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was a unanimous vote of only eight members / residence, evidence held to show that the locus
of the council, all that were present, the whole in quo was a city street in a thickly populated
number being ten.-Bussing v. City of Mt. Ver-territory.-Gannett v. Independent Telephone
non (Sup.) 195.

Co. of Syracuse (Sup.) 3.
*The value of property not taken for a street Lessee of subway in the city of New York
must be determined in assessing benefits under held not entitled to use any of the ducts for the
New York City Charter, Laws 1901, p. 411, c. sale and transmission of electric currents to
466, § 980, on the basis of what it is worth third parties.-City of New York v. Interbor-
with the street extended.-In re Avenue D in ough Rapid Transit Co. (Sup.) 296.
City of New York (Sup.) 889.

Ordinance City of New York, c. 12, and Rules
*Where commissioners of estimate and assess-of the Road, 8 454, regulating the speed of mo-
ment certify in their report that they have com- tor vehicles in New York City, held not to su-
plied with the law, it is sufficient, where there persede Laws 1904, pp. 1314, 1316, 1319, c. 538,
is nothing to the contrary in the record.-In ref 3. subd. 1. section 4. subd. 3. and section 6.
Avenue D in City of New York (Sup.) 889. subd. 1.--People v. Keeper of Prison of Seventh

In a street opening proceeding, under New Dist. Magistrate's Court (Sup.) 314.
York City Charter, tit. 4, c. 17, Laws 1901, p. The burden of proof to establish the validity
405, c. 466, held under the evidence that the of an ordinance held to be on the party claiming
court could assume that the commissioners took

the benefit thereof.-People v. Keeper of Prison
into consideration the increased value due to

of Seventh Dist. Magistrate's Court (Sup.) 314,
the street extension.-In re Avenue D in City
of New York (Sup.) 889.

*The Legislature may grant to a corporation

a franchise to use the streets of the city, with-
In action to recover amount paid by city to lout requiring the corporation to obtain the
contractor for erection of sidewalk, held, no

consent of the local authorities.-In re Con-
fraud was shown on the part of the contractor.

solidated Gas Co. of New York (Sup.) 407.
- City of Jamestown v. Arter (Co. Ct.) 1027.
*A city paying a contractor for the building

Franchise granted by city to individual for

construction of street surface railroad by a cor-
of a sidewalk on the approval of the work by

poration to be thereafter organized held valid.
the sidewalk committee and the street commis-

– Village of Phænix v. Gannon (Sup.) 927.
sioner, on certificate of the street commissioner,
held bound thereby in the absence of fraud. 1 *Cities may pass ordinances limiting speed of
City of Jamestown v. Arter (Co. Ct.) 1027.

vehicles in the highways under Motor Vehicle
*City held estopped by collecting assessment

Law, Laws 1904, p. 1316, c. 538, 8 4, subd. 3;
of benefits by erection of sidewalk to recover

the penalties prescribed therein superseding

those specified in section 6 (page 1319) of the
amount paid contractor for the building of the

act. People v. Keeper of Prison of Seventh
same.-City of Jamestown v. Arter (Co. Ct.)

Dist. Magistrates' Court of City of New York
1027.

(Sup.) 960.
$ 5. Police power and regulations.
Sanitary Code, & 96, punishing persons suf-8

$ 7. Torts.
fering smoke to escape from buildings, constru-

*A city acquiring a pier under Laws 1894, p.
ed, and held not to render one liable for per-

1903, c. 758, as amended by Laws 1895, p. 1946,
mitting smoke to escape from a building, which

| c. 921, held bound to keep it in a reasonably
does not annoy people living in the vicinity.--

safe condition for public use. -Birch v. City of
People v. Sturgis (Sup.) 61.

New York (Sup.) 104.
An employé held not liable for a violation of *In an action for personal injuries alleged
Sanitary Code, $ 96, relating to equipping fur- to have been caused by the defective condition
naces with smoke consumers.-People v. Sturgis of a sidewalk, evidence to show repairs shortly
(Sup.) 61.

after the accident held inadmissible.-Mackey
After the passage by a city of an ordinance | v. City of New York (Sup.) 114.
limiting the speed of vehicles in the public high- *One injured by stepping in the trench from
ways under Motor Vehicle Law, Laws 1904, p. which street curbs had been removed held guil-
1311, c. 538, it supersedes the state law within ty of contributory negligence.-McHugh v. In-
the city limits, and complaint charging a viola- | ter-State Pav. Co. (Sup.) 165.
tion of the state law and not a violation of the

