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and 140 New York State Reporter at a certain time and place, held there is no
EJECTMENT. authority.-Platt v. Platt (Sup.) 1095.
Effect of demurrer to pleading, see "Pleading," $ 2. Alimony, allowances, and disposition of property.
8 4. Defendant in a divorce action held entitled to 8 1. Pleading and evidence. the vacation of a default judgment on payment deed and will under which defendants claimed
Demurrer to reply in ejectment, alleging that of alimony as required thereby.-Knauer v. Knauer (Sup.) 490.
title were procured through undue influence,
held not demurrable.-Lewis v. Ryan (Sup.) 646. *A defendant in a divorce action who fails without excuse to comply with a judgment re
Reply in ejectment to plea of res judicata quiring the payment of alimony may be punish- held not demurrable for failing to raise an ised for contempt notwithstanding the pendency sue of fact.-Lewis v. Ryan (Sup.) 646. of a motion by him to set aside the judgment. * Allegations of supplemental answer in eject. Knauer v. Knauer (Sup.) 491.
ment by one acquiring title as for action brought
held properly within the issues.-People v. DOCKETS.
Golding (Sup.) 821. Of causes for trial, see "Trial," $ 1.
By beneficiaries in will, see "Wills," $ 6.
ELECTION OF REMEDIES.
Remedies of one who has been induced
through fraud to contract stated.-MeyerhofIn cities, see “Municipal Corporations," $ 7.
fer v. Baker (Sup.) 718.
Laws relating to corrupt practices in elections Testamentary capacity, see "Wills," $ 2.
as denying due process of law, see "ConstituOne tried for being intoxicated in a public Waiver of privilege of voter as to disclosure of
tional Law," $ 3. place may prove that his character is good.
vote, see "Witnesses," $ 2. People v. Soloman (Co. Ct.) 1110.
8 1. Nominations and primary elec
tions. DUE PROCESS OF LAW.
*Though a certificate of nominations was not
filed within the time required by the election See “Constitutional Law," $ 3.
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 DYNAMITE.
names of the candidates so certified.--People
v. Ham (Sup.) 312. See “Explosives.”
*Under Primary Election Law, Laws 1899,
p. 993, c. 473, § 10, Election Law, $ 56, Laws EASEMENTS.
1896, p. 922, c. 909, $ 56, as amended by Laws
1901, p. 1669, c. 654, and Election Laws, Laws See "Dedication"; "Highways.”
1896, pp. 928–933, c. 909, 88 61, 64, 66, and 81, Creation of trust in, see “Trusts," § 1.
held, that a convention, having nominated M.
for a certain office, has no power to again con§ 1. Extent of right, use, and obstruc- office on M.'s declining the nomination.-In re
vene and nominate another person for that tion.
Greene (Sup.) 425. *Where land is conveyed subject to a right of way, neither party can do any act interfer
Election Law, Laws 1896, p. 931, c. 909, $ ing with the rightful use of the same by the 66, held inoperative where no certificate of parties to the deed.—Hale v. Jenkins (Sup.) | by law.-In re Darling (Sup.) 430; People v.
nomination was filed within the time required 282.
Dooling, Id. *One having a right of way over property of The minutes of the nominating convention, another must keep the right of way, or at filed as required by Primary Election Law least the approach thereto, over his own lands, Laws 1899, p. 993, c. 473, & 10, held not to in repair.–Townsend v. New York Cent. & H. take the place of the certificate of nomination R. R. Co. (Sup.) 381.
required under section 56 (Laws 1896, p. 922, *Point annotated. See syllabus.
c. 909).-In re Darling (Sup.) 430; People v. ' *Under Election Law, Laws 1896, p. 955, c. Dooling, Id.
909, § 103, a ballot on which the voter had Election Law, Laws 1896, p. 927, c. 909, 81
erased the name of a candidate printed thereon 59, designating the time within which cer
held void.-In re Houligan (Sup.) 205. tificates of party nominations may be filed, held
*Under Election Law, Laws 1896, p. 955, c. mandatory.-In re Darling (Sup.) 430; People | 909, $ 105, a ballot on which a voter made an v. Dooling, Id.
unauthorized mark, which he afterward tried Mandamus held not to lie against a general
to erase, held void.-In re Houligan (Sup.) 205. committee of a political party for an inspection
False markings in relation to a Citizens' tickof names of delegates to a convention in the et for school commissioners, placed on a ballot possession of the general committee of a par- pursuant to Laws 1906, p. 1374, c. 495, held ty and received from the district committee, to to render the remainder of the ballot invalid.be voted for at primaries before the same are In re Houligan (Sup.) 205. presented to electors at the polling booths.Hammond v. General Committee of Republican
§ 3. Count of votes, returns, and canParty of Erie County (Sup.) 589.
