Abandonment.
Of wife, see "Husband and Wife."
ABATEMENT AND REVIVAL.
Action against corporation for personal inju-
ries abates in New York on the dissolution of the
corporation. In re New York Oxygen Co. (Sup.)
726.
Action for conversion of bill of exchange will
not abate because of pendency of equitable ac-
tion to enforce specific performance of agreement
for division of proceeds of such bill.-Lawatsch
v. Cooney (Sup.) 775.
ABUSE OF PROCESS.
Good faith in calling posse to aid in executing
warrant of dispossession held a question for the
jury.-McLaughry v. Porter (Sup.) 464.
Whether defendant participated in abuse of
process held a question for the jury.-McLaughry
v. Porter (Sup.) 464.
Acceptance.
Of offer, see "Contracts."
ACCORD AND SATISFACTION.
Accepting check which recites that it is "in
full" of an unliquidated demand is a satisfaction
thereof, though the creditor states that he does
not accept it in full.-Reynolds v. Empire Lum-
ber Co. (Sup.) 111.
By executors, see "Executors and Administra-
tors."
By trustees, see "Trusts."
Complaint held not to show a cause of action
for an accounting.-Safety Electric Const. Co.
v. Creamer (Sup.) 411.
ACCOUNT STATED.
Balanced account in book does not constitute
account stated, where it has never been rendered.
-Loeb v. Keyes (Sup.) 491.
Acknowledgment.
Of deed, see "Deeds."
V.33N. Y.S.-72
On appeal bond, see "Appeal.”
On contract, see "Contracts."
On covenants, see "Covenants."
On insurance policy, see "Insurance."
On judgment, see "Judgment."
To set aside deed made by bankrupt, see "Bank-
ruptcy."
When person for whose benefit promise is
made to third person cannot sue promisor.-
Coleman v. Hiler (Sup.) 357.
Plaintiff may bring assumpsit for value of
goods which defendant wrongfully refuses to sur-
render, though they came into defendant's pos-
session by bailment.-Doherty v. Shields (Sup.)
One who claims title by adverse possession
must prove entry and actual possession of the
premises adversely to other claimants.-Bissing
v. Smith (Sup.) 123.
Entry under color of title makes adverse pos-
session, though the supposed title is groundless.
-Bissing v. Smith (Sup.) 123.
Proof of, see "Evidence."
See "Principal and Agent."
Suspending power of, see "Wills."
substantial right."-Blake v. Bolte (Com. F
617.
Order denying motion to compel acceptaneTM
notice of appeal after time to appeal has e
pired does not affect a substantial right.-
kirk v. Hooker (Com. Pl.) 694.
Notice of appeal.
When notice sufficiently shows which of er
eral defendants appeal without naming the-
Wolfe v. Horn (Com. Pl.) 173.
Time within which appeal from justice
must be taken does not begin to run where par
has no knowledge that judgment was rep
against him, nor access to justice's docket.-Bel
v. Defendorf (Sup.) 954.
Code Civ. Proc. § 1309, providing that an
tion on an undertaking on appeal cannot b
maintained until notice of entry of judgment
been given, does not apply to appeals from e
Court of common pleas.-Barber v. Rutherfe.
(Com. Pl.) 89.
When application for order fixing amount
undertaking to be given on appeal from już
ment of general term to court of appeals shet
Effect on written contract, see "Frauds, Stat- be made to general term.-In re Blair's W
(Sup.) 440.
Appeal from order denying motion for new
trial must be made on a case.-Kenney v. Suz-
ner (Com. Pl.) 95.
When record presents only questions of law.-
Injury caused by runaway horse, see "Negli- Chaimson v. Henshing (City Ct. N. Y.) 271.
![[blocks in formation]](https://books.google.com.bd/books/content?id=2Og7AAAAIAAJ&output=html_text&pg=PA1138&img=1&zoom=3&hl=en&q=editions:UOM39015075032303&cds=1&sig=ACfU3U2hdwaHITcqCYk6iHnA_8C-9yXTXQ&edge=0&edge=stretch&ci=90,927,372,209)
Matters not apparent on record.
When stipulation between parties not in record
may be considered on appeal.-Harlem Bridg
M. & F. Ry. Co. v. Town Board of Westchester
(Sup.) 808.
