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1. Refusal of an instruction as to the right of

way, in case of collision between a street car
Because of nonpayment of costs, see "Costs,"

and a team, held error, in view of an ordinance.

-Cushing v. Metropolitan St. Ry. Co. (Sup.)
of dispossession warrant, see "Landlord and

Tenant," $ 6.

In case of injury to a boy on a wagon, with
which an electric car collided, held, that there
was nothing to show negligence of the street

railway company.-Summerman v. Interurban
Relating to interlocutory judgment as giving

St. Ry. Co. (Sup.) 427.
jurisdiction of appeal, see “Appeal," 8 1.

A motorman held not negligent in not antici-

pating that a push cart would run into the car

after the head of the car had safely passed it.
-Schneiders v. Central Crosstown R. Co. (Sup.)

Corporate stock, see “Corporations," § 1.
Taxation of corporate stock, see "Taxation,"

One heedlessly driving in front of car held
$ 2.

guilty of contributory negligence.-Monahau v.

Interurban St. Ry. Co. (Sup.) 537; Meyers v.

Same, Id.

Agreement between city of New York and
See “Brokers," $ 1.

street railway company, January 1, 1853, held
Of corporations, see "Corporations," $ 2. to establish amount of the license fee for each

car.-City of New York v. Third Ave. R. Co.

(Sup.) 584.

Annual license fee, under agreement between

street railway company and city of New York,
See "Receiving Stolen Goods.”

January 1, 1853, held at $20 per car.-City of

New York v. Third Ave. R. Co. (Sup.! 584.

Doctrine of discovered peril held not to apply

to case of boy negligently on street car track
See "Railroads."

and falling 50 feet in front of approaching
Carriage of passengers, see "Carriers."

car.-McDonald v. Metropolitan St. Ry. Co.
Construction and operation of instruction in ac (Sup.) 699.
tion against, see "Trial," 8 6.

In action against street railway for negligent
Risks assumed by servant, see “Master and

killing of person on highway, evidence, in view
Servant," § 6.

of instructions, held not to have misled jury into
§ 1. Regulation and operation.

predicating negligence on omission to supply
In action against street railway for injury to

fenders in general.-Fritsch v. New York &
one driving a team, evidence of respective par-

| Q. C. Ry. Co. (Sup.) 942
ties held to justify the submission of the ques- In an action against a street railway company
tions involved to the jury.-Klimpl v. Metropoli- for the negligent killing of a person on the
tan St. Ry. O. (Sup.) 39.

streets, evidence that no fender was on the par.
Duty of a street railway toward person using

ticular car which caused the accident is admis-
the streets is to exercise reasonable care, and

and sible.- Fritsch v. New York & Q. C. Ry. Co.
charge imposing on it obligation of using all the

(Sup.) 942.
care that motorman could use held erroneous. Jury may predicate negligence on failure of
Klimpl v. Metropolitan St. Ry. Co. (Sup.) 39. street railway to provide cars with fender, when
Error held not predicable of part of charge in

such appliance is in common use and has proven
action against street railroad for damages by sons on the highway.-Fritsch v. New York &

ordinarily efficacious to prevent injury to per-
collision.-Persico v. Metropolitan St. Ry. Co.

Q. O. Ry. Co. (Sup.) 942.
(Sup.) 233.

Evidence in an action for injury to a child
struck by a street car held insufficient to show

negligence of the driver of the car. Csatlos V.
Metropolitan St. Ry. Co. (Sup.) 302.

See “Highways"; "Municipal Corporations,”

14. 6.
A street railway company, sued for injuries
to a traveler, sustained in a collision with a
car, held entitled to a distinct charge that its

motorman was only required to exercise reason-
able care.-Lockwood v. Troy City Ry. Co. | Preventing performance of contract, see "Con-
(Sup.) 311.

tracts," $ 5.
Refusal of an instruction that, if plaintiff
drove in front of defendant's street car, when it
was so near it could not be stopped, he could

not recover, held error.-Cushing v. Metropoli-
tan St. Ry. Co. (Sup.) 314.

Tof devisees or lcgatees, see "Wills," § 4.

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and 121 New York State Reporter

| Trust & Safe Deposit Co. (Sup.) 628; In re See "Action."

Fidelity Trust Co., Id.; In re Union Trust Co..

The Legislature has the power to exempt

certain classes of property from taxation, even Recovery of possession by landlord, see "Land- / retrospectively:--In re Rochester Trust & Safe lord and Tenant," $ 6.