Under Election Law, Laws 1896, p. 963, c. Under Primary Election Law, Laws 1898, p. 909, $ 111, election inspectors cannot reject bal356, c. 179, § 12, the court has jurisdiction on lots marked in such a manner as to indicate the complaint of any citizen to set aside a can that the marks were made for the purpose of vass of a primary election and direct a recan identification, but they must count the same vass.-Husch v. Parmigiani (Sup.) 1097. and return such ballots indorsed with the
words: “Protested as marked for identification." § 2. Ballots.
-In re Houligan (Sup.) 205. *Where the names of the nominees of a Citizens' ticket for school commissioners placed on : 4. Contests. a ballot pursuant to Laws 1906, p. 1374, c. In an election contest, evidence that a number 495, were put in the same column with the of voters using a voting machine pulled down Socialistic Labor ticket, in violation of Election the lever over the column containing relator's Law, Laws 1896, p. 933, c. 909, $ 81, the error name, but did not push back any of the pointers, was one to which objection should have been so that the votes were not registered for relator, made before election. In re Houligan (Sup.) I held inadmissible to show that more votes were 205.
cast for relator than were canvassed and return*Under Election Law, Laws 1896, p. 955, c.
ed.-People v. Wintermute (Sup.) 1076. 909, § 105, declaring the rules which shall be In an election contest, evidence that more observed in marking ballots, a ballot marked
voters than were required to change the result on its back, and not on its face, held void.-In
pulled down the lever of a voting machine over re Houligan (Sup.) 203.
the column containing relator's name, but did *Under Election Law. Laws 1896. p. 962. c.not push back any of the pointers of that col909, $ 110, subd. 2, rule 6, a ballot marked in
| umn, so that their votes were not registered for the circle of two tickets, both of which had relator, held admissible to show that defendant candidates for state and county offices, but only was not legally elected.-People v. Wintermute one for city offices, was properly counted for (Sup.) 1076. the city offices.-In re Houligan (Šup.) 205.
18 5. Violations of election laws. * Election Law, Laws 1896, p. 955, c. 909, $ Corrupt Practices Act, Laws 1906, p. 1388, 105, and rule 7, subsec. 2, held not compliedc. 502, $ 213, requiring that a petition, to secure with by the placing of the crossing point or a summary inquest as to the failure to file a intersection of lines within the circle on the statement of election expenses, be filed within official ballot, if any of the lines ran outside of 30 days from the election, held not complied the circle.-In re Houligan (Sup.) 205.
with by presentation to a justice of the Supreme
Court within that time.-In re Lance (Sup.) 211. *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
ELECTRICITY. place X marks for individual candidates within the voting spaces opposite each name, held void. Restraining operation of electric lighting com-In re Houligan (Sup.) 205.
pany, see "Injunction," $ 1. *Under Election Law, Laws 1896, p. 961, c.
Right of lessee of subway to use ducts for 909, $ 110, subd. 2, rule 1, a ballot marked in
| transmission of electric current, see "Municithe circles of several different tickets, each con
pal Corporations," $ 6. taining nominations for all offices, is void.-In re Houligan (Sup.) 205.
EMINENT DOMAIN. *Under Election Law, Laws 1896, p. 955, c. 909, $ 105, subd. 2, rule 4, a ballot on which Creation of trust in proceeds recovered for inthe voter wrote the name of a person for whom juries in exercise of power of, see "Trusts," he desired to vote in a column other than the $81, 3. one designated for that purpose held void.-In Public improvements by municipalities, see re Houligan (Sup.) 205.
"Municipal Corporations," § 4. •Point annotated. See syllabus.
and 140 New York State Reporter f 1. Compensation.
certain testimony, notwithstanding a certificate The city of New York having
acquired a high- that they granted a motion to strike it from the way under Laws 1893, p. 317; c. 189, Laws record. In re City of New York_(Sup.) 1003; 1883, p. 666, c. 490, and Laws 1877, p. 512, c. In re Condemnation of Lands in Town of Car445, permitting it in taking land for its water mel Southeast and Town of Somers, Id. supply to take adjacent highways also, the leave granted by Transportation Corporations Law, Laws 1890, p. 1152, c. 566, § 102, to tele
EMPLOYÉS. phone 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.
