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A milk dealer held guilty of selling adulterat- See "Divorce," §§ 1, 2.
ed milk within Agricultural Law, Laws 1893,

660, 661, c. 338, §§ 20, 22.-People v.
Koster (Sup.) 793.

Under Agricultural Law, Laws 1893, p. 666,
c. 338, § 37, one selling adulterated milk held
liable in one action to cumulative penalties.-
People v. Koster (Sup.) 793.

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ALTERATION OF INSTRUMENTS.

Alteration of bank check, see "Banks and Bank-
ing," § 1.

AMENDMENT.

In particular remedies or special jurisdictions.
See "Parties," § 2.

Of particular acts, instruments, or proceedings.
See "Pleading," § 5; "Process," § 2.
Judgment of municipal court, see "Courts," § 3.

ANIMALS.

Death of animal caused by operation of railroad,
see "Railroads," § 5.

ANNUITIES.

Creation by will, see "Wills," § 6.

ANNULMENT.

Of marriage, see "Marriage."
Of will, see "Wills," § 4.

ANSWER.

In pleading, see "Pleading," § 3.

APPEAL.

See "Certiorari"; "New Trial."
Costs, see "Costs," § 5.

Review in criminal prosecutions, see "Criminal
Law," § 7.

Review in proceedings for assessment of taxes,
see "Taxation," § 2.

Review of proceedings of justices of the peace,
see "Justices of the Peace," § 2.

Review on accounting by executor or adminis-
trator, see "Executors and Administrators,"
§ 6.

§ 1. Nature and grounds of appellate
jurisdiction.

Where the record on appeal failed to show
that appellant had a bona fide grievance the

*Point annotated. See syllabus.

and 140 New York State Reporter

order appealed from would be affirmed.-Hollis
v. Brooklyn Heights R. Co. (Sup.) 197.
§ 2. Decisions reviewable.

*An interlocutory judgment is appealable under the express terms of Code Civ. Proc. § 1349. -Saal v. South Brooklyn Ry. Co. (Sup.) 996. *A decision in an action to enjoin the maintenance of an ash-receiving station held a judgment, and hence appealable.-Saal v. South Brooklyn Ry. Co. (Sup.) 996.

§ 3. Right of review.

An appeal will not be dismissed because the order appealed from was amended after notice of appeal where the party is informed of the order to be reviewed.-Kelly v. New York City Ry. Co. (Sup.) 894.

§ 8. Review.

*A party against whom a verdict was directed is entitled to the most favorable inferences from the evidence, and all contested facts must be treated as established in his favor.-Strong v. Rutland R. Co. (Sup.) 85.

A county treasurer held not entitled to ap- all contested facts must be treated as estab Where a verdict was directed for defendants, peal from an allowance for counsel fees for de-lished in plaintiff's favor on appeal.-Bosoian v. fending one charged with crime, payable under Hubbard (Sup.) 178. Code Crim. Proc. § 308, on the certificate of the justice presiding at the trial.-People v. Simpson (Sup.) 45.

§ 4. Presentation and reservation in lower court of grounds of review. Where, in a suit on an insurance policy, defendant did not plead a breach of the provision relating to prior insurance which was necessary to raise that issue, but the plaintiff introduced and insisted on litigating the question, he must abide by the result.-Romano v. Concordia Fire Ins. Co. (Sup.) 63.

*An instruction may not be complained of on appeal where it was not excepted to, and no point was made of it on the motion for new trial, or on the argument or in the brief.-Smith v. New York Anti-Saloon League (Sup.) 251.

An objection to testimony, in part pertaining to a bill rendered, as irrelevant and immaterial, does not save the objection that the bill itself was the best evidence.-Place v. Place (Sup.) 781.

§ 5. Supersedeas or stay of proceedings. *An undertaking to stay a sale on foreclosure pending an appeal from an order denying a motion to compel the bringing in of persons named as defendants in the foreclosure suit held binding, notwithstanding Code Civ. Proc. $$ 1335, 1351, relating to undertakings on appeal. -Knickerbocker Trust Co. v. Holdridge (Sup.)

