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See "Shipping."

Agricultural law relating to sale of milk and

misbranded articles of food, see "Food."

In pleading, see "Pleading," $ 3.

Suspension of power of alienation of property,

see “Perpetuities.”
See "Food."

A milk dealer held guilty of selling adulterat. See “Divorce," 88 1, 2.
ed milk within Agricultural Law, Laws 1893,
pp. 660, 661, c. 338, 8820, 22.-People v.
Koster (Sup.) 793.

Under Agricultural Law, Laws 1893, p. 666, Alteration of bank check, see "Banks and Bank-
c. 338, 8 37, one selling adulterated milk held

ing," $ 1
liable in one action to cumulative penalties.-
People v. Koster (Sup.) 793.


In particular remedies or special jurisdictions.

See “Parties," $ 2.
Ground for divorce, see "Divorce," $ 1.

Of particular acts, instruments, or proceedings.

See “Pleading," 8 5; “Process," 8 2.

Judgment of municipal court, see “Courts," $ 3.
To real property, see "Quieting Title."


Death of animal caused by operation of railroad,

see "Railroads," 8 5.
See "Limitation of Actions."


Creation by will, see “Wills," $ 6.
See "Depositions."
Particular proceedings or purposes.

See “Mandamus," $ 2.

Of marriage, see “Marriage."
Arrest in civil action, see “Arrest," $ 1.

Of will, see "Wills," $ 4.
Examination of parties before trial, see "Dis-

covery,” $ 1.
Service of notice of tax sale, see "Taxation,"

$ 3.
Verification of pleading, see "Pleading," $ 6. In pleading, see "Pleading," $ 3.


Mortgage of, see “Mortgages,” 88 1, 2.

See "Certiorari"; "New Trial.”
Costs, see “Costs," $ 5.

Review in criminal prosecutions, see "Criminal

Law," 8 7.

Review in proceedings for assessment of taxes,
Estoppel to assert, see “Estoppel," $ 1.

see "Taxation," 8 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,”
See "Principal and Agent.”

8 6.

8 1. Nature and grounds of appellate


Where the record on appeal failed to show
See “Contracts."

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 An appeal will not be dismissed because the v. Brooklyn Heights R. Co. (Sup.) 197. order appealed from was amended after Do § 2. Decisions reviewable.

tice of appeal where the party is informed of the

order to be reviewed.-Kelly v. New York City *An interlocutory judgment is appealable un- Ry. Co. (Sup.) 894. der the express terms of Code Civ. Proc. 8 1349. -Saal v. South Brooklyn Ry. Co. (Sup.) 996. 8 8. Review. *A decision in an action to enjoin the main is entitled to the most favorable inferences from

*A party against whom a verdict was directed tenance of an ash-receiving station held a judg: the evidence, and all contested facts must be ment, and hence appealable.-Saal v. South treated as established in his favor.-Strong v. Brooklyn Ry. Co. (Sup.) 996.

Rutland R. Co. (Sup.) 85. $ 3. Right of review. A county treasurer held not entitled to ap- all contested facts must be treated as estaba

Where a verdict was directed for defendants, peal from an allowance for counsel fees for de- lisbed in plaintiff's favor on appeal.-Bosoian 7. 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.

*In an action against a street railway comSimpson (Sup.) 45.

pany for injuries to a passenger the exclusion

of certain evidence held not prejudicial.-Ran4. Presentation and reservation, in dazzo v. Brooklyn Heights R. Co. (Sup.) 193.

lower court of grounds of review. Where, in a suit on an insurance policy, de

In an action on a contract defendants held fendant did not plead a breach of the provision estopped to complain of the admission of evirelating to prior insurance which was necessary dence tending to show the real contract.-Colto raise that issue, but the plaintiff introduced lins v. Carlin (Sup.) 233. and insisted on litigating the question, he must *A verdict based on conflicting evidence will abide by the result.-Romano v. Concordia Fire not be disturbed in the absence of legal error. Ins. Co. (Sup.) 63.

-Collins v. Carlin (Sup.) 235. *An instruction may not be complained of on *On appeal from a judgment dismissing the appeal where it was not excepted to, and no complaint before plaintiff rested, all reasonable point was made of it on the motion for new inferences are to be drawn from the evidence in trial, or on the argument or in the brief.-Smith his favor.-Stallo v. Humphreys (Sup.) 436. v. New York Anti-Saloon League (Sup.) 251.