*A hole in a sidewalk held not one from
ordinance can not be maintai

le v.
Keeper of Prison of Seventh Dist. Magistrates'

which danger could be reasonably anticipated,
Court of City of New York (Sup.) 960.

so as to make the city liable for injury there-

from.-Powers v. City of New York (Sup.) 166.
*A city may maintain an ash receiving sta-
tion within the city in disposing of the ashes

An obstruction held not within the rule that a
of household and street sweepings and rubbish,

municipality is not liable for slight, temporary
if the method adopted does not create a nui-

defects.-Corr v. City of New York (Sup.) 280.
sance.-Saal v. South Brooklyn Ry, Co. (Sup.) *The liability of a municipal corporation for
996.

personal injuries held for the jury.-Corr v.
§ 6. Use and regulation of public pla-

City of New York (Sup.) 280.
ces, property, and works.

Notice of intent to sue the city of New York
In a suit to restrain the erection of a tele- for injuries caused by defective sidewalk held
phone pole in the street opposite plaintiff's a compliance with Laws 1886, p. 801, c. 572;

*Point annotated. See syllabus.

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and 140 New York State Reporter
the cause of action not accruing until after

NEGLIGENCE.
claim filed under Greater New York Charter,
Laws 1901, p. 114, c. 466, 8 261.-Bernreither Causing death, see “Death," $ 1.
v. City of New York (Sup.) 286.

Examination of parties before trial, see “Dis.
*In an action for injuries sustained in fall covery," § 1.
ing into an open manhole, evidence held to show
that plaintiff was negligent.-Wrigley v. City See “Carriers,” $$ 2, 3; “Clerks of Courts”;

By particular classes of persons.
of New York (Sup.) 812.

"Municipal Corporations,” 8 T; "Railroads,"
§ 8. Fiscal management, publio debt,

8 5.
securities, and taxation.

Employers, see "Master and Servant," 88 2-11.
Under Village Law, Laws 1897, p. 404, c. Telegraph and telephone companies, see "Tele-
414, $ 109, and Tax Law, Laws 1896, p. 882, c.

graphs and Telephones," 8 2.
908, § 251, held a petition for certiorari to re Condition or use of particular species of prope
view a village assessment must be presented erty, works, machinery, or other instru-
within 15 days after the completion and filing

mentalities.
of the assessment roll.—People . Dimond See "Explosives"; "Railroads,” $5; "Street
(Sup.) 832.

Railroads," & 2.
A resolution providing for the issuance of Construction of railroad culvert, see "Rail-
bonds to pay for the improvement of a street roads," $ 4.
submitted to voters of a village, though fail- Demised premises, see “Landlord and Tenant,"
ing to specify the sum thereafter to be raised
by tax to pay interest and principal on the Production, supply, and use of gas, see "Gas."
bonds, held a sufficient compliance with Gen.
Mun. Law, $ 5 (Laws 1892, p. 1734, c. 685).-

Contributory negligence.
Village of Bronxville v. Seymour (Sup.) 834.

Of passenger, see "Carriers," $ 3.
Of person injured by obstruction in street, see

"Municipal Corporations," $ 7.
MURDER.

Of person injured by operation of railroad, see

"Railroads," $ 5.
See “Homicide," 8 1.

Of person injured by operation of street rail-

road, see "Street Railroads," 8 2.

Of servant, see "Master and Servant," $$ 2, 7,
MUTUAL BENEFIT INSURANCE.

9, 11.
8 1. Acts

omissions constituting
See "Insurance," $ 6.

negligence.
*Negligence is the violation of duty by omis.

sion or commission.-Birch v. City of New
MUTUALITY.

York (Sup.) 104.
In contract in general, see “Contracts," $ 1.

Consolidation Act, Laws 1882, p. 134, c. 410,
In contract for sale of land, see “Vendor and 275. B 28. held not to make the occupant of a

§ 492, as amended by Laws 1892, p. 566. c.
Purchaser,” $ 1.

building liable for the death of a carpenter who

fell through a partly open hoistway.-Kenney
NAMES.

v. Brooklyn Bridge Stores Co. (Sup.) 421.

Under Consolidation Act, Laws 1882, p. 134,
See “Trade-Marks and Trade-Names."