587.

6. Record and proceedings not in record.

*In settling a case on appeal, a certain amendment relating to the presence of defendant in the courtroom in a maimed condition without intending to testify held permissible.-Davidson v. New York City Ry. Co. (Sup.) 1044.

*Matters which should be included or excluded from a case on appeal determined with regard to the questions involved.-Davidson v. New York City Ry. Co. (Sup.) 1044.

§ 7.

Dismissal, withdrawal, or aban

donment.

*An appeal from an order suspending a judgment, not having been argued until after the expiration of the period of suspension, will be dismissed, since no practical result could be reached by its determination.-McCarty v. Natural Carbonic Gas Co. (Sup.) 811.

*In an action against a street railway company for injuries to a passenger the exclusion of certain evidence held not prejudicial.-Randazzo v. Brooklyn Heights R. Co. (Sup.) 193.

In an action on a contract defendants held estopped to complain of the admission of evidence tending to show the real contract.-Collins v. Carlin (Sup.) 235.

*A verdict based on conflicting evidence will not be disturbed in the absence of legal error. -Collins v. Carlin (Sup.) 235.

*On appeal from a judgment dismissing the complaint before plaintiff rested, all reasonable inferences are to be drawn from the evidence in his favor.-Stallo v. Humphreys (Sup.) 456.

*Where on prior appeals to the Appellate Division and Court of Appeals the validity of claimant's wharf rights, sought to be condemned by a city, was necessarily considered, the decisions on such issue constituted the law of the case, though the opinion of neither court discussed the question. In re Water Front of City of New York (Sup.) 503.

*Where parties in an action had a right to trial by jury, the court had power to refer the issue to a referee, but decided that a trial was practicable, and denied the motion for reference, its judgment will not be reversed.Canavan Bros. Co. v. Automobile Club of America (Sup.) 572.

In an action for injury to real estate, the question of the excessiveness of the damages awarded by the referee held reviewable.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id,

*The verdict of a properly instructed jury will not be set aside as contrary to the evidence unless it appears that they were actuated by favor, prejudice, or passion.-Briggs v. Gelm (Sup.) 693.

*Defendants, more than 11 years after verdict against them, and after the denial of a motion for a new trial, held not entitled to a reversal on appeal on the ground that the verdict was contrary to the evidence.-Briggs v. Gelm (Sup.) 693.

Evidence in an action for death of a servant held prejudicial.-Kupfersmith v. Isaac A. Hopper & Son (Sup.) 797. *Point annotated. See syllabus.

takings.

*Though the case for appointment of a re- | § 10. Liabilities on bonds and under-
ceiver for a boat, in an action to have a bill
of sale of it declared a mortgage and for an
accounting, is not. strong, held the appointment
will not be disturbed, having closed, provided
that, if the action is not brought to trial before
navigation, defendants may move to discharge
the receiver.-Miller v. Herrick (Sup.) 1055.

*The introduction of a contract not pleaded
held harmless against plaintiff, in view of a
finding by the jury.-Duclos v. Kelley (Sup.)
1058.

*In an action by the state commissioner of
excise for the breach of a liquor tax certificate
bend, error in the exclusion of evidence held not
cured by the admission of certain other evidence.
-Clement v. Federal Union Surety Co. (Sup.)
1061.

*Where a complaint is dismissed on plaintiff's
proof alone, he is entitled upon appeal to the
benefit of all favorable inferences deducible
therefrom, and it is to be taken as true.-Glab-
man v. Union Ry. Co. of New York City (Sup.)
1089.

9. Determination and disposition of

cause.

Evidence held competent to show fraud of
the parties in allowing judgment on appeal for
the purpose of charging the surety on the ap-
peal bond.-Brownell v. Snyder (Sup.) 771.

Evidence held competent to show fraud of
the parties to an action, in allowing judg-
ment on appeal for the purpose of charging the
surety on the appeal bond.-Brownell v. Sny-
der (Sup.) 771.

APPLIANCES.