*Where on prior appeals to the Appellate An objection to testimony, in part pertain- Division and Court of Appeals the validity of ing to a bill rendered, as irrelevant and im- claimant's wharf rights, sought to be condemned material, does not save the objection that the by a city, was necessarily considered, the de bill itself was the best evidence.-Place v. cisions on such issue constituted the law of Place (Sup.) 781.

the case, though the opinion of neither court $ 5. Supersedeas or stay of proceedings. discussed the question. In re Water Front of

*An undertaking to stay a sale on foreclosure City of New York (Sup.) 503. pending an appeal from an order denying a mo *Where parties in an action had a right to tion to compel the bringing in of persons named trial by jury, the court had power to refer the

defendants in the foreclosure suit held issue to a referee, but decided that a trial was binding. notwithstanding Code Civ. Proc. $S practicable, and denied the motion for ref1335, 1351, relating to undertakings on appeal. erence, its judgment will not be reversed.--Knickerbocker Trust Co. v. Holdridge (Sup.) Canavan Bros. Co. v, Automobile Club of 587.

America (Sup.) 572. $ 6. Record and proceedings not in rec In an action for injury to real estate, the ord.

question of the excessiveness of the damages *In settling a case on appeal, a certain amend- awarded by the referee held reviewable.-Cooper ment relating to the presence of defendant in v. New York, L. & W. Ry. Co. (Sup.) 611; the courtroom in a maimed condition without in- Same v. Delaware, L. & W. R. Co., Id. tending to testify held permissible.-Davidson v. New York City Ry, Co. (Sup.) 1044.

*The verdict of a properly instructed jury

will not be set aside as contrary to the evi* Matters which should be included or exclud-dence unless it appears that they were actuated from a case on appeal determined with re ed by favor, prejudice, or passion.-Briggs v. gard to the questions involved.-Davidson v. New Gelm (Sup.) 693. York City Řy. Co. (Sup.) 1044.

*Defendants, more than 11 years after rer 8 7. Dismissal, withdrawal, aban- dict against them, and after the denial of a donment.

motion for a new trial, held not entitled to a *An appeal from an order suspending a judg- reversal on appeal on the ground that the ver ment, not having been argued until after the dict was contrary to the evidence.-Briggs F. expiration of the period of suspension, will be Gelm (Sup.) 693. dismissed, since no practical result could be * Evidence in an action for death of a sers. reached by its determination.-- McCarty v. Nat- ant held prejudicial.-Kupfersmith y. Isaac A. ural Carbonic Gas Co. (Sup.) 811.

Hopper & Son (Sup.) 797. * Point annotated. See syllabus.




*Though the case for appointment of a re- 1 8 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 Evidence held competent to show fraud of
accounting, is not strong, held the appointment the parties in allowing judgment on appeal for
will not be disturbed, having closed, provided the purpose of charging the surety on the ap-
that, if the action is not brought to trial before peal bond.-Brownell v. Snyder (Sup.) 771.
navigation, defendants may move to discharge
the receiver.-Miller v. Herrick (Sup.) 1055.

Evidence held competent to show fraud of

the parties to an action, in allowing judg-
*The introduction of a contract not pleaded ment on appeal for the purpose of charging the
held harmless against plaintiff, in view of a surety on the appeal bond.-Brownell v. Sny-
finding by the jury.-Duclos v. Kelley (Sup.) | der (Sup.) 771.
*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 Liability of employer for defects, see “Master
cured by the admission of certain other evidence.
-Clement v. Federal Union Surety Co. (Sup.)

and Servant," $83, 6.
*Where a complaint is dismissed on plaintiff's

proof alone, he is entitled upon appeal to the
benefit of all favorable inferences deducible of commissioners to establish highway, see
therefrom, and it is to be taken as true.-Glab "Highways," § 1.
man v. Union Ry. Co. of New York City (Sup.) Of committee of insane person, see “Insane

Persons," § 2.

Of executor or administrator, see “Executors
§ 9. Determination and disposition of and Administrators," $ 1.

Of receiver, see "Receivers," § 1.
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 ARBITRATION AND AWARD.
then grant the motion and end the case, but can
only reverse the judgment and order a new See "Reference."
trial.- William P. Rae Co. v. Kane (Sup.) 47.

Where the refusal of the surrogate to find ARGUMENT OF COUNSEL.
a certain admitted fact is clearly an oversight,
the order entered on decision of the appeal In civil actions, see “Trial,” g 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-

See “Bail."
der judgment therefor, the court on appeal will
direct judgment, instead of ordering a

Ilegal arrest, see "Malicious Prosecution," $ 1.
trial.- Moore v. Mutual Reserve Fund Life Warrant for arrest by coroner, see "Coroners."
Ass'n (Sup.) 255.