ENTRY. The city of New York not being entitled to compensation for use by a telephone company of Re-entry by landlord, see “Landlord and Tena highway acquired by the city in taking land
ant,” $ 5. for its water supply, that it owned abutting land held immaterial.-State Line Telephone Co. v. Ellison (Sup.) 130.
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 EQUITABLE CONVERSION. having acquired the right by condemnation proceedings.--Hudson River Telephone Co. v. See "Conversion." Forrestal (Sup.) 404.
*The holder of an unexpired lease of property condemned held entitled to an award of dam
EQUITABLE ESTOPPEL. as defined by Code Civ. Proc. $ 3358.—People v. Thornton (Sup.) 704. See “Estoppel," $ 2.
*Circumstances in which an award on the condemnation of land by a city will be set aside
EQUITY. stated.-In re City of New York (Sup.) 1003; In re Condemnation of Lands in Town of Car
Equitable conversion, see "Conversion." mel Southeast and Town of Somers, Id.
Equitable estoppel, see “Estoppel," $ 2. § 2. Proceedings to take property and Exercise of equitable jurisdiction by surrogate assess compensation.
court, see “Courts," $ 4. Where the question whether certain property Joinder of legal and equitable causes of ac was embraced in a proceeding for the opening tion, see "Action," $ 1. of an avenue in the city of New York was de Particular subjects of equitable jurisdiction and termined on a motion to waive the order appointing commissioners, it will not be considered
equitable remedies. on application for confirmation of the commis- See "Account”; “Creditors' Suit"; "Injune sioners' report.-In re Popham Ave. in City of tion”; “Nuisance," $ 1; "Partition," $ 1; New York (Sup.) 482.
“Quieting Title”; “Receivers”; “Specific Per The word "owner,” in Code Civ. Proc. $ 3372,
formance"; "Trusts." 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
ESTABLISHMENT. costs, includes the holder of a leasehold on the land condemned, under section 3358.-People v. Of highways, see "Highways," $ 1. Thornton (Sup.) 704.
Of railroads, see “Railroads," $ 4; "Street
Railroads," $ 1. In a condemnation proceeding, evidence of the of telegraphs or telephones, see "Telegraphs structural value of buildings on the lands held
and Telephones," § 1. inadmissible.-In re City of New York (Sup.) of trusts, see "Trusts," $ 4. 1003; In re Condemnation of Lands in Town of Carmel Southeast and Town of Somers, Id. That there is sufficient competent evidence to
ESTATES. sustain awards in a condemnation proceeding will not avoid a setting aside of the commission- See "Remainders." ers' report, where it appears that incompetent Decedents' estates, see "Descent and Distritestimony admitted substantially affected the
bution"; "Executors and Administrators." awards.-In re City of New York (Sup.) 1003; Estates for years, see "Landlord and Tenant." In re Condemnation of Lands in Town of Car. Restrictions on creation of future estates, see mel Southeast and Town of Somers, Id.
“Perpetuities." In a condemnation proceeding, held, it must Tenancy in common, see "Tenancy in Combe assumed that the commissioners considered
*Point annotated. See syllabus.
For death of servant, see “Master and Servant,”
For necessaries furnished wife, see "Husband
and Wife," & 2.
For overflowing land, see "Waters and Water
_Courses," $ 2.
For personal injuries, see “Carriers," $ 3;
"Landlord and Tenant,” $ 3; “Master and
On bill or note, see "Bills and Notes," $ 2.
On claims against estate of decedent, see "Ex-
ecutors and Administrators,” $ 3.
Mortgages," $ 2.
To restrain erection of telephone pole in street,
see "Municipal Corporations," 8 6.
To restrain infringement of trade-mark, see
To restrain unlawful combination, see “Monop-
olies," $ 1.
In criminal prosecutions.
For drunkenness in public place, see "Drunk-
"Trial," $ 6.
Harmless error in rulings on, see “Appeal," $ 8.
Parties entitled to allege error as to rulings
on, see "Appeal," $ 8.
Review of evidence in general, see “Appeal,"
*The court will take judicial notice of the
the state.-Gannett v. Independent Telephone
Co. of Syracuse (Sup.) 3.
§ 2. Presumptions.
*Where defendant admitted that it had an
electric railroad on a certain street, it will be
presumed that its exclusive use of the tracks on
such street continued.-Jennings V. Brooklyn
Defendant, having admitted that it had an
electric railroad on a certain street, it would be
presumed that the cars running over such rail-
road by which plaintiff was injured belonged to
defendant.-Jennings v. Brooklyn Heights R.
Co. (Sup.) 279.
