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§ 5. Concurrent and conflicting juris- 1 8 1. Venue.
*Where defendant objected to the jurisdiction
V. Gibson (Sup.) 590.
$ 3. Former jeopardy.
*Where a jury impaneled and sworn to try
accused was discharged because of failure to
file a certified copy of an order for change of
ardy precluding a subsequent trial, under Code
Cr. Proc. $ 430.-People v. Neff (Sup.) 747.
§ 4. Evidence.
*In a trial for intoxication in a public place,
complaining witness outside defendant's pres-
ence are inadmissible against defendant.-Peo-
ple v. Soloman (Co. Ct.) 1110.
§ 5. Motions for new trial and in ar-
*A motion for new trial under Code Cr. Proc.
ground of newly discovered cumulative evidence.
-People v. Way (Sup.) 52.
*A new trial will not be granted in order to
discredit a witness whose motives are unim-
*Motion for new trial for newly discovered
evidence denied for want of diligence.-People
Code Cr. Proc. $ 490a, providing that, where
court may pronounce judgment at any time
thereafter within the longest period for which
the defendant might have been sentenced, was
amending Code Cr. Proc. $ 11a, relating to pro-
hibition officers.-People v. Flynn (Sup.) 925.
Court held authorized to revoke suspension of
sentence and inflict punishment.--People v.
Flynn (Sup.) 925.
Power of suspending sentence after conviction
held resident in the Court of General Sessions
as an inherent right.-People v. Flynn (Sup.)
partly executed for the purpose of imposing a
and 140 New York State Reporter § 7. Appeal and error, and certiorari. § 2. Grounds and subjects of comper*Accused held not entitled to a reversal of a
satory damages. conviction because the prosecution was barred *Prospective damages lost held a proper eleby limitations, where such ground of objection ment of damages for refusal of a city to exe was not specifically raised at the trial.-People cute a contract for work properly awarded to v. Blake (Sup.) 319.
the lowest bidder.-Beckwith v. City of New
York (Sup.) 175. *Under a rule stated and Code Cr. Proc. $$ 756, 763, held an appeal from a conviction must *Interest on prospective profits lost, damages be dismissed for an insufficient record. - People for refusal to execute a contract for work, held v. Soloman (Co. Ct.) 1110.
not recoverable; such profits not having been
ascertainable by_mere computation.-Beckwith Application for leave to appeal from convic v. City of New York (Sup.) 175. tion before magistrate returned for the purpose of striking out unjust or unreasonable attacks & 3. Liquidated damages and penalties. on trial magistrate. People v. Harris (Gen.
*In determining whether a stipulation in a Sess.) 1035.
contract for the payment of a specified sum in
case of a breach provides for liquidated damages CROPS.
or for a penalty, the intention of the parties, a s
certained from the language of the contract Rights as to crops on demised premises, see and the surrounding circumstances, must be "Landlord and Tenant,” $ 1.
considered.-Perley v. Schubert (Sup.) 593.
§ 4. Measure of damages. CROSS-EXAMINATION.
Statement of items to be deducted in arriving at prospective profits lost, to be awarded as
damages for refusal to execute a contract.See “Witnesses," $ 2.
Beckwith v. City of New York (Sup.) 173.
*Measure of damages of permanent and temCROSSINGS.
porary injury to real estate defined.-Cooper v.
New York, L. & W. Ry. Co. (Sup.) 611 ; Same Railroad crossings, see "Railroads," 8 4.
v. Delaware, L. & W. R. Co., Id.
§ 5. Inadequate and excessive damages. CUSTODY.
*In an action for personal injuries, a verdict
of $3,375 held not excessive.--Sparks v. City of Of illegitimate child, see “Bastards," $ 2.
North Tonawanda (Sup.) 44.
*A verdict for $35,000 for the loss of a leg DAMAGES.
by a 16 year old girl, held excessive.- Neakes r.
New York Cent. & H. R. R. Co. (Sup.) 522. Amendment of pleading in action for damages, $ 6. Pleading, evidence, and assessment. see "Pleading," $ 5.