C. 410, § 492. as amended by Laws 1892, D.
Negligent omission by clerk from his return of 566, c. 275, $ 28, New York Charter 1897, Laws

a judgment against a person of a certain 1897, p. 224, c. 378, $ 647, and New York Cbar
name, see “Clerks of Court."

ter 1901, Laws 1901, p. 179, c. 466, § 407, as
Of partnerships, see "Partnership," $ 1.

amended, held, that building provisions of the
consolidation act have been repealed, and that

the defendant's liability for the death of a car
NATIONAL BANKS.

penter who fell through a partly open hoistway

must depend upon the municipal building code.-
See “Banks and Banking," $ 2.

Kenney v. Brooklyn Bridge Stores Co. (Sup.)
421.
$ 2.

Contributory negligence.
NAVIGABLE WATERS.

*Contributory negligence of the driver or oper

ator of a vehicle is not chargeable against a pas
See “Waters and Water Courses."

senger therein.-- Noakee v. New York Cent, &

H. R. R. Co. (Sup.) 522.
NECESSARIES.

8 3. Actions.

In an action for the death of plaintiff's in-
Liability of husband for necessaries furnished testate, held, that under the evidence it was a
wife, see "Husband and Wife," $$ 1, 2. question for the jury whether defendant was

*Point annotated. See syllabus.

or

not negligent in failing to provide certain things to the inferences to be drawn therefrom, and it
to make his premises more safe.-Conaway v. is clearly submitted to the jury, the trial court
Martin (Sup.) 194.

should not set aside the verdict as against the
*In an action for injuries to a girl, a little weight of evidence.- New York Evening Jour-
over six years of age, the question whether she pal Pub. Co. y. William F. Simpson Advertis-
was sui juris held properly submitted to the ing Agency (City Ct.) 858.
jury.-Pittel v. Burkhard (Sup.) 245.
*Where negligence is charged the specific acts

NEXT OF KIN.
constituting it should be shown.-Gibbons v.
Lehigh Valley R. Co. (Sup.) 543.

See “Descent and Distribution."

NEGOTIABLE INSTRUMENTS.

NOMINAL DAMAGES.
See "Damages," $ 1.

See "Bills and Notes."

NEWLY DISCOVERED EVIDENCE.

NOMINATION.
Ground for new trial in criminal prosecution, For office, see "Elections,” $8 1, 2.
see “Criminal Law," 5.

NONSUIT.
NEWSPAPERS.

Before trial, see "Dismissal and Nonsuit.”
Libel by, see “Libel and Slander,” g 1.

On trial, see “Trial," 4.
NEW TRIAL.

NOTES.

Promissory notes, see "Bills and Notes."
Costs, see "Costs." $ 5.
In criminal prosecutions, see "Criminal Law,"
8 5.

NOTICE.
Remand by appellate court for new trial, see
“Appeal," $ 9.

As affecting particular classes of persons.
$ 1. Grounds.

See “Landlord and Tenant,” $ 1; "Master and
*Where the jury makes an improper deduction

Servant," $ 8.
from the verdict given for plaintiff. it is not a

Member of exchange, see "Exchanges."
ground for awarding a new trial on motion of

Of particular facts, acts, or proceedings not
defendant.-Tomkins v. J. & R. Lamb (Sup.) 6.

judicial.
*A verdict will be set aside as excessive only See "Mechanics' Liens," $81, 2.
when clearly the result of passion or corruption. Appointment of commissioners to establish high-
- Dambmann v. Metropolitan St. Ry. Co. (Sup.)
221.

way, see "Highways," $ 1.

Injuries caused by defective sidewalk, see “Mu-
*New trial granted for misconduct of counsel nicipal Corporations," $ 7.
in argument.-Nelson v. Forty-Second St., M. Injury to servant, see "Master and Servant,"
& St. N. Ave. Ry. Co. (Sup.) 552.

8 8.
*In an action for broker's commissions, plain- Loss of shipment, see "Carriers," $ 2.
tiff held entitled to a new trial after 'verdict Option to renew lease, see “Landlord and Ten-
for defendant because of the intrusion of a

ant," $ 2.
false issue as to which there was neither plead- Prior mortgage, see “Chattel Mortgages,” $ 1.
ing nor proof.-King v. Knowles (Sup.) 760.

Removal from county office, see "Counties," § 1.
*Where a verdict was the result of compro-

Tax sale, see "Taxation," $ 3.
mise, and indicated that the jury misunderstood Of particular judicial proceedings.
or disregarded the evidence as well as the in- See “Lis Pendens”; “Trial," $ 1.
structions, defendant's motion to set it aside Foreclosure sale, see “Mortgages," $ 3.
was supported by the fact that it was not war-
ranted by the evidence.-Feldman v. Levy (Sup.) *Rule as to the sufficiency of service of no-
1092.

tices required by law stated.-Boland v. Sokolski
*Where a verdict in favor of plaintiff was the (Sup.) 760.
result of compromise and in contravention of
the court's instructions, it should have been set

NUISANCE.
aside on defendant's motion, though it was for
less than the court charged plaintiff was entitled Right to trial by jury in action for, see "Jury,”
to recover, if anything.-Feldman v. Levy (Sup.)