A boy who has passed his fourteenth birthday
is, in the absence of evidence to the contrary,
presumptively sui juris.-Fortune v. Hall (Sup.)
petency in general.
ling to proceed against a disorderly house, held
and 140 New York State Reporter error not to allow a witness on cross-examina- | laws.-Quentell y. New York Cotton Exch. (Sup.) tion to narrate the reinainder of conversations 228. partly given on direct examination.-People v.
*The rule that a member of an exchange must Bingham (Sup.) 330.
first exhaust his remedy within the corporation Certain evidence held not competent against a before the courts will interfere applies only corporation in determining the value of its prop- where proceedings are in conformity with the erty for purposes of taxation.-People v. Bar-constitution and by-laws of the organization.ker (Sup.) 336.
Quentell v. New York Cotton Exch. (Sup.) 228. *In an action to recover for a carrier's non
A notice to a member of an exchange to apdelivery of goods, plaintiff's testimony of the rear before a committee for investigation of his agent's declarations held admissible as being a conduct held not in compliance with the constipart of the res gestæ.-Maller v. Long Island R. tution and by-laws.-Quentell v. New York CotCo. (Sup.) 784.
ton Exch. (Sup.) 228. § 4. Parol or extrinsic evidence affecto change to resort to a higher authority within the
The law does not require a member of an er. ing writings.
organization before applying to the courts where *In action on draft, exclusion of evidence such action would be futile.--Quentell y. New showing failure of consideration held error.-York Cotton Exch. (Sup.) 228. National Park Bank v. Saitta (Sup.) 328.
*Testimony as to conversations prior to the making of a contract held not admissible.-Jan
EXCISE. vey v. Loketz (Sup.) 690.
Regulation of traffic in intoxicating liquors, see $ 5. Opinion evidence.
"Intoxicating Liquors." In a personal injury action held, a physician could testify that plaintiff's nervous, etc., condition could or might have resulted from the ac
EXECUTION. cident.-Kehoe v. International Ry. Co. (Sup.) 196.
See "Judicial Sales." *Where a sawyer sues his employer for an in- Poundage to sheriff acting under execution, see jury to his hand, evidence of an expert that it
"Sheriffs and Constables," $ 1. was more dangerous to run three boards through i 1. Stay, quashing, vacating, and rea saw than one held inadmissible.-Carron v.
lief against execution. Standard Refrigerator Co. (Sup.) 723.
Defendant can recover of plaintiff the amount $ 6. Evidence at former trial in
of money, with interest thereon, taken from its other proceeding.
agent under an irregular execution issued and *Testimony of a witness on
a former trial subsequently vacated.-Bradley v. Blue Ridge can be read only to refresh the memory of such Hosiery Mill (City Ct.) 1107. witness or to contradict him.--Dambmann v. $ 2. Payment, satisfaction, and disMetropolitan St. Ry. Co. (Sup.) 221.
charge. Where the sheriff published an inaccurate no
tice of an execution sale, under Code Civ. Proc. EXAMINATION.
$ 1369, held, that the debtor was not required
to pay the cost of the notice in addition to the Or adverse party before trial, see “Discovery," judgment in order to have the execution return$ 1.
ed satisfied prior to the sale.-Taylor V. Bell of witnesses in general, see "Witnesses," $ 2.
§ 3. Supplementary proceedings. EXCEPTIONS.
*Receiver in supplementary proceedings held
to have acquired a right to possession of real In deeds, see "Deeds," $ 1.
estate to satisfy a judgment subject to its terNecessity for purpose of review, see "Appeal,” mination by sale under execution or by expira$ 4.
tion of the judgment lien.-Hall v. Senior (Sup.) Taking exceptions at trial, see "Trial," $ 2. 29. To pleading, see "Pleading," $ 4.
The assignee of a judgment held entitled to
supplementary proceedings against the judgment EXCESSIVE DAMAGES.
debtor.--In re American Fidelity Co. (Sup.)
738; Clement v. White, Id. See “Damages," $ 5.
*An order for examination on supplementary For wrongful death, see “Death," $ 1.
proceedings held improperly set aside on motion, in view of disputed questions of fact and ques
tions of law.-In re American Fidelity Co. EXCHANGES.
(Sup.) 738; Clement v. White, Id.
False swearing by a judgment debtor con*Where a person joins an exchange, even cerning his property in supplementary proceedthough his membership carries property rights, ings held neither a civil nor a criminal con. he subjects himself to its constitution and by- tempt.-Saggese v. Virgilio (Sup.) 1100.
*Point annotated. See syllabus.