The New York Supplement

PAYMENT.

and 85 New York State Reporter.

See, also, "Accord and Satisfaction"; "Compro-
mise and Settlement."

Part payment within statute of limitations, see
"Limitation of Actions,” § 2.

§ 4. Demurrer.

On sustaining a demurrer to a replication to a
plea which goes to the whole cause of action, a
final judgment for defendant is proper.-Hen-
riques v. Miriam Osborn Memorial Home (Sup.)
133; Same v. Yale University, Id.

Under the Code a demurrer reaches back
riques v. Yale University (Sup.) 284.

Of particular classes of obligations or liabilities. to condemn the first defective pleading.-Hen-
See "Costs," § 5.

Taxes, see "Taxation," § 3.

§ 1. Recovery of payments.

Evidence held insufficient to show that a pay-
ment was made under duress.-Edward C. Jones
Co. v. Board of Education of City of Mt. Ver-
non (Sup.) 950.

PERPETUITIES.

Provisions in will that, after certain pay-
ments, net income should be applied to the dis-
charge of incumbrance, held not invalid as an ac-
cumulation, within 1 Rev. St. p. 728, § 55.-
Hascall v. King (Sup.) 73.

PERSONAL INJURIES.

See "Assault and Battery"; "Carriers,",, § 2;
"Master and Servant," § 2; "Negligence."
To person on or near railroad tracks, see "Rail-
roads," § 1.

To traveler on highway, see "Municipal Corpora-
tions," § 8.

crossing railroad, see "Railroads," § 1.

Where supplemental complaint introduces
causes of action not proper to be joined with the
original complaint, the two may be demurred to
together on that ground.-Harris v. Elliott (Sup.)
1012.

5. Amendments.

Leave to amend should not be granted where
the pleader cannot truthfully do so.-Henriques
Same v. Yale University, Id.
v. Miriam Osborn Memorial Home (Sup.) 133:

Complaint held demurrable on the ground of
misjoinder of causes of action.-Harris v. Elliott
(Sup.) 1012.

§ 6. Bill of particulars and copy of ac-
count.

held to show sufficient compliance with an order
Affidavits, papers, and proceedings in the case
to serve a bill of particulars.-Cruikshank v.
Cruikshank (Sup.) 926.

Affidavit by attorney only on motion for bill
of particulars held insufficient.-Mayer v. Mayer
(Sup.) 1079.

§ 7. Motions.

An answer denying, "on information and be-
lief," that services were rendered at defendant's
request, held not a sham pleading, where de-
fendant was insane at the time the services were
rendered.-Hensberry v. Clark (Sup.) 308.

Where it is doubtful if a complaint states
more than one cause of action, a motion to com-
pel plaintiff to separately number the alleged
several causes should not be granted.-Pope v.
Kelly (Sup.) 557.

A motion to strike out part of an answer will
be denied when it is apparent from the answer
itself that the motion is not tenable.-Kucher v.
Carrl (City Ct. N. Y.) 168.

POLICE POWER.

PRESUMPTIONS.

Of municipality, see "Municipal Corporations," On appeal, see "Appeal," § 9.
§ 6.

POLICY.

Of insurance, see "Insurance."

POSSESSION.

See "Adverse Possession."

Of office, see "Officers," § 1.

Retention by grantor in fraudulent conveyance,
see "Fraudulent Conveyances," § 1.

POWERS.

Of attorney, see "Principal and Agent."

PRACTICE.

Procedure of particular courts, see "Courts."
In particular civil actions or proceedings.
See "Contempt"; "Divorce," § 1; "Interplead-
er"; "Mandamus," § 2.

Condemnation proceedings, see "Eminent Do-
main," § 3.

Particular proceedings in actions.

See "Appearance"; "Costs"; "Damages," § 2;
"Dismissal and Nonsuit"; "Evidence"; "Ex-
ecution"; "Judgment"; "Jury"; "Limitation
of Actions"; "Motions"; "New Trial"; "Par-
ties"; "Pleading"; "Reference"; "Stipula-
tions"; "Trial.'

Nonsuit, see "Trial." § 5.
Verdict, see "Trial," § 7.

Particular remedies in or incident to actions.

PRINCIPAL AND AGENT.

See, also, "Attorney and Client"; "Brokers";
"Factors."

Agency of partner for firm, see "Partnership,"
$ 1.

Corporate agents, see "Corporations," § 4.