Question of fact will not be reviewed unless ap
peal book contains certificate that all the evideze
is inserted therein.-West v. Wright (Sup) 86.
Objections not raised below.
Objection that record does not present tre
state of facts cannot be raised in appellate court
Order denying motion to require attorney to
pay costs is appealable as "affecting a substan--Robertson v. Hay (Com. Pl.) 31.
tial right."-Peetsch v. Quinn (Com. Pl.) 87;
In re Curran, Id.
Order of county judge in supplementary pro-
ceedings on execution issued out of the county
court adjudging judgment debtor guilty of con-
tempt is appealable.-Weaver v. Brydges (Sup.)
132.
Order denying motion to dismiss petition in con-
demnation proceedings, and appoint referee to
hear and determine issues, is appealable.-In re
Thomson (Sup.) 467; In re De Camp, Id.
Objection that jury, in replevin for goods
seized under execution, fixed value as of time
of levy, cannot be raised for the first time on
appeal.-E. De Braekeleer & Co. v. Schwabe
land (Sup.) 212.
Objection that court charged as fact matter
as to which evidence was conflicting cannot
first raised on appeal.-Ryan v. Conroy (Sap
330.
Objection that defense in action in district court
of New York City was not pleaded on the retur
Order in supplementary proceedings directing day cannot be raised for the first time on appeal.
payment by judgment debtor to sheriff "affects a-Orvis v. Curtiss (Com. Pl.) 589.
Objection that leave of court was not obtained | Reversal.
before suing on judgment cannot be raised for
he first time on appeal. - Knapp v. Valentine
Cir. Ct.) 712.
Objection that plaintiff should have been per-
mitted to recover on a quantum meruit for serv-
ces cannot be raised on appeal, where complaint
lleged special agreement to pay certain sum.-
Marston v. Baerenklau (Com. Pl.) 994.
The overruling of objections to the admissibil-
ty of evidence will not be considered on appeal,
where no ground of objection was stated in the
rial court.-American Distributing Co. v. Ash-
ey (Sup.) 1049.
Weight and sufficiency of evidence.
Common pleas on appeal from general term of
city court will not consider weight of evidence.
-Henry v. Agostini (Com. Pl.) 37.
Evidence held not sufficient to sustain judg-
nent for plaintiff.-Reilly v. Merritt (Com. Pl.)
58.
trial the court may also vacate judgment though
On reversal of order denying motion for a new
no appeal was taken from an order of restitu-
tion.-Whitman v. Johnson (Com. Pl.) 60.
When judgment will be reversed for insuffi-
ciency of evidence.-Hirshkind v. Private Coach-
men's Benevolent & Charitable Ass'n (Com. Pl.)
618.
Defendant in civil action, who is brought be-
fore justice under warrant of arrest, does not
voluntarily appear in action.-Ramsay v. Robin-
son (Sup.) 910.
Finding not within submission will not vitiate
award, where it is severable and may be re-
Where verdict is set aside as excessive, a sec-jected.-Shrump v. Parfitt (Sup.) 409.
Ond verdict on same evidence for greater amount
will also be set aside.-Swan v. Long Island R.
Co. (Sup.) 190.
When rule that verdict on conflicting evidence
will not be disturbed does not apply.-Lavelle
v. Corrignio (Sup.) 376.
Verdict or finding on conflicting evidence will
not be disturbed.-McConnell v. Barber (Sup.)
480: McNaney v. Hall (Sup.) 518; Dunlop v.
Wilken (Sup.) 807.
When affidavit shows fraud in contracting
debt so as to justify arrest of debtor in action
for the debt.-Lamkin v. Oppenheim (Sup.) 367.
Order of arrest must be vacated where it is
adjudged invalid because of defective undertak-
ing.-Bondy v. Collier (Com. Pl.) 996.
When verdict for personal injuries will be set
aside as against weight of evidence.-Butler v.
Steinway R. Co. of Long Island City (Sup.) 845. Of taxes, see "Taxation.”
Error in the admission of evidence is cured by
afterwards striking it out.
(Sup.) 769.