§ 1. In civil actions.
*Under Code Civ. Proc. $ 1323, the special *The affidavit for arrest in a civil case held
term is not deprived of the power to order resti- insufficient in not showing how knowledge came
tution on reversal of an erroneous judgment.- to affiant.-Cole v. Gore (Sup.) 306.
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 Of compensation for property taken for public
restitution by the lower court.-Goepel v. Robin use, see "Eminent Domain," 8 2.
son Mach. Co. (Sup.) 990.

Of expenses of public improvements, see "High-
*Where the trial justice rendered judgment for

ways," § 2; "Municipal Corporations," $8
plaintiff, though it proved po cause of action, of 'loss on insured, see "Insurance," $ 6.
and dismissed the counterclaim which was clear. Of tax, see “Taxation,” $$ 2, 3.
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- Assignee of judgment as person entitled to sup-
ences from the testimony, and without due re plementary proceedings, see “Execution," $ 3.
gard to the rule that the party having the af- For benefit of creditors, see "Assignments for
firmative must bear the burden of proof, judg Benefit of Creditors.”
ment will be reversed for a new trial.-Goldman of security to person entitled to subrogation,
v. Matzger (Sup.) 1093.

see "Subrogation."
*Point annotated. See syllabus.


and 140 New York State Reporter Pendency of other action as ground for abate

ATTENDANCE. ment of action by assignee of mortgage, see “Abatement and Revival," § 1.

Of juror, see “Jury," $ 2. § 1. Requisites and validity.

*A contract for the painting, decorating, and whitewashing of a building is assignable, since

ATTORNEY AND CLIENT. it does not involve a personal confidential relation or exceptional personal skill or knowl- Argument and conduct of counsel at trial in edge.-- Janvey v. Loketz (Sup.) 690.

civil actions, see "Trial," $ 3.

Attorneys as public officers, see "Attorney Gen§ 2. Actions.

eral.” Evidence held not to warrant a nonsuit on the Attorneys in fact, see “Principal and Agent." ground that defendant did not know of or con Bill of particulars in action by attorney for sent to an assignment to plaintiff of a con services, see "Pleading," $ 7. tract to decorate defendant's building.-Jan- Employment of attorney by forest commissionvey v. Loketz (Sup.) 690.

er, see "Woods and Forests."

Employment of counsel by temporary adminisASSIGNMENTS FOR BENEFIT OF

trator, see "Executors and Administrators,"


Fees of attorney for executor or administrator,

see "Executors and Administrators,” $ 6. See "Bankruptcy," $ 2.

Misconduct of counsel ground for new trial, see

"New Trial," 8 1. Purchase by attorneys at sale by trustee for Presumption as to undue influence by attorney

creditors, see "Attorney and Client,” $ 3. named as executor in will, see “Wills," $ 3. $ 1. Administration of assigned estate. | $ 1. The office of attorney. The debtor who made an assignment for cred

*Certain fact held not to save attorney from itor held not chargeable with notice that the attorneys who conducted the sale for the trustee disbarment for practicing fraud and deceit in purchased through another, because of the re

procuring admission to practice law.-In re cording after the sale of the deed, of their agree

Pritchett (Sup.) 847. ment with the purchaser.-Bush v. Halsted *Attorney held to have secured admission to (Sup.) 133.

practice law by fraud and deceit, within Code Statement of method of attacking sale of a

Civ. Proc. $ 67.-In re Pritchett (Sup.) 817. trustee for creditors because the attorneys who When on appeal the attorney is the real party conducted it bought through another.-Bush v. interested, he will be required to pay the costs Halsted (Sup.) 133.

an adverse decision.-Kelly V. New York Invalidity of the sale by a trustee for credit- City Ry. Co. (Sup.) 894. ors, because the attorneys who conducted it pur *Under Code Civ. Proc. $ 67, an attorney chased through another, may be asserted by the held guilty of misconduct warranting suspension. debtor, who provided in his assignment for re --In re Randall (Sup.) 943. turn to him of any surplus (Laws 1875, p. 618, C. 545).-Bush v. Halsted (Sup.) 133.

*Suspension of an attorney for two years for misconduct imposed for a second offense.

In re Randall (Sup.) 943.