Liability of employer for defects, see "Master
and Servant," §§ 3, 6.

APPOINTMENT.

Of commissioners to establish highway, see
"Highways," § 1.

Of committee of insane person, see "Insane
Persons." § 2.

Of executor or administrator, see "Executors
and Administrators," § 1.
Of receiver, see "Receivers," § 1.

ARBITRATION AND AWARD.

See "Reference."

Although the court, on appeal from the denial
of a motion to direct a verdict, determines that
the motion should have been granted, it cannot
then grant the motion and end the case, but can
only reverse the judgment and order a new
trial.-William P. Rae Co. v. Kane (Sup.) 47.
Where the refusal of the surrogate to find
a certain admitted fact is clearly an oversight,
the order entered on decision of the appeal In civil actions, see "Trial," § 3.
from the surrogate should supply such finding.-
In re Murphy (Sup.) 183.

*Where the trial court found the amount to
which a party was entitled, but refused to ren-
der judgment therefor, the court on appeal will
direct judgment, instead of ordering a
trial.-Moore v. Mutual Reserve Fund Life
Ass'n (Sup.) 255.

new

*Under Code Civ. Proc. § 1323, the special
term is not deprived of the power to order resti-
tution on reversal of an erroneous judgment.-
Goepel v. Robinson Mach. Co. (Sup.) 990.

Striking from an order on appeal a clause
directing a return of the property attached be-
cause the return of the property was not shown
by the record does not preclude an order for
restitution by the lower court.-Goepel v. Robin-
son Mach. Co. (Sup.) 990.

*Where the trial justice rendered judgment for
plaintiff, though it proved no cause of action,
and dismissed the counterclaim which was clear-
ly established, judgment must be reversed for a
new trial.-Simon-Lichtenstein-Pachner Co. v.
Starrells (Sup.) 1088.

*Where the verdict seems to have been given
without careful weighing of reasonable infer-
ences from the testimony, and without due re-
gard to the rule that the party having the af-
firmative must bear the burden of proof. judg-
ment will be reversed for a new trial.-Goldman
v. Matzger (Sup.) 1093.

ARGUMENT OF COUNSEL.

See "Bail."

ARREST.

Illegal arrest, see "Malicious Prosecution," § 1.
Warrant for arrest by coroner, see "Coroners."
1. In civil actions.

*The affidavit for arrest in a civil case held
insufficient in not showing how knowledge came
to affiant.-Cole v. Gore (Sup.) 306.

ASSESSMENT.

Of compensation for property taken for public
use, see "Eminent Domain," § 2.

Of expenses of public improvements, see "High-
ways," 2; "Municipal Corporations," §§
4. 8.

Of loss on insured, see "Insurance," § 6.
Of tax, see "Taxation," §§ 2, 3.

ASSIGNMENTS.

Assignee of judgment as person entitled to sup-
plementary proceedings, see "Execution," § 3.
For benefit of creditors, see "Assignments for
Benefit of Creditors."

Of security to person entitled to subrogation,
see "Subrogation."

*Point annotated. See syllabus.

and 140 New York State Reporter

Pendency of other action as ground for abatement of action by assignee of mortgage, see "Abatement and Revival," § 1. .

§ 1. Requisites and validity.

*A contract for the painting, decorating, and whitewashing of a building is assignable, since it does not involve a personal confidential relation or exceptional personal skill or knowledge.-Janvey v. Loketz (Sup.) 690.

§ 2. Actions.

Evidence held not to warrant a nonsuit on the ground that defendant did not know of or consent to an assignment to plaintiff of a contract to decorate defendant's building.-Janvey v. Loketz (Sup.) 690.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

See "Bankruptcy," § 2.

Purchase by attorneys at sale by trustee for creditors, see "Attorney and Client," § 3. § 1. Administration of assigned estate. The debtor who made an assignment for creditor held not chargeable with notice that the attorneys who conducted the sale for the trustee purchased through another, because of the recording after the sale of the deed, of their agreement with the purchaser.-Bush v. Halsted (Sup.) 133.

