and 140 New York State Reporter at a certain time and place, held there is no authority.-Platt v. Platt (Sup.) 1095. § 2. Alimony, allowances, and disposition of property. Defendant in a divorce action held entitled to the vacation of a default judgment on payment of alimony as required thereby.-Knauer v. Knauer (Sup.) 490. *A defendant in a divorce action who fails without excuse to comply with a judgment requiring the payment of alimony may be punished for contempt notwithstanding the pendency of a motion by him to set aside the judgment.Knauer v. Knauer (Sup.) 491. Testamentary capacity, see "Wills," § 2. One tried for being intoxicated in a public place may prove that his character is good.People v. Soloman (Co. Ct.) 1110. DUE PROCESS OF LAW. See "Constitutional Law," § 3. See "Explosives." DYNAMITE. EASEMENTS. See "Dedication"; "Highways." § 1. Extent of right, use, and obstruc- *Where land is conveyed subject to a right of way, neither party can do any act interfering with the rightful use of the same by the parties to the deed.-Hale v. Jenkins (Sup.) 282. *One having a right of way over property of another must keep the right of way, or at least the approach thereto, over his own lands, in repair.-Townsend v. New York Cent. & H. R. R. Co. (Sup.) 381. EJECTMENT. Effect of demurrer to pleading, see "Pleading," § 4. § 1. Pleading and evidence. Demurrer to reply in ejectment, alleging that deed and will under which defendants claimed title were procured through undue influence, held not demurrable.-Lewis v. Ryan (Sup.) 646. Reply in ejectment to plea of res judicata held not demurrable for failing to raise an issue of fact.-Lewis v. Ryan (Sup.) 646. *Allegations of supplemental answer in ejectment by one acquiring title as for action brought held properly within the issues.-People v. Golding (Sup.) 821. *Though a certificate of nominations was not filed within the time required by the election law (Laws 1896, p. 930, c. 909, § 65), yet, under the circumstances, held, that the county clerk would be required to place on the ballot the names of the candidates so certified.-People v. Ham (Sup.) 312. *Under Primary Election Law, Laws 1899, p. 993, c. 473, § 10, Election Law, § 56, Laws 1896, p. 922, c. 909, § 56, as amended by Laws 1901, p. 1669, c. 654, and Election Laws, Laws 1896, pp. 928-933, c. 909, §§ 61, 64, 66, and 81, held, that a convention, having nominated M. for a certain office, has no power to again conoffice on M.'s declining the nomination.-In re vene and nominate another person for that Greene (Sup.) 425. Election Law, Laws 1896, p. 931, c. 909, § 66, held inoperative where no certificate of by law. In re Darling (Sup.) 430; People v. nomination was filed within the time_required Dooling, Id. The minutes of the nominating convention, filed as required by Primary Election Law. Laws 1899, p. 993, c. 473, § 10, held not to take the place of the certificate of nomination required under section 56 (Laws 1896, p. 922, *Point annotated. See syllabus. c. 909). In re Darling (Sup.) 430; People v. Dooling, Id. Election Law, Laws 1896, p. 927, c. 909, 8 59, designating the time within which certificates of party nominations may be filed, held mandatory. In re Darling (Sup.) 430; People v. Dooling, Id. Mandamus held not to lie against a general committee of a political party for an inspection of names of delegates to a convention in the possession of the general committee of a party and received from the district committee, to be voted for at primaries before the same are presented to electors at the polling booths.Hammond v. General Committee of Republican Party of Erie County (Sup.) 589. Under Primary Election Law, Laws 1898, p. 356, c. 179, § 12, the court has jurisdiction on the complaint of any citizen to set aside a canvass of a primary election and direct a recanvass.-Husch v. Parmigiani (Sup.) 1097. § 2. Ballots. *Where the names of the nominees of a Citizens' ticket for school commissioners placed on a ballot pursuant to Laws 1906, p. 1374, c. 495. were put in the same column with the Socialistic Labor ticket, in violation of Election Law, Laws 1896, p. 933, c. 909, § 81, the error was one to which objection should have been made before election.-In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 955, c. 909, § 105. declaring the rules which shall be observed in marking ballots, a ballot marked on its back, and not on its face, held void.