*In an action for personal injuries, evidence Compensation for property taken for public use, relating to the amount of damages held inadsee "Eminent Domain," $ 1.
missible under the pleadings.-Hart v. MetroDamages for particular injuries.
politan St. Ry. Co. (Sup.) 494.
Liability of state for injuries caused by operaBreach of warranty, see “Sales," $ 4.
tion of, see “States," § 1. Overflow, see “Waters and Water Courses," $ 2.
DEAD BODIES. § 1. Nominal damages.
A provision in a license for the use of a pat- Contract with county for removal of, see "Counented machine that defendant should use no other machine during the life of plaintiff's pat
ties," § 2. ents held a covenant, and not a condition prece. dent, so that plaintiff could only recover nom
DEATH. inal damages for the breach, in the absence of proof of actual damage.- Warth v. Greif (Sup.) Harmless error in rulings in action for, see "Ap163.
peal," $ 8.
Liability for death caused by negligence in gen*In an action for breach of contract to furnish eral, see “Negligence," $ 1. money to pay for boring an oil well, plaintiff's Liability for death of passenger, see “Carriers," damage held to be the excess of the agreed $ 3. cost of boring the well over the value of the Liability of master for death of servant, see stock which was to be transferred in consid *Master and Servant," $8 10. 11. eration of such payment, and there being, no Negligence causing death as questions for jury, evidence of the value of the stock, only nominal see "Negligence," $ 3. damages could be given.--Pardee v. Douglas Separate causes of action in pleading in action (Sup.) 775.
for, see "Pleading," $ 2. *Point annotated. See syllabus.
§ 1. Actions for causing death.
Judgment by, see "Judgment,” s 1.
Affecting right to specific performance of con-
tract, see "Specific Performance," 8 1.
As grounds for refusal of mandamus, see "Man-
damus," $ 2.
gages,” $ 3.
Of goods by carriers, see “Carriers," $ 2.
Of goods sold, see "Sales," $ 1.
Of mortgage, see “Chattel Mortgages," $ 3.
As condition precedent to action for price of
land, see "Vendor and Purchaser," 8 6.
In pleading, see "Pleading," § 4.
*To constitute a dedication of private property In pleading, see “Pleading,” $ 3.
See "Deposits in Court."
Motion to racate order settling interrogatories
to be annexed to commission as affected by
other remedies, see "Motions."
*Under the express provisions of Code Civ.
Proc. $ 887, the examination of any party to
an action may be had by commission-Gilroy
v. Interborough-Metropolitan Co. (Sup.) 171.
*Though part of the testimony taken by depo.
sition is inadmissible, the unobjectionable por-
v. Metropolitan St. Ry. Co. (Sup.) 221.
was necessary as expressly provided by Code
*Point annotated. See syllabus.
and 140 New York State Reporter oral questions as counsel for plaintiffs and de
DIRECTING VERDICT. fendant may think proper is unauthorized.-Stuart v. Spofford (Sup.) 903.
In civil actions, see "Trial," $ 4. Where a deposition is to be taken out of the state, the justice under whom the interrogatories are settled has no power, under Code Civ.
DISBARMENT. Proc. 88 887-892, inclusive, to pass upon objections to the interrogatories.-J. J. Spurr & Sons Of attorney, see "Attorney and Client," $ 1. v. Empire State Surety Co. (Sup.) 1009.
From service as juror, see "Jury." $ 2.
lease, see “Landlord and Tenant," $ 4. In bank, see "Banks and Banking," $ 1.
From indebtedness, obligation, or liability. On purchase price of land, see "Vendor and See "Bankruptcy," $ 4; “Compromise and SetPurchaser," $ 4.
tlement" ; "Execution," $ 2; "Judgment," $
7; "Mechanics' Liens," $ 2. DEPOSITS IN COURT.