Statement of method of attacking sale of a trustee for creditors because the attorneys who conducted it bought through another.-Bush v. Halsted (Sup.) 133.

Invalidity of the sale by a trustee for creditors, because the attorneys who conducted it purchased through another, may be asserted by the debtor, who provided in his assignment for return to him of any surplus (Laws 1875, p. 618, c. 545).-Bush v. Halsted (Sup.) 133.

ASSOCIATIONS.

ATTENDANCE.

Of juror, see "Jury," § 2.

ATTORNEY AND CLIENT.

Argument and conduct of counsel at trial in civil actions, see "Trial," § 3.

Attorneys as public officers, see "Attorney General."

Attorneys in fact, see "Principal and Agent." Bill of particulars in action by attorney for services, see "Pleading," § 7.

Employment of attorney by forest commissioner, see "Woods and Forests." Employment of counsel by temporary adminis trator, see "Executors and Administrators," § 2. Fees of attorney for executor or administrator, see "Executors and Administrators," § 6. Misconduct of counsel ground for new trial, see "New Trial," § 1.

Presumption as to undue influence by attorney named as executor in will, see "Wills," § 3.

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1. The office of attorney.

disbarment for practicing fraud and deceit in *Certain fact held not to save attorney from procuring admission to practice law. In re Pritchett (Sup.) 847.

*Attorney held to have secured admission to practice law by fraud and deceit, within Code Civ. Proc. § 67.-In re Pritchett (Sup.) 847.

When on appeal the attorney is the real party interested, he will be required to pay the costs on an adverse decision.-Kelly v. New York City Ry. Co. (Sup.) 894.

*Under Code Civ. Proc. § 67, an attorney held guilty of misconduct warranting suspension. -In re Randall (Sup.) 943.

*Suspension of an attorney for two years for misconduct imposed for a second offense.In re Randall (Sup.) 943.

§ 2.

Retainer and authority.

Where a case is commenced without the au

See "Building and Loan Associations"; "Ex- thority of an infant, and no guardian ad litem changes"; "Trade Unions."

Lloyds association, see "Insurance," § 5.

appointed, her motion to dismiss should be granted, though opposed by the attorney of rec 896.

Mutual benefit insurance associations, see "In- ord.-Herman v. New York City Ry. Co. (Sup.) surance," § 6.

ASSUMPSIT, ACTION OF.

See "Money Paid"; "Money Received"; "Work and Labor."

ASSUMPTION.

§ 3. Duties and liabilities of attorney to client.

*A sale by a trustee for creditors held invalid; his attorneys who conducted it becoming purchasers through another.-Bush v. Halsted (Sup.) 133.

*Code Civ. Proc. §§ 2268, 2269, held not to authorize an order fining an attorney the

Of risk by employé, see "Master and Servant," amount alleged to be withheld from his client §§ 6, 9, 11.

ATTACHMENT.

See "Execution."

and costs and adjudging him in contempt until the same was paid; the attorney being entitled to have first served on him a certified copy of an order directing him to pay a certain sum of money before any proceeding could be had

Jurisdiction of municipal court, see "Courts," against him for contempt.-In re Gardner (Sup.) § 3.

417.

*Point annotated. See syllabus.

4. Compensation and lien of attor-

ney.

BALLOTS.

Parties have a right to settle and discontinue See "Elections," §§ 1-3.
suits where there is no collusion or fraud to de-
feat the attorney's lien for fees.-Kelly v. New
York City Ry. Co. (Sup.) 894.

ATTORNEY GENERAL.

Dissolution of corporation by, see "Corpora-
tions," § 8.

Power of state court to restrain action by at-
torney general to dissolve corporations pend-
ing action in United States court to determine
validity of their franchises, see "Courts," § 5.
*It is within the power of the Legislature
from time to time to increase, alter, or abridge
the powers and duties of the Attorney General.
-People v. Santa Clara Lumber Co. (Sup.)
624.

AUTHORITY.

Of agent, see "Principal and Agent," § 1.
Of attorney, see "Attorney and Client," § 2.
Of broker, see "Brokers," § 1.

