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DECISION.

See Trial.

DEPOSITIONS.

Examination before commencemen! of action-grounds.-A statement of facts by an applicant for the examination of a witness before the commencement of an action, showing that it is important that he should know what the witness would testify to, and that he cannot, with safety, bring the action until he is thus advised, does not disclose circumstances rendering it necessary for his protection that the witness' testimony should be perpetuated, as is required by Code Civ. Pro. § 872, subd. 6. White, Matter of, 154.

--Code Civ. Pro. 88 871-876, authorizing the taking of depositions of witnesses whose testimony is material in an action about to be brought, does not enable one to take the deposition of a witness to determine whether he has a cause of action against a certain person. White, Matter of, 154.

Examination of defendant before suit brought.-Under Code Civ. Pro. § 870, authorizing an adverse party to take the deposition of a person whom he expects to make a party to an action, before suit brought, an order may be granted to the plaintiff to examine a person against whom he intends to bring an action to obtain facts necessary to draw his complaint. Darling, Matter of, 452.

Affidavit-requisites.-Under

Code

Civ. Pro. § 872, providing that one desiring to take a deposition where no action is pending shall make an affidavit giving the names and addresses of expected parties to the action, that the expected defendants are of full age, and that the testimony sought is material and necessary, where an affidavit failed to state that the expected defendants were of full age and the affidavit was made by the attorney, and did not disclose why plaintiff did not make it, or that the facts sought were not within his knowledge, leave to take the deposition should have been refused. Darling, Matter of, 452.

NOTE. EXAMINATION OF PARTY OR WITNESS IN PROPOSED ACTION. 154-160

a. References.

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husband's liability. An attorney may maintain an action against a isband for services rendered the wife in a suit for separation. Wood v. Wood, 236.

- separation—counsel fees.-Plain- | tiff in an action for separation alleged defendant's abusive language, threats, insufficient support; also neglect of her during illness. It appeared that she was in very bad health, and in need, and that the police court had refused her alimony because her husband had of fered her a home. Held, under these circumstances, and in view of the fact that her suit for separation made it impossible for her to live with her husband, that this was a proper case for the granting of alimony and counsel fee by the supreme court. Wood v. Wood, 236.

NOTE. ALIMONY AND COUNSEL
FEES IN ACTION FOR SEPARATION

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3. Agreements.

4. Rule in New York City.
5. Duration.

b. Permanent alimony.

c. Counsel fees and expenses.
d. Amount.

e. Modification.

f. Enforcement.

1. In general.

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Custody of children.-Where plaintiff
obtained a divorce on the ground of the
wife's adultery, which charge was based
on the fact that she had obtained a de-
cree of divorce in a foreign jurisdiction,
and had remarried, a decree granting
her the custody of the children-two
daughters, aged 11 and 7 years-will
not be disturbed when it appears that
the wife is a proper person for their
custody, no other misconduct than her
remarriage being shown, and that she
has a comfortable home for them, and
has long had the care and expense of
their living and education, and that
they are much attached to, and wish not
to be separated from, her, while the
husband has less means, has no home
provided for the children, and had
never shown a strong desire for their
v. Oster-
companionship. Osterhoudt
houdt, 300.

NOTE.-CUSTODY OF CHILDREN AFT-
ER DIVORCE OR SEPARATION..300-30S
a. The statute.

b. In general-Jurisdiction.

c. Agreements of parents.

d. Modification.

e. Remedies to obtain custody. f. Death of custodian.

g. Appeal-Discretion.

EVIDENCE.

Agency res gesta.-Where an attorney brings to plaintiff, to be printed, a manuscript purporting to be his argument as defendant's attorney in a lawsuit, he is presumed to be acting as agent, and not as principal; and, to show his authority to order the work as agent, admissions and declarations of

2. Security and sequestration. an officer of defendant made to plain

tiff's employee during progress of the work are admissible, as part of the res gestæ. Livingston-Middleditch Co. v. N. Y. College of Dentistry, 398.

Rebutting inference from bills rendered. The plaintiff, having printed the argument of defendant's attorney in a lawsuit, manuscript for which was brought to plaintiff by the attorney, may rebut the inference that it extended credit therefor to the attorney, and not to defendant, arising from its having sent the bill directly to the attorney, by evidence explaining why it did Livingston-Middleditch Co. v. N. Y. College of Dentistry, 398.