Deposit Co. (Sup.) 628; In re Fidelity Trust

Co., Id.; In re Union Trust Co., Id.

Under Tax Law, Laws 1896, p. 797, c. 908,

3, held, that two executors residing in the state Sales of liquor on Sunday, see "Intoxicating

are taxable for all the personal property of

the estate of their testator, although a third Liquors," 88 3, 4.

executor resides out of the state.--People .


Under Tax Law, Laws 1896, pp. 797, 80.

C. 908, 88 3, 8, and Code Civ. Proc. & 2721, See "Pleading,” $ 4.

property bequeathed to a charitable corporation

held taxable while in the hands of the execoSUPREME COURTS.

tor.-People v. Wells (Sup.) 826.

The easement held by a turnpike company for See "Courts," $ 4.

the maintenance of its road, together with all

its structures and improvements, held subject SURRENDER.

to taxation against it as "land," under Laws

1896, p. 796, c. 908, § 2, subd. 3, as amended by Of demised premises, see “Landlord and Ten

Laws 1899, p. 1589, c. 712.-In re President, ant," $ 3.

etc., of Albany & B. Turnpike Road (Sup.) 1104.

The franchise of a turnpike company is not SURVIVING PARTNERS.

subject to assessment by the assessors of a town

in which part of the road is located.-In re See “Partnership,” $$ 3, 4.

President, etc., of Albany & B. Turnpike Road

(Sup.) 1104. SURVIVORSHIP.

Tax Law, Laws 1896, p. 797, c. 908, $ 3, held

not to impliedly repeal exemption from taxation See "Joint Tenancy."

of university property under its charter, as

amended by Laws 1893, p. 84, c. 54, $ 8.-People Evidence, see "Death,” g 1.

v. Wells (Šup.) 1107. Of devisees or legatees, see "Wills," $ 4.

8 2. Levy and assessment. SUSPENSION.

A corporation assessed for taxation held to

have been aggrieved thereby, so as to be entitled Of injunction, see “Injunction," $ 2.

to a cancellation of the tax.-People v. Feitner Of judgment, see "Judgment," $ 6.

(Sup.) 304.

Action of court in determining a tax illegal · TAXATION.

on the return to the writ of certiorari issued to review the assessment held not erroneous.-Peo

ple v. Feitner (Sup.) 304. Local or special taxes. Assessments for municipal improvements, see

Statement made by a corporation to commis

sioners of assessment held binding on the com"Municipal Corporations," $ 4.

missioners, where they failed to require any City taxes, see “Municipal Corporations," $ 8.

further evidence.-People v. Feitner (Sup.) 304. Occupation or privilege taxes.

"Capital stock," as used in the tax law, does See "Intoxicating Liquors," $ 2.

not mean share stock, but means the actual For operation of street railroad, see "Street money or property paid in and possessed by the Railroads," $ 1.

corporation.-People v. Feitner (Sup.) 304. § 1. Liability of persons and property. A corporation is entitled, on an assessinent

Foreign corporation, maintaining in New York for taxation, to have deducted from its personal a mere agency for the sale of its goods, held property the amount of its debts.--People T. taxable only on the value of its office furniture. Feitner (Sup.) 304. -People v. Wells (Sup.) 81.

The assessors have no jurisdiction to deterThe gas pipes and mains of a corporation, mine the assessa ble value of the franchise of a laid in the streets and included under the fran- | corporation.-People v. Feitner (Sup.) 304. chişe tax law in the state assessment, are not

The Comptroller, by failing to appear on the taxable by local authorities.-People v. Wells

return day of a motion for certiorari, does not (Sup.) 595.

waive his right to move to amend the comLaws 1902, p. 461, c. 172, held to have the mand; but the court should require him tà exeffect of exempting the property of trust com-cuse his default before hearing on the motion. panies from local taxation.-In re Rochester' -People v. Miller (Sup.) 341.


Jnder Laws 1896, p. 864, c. 908, 8 196, a to refuudments of transfer taxes, held not retroit of certiorari, commanding the Comptroller active.-In re Hoople (Sup.) 842.

return the grounds of his refusal to revise | The values of both real and personal property franchise tax imposed on a relator, is unau

of decedent must be added together in deterorized.-People v. Miller (Sup.) 341.

mining an exemption under the transfer tax Where a return to certiorari to review a per-law.-In re Hallock's Estate (Sur.) 255. nal tax assessment did not raise any issue

Under Tax Law, $$ 220, 221 (Laws 1896, p. the facts alleged in the petition, it was not

868, c. 908; Laws 1903, p. 165, c. 41), real esror to reduce the tax in accordance with re

tate of testator, bequeathed to sister, held taxtor's statement to the tax commissioners.