§ 1. Rights and liabilities as to third

persons.

The action of one who had previously acted as
agent held binding on the principal giving no no-
tice of revocation of agency.-Vogel v. Weiss-
mann (City Ct. N. Y.) 173.

Where a principal is not disclosed until after
contract made by agent, it does not release
the agent from his liability.-Whiting v. Saun-
ders (Sup.) 211.

Agent who discloses his principal held not
bound on a contract, unless on clear evidence
of intent to substitute his liability for that of
his principal.-Whiting v. Saunders (Sup.) 211.

Where materials furnished are charged to
agent, the creditor, after discovering principal,
cannot hold both as principal debtors.-Booth v.
Barron (Sup.) 391.

An undisclosed principal may be held for an
act done with his authority by an agent in his
own name.-Jennings v. Davies (Sup.) 437.

Agreement with agent for sale of lots that
he shall lay out streets, construct sewers, and
pave the lot does not authorize agent to con-
tract with purchaser to lay walks and put in
sewer.-Hogan v. O'Brien (Sup.) 530.

See "Arrest"; "Attachment"; "Discovery"; signed by another in his own name as agent.-
"Injunction"; "Receivers."

Procedure in criminal prosecutions.

See "Criminal Law"; "Intoxicating Liquors,"
§ 2.

Procedure in exercise of special jurisdictions.
In admiralty, see “Shipping," § 3.

In equity, see "Equity."

In insolvency, see "Insolvency."

A person cannot be held as principal on notes
New York State Banking Co. v. Van Antwerp
(Sup.) 653.

PRINCIPAL AND SURETY.

See, also, "Bonds"; "Guaranty."

Sureties on attachment bond, see "Attachment,"
§ 1.

In justices courts, see "Justices of the Peace," § 1. Creation and existence of relation.
§ 2.

Procedure on review.

See Appeal"; "Certiorari"; "Justices of the
Peace," § 3.

PREFERENCES.

Effect of proceedings in insolvency, see "Insol-
vency."

PREJUDICE.

Ground for reversal in civil actions, see "Appeal,"

§ 9.

PRELIMINARY INJUNCTION.

See "Injunction," § 2.

Facts held not to show suretyship.-Crampton
v. Foster (Sup.) 883.

PRIVATE NUISANCE.

See "Nuisance," § 1.

PRIVATE ROADS..

Rights of way, see "Easements."

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

PROBATE.

Of will, see "Wills," § 4.

PROCESS.

and 85 New York State Reporter.

PUBLIC USE.

See "Arrest"; "Execution”; “Injunction"; "Man- Taking property for public use, see "Eminent Do-

damus."

Foreclosure, see "Mortgages," § 6.

main.'

PROHIBITION.

PUNISHMENT.

See "Pardon."

Of traffic in intoxicating liquors, see "Intoxicat- Violation of injunction, see "Injunction," § 4.
ing Liquors."

While a person approaching a railroad cross-
ing is negligent, as a matter of law, if he fails
to look and listen, the court cannot go into fur-
ther details as to caution required, without
usurping the province of the jury.-Lockwood
v. Poughkeepsie & E. Ry. Co. (Sup.) 19.

Evidence in action for injuries at railroad
crossing reviewed, and held, that the case was

Lands under water, see "Navigable Waters," § 2. properly submitted to the jury.-Lewis v. Long

§ 1. Colonial and proprietary grants.

Colonial patents granting to the town of
Southampton land within its limits held to con-
fer upon it title to land under the Great South
Bay, subject to rights of navigation.-People v.
Jessup (Sup.) 228.

PUBLIC NUISANCE.

See "Nuisance," § 2.

PUBLIC ROADS.

See "Highways."

PUBLIC SCHOOLS.

See "Schools and School Districts."

Island R. Co. (Sup.) 558.

Whether decedent killed by railroad train on
crossing could have seen it by reasonable dili-
gence held a question for the jury.-Wieland_v.
President, etc., of Delaware & H. Canal Co.
(Sup.) 776.

Where decedent stepped directly in front of a
moving engine and was killed, held to show con-
tributory negligence precluding recovery.-RyAB
v. New York Cent. & H. R. R. Co. (Sup.) 894.

REAL-ESTATE AGENTS.

See "Brokers."

REAL PROPERTY.

Deeds, see "Deeds."

Congregational Unitarian Soc. of Bernardston
v. Hale (Sup.) 704.