So.

Books of account-foundation for ad

The father and mother of an infant being his natural guardians and guardians of his person, may, for him, waive the privilege given by Code Civ. Pro. § 834, that a physician shall not be allowed to disclose any informa tion which he acquired in attending a patient, and the waiver may be made in an action to which the infant is not a party; and if the father, in an action by him for loss of the infant's services, cannot, because of his interest, waive the privilege, the mother, being present and making no objection to his waiver, will be presumed to have acquiesced therein and thus made it a valid waiver.

Corey v. Bolton, 343.

— —Prejudice.-A guardian of an infant, not being called on to do so, need not, before making the waiver, show that the infant will not be prejudiced by waiver of the infant's privilege that a physician shall not disclose any information acquired in attending a patient. Scott, J., dissenting. Corey

mission.-Evidence in an action for
merchandise sold and delivered that
plaintiff's books of account contain a
correct statement of the merchandise
sold and delivered to defendant within
the dates in question; that they were
kept by his wife from memoranda fur-
nished by him; that plaintiff personally
delivered nearly all the merchandise v. Bolton, 343.
covered by the account against defend-
ant; that one of his customers was in
the habit of settling with him by his
books, in reliance on his honesty, and
that another customer settled with him
according to plaintiff's books and his
own, and always found them to be cor-
rect, is a sufficient foundation for the
admission of the books in evidence.
Smith v. Smith, 470.

NOTE.-BOOKS OF ACCOUNT AS EVI

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NOTE.-WAIVER OF PRIVILEGE OF
COMMUNICATIONS TO ATTORNEY
OR PHYSICIAN.

a. The statute.
b. In general.

c. Who may make waiver.
d. How waiver effected.

.343-356

1. Testimony of client or patient.

2. Calling physician or attor. ney as witness.

3. In applications for insur

ance.

4. Subscribing witnesses.

EXAMINATION BEFORE ACTION.
See Depositions.

EXCISE.

See Liquor-tax certificate.

e. Loans, payments, dates, etc. Physician - privileged communication-waiver-infants.-The word "patient," in Code Civ. Pro. § 834, providing that a physician shall not be allowed to disclose any information which he acquired in attending a patient, and EXECUTORS section 836, providing that section 834 shall apply to any examination of a person as a witness, "unless the provisions thereof are expressly waived on the trial or examination by

the patient," includes persons under disability, such as infancy, so that waiver may be made for them. Corey v. Bolton, 343.

VII. N. Y. A. C

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EXEMPTIONS.

Pension money-death of pensioner properly purchased with pension money judgment-lien.-Under Code Civ. Pro. § 1393, which exempts a pen33

at special term will not be amended on motion before a different judge, such motion being, in effect, an effort to review the judgment. Wells v. Vanderwerker, 73.

sion from execution, except that real property, purchased therewith shall be subject to seizure for taxes, a house and lot purchased in 1891 by decedent with pension money, and held by her until her death, in 1895, is not subject to exeWant of prosecution—judgment on cution after her decease to satisfy a merits.-A judgment dismissing a comjudgment obtained against her in 1889, plaint "on the merits" in default of since the exemption of property pur-proof is erroneous. Kruger v. Persons, chased with pension money is absolute, and the judgment constituted no lien on such property. Tyler v. Ballard, 465. NOTE.-EXEMPTION OF PENSION MONEYS AFTER DEATH OF PENSIONER.... ...465-467

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a. Statutes.

b. Sessions of Courts.

c. Service of process and papers.
d. Presentment of negotiable in-
struments.

HOLIDAYS.
See Half Holiday.
IMPRISONMENT.
See Contempt.
INSURANCE.

See Adoption.
INTOXICATING LIQUORS.
See Liquor-tax certificate.

JUDGMENT.

425.

Vacation perjured testimony.—A judgment will be vacated if shown to be based on perjured testimony inspired and manufactured by an attorney for the successful party, who conspired with the witnesses to obtain the judgment. Nugent v. Metropolitan St. Ry. Co. 193. NOTE.-NEW TRIAL FOR PERJURY.... .193-209

a. General principles.

b. Fictitious case supported by per

jury.

c. Perjury of party to action.
d. Perjury of witnesses.