-able.-In re Hallock's Estate (Sur.) 255. eople v. Wells (Sup.) 543.

A legacy in lieu of dower is taxable property. Where relator's return of personalty for tax- _

-In re Riemann's Estate (Sur.) 731, ion was not contradicted by the tax commisoners, they could not arbitrarily levy a tax 1 the ground that they did not believe it.eople y. Wells (Sup.) 543. On certiorari to correct tax assessment, com- | See “Costs," 8 3. issioners must state the evidence on which heir conclusion is based.-People v. Wells

Sup.) 595.

Gross earnings of corporation, as shown by See "Joint Tenancy."
lividend declared, held not a proper basis of
issessment.-People v. Wells (Sup.) 595.

18 l. Mutual rights, duties, and liabili.

ties of co-tenants. The franchise of a corporation is not to be! A tenant in common, who occupies the premonsidered in assessing its taxable capital.- ises himself, receiving no rent, held not liable People v. Wells (Sup.) 595.

to his co-tenants for the use of the property.Statement on application to correct assess Willes v. Loomis (Sup.) 1086. ment of liabilities and assets must be accepted In the absence of any evidence on the subject, as true.-People v. Wells (Sup.) 595.

the shares of several tenants in common are Under Tax Law, Laws 1896, p. 800, c. 908, 8 presumed to be equal. -Jackson v. Moore (Sup.) 6, held, that one purchasing real estate sub- | 1101. ject to a mortgage debt, who does not assume

$ 2. Rights and liabilities of co-ten. the debt, is not entitled to deduct the debt from

ants as to third persons. an assessment against his personalty.-People

Tenants in common, who conveyed to another, v. Wells (Sup.) 715.

who was to sell premises and divide the proWhere an executor acaniesced in an order re- ceeds, held to become tenants in comme ducing an assessment against the estate, the proceeds as personalty.-Jackson V. Moore assessment could not be considered void be (Sup.) 1101. cause designating the executor as "executor

One tenant in common in personalty may setand trustee.”—People v. Wells (Sup.) 826.

tle for or release his interest in the common $ 3. Tax titles.

property, but cannot settle for or release the inPossession under a tax or assessment lease

terest of his co-tenants.-Jackson V. Moore is not adverse to the title of the owner in fee,

(Sup.) 1101. but is in subordination thereto.—Miller v. War- As a general rule, tenants in common of perren (Sup.) 1011.

sonal property must join in bringing actions,

whether arising ex contractu or ex delicto.$ 4. Legacy, inheritance, and transfer Jackson v. Moore (Sup.) 1101.

taxes. A proceeding for the vacation of a surrogate's

Defendant, who had settled with plaintiff's order illegally assessing a transfer tax held not 19

co-tenants, could not object to plaintiff's mainbarred by limitations imposed by Code . Civ.

taining action alone for moneys in his possesProc. 88 380, 382, 414.-In re Hoople (Sup.) |

sion belonging to her.-Jackson v. Moore (Sup.)

1101. 812. Where the five-year limitation imposed by

Where one tenant in common has settled for Laws 1892, p. 816, c 399, § 6, to a refundment

his portion of the damages on account of the act of transfer taxes illegally assessed and paid,

of another with respect to the common pronerty had not run at the time such section was

before action therefor, his co-tenant may sue amended by Laws 1897, p. 152, c. 284, the fact

without joining him.-Jackson v. Moore sup.)

1101. that eight years had expired before an application to modify the order assessing the tax

TENDER. was made did not preclude the granting of such application.-In re Hoople (Sup.) 842. Of goods sold, see “Sales," 8 2.

Federal bonds held not subject to transfer taxation, under Transfer Tax Act, Laws 1892, p.

TENEMENT HOUSES. 814, c. 399, § 1.-In re Hoople (Sup.) 842.

Laws 1900, p. 916, c. 382, amending Tax Covenants against erection, see “Covenants," Law, Laws 1896, p. 871, c. 908, $ 225, relating $ 1.

and 121 New York State Reporter

C. 469, § 1, where the petition did not comply

with such latter section.-Webster v. Town of
Of leases, see "Landlord and Tenant," 8 3. White Plains (Sup.) 783.