Of master of vessel, see "Shipping," § 1.
Of town boards, see "Towns," § 1.

AUTOMOBILES.

BANKRUPTCY.

warrant,

See "Assignments for Benefit of Creditors."
§ 1. Petition, adjudication,
and custody of property.
Under Bankr. Act July 1, 1898, c. 541, §§
7, 58, 30 Stat. 548, 561 [U. S. Comp. St. 1901,
pp. 3425, 3444], no proper notice of bankruptcy
proceedings held to have been given.-In re
Quackenbush (Sup.) 773.

2. Assignment, administration, and
distribution of bankrupt's estate.
Under Bankr. Act July 1, 1898, c. 541, § 57,
30 Stat. 560 [U. S. Comp. St. 1901, p. 3443],
any lien of a creditor held waived by proof and
allowance of his claim without disclosure of the
lien.-Dunn Salmon Co. v. Pillmore (Sup.) 88.

Any lien acquired by a creditor of bankrupt
commencing action within four months of the
adjudication of bankruptcy against one holding
a chattel mortgage from the bankrupt, void as
to creditors because not filed, being void under
Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat.
564 [U. S. Comp. St. 1901, p. 3450], held the
creditor could not pursue the action, but any
right of action passed to the trustee in bank-
ruptcy under sections 67b, 70e, 30 Stat. 564,

Ordinances regulating speed of, see "Municipal 565 [U. S. Comp. St. 1901, pp. 3449. 3451].-
Corporations," §§ 5, 6.

BAGGAGE.

Of passenger, see "Carriers," § 3.

BAIL.

§ 1. In civil actions.

Bail exonerated under Code Civ. Proc. & 601.
on vacating order of arrest.-Colton v. Sullivan
(Sup.) 939.

BAILMENT.

Particular species of bailments, and bailments
incident to particular occupations.
See "Banks and Banking," § 1; "Carriers," § 2;
"Warehousemen."

Where the lessor made part of the repairs to
boats, which the lessee should have made, and
in doing so dry docked the boats, he cannot
recover for the expense of dry docking and re-
pairing them and also for the expenses of again
dry docking them to complete repairs.-Dunbar
& Sullivan Dredging Co. v. Title Guaranty &
Trust Co. (Sup.) 180.

Statement as to liability of lessee of a dredg-
ing outfit, obligated to return it in as good shape
as he received it, but who failed to do so.-Dun-
bar & Sullivan Dredging Co. v. Title Guaranty
& Trust Co. (Sup.) 180.

Dunn Salmon Co. v. Pillmore (Sup.) 88.

3. Composition.

An answer pleading a composition in bank-
ruptcy under Bankr. Act July 1, 1898, c. 541,
§ 14, 30 Stat. 550 [U. S. Comp. St. 1901, p.
3427], should not be overruled as frivolous,
where it is not perfectly clear from the plead-
ings that the indebtedness sued upon was not
discharged by the composition.-Consolidated
Rubber Tire Co. v. Vehicle Equipment Co.
(Sup.) 599.

A composition in bankruptcy may be pleaded
in bar of an action upon a debt discharged, and
in order to be available as a defense it must
be so pleaded.-Consolidated Rubber Tire Co. v.
Vehicle Equipment Co. (Sup.) 599.

§ 4. Rights, remedies, and discharge of
bankrupt.

*Though a bankrupt complied with Code
Civ. Proc. 1268, authorizing a bankrupt to
apply for the discharge of a judgment of rec-
ord on notice to the judgment creditor or his
attorney of record in the judgment, yet, un-
der the circumstances, a proper exercise of
discretion held to demand that the default on
motion to discharge judgments of record be
opened.-In re Quackenbush (Sup.) 773.

On application, under the express provisions
of Code Civ. Proc. § 1268, by a judgment debt-
or who had been discharged in bankruptcy, for
the discharge of judgments of record, the
court is without power to discharge judgments
as to another against whom the judgments
*Point annotated. See syllabus.

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