$ 2. Retainer and authority. See “Building and Loan Associations”; “Ex- thority of an infant, and no guardian ad litem

Where a case is commenced without the anchanges”; “Trade Unions." Lloyds association, see “Insurance," $ 5.

appointed, her motion to dismiss should be Mutual benefit insurance associations, see “In- ord.-Herman v. New York City Ry. Co. (Sup.)

granted, though opposed by the attorney of ree surance," $ 6.


§ 3. Duties and liabilities of attorney

to client.

*A sale by a trustee for creditors held inSee “Money Paid”; “Money Received"; "Work valid ; his attorneys who conducted it becoming and Labor."

purchasers through another.-Bush v. Halsted

(Sup.) 133. ASSUMPTION.

*Code Civ. Proc, 88 2268, 2269, held not to of risk by employé, see “Master and Servant,” amount alleged to be withheld from his client

authorize order fining an attorney the 886, 9, 11.

and costs and adjudging him in contempt until ATTACHMENT.

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 See "Execution."

money before any proceeding could be had Jurisdiction of municipal court, see "Courts," against him for contempt.-In re Gardner (Sup.) $ 3.

*Point annotated. See syllabus.



§ 4. Compensation and lien of attor-

Parties have a right to settle and discontinue See "Elections," $8 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.


See “Assignments for Benefit of Creditors."

$ 1. Petition, adjudication, warrant,
Dissolution of corporation by, see "Corpora-

and custody of property.
tions," $ 8.

Under Bankr. Act July 1, 1898, c. 541, SS
Power of state court to restrain action by at 7, 58, 30 Stat. 518, 561 [U. S. Comp. St. 1901,

torney general to dissolve corporations pend- pp. 3425, 3444], no proper notice of bankruptcy
ing action in United States court to determine proceedings held to have been given.-In re
validity of their franchises, see "Courts," $ 5. Quackenbush (Sup.) 773.

*It is within the power of the Legislature $ 2. Assignment, administration, and
from time to time to increase, alter, or abridge

distribution of bankrupt's estate.
the powers and duties of the Attorney General. Under Bankr. Act July 1, 1898, c. 541, 8 57,
-People v. Santa Clara Lumber Co. (Sup.) 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 creditor of bankrupt
Of agent, see "Principal and Agent," $ 1.
Of attorney, see "Attorney and Client," $ 2.

commencing action within four months of the

adjudication of bankruptcy against one holding
Of broker, see “Brokers," $.1.

a chattel mortgage from the bankrupt, void as
Of master of vessel, see "Shipping,” 8 1.

to creditors because not filed, being void under
Of town boards, see "Towns," $ 1.

Bankr. Act July 1, 1898, c. 541, 8 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-
Ordinances regulating speed of, see "Municipal 565 (U. S. Comp. St. 1901, pp. 3449, 3451]. —

ruptcy under sections 67b, 70e, 30 Stat. 564,
Corporations,” 88 5, 6.

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,
Of passenger, see "Carriers," 3.

$ 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
§ 1. In civil actions.

Rubber Tire Co. v. Vehicle Equipment Co.
Bail exonerated under Code Civ. Proc. $.601. (Sup.) 599.
on vacating order of arrest.--Colton v. Sullivan
(Sup.) 939.

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.
Particular species of bailments, and bailments

Vehicle Equipment Co. (Sup.) 599.
incident to particular occupations.

4. Rights, remedies, and discharge of
See "Banks and Banking," § 1; "Carriers," $ 2;


*Though a bankrupt complied with Code

Civ. Proc. $ 1208, authorizing a bankrupt to
Where the lessor made part of the repairs to apply for the discharge of a judgment of rec-
boats, which the lessee should have made, and ord on notice to the judgment creditor or his
in doing so dry docked the boats, he cannot attorney of record in the judgment, yet, un-
recover for the expense of dry docking and re- der the circumstances, a proper exercise of
pairing them and also for the expenses of again discretion held to demand that the default on
dry docking them to complete repairs.-Dunbar motion to discharge judgments of record be
& Sullivan Dredging Co. v. Title Guaranty & opened.-In re Quackenbush (Sup.) 773.
Trust Co. (Sup.) 180.

On application, under the express provisions
Statement as to liability of lessee of a dredg- of Code Civ. Proc. g 1268, by a judgment debt-
ing outfit, obligated to return it in as good shape or who had been discharged in bankruptcy, for
as he received it, but who failed to do so.-Dun-| the discharge of judgments of record, the
bar & Sullivan Dredging Co. v. Title Guaranty court is without power to discharge judgments
& Trust Co. (Sup.) 180.

to another against whom the judgments
*Point annotated. See syllabus.

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