ACTION TO CHARGE DEFENDANTS NOT SUMMONED— Amount of claim is the amount remaining unpaid at time of verification of complaint, 41.
Defenses pleaded must have existed when action was insti- tuted, or if against the judgment itself, must be as to its validity or binding efficacy, 41.
Defense of statute of limitations prohibited unless it existed at time of original defense. Likewise as to defense of payment, release and discharge in bankruptcy, 42. Form of judgment, 41.
A reversal of decision of trial court upon a question of fact should be made to so appear in the record of the judg- ment or order, 57.
To review an erroneous decision, mandamus is not the proper remedy, 28.
Whether a default shall be opened and a rehearing had purely a matter of discretion, 28.
Determination is not subject for an appeal, 28.
Where writ is issued more than four months after the deter- mination sought to be reviewed thereby became final and binding upon relator, the writ may upon motion of de- fendant be quashed, 28.
Security for, cannot be required when party has absolute right to be brought in as defendant, as a condition for granting such right, 56.
In an action by sheriff to compel delivery of personal property, sheriff is a nominal party not liable. Against executor or administrator may be granted. Other illustrations when granted. What must occur for costs to be awarded against administrators. General rule, will not be awarded against
executor. Disbursements allowed. Costs on appeal al- lowed, 70, 72.
Practice in Surrogate's Court. Decision by referee. When not necessary for Surrogate to file a decision. Practice. Absence of findings. When tried by surrogate. Findings are indispensable. When it is the duty of the party ap- pealing to procure same, 237.
What evidence admitted is error in order to charge executor in an executor's accounting. Appeal in executor's ac- counting, how construed, 238.
JURISDICTION OF MUNICIPAL COURT, 175—
Bringing in additional, in action to set aside general assign- ments in Surrogate's Court-in Equity-Foreclosure-Ac- tion for accounting. Ejectment, 56.
When party to an action dies, while action is pending, the ac- tion cannot legally proceed to judgment without bringing in his personal representatives, 57.
REDEMPTION PROCEEDINGS-
When may be had, 189.
Meaning of words "rent" and "costs", 190.
Tender-its object, when sufficient, 190.
When a tenant cannot redeem, 190.
Power of receiver in-to maintain, 190.
SECTION 829-
Construction of, 261.
When fraud is alleged, who is a competent witness. The rule at common law defined. Attorney's lien does not make him an interested party within the prohibition of the section. Promissory note, where the obligation is joint as well as several, prohibition of statute does not apply. Applies to a surviving partner, and executor of a party examined before trial. Statute must be strictly construed. To be brought within the spirit of the statute is not sufficient. How it affects husband. Mortgage, when not affected. Title to real estate, testimony not permitted of a party claiming title through a deceased person. Receipt inadmissible, when. Counterclaim affected, when. Contradiction of living witness, not prevented by operation of statute. 262. Corporation not affected by the statute, when. Interrogator- ies when allowed. Personal communications with the de- ceased, test of. Dower, testimony of wife incompetent. Appeal, stipulation cannot affect or prevent the operation
of the statute. Agent, transaction had through is a per- sonal transaction within the meaning of the statute. At- torney, when not interested he is competent to testify. Conversion, value of property converted may be testified to only. Curtesy, husband not affected. Replevin, evi- dence of the delivery of property in, may be excluded. Cross examination may open the door to further testi- mony, otherwise inadmissible, 263.
Executor, when interested, and not a competent witness. Mortgager an interested party, when seeks to be relieved. Surety, when the testimony of admissible. Mutual mis- take, how the statute may affect, 264.
SUBMISSION OF CONTROVERSY-
Affidavits by whom made, and what to contain. Court con- fined to facts agreed upon. When court must dismiss submission of controversy, 125.
SUMMARY PROCEEDINGS-
Answer must be verified. Counter affidavit not accepted. Ad- journment in power of clerk. When answer may be re- ceived in. What is meant by affirmative relief and equit- able defense, or counter claim in. When counter claim not allowed in. What answer must contain, 87, 88.
Action to compel delivery of personal property to, must be instituted in his name, or in the name of the debtor-may bring an action to collect a debt attached before judgment in the action in which the attachment was granted. Power of court over money due him. Property held by fraudulent transfer, attackable in such actions, 70.
When a new accounting should be ordered, 57.
to charge debt of decedent upon land; when cannot be maintained, 198.
to recover damages for negligently causing death, survives. Who is sole beneficiary in, 239.
ANCILLARY LETTERS TESTAMENTARY,
Upon what record they will be issued; jurisdiction of New York Surrogate, 1.
In proceedings to determine damages, 72.
APPELLATE DIVISION,
Power of Duty to order new accounting for errors, 57. ASSESSMENT,
Parties uniting to attack, under Sec. 250, Chap. 908, Laws of 1896, 22.
When may not be vacated but reduced, 190.
Moneys recovered by widow as administratrix for negligent killing of husband, are such, 180.
ASSIGNMENT,
General, by Corporation, 265.
ATTACHMENT,
Action by Sheriff to recover attached property, 67.
When the interest of the owner and pledger in certificates of a foreign corporation belonging to a non-resident, in pos- session of a resident, can be levied upon, 286.
What constitutes proceeds of judgment, 88. Settlement of action by parties, 94.
in Surrogate's Court, 387.
CHILDREN,
Habeas corpus to obtain, when dismissed, 214.
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