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DECISION. See Trial.
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. §§ 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.
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
b. Statutes and rules.
c. The right to examination
d. Affidavits-Practice, etc.
DISBURSEMENTS. See Attorneys.
Discretion of court.-An application for leave to discontinue an action brought by a creditor against receivers of the debtor was properly refused, where the proceedings on the part of the plaintiff plainly indicated either an attempt to annoy and harass the defendants, or an effort to obtain a priority over other creditors by commencing another proceeding in another state. Kruger v. Persons, 425.
NOTE.-RIGHT OF PLAINTIFF TO
a. Before appearance.
1. In general.
2. Change of law or practice pending trial.
4. Insolvency or bankruptcy. 5. Mistake.
6. En autre droit.
7. Statute of limitations.
9. Condemnation proceedings. 10. Divorce.
c. After counterclaim interposed. d. Terms.
DIVORCE AND SEPARATION. Service of summons-identification. -The server of a summons identified defendant from a photograph, and the person served admitted his name to be the same as defendant's, and the rver was told by a third person who was
present at the service that the person served was defendant. Held, that the identification was insufficient. Randall v. Randall, 45.
NOTE. IDENTIFICATION OF DEFENDANT ON SERVICE OF SUMMONS IN MATRIMONIAL ACTIONS
Alimony. In an action for divorce the only evidence of defendant's circumstances was the opinion of the officer who served the summons that he must earn $25 or $30 per week. He was not sure, however, that defendant held a position, but merely said that he was apparently employed as bookkeeper or cashier for a company named. Held, no evidence on which to base the amount of alimony to be allowed. Randall v. Randall, 45.
husband's liability. An attorney may maintain an action against a isband for services rendered the wife suit for separation. Wood v. Wood, 236.
separation counsel fees.-Plaintiff 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 orfered 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
a. Temporary alimony.
1. In general.
2. Establishment of marriage.
4. Rule in New York City.
b. Permanent alimony.
c. Counsel fees and expenses.
1. In general.
3. Contempt. g. Practice.
1. In general.
2. Institution of proceedings. 3. Appeal.
Judgment-modification of alimony. -After a judgment disposing of the question of the amount of alimony to be paid, and the conditions under which it shall be paid, without any reservation of power to modify it, it cannot be modified by insertion of such a reservation. Livingston v. Livingston, 178. NOTE.-MODIFICATION OF DECREE AS TO ALIMONY. ...178-179 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 decree 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 companionship. Osterhoudt v. Osterhoudt, 300.
NOTE.-CUSTODY OF CHILDREN AFT
ER DIVORCE OR SEPARATION..300-308
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
a. The statute.
b. In general—Jurisdiction.
c. Agreements of parents.
e. Remedies to obtain custody. f. Death of custodian. g. Appeal-Discretion.
tiff's employee during progress of the work are admissible, as part of the res gesta. 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 extend ed 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.
Books of account-foundation for ad
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 furnished by him; that plaintiff personally delivered nearly all the merchandise covered by the account against defendant; 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 correct, is a sufficient foundation for the admission of the books in evidence. Smith v. Smith, 470.
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 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
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 information 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 v. Bolton, 343.
NOTE.-WAIVER OF PRIVILEGE OF
2. Calling physician or attor.
4. Subscribing witnesses.
EXAMINATION BEFORE ACTION.
Pension money-death of pensioner --properly purchased with pension money - judgment—lien.-Under Code Civ. Pro. § 1393, which exempts a pen
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 execution after her decease to satisfy a judgment obtained against her in 1889, since the exemption of property purchased 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....
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.
Want of prosecution-judgment on merits.-A judgment dismissing a complaint "on the merits" in default of proof is erroneous. Kruger v. Persons, 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 PER.193-209
a. General principles.
b. Fictitious case supported by per
c. Perjury of party to action.
JUDGMENT ON PLEADINGS.
JUSTICES OF THE PEACE.
Fees-liability of successful defendant.-A successful defendant in an action tried before a justice of the peace is liable to the justice for the justice's trial fee, fee for entry of judgment and fee for swearing witnesses produced by the defendant. Riley v. Pagan, 132. NOTE. REMEDIES ΤΟ ENFORCE PAYMENT OF FEES OF JUSTICES OF THE PEACE.... ....132-133
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 de
See Divorce and Separation. See Exemptions. Amendment.-A judgment rendered fendant's cattle trespassed on lands
NOTE. PLEADINGS IN ACTION RE-
Summons service-deputation—request.-Where plaintiff's agent had possession of the note sued on, demanded its payment, and commenced action thereon, his request that he be deputized to serve the summons was at plaintiff's request. Loucks v. Hallenbeck,
-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,
which provides that the issuing of a
REMOVAL OF TENANT BY SUM-
See Mechanics' Lien.
c. Kent payable in advance.
d. Rent payable after occupation. e. Subtenants.
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, granting the right to engage in the sale of liquors, may invoke the general rules of law for the protection of property in any proceedings intended for the forfeiture of such rights. Lyman, Matter of, 9.
was authorized by a liquor-tax certifiArea of legal sales.-The respondent cate 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.
Where one holding a liquor-tax certifiSales at other places-delegation.cate, allowing him to sell liquor at a