8 1.
1092.

8 1. Private nuisances.
*Where the evidence in an action is so even The action of a railroad in permitting sur-
ly halanced that reasonable men might differ as ! face water from one side of its track to escape

*Point annotated. See syllabus.

and 140 New York State Reporter
to the other side alongside of the highway held

OPENING.
not ground for an action for nuisance.- Town-
send v. New York Cent. & H. R. R. Co. (Sup.) Judgment, see "Judgment,” $ 1.
381.

*The occupation of a part of a sidewalk used
by passers-by and those seeking entrance to

OPINION EVIDENCE.
plaintiff's premises with a structure of iron-
work and glass held to be a private nuisance In civil actions, see “Evidence,” $ 5.
which plaintiff may enjoin.-Levy V. Murray
(Sup.) 689.

OPINIONS.
NUNC PRO TUNC.

Of courts, see "Courts," $ 2.
Amendment of pleading nunc pro tunc, see
"Pleading," $ 5.

OPTIONS.
OBJECTIONS.

To renew lease, see "Landlord and Tenant," $ 2.
Jurisdiction of court after change of venue, see
"Criminal Law," § 1.

ORDERS.
To reception of evidence, see “Trial," $ 2.

Of court, see “Motions."
OBLIGATION OF CONTRACT.

Orders of court.

Dismissal of action, see “Dismissal and Non-
Laws impairing, see “Constitutional Law," $ 2. suit," § 1.

Examination of parties before trial, see “Dis-
OBSTRUCTIONS.

covery," § 1.

Examination on supplementary proceedings, see
Of easements, see “Easements," § 1.

"Execution," 8 3.
Of sidewalks, see "Municipal Corporations,” | 7. Foreclosure sale, see “Mortgages,” $ 3.

Review of appealable orders, see "Appeal."
OFFICERS.

ORDINANCES.
Authority of Secretary of State to file articles

of incorporation, see "Corporations,” $ 1. Municipal ordinances, see “Municipal Corpora-
Bribery, see "Bribery.”

tions," 88 4-6.
Jurisdiction of court of officers of foreign cor-
porations residing in

another state,
-Courts," $ 1.

PARENT AND CHILD.
Larceny by, see “Larceny," 88 1, 2.
Mandamus, see "Mandamus," 8 1.

See “Bastards."
Preference for trial of action to test title to Children as employés, see “Master and Serv-
office, see “Trial," 8 1.

ant," $82, 10, 11.
Relevancy of evidence in proceeding against po-

lice officer, see “Evidence," $ 3.
Right of county officer to appeal, see "Appeal,”

PAROL EVIDENCE.
$ 3.
Particular classes of officers.

In civil actions, see “Evidence," $ 4.
See "Attorney General"; "Clerks of Courts”;

“Coroners"; "Justices of the Peace"; "Re-
ceivers"; "Sheriffs and Constables."

PARTICULARS.
Corporate otficers, see. “Corporations,", $$ 3, 6. Bill of, see “Pleading;” $ 7.
County officers, see "Counties,” $81, 3.
Court officers, see "Courts," $ 2.
Municipal officers, "Municipal Corpora-

PARTIES.
tions," $ 3.
Of trust company, see “Banks and Banking,” Continuance for sickness of party, see "Con-

& 3.
Superintendents of the poor, see "Paupers,” s 1. Rights and liabilities as to costs, see “Costs,"

tinuance."
Tax assessors, see "Taxation," $ 2.
Transfer tax otlicers, see "Taxation," $ 5.

$ 2.
8 1. Rights, powers, duties, and liabil-

In particular actions or proceedings.
ities.

Sea "Partition," 1.
*The term "prescribed by law," as used in For breach of contract, see "C'ontracts," x 6.
Const. 1816, art. 5, § 6, and subsequent Con- For services rendered by intestate, see “Execu-
stitutions, defined.-People Santa Clara tors and Administrators," $ 5.
Lumber Co. (Sup.) 624.

On subscription, see "Subscriptions."
* Point annotated. See syllabus.

see

see

Probate proceedings, see "Wills," $ 4.