-In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 962, c. 909, § 110, subd. 2, rule 6, a ballot marked in the circle of two tickets, both of which had candidates for state and county offices, but only one for city offices, was properly counted for the city offices.-In re Houligan (Sup.) 205. *Election Law, Laws 1896, p. 955, c. 909, § 105. and rule 7, subsec. 2, held not complied with by the placing of the crossing point or intersection of lines within the circle on the official ballot, if any of the lines ran outside of the circle.-In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 955, c. 909, § 105, subd. 2, a ballot by which a voter attempted to vote a split ticket, but did not place X marks for individual candidates within the voting spaces opposite each name, held void. -In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 961, c. 909, § 110, subd. 2, rule 1, a ballot marked in the circles of several different tickets, each containing nominations for all offices, is void.-In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 955, c. 909. § 105, subd. 2, rule 4, a ballot on which the voter wrote the name of a person for whom he desired to vote in a column other than the one designated for that purpose held void.-In re Houligan (Sup.) 205. *Under Election Law, Laws 1896, p. 955, c. 909, § 105, a ballot on which the voter had held void. In re Houligan (Sup.) 205. erased the name of a candidate printed thereon *Under Election Law, Laws 1896, p. 955, c. 909, § 105, a ballot on which a voter made an unauthorized mark, which he afterward tried to erase, held void.-In re Houligan (Sup.) 205. False markings in relation to a Citizens' ticket for school commissioners, placed on a ballot pursuant to Laws 1906, p. 1374, c. 495, held to render the remainder of the ballot invalid.In re Houligan (Sup.) 205. In an election contest, evidence that a number of voters using a voting machine pulled down the lever over the column containing relator's name, but did not push back any of the pointers, so that the votes were not registered for relator, held inadmissible to show that more votes were cast for relator than were canvassed and return ed.-People v. Wintermute (Sup.) 1076. In an election contest, evidence that more voters than were required to change the result pulled down the lever of a voting machine over the column containing relator's name, but did not push back any of the pointers of that column, so that their votes were not registered for relator, held admissible to show that defendant was not legally elected.-People v. Wintermute (Sup.) 1076. 5. Violations of election laws. Corrupt Practices Act, Laws 1906, p. 1388, c. 502, § 213, requiring that a petition, to secure a summary inquest as to the failure to file a statement of election expenses, be filed within 30 days from the election, held not complied with by presentation to a justice of the Supreme Court within that time.-In re Lance (Sup.) 211. ELECTRICITY. Restraining operation of electric lighting company, see "Injunction," § 1. Right of lessee of subway to use ducts for transmission of electric current, see "Municipal Corporations," § 6. EMINENT DOMAIN. Creation of trust in proceeds recovered for injuries in exercise of power of, see "Trusts," §§ 1, 3. Public improvements by municipalities, see "Municipal Corporations," § 4. *Point annotated. See syllabus. § 1. Compensation. and 140 New York State Reporter certain testimony, notwithstanding a certificate that they granted a motion to strike it from the record. In re City of New York (Sup.) 103: In re Condemnation of Lands in Town of Carmel Southeast and Town of Somers, Id. The city of New York having acquired a highway under Laws 1893, p. 317, c. 189, Laws 1883, p. 666, c. 490, and Laws 1877, p. 512, c. 445, permitting it in taking land for its water supply to take adjacent highways also, the leave granted by Transportation Corporations Law, Laws 1890, p. 1152, c. 566, § 102, to telephone companies to use public highways held to apply, and hence the city was not entitled to See "Master and Servant." compensation for its use by a telephone company. State Line Telephone Co. v. Ellison (Sup.) 130. The city of New York not being entitled to compensation for use by a telephone company of a highway acquired by the city in taking land for its water supply, that it owned_abutting land held immaterial.