See "Wills."

Member of voluntary unincorporated trade

union, illegally expelled, held entitled to sue in

the state courts to compel reinstatement and to
Computation of time of limitations, see "Lim- enjoin defendants from preventing him from
itation of Actions," 8 2.

working at his trade.-Corregan v. Hay (Sup.)
For performance of contract, see "Specific Per-| 956.
formance," 8 1.

For rescission of contract, see “Contracts," 8

See “Taxation," § 4.

City tax sale, see “Municipal Corporations," 8 8.
Color of title, see "Adverse Possession."

Contracts relating to, as in restraint of trade,
Tax titles, see "Taxation," $ 3.

see “Monopolies," $1.
Title of lessor, see "Landlord and Tenant,"
$ 2.
Particular matters affecting title.

See “Pledges.”

Death of trespasser caused by operation of
Particular species of property or rights.

railroad, see "Railroads," $ 2.

Ejection of trespasser, see “Carriers," $ 3.
See “Patents," $ 1.

Liability of employer for trespass by servant,

see “Master and Servant," $ 9.

To the person, see "Assault and Battery," $ 1.
Liability of employer for defects, see “Master

8 1. Actions.

In an action for trespass in breaking into
and Servant," § 4.

plaintiff's house, compensatory damages held to

include damages for the injury, insult, invasion

of privacy, and interference with the comfort

nf plaintiff and his family.-Reed v. New York
Admissions as evidence, see “Evidence," $ 3. & R. Gas Co. (Sup.) 810.
Assessment of damages, see "Damages," § 4.
Causing death, see "Death,” $ 2.

In an action for trespass, a verdict awarding

plaintiff $150 held not so excessive as to require
Measure of damages, see "Damages," $ 3.

reversal on appeal.-Reed v. New York & R.
Pleading damages, see "Damages," $ 4.

Gas Co. (Sup.) 810.
Release of joint tort feasors, see "Release,"
$ 1.

By particular classes of parties.
See “Municipal Corporations," $ 7.

See "New Trial"; "Reference"; "Witnesses."
Employés, see "Master and Servant," $ 9. Limitation of action as question for jury, see

"Limitation of Actions," $ 3.
Particular remedies for torts.

Performance or breach of contract as question
See “Arrest,” $ 1; "Trespass," $ 1.

for jury, see "Sales," $ 1.
Particular torts.

Usury as question for jury, see "Usury," § 1.
See “Assault and Battery," $ 1; "Fraud";

Proceedings incident to trials.
"Libel and Slander"; "Negligence"; "Nui Entry of judgment after trial of issues, see
sance"; "Trespass"; "Trover and Conver “Judgment," $ 2.

Place of trial, see “Venue," $ 1.

Right to trial by jury, see "Jury," $ 1.

Trial of particular civil actions or proceedings.
Mandamus to town officers, see “Mandamus,” | See "Assault and Battery," $ 1: “Negligence."
§ 1.

$ 3.
8 1. Fiscal management, public debt, Disputed claims against estate of decedent, sec
securities, and taxation.

"Èxecutors and Administrators," $ 5.
Statutory Construction Law, Laws 1892, p. For breach of contract, see “Sales, " 3 5.
1491, c. 677, § 31, held not to preserve juris- For damages from nuisance, see "Nuisance,"
diction of a board of supervisors to grant a § 1.
petition of township officers to issue bonds, com- For death of tenant, see "Landlord and Ten-
plying with Laws 1892, p. 1761, c. 686, $ 69, asant," $ 4.
amended, filed, but not acted on, before such For discharge from employment, see "Master
section was repealed by Laws 1903, p. 1084, and Servant," $ 1.

For personal injuries, see “Carriers," $ 3;! Where there is a fatal variance, and plain.

"Electricity"; "Master and Servant," $ 8; tiff decliues the court's offer of leave to with:
"Street Railroads," § 1.

draw a juror, the complaint is properly dis-
For price of goods sold,

missed.- Reilly v. Vought (Sup.) 492.
For rent, see “Landlord and Tenant," $ 5.

Where the evidence is conflicting, an issue
For wrongful death caused by operation of

must be submitted to the jury.-Blumberg V.
street railroad, see "Street Railroads," $ 1.

| Marks (Sup.) 512; Tanenbaum v. Josephi (Sup.)
On insurance policy, see "Insurance," 12.

