of writs or other process.
landlord's agents had authority to modify leases See “Arrest"; "Execution"; "Injunction":
or to accept a surrender.-Goldsmith v. Schroe- "Mandamus"; "Quo Warranto"; "Replevin.
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. Loss of, as element of damages for slander,
Archer (Sup.) 665.

see "Libel and Slander," 8 2.
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 puror traffic in intoxicating liquors, see "Intoxi-
chase potatoes and ship, them to his principal,
cannot bind his principal by a contract for their

cating Liquors."
sale.—Hogue v. Simonson (Sup.) 1065.
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
0. Simonson (Sup.) 1065.

Of death, see “Death," $ 1.

See "Bail."

See "Animals"; "Fixtures"; "Franchises."
Harmless error in action against sureties, see Adverse possession, "Adverse Posses-
“Appeal," $ 5.

Liabilities of sureties on bonds in legal pro. Dedication to public use, see "Dedication.”.
ceedings, see "Attachment," 8. 4; Bail," 8 Taking for public use, see “Eminent Domain."
1; "Injunction," $ 4; "Repleyin," 8 2.

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

87 N.Y.S.-76


and 121 New York State Reporter PUBLICATION.

Form, requisites, and sufficiency of instructions

in action for personal injuries, see “Trial," In official newspapers, see “Newspapers."

§ 6. Of notice of meeting of village tax assessors, Negligence in use of bridge, see “Bridges," { 1. see “Municipal Corporations," $ 8.

§ 1. Location of road, termini, and sta.


Under Railroad Law, Laws 1890, p. 1082, c.

565, $ 2, certificate of approval of route, granted See “Towns," § 1.

by railroad commissioners, held not authorized.-
People v. Board of Railroad Com'rs of New

York (Sup.) 334.

§ 2. Operation. By municipalities, see "Municipal Corpora- Facts as to manner of accident on defendant's tions," $ 4.

railroad, used in connection with its docks and

warehouse, by the car, from which plaintiff was PUBLIC NUISANCE.

removing freight, being struck by one which was

derailed, defendant having complete manage See "Nuisance," $ 2.

ment and control of the cars, held, unexplained, to warrant a finding of defendant's negligence.

Fisher v. New York Dock Co. (Sup.) 117. PUBLIC POLICY.

In an action against a railway company, deAffecting acts of public officers, see "Officers,"

cedent held guilty of contributary negligence. $1.

-Le Duc v. New York Cent. & H. R. R. Co. Discrimination by carrier as against public

(Sup.) 364. policy, see "Carriers," $ 2.

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 PUBLIC USE.

acquiescence.-Le Duc y. New York Cent. & H.

R. R. Co. (Sup.) 364. Dedication of property, see "Dedication." Taking property for public use, see "Eminent A person on a railroad track held a trespass. Domain."

er.-Le Duc v. New York Cent. & H. R. R. Co.

(Sup.) 364. PUNISHMENT.

In an action for death at a railroad crossing, For violation of injunction, see “Injunction,” evidence of the absence of any signals at the $ 3.

crossing held evidence of defendant's negligence.

- McSweeney v. Erie R. Co. (Sup.) 836. QUANTUM MERUIT.

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 . Erie R. Co. (Sup.) 863.
Attachment, see “Attachment," § 3.


Of act of agent, see "Principal and Agent," { 2.

Of corporate lease, see "Corporations," $ 3. In civil actions, see “Trial," 8 5.

Of unauthorized acts of trustee, see "Trusts,"


REAL-ESTATE AGENTS. § 1. Jurisdiction, proceedings, and relief.

See “Brokers.” Though general allegations in quo warranto are sufficient to state cause of action, where specific facts are stated and are insufficient,

RECEIVERS. entire pleading held insufficient. — People v. Goodrich (Sup.) 114.

In bankruptcy proceedings, see "Bankruptcy,"


of corporations in general, see "Corporations," See “Street Railroads."

§ 1. Nature and grounds of receiver As employers, see "Master and Servant."

ship. Carriage of goods and passengers, see "Car- On an interlocutory judgment for an account riers."

ing of plaintiff's share of the profits from the Condemnation of railroad property by city for sale of stock, it was not necessary to appoint

purpose of laying sewer under tracks, see a receiver to protect plaintiff's rights.-Spier F. *Eminent Domain," $ 1.

Hyde (Sup.) 285.

4 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.)

§ 3. Actions.

See "New Trial.”
Receiver held to occupy the same position as
firm, whose contract for the purchase of city
bonds he seeks to rescind.-Oity of Ironwood v.

Wickes (Sup.) 554.

See “Corporations," $ 5.

Facts held to constitute receiving stolen
money, within Pen. Code, $ 550.—People v. See “Accord and Satisfaction"; "Payment."
Ammon (Sup.) 358.

Evidence held sufficient to show that defend- of particular classes of rights and liabilities.
ant, in receiving stolen money, received it with Equity of redemption, see "Mortgages." $ 5.
knowledge that it had been stolen.-People v. Rights of co-tenants, see "Tenancy in Com-
Ammon (Sup.) 358.

mon," $ 2.
Admission in evidence, on a trial for receiving & 1. Construction and operation.
stolen money, of a conversation with defend-
ant, held not ground for reversal, even if it was

Release of one tort feasor, reserving right to
immaterial on the question of defendant's

sue joint tort feasors, does not discharge the
knowledge of the theft.-People v. Ammon latter.-Walsh v. Hanan (Sup.) 930.
(Sup.) 358.


Of evidence in civil actions, see "Evidence," $ 2.
As evidence, see "Evidence," $ 4.
Estoppel by record, see "Estoppel," $ 1.
Of chattel mortgages, see “Chatte Mortgages,"

§ 1.

Bequests to, see "Wills,” 8 4.
From mortgage, see “Mortgages," 8 5.

REDIRECT EXAMINATION. Creation by deed, see “Deeds," 2.
Of witnesses, see "Witnesses,” 8 2.


Effect on jurisdiction of equity, see "Equity,"
In divorce proceedings, see "Divorce," $ 2.

§ 2.
In proceedings to revoke liquor license, see "In-
toxicating Liquors." 8.2.

of claims against decedent's estate, see “Ex- or damages, see “Damages," § 4.
ecutors and Administrators," $ 5.
To determine damages on injunction bond, see
“Injunction," § 4.

8 1. Nature, grounds, and order of ref- of judge from office, see "Judges," 8 1.

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 Change of venue or place of trial, see “Venue,"
using some other variety of machine. --New York $ 1.
Bank Note Co. v. Hamilton Bank Note Engrav- Transfer of causes in courts of same state, see
ing & Printing Co. (Sup.) 200.

"Courts," $ 3.
§ 2. Report and findings.
Where the evidence is undisputed, a finding

of fact by a referee is in effect a conclusion of
law.-Mt. Sinai Hospital v. Hymau (Sup.) 276. I or lease, see “Landlord and Tenant," $ 3.



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