-State Line Telephone Co. v. Ellison (Sup.) 130. EMPLOYÉS. ENTRY. Re-entry by landlord, see "Landlord and Tenant," $5. ENTRY, WRIT OF. A telephone company holding a village fran- See "Ejectment." chise is not authorized to occupy streets, the title to which is in the abutting owner, without his consent and against his wishes without having acquired the right by condemnation proceedings.-Hudson River Telephone Co. v. Forrestal (Sup.) 404. *The holder of an unexpired lease of property condemned held entitled to an award of damages as an owner, as defined by Code Civ. Proc. 3358.-People v. Thornton (Sup.) 704. *Circumstances in which an award on the condemnation of land by a city will be set aside stated. In re City of New York (Sup.) 1003; In re Condemnation of Lands in Town of Carmel Southeast and Town of Somers, Id. § 2. Proceedings to take property and assess compensation. Where the question whether certain property was embraced in a proceeding for the opening of an avenue in the city of New York was determined on a motion to waive the order appointing commissioners, it will not be considered on application for confirmation of the commissioners' report.-In re Popham Ave. in City of New York (Sup.) 482. The word "owner," in Code Civ. Proc. § 3372, providing that, if the owner of land sought to be condemned is a resident, and is not served with an offer to purchase, he shall be entitled to costs, includes the holder of a leasehold on the land condemned, under section 3358.-People v. Thornton (Sup.) 704. In a condemnation proceeding, evidence of the structural value of buildings on the lands held inadmissible. In re City of New York (Sup.) 1003; In re Condemnation of Lands in Town of Carmel Southeast and Town of Somers, Id. That there is sufficient competent evidence to sustain awards in a condemnation proceeding will not avoid a setting aside of the commissioners' report, where it appears that incompetent testimony admitted substantially affected the awards. In re City of New York (Sup.) 1003; In re Condemnation of Lands in Town of Carmel Southeast and Town of Somers, Id. In a condemnation proceeding, held, it must be assumed that the commissioners considered EQUITABLE CONVERSION. See "Conversion." EQUITABLE ESTOPPEL. See "Estoppel," § 2. EQUITY. Equitable conversion, see "Conversion." Joinder of legal and equitable causes of ac- Particular subjects of equitable jurisdiction and equitable remedies. See "Account"; "Creditors' Suit"; "Injune tion"; "Nuisance," § 1; "Partition." § 1; "Quieting Title"; "Receivers"; "Specific Per formance"; "Trusts." ESTABLISHMENT. Of highways, see "Highways," § 1. ESTATES. See "Remainders." Tenancy in common, see "Tenancy in Com mon. *Point annotated. See syllabus. ESTOPPEL. By judgment, see "Judgment." §§ 4, 5. To allege error, see "Appeal," § 8. For death of servant, see "Master and Servant," For necessaries furnished wife, see "Husband To recover amount paid to contractor, see "Mu- For overflowing land, see "Waters and Water 1. By deed. *A title subsequently acquired by one who § 2. Equitable estoppel. *Where, at the time a firm's business was EVICTION. Of tenant, see "Landlord and Tenant," § 5. EVIDENCE. See "Depositions"; "Discovery"; "Witnesses." Correction of errors in rulings at trial, see Questions of fact for jury, see "Trial," § 4. As to particular facts or issues. Fraud in allowing judgment on appeal, see "Ap- Gift inter vivos, see "Gifts," § 1. Rejection of articles sold, see "Sales," § 1. In actions by or against particular classes of See "Carriers," § 3; "Landlord and Tenant," In particular civil actions or proceedings. Contest of election, see "Elections," § 4. Courses," § 2. For personal injuries, see "Carriers," § 3; For price of goods sold, see "Sales." § 3. To recover mortgaged property, see "Chattel To restrain erection of telephone pole in street, To restrain infringement of trade-mark, see In criminal prosecutions. For drunkenness in public place, see "Drunk- Review and procedure thereon in appellate courts. See "Justices of the Peace," § 2. Harmless error in rulings on, see "Appeal," § 8. § 1. Judicial notice. *The court will take judicial notice of the § 2. Presumptions. *Where defendant admitted that it had an Defendant, having admitted that it had an A boy who has passed his fourteenth birthday 787. § 3. Relevancy, materiality, and com- On a hearing against a police officer for fail- and 140 New York State Reporter error not to allow a witness on cross-examina- | laws.