- Rock v. White See, also, "Assignment for Benefit of Credit-
Tenant who proceeds with trial of summary
proceeding waives objection that petition was
not sufficiently definite.-Wyckoff v. Frommer
(Com. Pl.) 11.
Right to appeal from unauthorized order refer-
ring cause to referee to state account is not waiv-
ed by appearing before referee.-Stokes v. Stokes
(Sup.) 1024.
Motion to dismiss must be made on notice of
eight days.-Kenney v. Sumner (Com. Pl.) 95.
Stay of proceedings to enforce judgment does
not affect right to move to dismiss appeal from
judgment.-Kenney v. Sumner (Com. Pl.) 95.
When motion to dismiss appeal from district
court of New York City must be made at spe-
cial term of court of common pleas.-Hand v.
Callaghan (Com. Pl.) 176.
Motion to dismiss must be made on eight days'
notice.-Hand v. Callaghan (Com. Pl.) 176.
Failure to serve notice of argument is not
ground for dismissing appeal.-Hand v. Calla-
ghan (Com. Pl.) 176.
By trustee, see "Trusts."
Declarations of assignor, see "Evidence."
Of certificate of purchase, see "Public Lands."
Of insurance policy, see "Insurance."
Of judgment, see "Judgment."
Of lien, see "Mechanics' Liens."
When order to pay money operates as equitable
assignment. - People v. Flour City Life Ass'n
(Sup.) 97; In re Post, Id.
ASSIGNMENT FOR BENEFIT
OF CREDITORS.
See, also, "Fraudulent Conveyances."
When incorrect schedule made by assignee does
not reflect on act of assignor in making assign-
ment.-McNaney v. Hall (Sup.) 518.
Action for money had and received, see "Par-
ties."
Who may sue, see "Action."
Allegation that defendant agreed to pay a fair | leging that he resides there.-Ladenburg v. Com
and reasonable value of goods held not to render mercial Bank (Sup.) 821.
action one on express contract.-Lansburgh v.
Walsh (Com. Pl.) 45.
Use of common count is sufficient compliance
with requirement of Code that complaint must
state facts constituting cause of action.-Doher-
ty v. Shields (Sup.) 497.
Affidavit which alleges that deponent's soITY
of information and belief is a cablegram re
ceived from a foreign correspondent is insuff
cient.-Ladenburg v. Commercial Bank (Sp)
821.
Affidavit which states promissory note as four-
Complaint in action for value of goods wrong-dation of cause of action held sufficient, whether
fully converted by defendant need not allege the instrument sued on is a note or not.-Lewinsoha
facts giving plaintiff the right to treat the con- v. Kent & Stanley Co. (Sup.) 826.
version by defendant as a sale.-Doherty v.
Shields (Sup.) 497.
Action held to be for money had and received.
and not dismissable, because complaint alleged
that it was for money paid by mistake, while it
appeared that by agreement defendant retained
possession of the money for certain purposes.-
Dieckerhoff v. Alder (Com. Pl.) 698.
Action for money had and received lies against
bank to recover money of plaintiff deposited by
third person in his own name.-Walsh v. Nation-
al Broadway Bank (Com. Pl.) 998.
Against property in hands of receiver, see "Re-
ceivers.'
Attachment plaintiff is not liable for seizure
and sale of property of third person directed by
his attorney with knowledge of the claim of such
third persons.-Wiegmann v. Morimura (Com.
Pl.) 39.
Evidence held not sufficient to show that at
tachment in another state of property of domes-
tic corporation was levied before entry of judg-
ment dissolving corporation.-People v. Mutual
Ben. Life Ass'n of America (Sup.) 191.
Complaint, on information and belief, held to
show inferentially the source of plaintiff's infor-
mation and belief.-Muller v. Hatch Cutlery Co.
(City Ct. N. Y.) 270.
Attachment will not be vacated for irregulari-
ty, unless the irregularity is specified.-Kloh v.
New York Fertilizer Co. (Sup.) 343.
Affidavit by agent held sufficient to sustain at-
tachment. Washburn v. Carthage Nat. Bank
(Sup.) 505.
On application to compel debtor of attachment
defendant to furnish certificate under Code Civ.
Proc. 650, such debtor cannot terminate the
proceeding merely by saying that he is not indebt-
ed to defendant.-American Distributing Co. v.