Probate proceedings, see "Wills," $ 3.
To recover freight charges, see "Carriers," 8 2.

The credibility of witnesses, although one of

them is a party interested in the recovery and
Trial of criminal prosecutions.. the other wholly disinterested, is for the jury.
See "Criminal Law," $ 4; "Perjury," $ 1. -Sterpaman v. Metropolitan Life Ins. Co.

(Sup.) 304.
§ 1. Notice of trial and preliminary

6. Instructions to jury.
Under Code Civ. Proc. $ 977, a note of issue, In an action against street railway for injuries
filed before noticing of a cause for trial, is in- to one driving a team, charge imposing too great
effectual.-McMann v. Brown (Sup.) 38.

care on defendant held not cured by a subse-

quent cbarge, qualified by reference to first
§ 2. Course and conduct of trial in gen-

charge.-Klimpl v. Metropolitan St. Ry. Co.

(Sup.) 39.
In the absence of proof of surprise, denial of
an application to adjourn to call another wit.

In an action for servant's injuries, charge on
ness, made near the close of the testimony, is

defendant's duty and liability held harmless, in
not an abuse of discretion on the part of the view of subsequent charge. -Nelson V. Young
trial judge.-Block v. Sherry (Sup.) 160.

(Sup.) 69.
$ 3. Reception of evidence.

In an action for damages because of the main-

tenance of a nuisance, held that, if defendant
A general objection to an answer as to what
deceased's wages would be held not to raise an

wished an instruction relative to a petition to

the board of health, introduced in evidence, he
objection to the finished answer as to the union

should have requested it.-Pritchard v. Edison
scale of wages, on the ground of absence of

Electric Illuminating Co. (Sup.) 225.
evidence that deceased was a union man.-Nel-
son v. Young (Sup.) 69.

Language of court in response to request for
Debtor's books of account held properly ex-

an instruction held to have amounted to a giv-
cluded, in action by creditor against third per-

ing of the same.-Buckley v. Westchester Light-
son on promise to pay debt.-Flagg V. Fisk

ing Co. (Sup.) 763.
(Sup.) 530.

Where the trial court has fully charged the
An objection to testimony, made subsequent

| law on one aspect of the case, it is not bound
to the giving of the same, is of no avail; the

to reiterate it in another form.-Buckley v.
proper remedy being a motion to strike.-

Westchester Lighting Co. (Sup.) 763.
Buckley v. Westchester Lighting Co. (Sup.) 763. In an action against a railroad for injuries
Defendant's exception to the admission of

sustained by plaintiff in a crossing accident, in-
evidence on the trial of an action on an option

structions as to the duty of defendant in the way
contract for the purchase of land held sufficient

of warning signals, together with remarks of
to raise the question whether his liability was

the court on the instructions and the law of the
measured by the actual acreage or by the num-

case as laid down by the Appellate Division,
ber of paper acres.- Warden v. Tesla (Sup.) 853.

held error.–Smith v. Lehigh Val. R. Co. (Sup.)

The order in which proof may be introduced
is in the sound discretion of the court.-John 87. Waiver and correction of irregu.
ston v. Mutual Reserve Fund Life Ins. Co. (City

larities and errors.
Ct. N. Y.) 438.

Conduct of counsel on trial held to have

amounted to a waiver of his exceptions to the
$ 4. Arguments and conduct of counsel | admission of certain evidence.-Fox v. Met-

Conveying to the jurors, in the cross-examina- ropolitan St. Ry. Co. (Sup.) 754.
tion of a witness for defendant, the information
that defendant was insured against loss, consti-

Where the trial court commits an error in a
tutes reversible error.--Lassig v. Barsky (Sup.)

ruling on the admission of evidence, it may cure

the error by striking out the testimony, or by

granting a new trial to the party against whom
Remarks of counsel held a sufficient ground for

the ruling is made.-Fox i. Metropolitan St.
reversal, notwithstanding court's warning to Ry. Co. (Sup.) 754.
disregard them.-Benoit y. New York Cent. &
H. R. R. Co. (Sup.) 951.

$ 5. Taking case or question from jury.
· Failure to move to dismiss the complaint at
the close of plaintiff's case, or of the whole case, / Conversion by factor, see "Factors."
is an admission that there is a questiou of fact. Counterclaim, see "Set-Off and Counterclaim,"
-Rapp v. Hutchinson Stair Elevator Co. (Sup.). $ 1.

l'resumptions, see "Evidence,” $ 1.

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