-Quentell v. New York Cotton Exch. (Sup.) tion to narrate the remainder of conversations 228. partly given on direct examination.-People v. Bingham (Sup.) 330. Certain evidence held not competent against a corporation in determining the value of its property for purposes of taxation.-People v. Barker (Sup.) 336. *In an action to recover for a carrier's nondelivery of goods, plaintiff's testimony of the agent's declarations held admissible as being a part of the res gestæ.-Maller v. Long Island R. Co. (Sup.) 784. § 4. Parol or extrinsic evidence affect ing writings. *In action on draft, exclusion of evidence showing failure of consideration held error.National Park Bank v. Saitta (Sup.) 328. *Testimony as to conversations prior to the making of a contract held not admissible.-Janvey v. Loketz (Sup.) 690. 5. Opinion evidence. In a personal injury action held, a physician could testify that plaintiff's nervous, etc., condition could or might have resulted from the accident.-Kehoe v. International Ry. Co. (Sup.) 196. *Where a sawyer sues his employer for an injury to his hand, evidence of an expert that it was more dangerous to run three boards through a saw than one held inadmissible.-Carron v. Standard Refrigerator Co. (Sup.) 723. in § 6. Evidence at former trial ог EXAMINATION. Of adverse party before trial, see "Discovery," EXCEPTIONS. In deeds, see "Deeds," § 1. Necessity for purpose of review, see "Appeal," Taking exceptions at trial, see "Trial," § 2. EXCESSIVE DAMAGES. See "Damages," § 5. For wrongful death, see "Death," § 1. EXCHANGES. *Where a person joins an exchange, even though his membership carries property rights, he subjects himself to its constitution and by *The rule that a member of an exchange must first exhaust his remedy within the corporation before the courts will interfere applies only where proceedings are in conformity with the constitution and by-laws of the organization.Quentell v. New York Cotton Exch. (Sup.) 228. A notice to a member of an exchange to appear before a committee for investigation of his conduct held not in compliance with the constitution and by-laws.-Quentell v. New York Cotton Exch. (Sup.) 228. change to resort to a higher authority within the The law does not require a member of an exsuch action would be futile.-Quentell v. New organization before applying to the courts where York Cotton Exch. (Sup.) 228. EXCISE. Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors." EXECUTION. See "Judicial Sales." Poundage to sheriff acting under execution, see "Sheriffs and Constables," § 1. 1. Stay, quashing, vacating, and relief against execution. Defendant can recover of plaintiff the amount of money, with interest thereon, taken from it agent under an irregular execution issued and subsequently vacated.-Bradley v. Blue Ridge Hosiery Mill (City Ct.) 1107. § 2. Payment, satisfaction, and discharge. Where the sheriff published an inaccurate notice of an execution sale, under Code Civ. Proc. § 1369, held, that the debtor was not required to pay the cost of the notice in addition to the judgment in order to have the execution returned satisfied prior to the sale.-Taylor v. Bell (Sup.) 273. § 3. Supplementary proceedings. *Receiver in supplementary proceedings held to have acquired a right to possession of real estate to satisfy a judgment subject to its termination by sale under execution or by expiration of the judgment lien.-Hall v. Senior (Sup.) 29. The assignee of a judgment held entitled to supplementary proceedings against the judgment debtor.--In re American Fidelity Co. (Sup) 738; Clement v. White, Id. *An order for examination on supplementary proceedings held improperly set aside on motion. in view of disputed questions of fact and questions of law. In re American Fidelity Co. (Sup.) 738; Clement v. White, Id. False swearing by a judgment debtor concerning his property in supplementary proceedings held neither a civil nor a criminal contempt.-Saggese v. Virgilio (Sup.) 1100. *Point annotated. See syllabus. |