PASSENGERS.
To compel transfer of licenses after dissolu-

tion of corporation, see "Corporations," $ 8. See “Carriers," $ 3.
Judgment and relief as to parties, and parties
affected by judgments or proceedings thereon.

PATENTS.
Persons concluded by judgment, see sudgment,” Nominal damages for breach of license for use
$ 5.

of patented machine, see "Damages," $ 1.
Review as to parties, and parties to proceedinge Right of inventor to exclusive property in in-
in appellate courts.

vention independently of letters patent, see

"Property."
Parties on appeal, see "Appeal," § 3

8 1. Title, conveyances, and contracts.
§ 1. Defendants.

A complaint for an accounting and for specific
The pleadings and record held not to show performance by one to whom royalties are due
any right under Code Civ. Proc. $ 448, for one held demurrable.–Storr v. Central Bedding Co.
partner to sue alone on a partnership cause of (Sup.) 546.
action, though the other partner is made a de-
fendant.-Baron v. Lakow (Sup.) 243.

§ 2. Infringement.
§ 2. New parties and change of parties, already on the market where the patents there-

One may imitate a perfected article of another
Code Civ. Proc. 8 723, held to be unaffected on have expired.-Westcott Chuck Co. v. Oneida
by section 452 and to authorize the bringing in Nat. Chuck Co. (Sup.) 1016.
of an additional defendant in a common-law
action by amendment of the summons and com-
plaint on plaintiff's motion.--Gittlema v. Felt-

PAUPERS.
man (Sup.) 839.

$ 1. Support, services, and expenses.
PARTITION.

Under the express provisions of Code Cr.

Proc. $ 839, a mother is liable for the support
Contempt by referee in partition, see "Con- if she wrongfully neglects or refuses to do so,

of her bastard child, if able to support it, and,
tempt," $ 1.

she may be prosecuted for abandonment or pro-
§ 1. Actions for partition.

ceeded against under section 857.-People v.
Under Code Civ. Proc. § 1022, held error to

Chamberlain (Sup.) 149.
amend by order an interlocutory judgment for Under Poor Law, Laws 1896, pp. 144, 155,
costs in a partition suit entered as directed by : 138, c. 225, 88 62, 65, 22, 56, and Pen. Code,
the judgment for partition.--Smith v. Smith Laws 1896, p. 631, c. 550, § 117b, the superin-
(Sup.) 137.

tendent of the poor may be compelled by man-
One claiming an undivided interest in lands damus to again remove a bastard child to the
under a conveyance executed by devisees thereof fore received therein was returned by him to

county almshouse, which having been thereto
heid entitled to maintain partition against the its mother.-People v. Chamberlain (Sup.) 149
derisees without joining a lessee of the executor.
-Van Norden Trust Co. v. O'Donohue (Sup.) Under the express provisions of Code Cr.
918.

Proc. $ 839, where a father and mother neglect

or are unable to support their bastard child, it
PARTNERSHIP.

must be supported by the county.-People v.

Chamberlain (Sup.) 149.
Estoppel to claim that money was withdrawn In the absence of proof to the contrary, it

from partnership as against succeeding cor- will be presumed that a person received into a
poration, see “Estoppel,” $ 2.

public charitable institution truthfully answer-
Joinder of partners in action on partnership i ed questions asked of her touching her proper-
cause of action, see "Parties," $ 1.

ty.-In re Carroll's Estate (Sur.) 681.
§ 1. The firm, its name, powers, and

*Claim by municipality to be reimbursed
property.

from the estate of decedent for its care of her
*An overdraft on account of profits unearned in the county poorhouse denied.-In re Car-
by a partner held an asset of the firm, which roll's Estate (Sur.) 681.
passed under a transfer of the firm's property
and business to a corporation.-Hoey v. Fechten-

PAYMENT.
berg (Sup.) 10%.
§ 2. Dissolution, settlement, and

See "Compromise and Settlement"; "Tender."
counting.

By receiver, see "Receivers," 8 2.
Partner held to have admitted the right of a

Recovery for money paid, see "Money Paid.”
copartner to a partnership accounting.-Child Subrogation on payment, see "Subrogation.”
v. O'Rourke (Sup.) 89 .

of particular classes of obligations or liabilitics.
Certain averments of the complaint in a suit See “Chattel Mortgages,” $ 4; "Costs," § 6;
for a partnership accounting held surplusage. "Execution," $. 2; "Judgment,” 8 7; "Me-
--Child v. O'Rourke (Sup.) 884.

chanics' Liens," $ 2.
* Point annotated. See syllabus.

ac-

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