Bequest to religious society held absolute, and
Bernardston v. Hale (Sup.) 704.
not in trust.-Congregational Unitarian Soc. of

A trust to a religious society for the sup-
port of the gospel held valid in Massachusetts,
although in perpetuity.-Congregational Unita-
rian Soc. of Bernardston v. Hale (Sup.) 704.

Gift to religious society of residue of fund
after a void bequest of a part held a good gift
of the whole.-Congregational Unitarian Soc. of
Bernardston v. Hale (Sup.) 704.

REMOVAL OF CLOUD.

See "Quieting Title."

RENT.

See "Landlord and Tenant," § 4.

REPAIRS.

of premises demised, see "Landlord and Tenant,”
§ 3.

REPEAL.

There is no authority for an application by a
railroad company to appellate court for appoint-
ment of referee to take proof of facts and cir-
cumstances under which the common council au-
thorized the street extended across its track.-
In re Extension of North Third Ave. (Sup.) 353. Of statute, see "Statutes," § 1.
Where a court of special term refers all the
issues in a case to a referee, his action is re-
viewable only on appeal.-Albany Brass & Iron
Co. v. Hoffman (Sup.) 779.

See "Pleading," § 5.

REPLEADER.

REPLICATION.

REPLY.

Where plaintiff's cause of action was refera-
ble, and defendant's counterclaim was nonrefera-
ble, held, that the court could not order a com-
pulsory reference of the entire case.-McAleer See "Pleading," § 3.
v. Sinnott (Sup.) 956.

Burden is on party applying for reference, to
show the action is referable.-McAleer v. Sinnott
(Sup.) 956.

An action for services rendered hinging on
construction of contract, and not involving a com-
plicated account, held not referable.-McAleer v.
Sinnott (Sup.) 956.

REFORMATION OF INSTRUMENTS.
See "Cancellation of Instruments."

REHEARING.

See "New Trial."

REINCORPORATION.

See "Corporations," § 6.

RELEASE.

See "Accord and Satisfaction"; "Compromise and
Settlement."

RELIGIOUS SOCIETIES.

Legacy to unincorporated religious society

See "Pleading," § 3.

RESCISSION.

Cancellation of written instrument, see "Cancella-
tion of Instruments."

Of contract, see "Contracts," § 3.

for sale of land, see "Vendor and Purchas-
er," § 1.

RESERVATIONS.

For grantor in fraudulent conveyance, see
"Fraudulent Conveyances," § 1.

RES JUDICATA.

See "Judgment," §§ 6, 7.

RESPONDENTIA.

See "Shipping," § 2.

RESTRAINT OF TRADE.

held valid under the laws of Massachusetts. See "Good Will."

See "Appeal"; "Certiorari"; "Criminal Law," SCHOOLS AND SCHOOL DISTRICTS.
3; "Justices of the Peace," § 3.

REVIVAL.

See "Abatement and Revival."

REVOCATION.

Of probate of will, see "Wills," § 4.

RIGHT OF WAY.

See "Easements."

RIPARIAN RIGHTS.

See "Navigable Waters," § 3.

RISKS.

See, also, "Colleges and Universities."

§ 1. Public schools.

Contract for repairs of building to an amount
in excess of $200 by school trustees on approval
of superintendent of buildings held not binding
on board of education under consolidation act
-Van Dolsen v. Board of Education of City
of New York (Sup.) 720.

SECONDARY EVIDENCE.

In civil actions, see "Evidence," § 3.

SERVANTS.

See "Master and Servant."

SERVICES.

SET-OFF AND COUNTERCLAIM.

See, also, "Partnership," § 2.

Usury as counterclaim, see "Usury."

§ 1. Subject-matter.

In action in tort for conversion by defendant
of property stored with him, a demand for stor-
age prior to the conversion is not a proper coun
terclaim.-Schaefer v. Empire Lithographing

Of intoxicating liquors, see "Intoxicating Liq- Co. (Sup.) 104.

uors."

In action for conversion of collaterals se-
curing note, where the tender of the amount
of the note is alleged, counterclaims for the
amount of the note, and for expenses in at-
tempting to collect a note included in the e
laterals, are demurrable.-Empire Dairy Feed
Co. v. Chatham Nat. Bank (Sup.) 659.

SETTLEMENT.

See "Accord and Satisfaction"; "Account Stat-
ed"; "Compromise and Settlement."

By executor or administrator, see "Executors and
Administrators," § 4.

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