JUDGMENT ON PLEADINGS.

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Actions involving title to real property-removal to Supreme Courtpleading.-Code Civ. Pro. § 2957, provides that on removal of an action involving title to real property from a justice's court to the supreme court, the plaintiff must complain for the same cause of action only. The complaint in trespass before a justice alleged that deAmendment.-A judgment rendered fendant's cattle trespassed on lands

See Trial.

See Divorce and Separation.
See Exemptions.

rented and in possession of plaintiff, and destroyed the crops thereon. The defendant answered, denying title of plaintiff's lessor, and on removal to the supreme court plaintiff, in his complaint, alleged in addition that defendant and his cattle "otherwise injured said premises." Held that the complaint in the new action contained the same cause of action as the original one. Wilgus v. Wilkinson, 363.

-lack of identity of cause of action -remedy.-Under Code Civ. Pro. § 2957, providing that on removal of an action involving title to real property from a justice's court to the supreme court the plaintiff must complain for the same cause of action as that set up in the complaint, if the complaint in the supreme court fails to conform to the complaint in the justice's court the defendant's remedy is by a motion to strike it out. Wilgus v. Wilkinson, 363.

— —change of plea.- -Where an action of trespass is removed from a justice's court to the supreme court, after an issue of title to real property has been raised by defendant by a plea admitting the trespass, but denying plaintiff's title, the defendant cannot, in the supreme court, withdraw his plea, and interpose a general denial. Wilgus v. Wilkinson, 363.

NOTE. PLEADINGS IN ACTION RE-
MOVED FROM JUSTICE'S COURT BY
PLEA OF TITLE..

.363-365

which provides that the issuing of a
warrant for the removal of a tenant
from demised premises annuls the rela-
tion of landlord and tenant, but does
not prevent the landlord from recover-
ing rent which was payable at the time
of the issuing of the warrant, a tenant
under a lease by which the rent is pay-
able monthly in advance is liable for a
whole month's rent, though he vacated
pursuant to a warrant after the rent
was payable, but before the expiration
of the month. Martin v. Lee, 161.
NOTE.-RECOVERY OF RENT AFTER

REMOVAL OF TENANT BY SUM-
MARY PROCEEDINGS..

a. References-Statute.
b. Unexecuted judgment
render.

.161-165

sur

c. Kent payable in advance.
d. Rent payable after occupation.
e. Subtenants.

LIEN.

See Attorneys.
See Exemptions.

See Mechanics' Lien.

LIQUOR TAX CERTIFICATE.

Property rights.-The right to engage in the sale of liquors, granted by a liquor-tax certificate, constitutes a species of property. Lyman, Matter of, 9. Protection against forfeiture.—The holder of a liquor-tax certificate, grantSummons service-deputation-re-ing the right to engage in the sale of quest. Where plaintiff's agent had pos- liquors, may invoke the general rules of session of the note sued on, demanded law for the protection of property in any its payment, and commenced action proceedings intended for the forfeiture thereon, his request that he be depu- of such rights. Lyman, Matter of, 9. tized to serve the summons was at plaintiff's request. Loucks v. Hallenbeck, 314.

-agent of plaintiff.-The agent of the plaintiff does not come within the inhibition of the statute which precludes the plaintiff himself from serving the summons. Herrick, J., dissenting. Loucks v. Hallenbeck, 314.

NOTE.-DEPUTATION TO SERVE PRO-
CESS OF JUSTICE OF THE PEACE.
.314-318

LANDLORD AND TENANT. Termination of lease-liability for rent.-Under Code Civ. Proc. § 2253,

Area of legal sales.-The respondent was authorized by a liquor-tax certificate to sell liquors "inside Washington Park Baseball Grounds, North side of Third Street, three hundred and fifty There was a bar at the location named, feet east of Third Avenue, Brooklyn." but when games were in progress kegs of beer were placed at different locations on the grounds, from which beer was drawn and sold to spectators. Held, that the sales were lawful, and the certificate should not be revoked. Lyman, Matter of, 9.

Sales at other places-delegation.Where one holding a liquor-tax certificate, allowing him to sell liquor at a

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