Distilling & Cattle Feeding Co. (Sup.) 546.
Proceeds of property sold for owner is not
subject to attachment against him while in the
hands of auctioneer who made sale.-Meagher v.
Campbell (Com. Pl.) 700.
On motion to vacate attachment on papers
on which it was granted additional papers can-
not be filed nunc pro tunc for purpose of sus-
taining it. Ladenburg v. Commercial Bank
(Sup.) 821.
Affidavit held sufficient to give jurisdiction to
examine into the facts.-Blakeslee v. Cattelin
(Sчp.) 903.
No levy can be made on claim which has been
assigned, though the assignment was to defrand
creditors.-Harding v. Elliott (Sup.) 1095.
When assignee of claim may make summary
application to compel attorney to pay over me
ey collected thereon before the assignment-
Gillespie v. Mulholland (Com. Pl.) 33.
City court may direct reference in summary
application to compel attorney to pay over me
ey collected.-Gillespie v. Mulholland (Com. Pl.
33.
When action by wife against husband, after
settlement between them, will not be continued
for the benefit of attorney.-Keane v. Keane
(Sup.) 250.
Lien of defendant's attorney on a judgment in
favor of defendant for costs cannot be defeate
by a set-off in favor of plaintiff against defend
ant.-Bevins v. Albro (Sup.) 1079.
Agreement held to give attorney equitable bet
on property. - Whitehead v. O'Sullivan (Sup)
1098.
Attaching of proceeds of sale in hands of, see
"Attachment."
Injury to, see "Carriers."
BAILMENT.
See "Livery Stable Keepers."
Deposit of picture in picture gallery for exte
Allegation of affidavit that plaintiff does busi- bition is not a gratuitous bailment.-Hards &
ness in New York City is not equivalent to al-Willards (Com. Pl.) 25.
Creditor of one who has been adjudged a Striking off cause, see "Practice in Civil Cases."
ankrupt cannot sue to set aside deed made by
im as fraudulent.-Holmes v. Little (Sup.) 225.
BANKS AND BANKING.
Assignment of bank stock, see "Taxation."
Contract by one bank to clear for another does
ot render it liable on check presented at clear-
ig house to same extent as bank for which it
ears.-Grant v. MacNutt (Com. Pl.) 62.
Banker has no right, in the absence of express
ontract, to apply balance of customer's deposit
n unmatured claim against the customer.-Hei-
elbach v. National Park Bank (Sup.) 794.
When depositor is entitled to only nominal
amages for the failure of the Dank to pay check.
-Burroughs v. Tradesmen's Nat. Bank (Sup.)
Whether appropriation of check by depositor
was ratified by him held a question for the jury.-
malley v. Fulton Bank (Sup.) 882.
Of contract, see "Contracts."
Of will, see "Wills."
See, also, "Horse and Street Railroads"; "Rail-
road Companies."
When carrier is liable for injuries to perishable
goods caused by delay in transporting them.-
Cartwright v. Rome, W. & O. R. Co. (Sup.) 147.
Measure of damages against carrier who, by
failure to use due diligence, is unable to perform
the contract, is difference between contract price
of transportation and increased cost necessary to
v. Erie Boatman's Transp. Co. (Super. Buff.)
procure delivery of goods at destination.-Spann
Evidence held not sufficient to show that fall of
See "Negotiable Instruments"; "Vendor and passenger from street car was caused by sudden
Purchaser."
start of the car.-Brennan v. Brooklyn Heights
R. Co. (City Ct. Brook.) 852.
Carrier is prima facie liable for damage to
baggage received in good condition.-Caldwell v.
Erie Transfer Co. (Com. Pl.) 993.
Of acknowledgment, see "Deeds."
To review assessment, see "Taxation."
CHAMPERTY AND MAINTE-
NANCE.
Grantee in deed cannot allege that it is cham-
pertous.-Cornwell v. Clement (Sup.) 866.
Allegation that certain persons conveyed land
of which they were then the owners, but not in
possession, is not equivalent to an allegation that
the land was in possession of a third person un-
der adverse claim of title.-Cornwell v. Clement
(Sup.) 866.
See "Negotiable Instruments."
|