Liability as surety, see "Principal and Surety,"
§ 1. Where plaintiffs were directed to deposit in
DISCOVERY court a specified sum with interest from a certain date, it was error for the court, after ad- Contempt by party in refusing to appear for judging plaintiffs guilty of contempt, to author
examination, see “Contempt," § 1. ize them to purge themselves by making the deposit of the sum directed with interest at 242 8 1. Under statutory provisions, per cent.–Lawrence v. Binninger (Sup.) 500. *No examination of defendant in an action
for an accounting is necessary to enable plainDESCENT AND DISTRIBUTION.
tiff to frame a complaint. - Pierce v. McLaugh
lin Real Estate Co. (Sup.) 28. See "Executors and Administrators”: “Wills.”, will
be set aside where it appears that plaintiff
*An order for the examination of plaintiff Inheritance and transfer taxes, see “Taxation,” is a resident of Scotland, and is not at the
$ 5. Property and interests undisposed of by will, time, within this country.-Gilroy y. Interbore
ough-Metropolitan Co. (Šup.) 171. see "Wills," $ 6. § 1. Persons entitled and their respec- may not examine plaintiff before trial as to
*Ordinarily defendant in a negligence action tive shares. *Under Real Property Law, Laws 1896; p. (Sup.) 308.
the general issues in the action.-Wood v. Flagg 619, c. 547, § 285, intestate's mother held to inherit only a life estate with remainder to *In connection with a physical examination of the other heirs.-Tucker v. Tucker (Sup.) 713. plaintiff before trial, defendant may examine
him under oath as to the character and extent DESCRIPTION.
of his injuries.-Wood v. Flagg (Sup.) 308.
*Papers on which an order for the examina. Of devisees or legatees in will, see "Wills.” $ 5. tion of plaintiff before trial was obtained not Of property conveyed, see "Boundaries," $ 1. complying with general rules of practice, rule Of property demised, see "Landlord and Ten- 25, the order held properly vacated.-Mitchell ant," $ 3.
v. Greene (Sup.) 449. of property devised or bequeathed, see "Wills,” *An order for the examination of an in8 5.
dividual defendant before trial cannot properly Of property mortgaged, see “Mortgages," $ 2. require him to produce books and papers for in
spection.--Coin Novelty Co. v. Lindenborn (Sup.)
An order of the court fixing a new date for See "Replevin.”
an examination of a party as a witness before
trial held not in effect an adjournment in vioDEVISES.
lation of Code Civ. Proc. $ 876, vesting author
ity to adjourn the examination in the judge See “Wills."
or referee before whom held.-Grant v. Greene
(Sup.) 535. DILIGENCE.
Though Code Civ. Proc. $ 873, requiring &
judge to order an examination of a party as a In procuring evidence as affecting right to new witness, does not authorize a court to make such trial, see "Criminal Law," $ 5.
order, yet where the examination could not be of party asking relief, see “Specific Perform- had at the time originally prescribed, owing to ance," $ 1.
a stay, the court, on vacation of the stay, held *Point annotated. See syllabus.
to have power to fix & new date.-Grant . action, and not on the merits.-Keuthen v. Stache
tice.-Crisenza v. Auchmuty (Sup.) 335.
Of corporation, see "Corporations," $ 8.
*Statement of what a plaintiff must show to Of proceeds of foreclosure, see “Mortgages,”
False statement as to institution of divorce ac-
Findings of referee on the issues referred to
him held to entitle plaintiff to a decree for di-
to be tried by a jury was improperly denied.-
Day v. Day (Sup.) 843.
*In an action for divorce for adultery, evi-
dence held insufficient to sustain a decree for
plaintiff.--Keville v. Keville (Sup.) 993.
On application to discontinue an action for
had been entered held the application should be
continued to give time for filing affidavits, etc.
The effect of a certain stipulation in lieu
of alimony held not to give a defendant offending
party the right to entry of absolute judgment
complaining party, though the proper time had
elapsed after interlocutory judgment.--Adams
V. Adams (Sup.) 1064.
Under Code Civ. Proc. $ 1774, held, that an
tered on the application of the offending party
ing party, though the proper time had elapsed
after interlocutory judgment.-Adams v. Adams
Where plaintiff suffered a dismissal because for divorce, and before entry of absolute judg-
*Point annotated. See syllabus.