and 140 New York State Reporter
Alimony, see "Divorce," § 2.
Claims against estate of decedent, see "Exec-
utors and Administrators," § 3.
Compensation for property taken for public use,
see "Eminent Domain," § 1.
County warrant, see "Counties," § 3.
Defective sidewalk, see "Municipal Corpora-
tions," § 7.
§ 1. Requisites and sufficiency.
*Payment is made by the debtor delivering
to his creditor money or other valuable thing
to extinguish the debt, which is received by the
creditor for the same purpose.-Persons v. Gard-
ner (Sup.) 616.
PENAL STATUTES.
Construction of, see "Statutes," § 3.
For adulteration of milk, see "Adulteration."
For discrimination by telephone company, see
"Telegraphs and Telephones," § 2.
Under contracts, see "Damages," § 3.
PENDENCY OF ACTION.
Effect as to property involved, see "Lis Pen-
dens."
Of police officers, see "Municipal Corporations,"
$ 3.
To school teachers, see "Schools and School
Districts," § 1.
PERCOLATING WATERS.
See "Waters and Water Courses," § 1.
could be obtained, held void.-Stewart v. Wool-
ley (Sup.) 99.
*A direction that the share of a certain child
of rents and profits of land be held in trust for
his life, remainder to his children, held void.-
Stewart v. Woolley (Sup.) 99.
Trust in will construed, and held invalid as
suspending power of alienation.-Whitefield v.
Crissman (Sup.) 630.
A devise to A. of corporate stock, the stock
to be held in trust for seven years after the
death of testatrix, with a provision that on his
death within the seven years without children
the shares bequeathed should go to certain other
persons, is valid; the suspension of the absolute
ownership of said stock being measured by the
life of A.-Orange County Trust Co. v. Morri-
son (Sup.) 940.
PERSONAL INJURIES.
Particular causes or means of injury.
See "Negligence."
Defective condition of demised premises, see
"Landlord and Tenant," § 3.
Explosion, see "Explosives."
Operation of railroads, see "Railroads," § 5.
Operation of street railroad, see "Street Rail-
roads," § 2.
Particular classes of persons injured.
Employé, see "Master and Servant," §§ 2-11.
Passenger, see "Carriers," §§ 3, 4.
Traveler on highway, see "Municipal Corpo-
rations," § 7.
Traveler on highway crossing railroad, see
"Railroads," § 5.
Bill of particulars, see "Pleading," § 7.
Correction of errors at trial, see "Trial," § 6.
Excessive damages, see "Damages," § 5.
Harmless error in rulings on evidence, see "Ap-
peal," § 8.
Jurisdiction of municipal court, see "Courts,"
§ 3.
Opinion evidence, see "Evidence," § 5.
Of contract, see "Contracts," § 5; "Sales," § 1. Pleading damages, see "Damages," § 6.
Charge of perjury by newspaper as libelous,
see "Libel and Slander," § 1.
*Will construed, and held to create no unlaw-
ful suspension of the power of alienation.-Dex-
ter v. Watson (Sup.) 80.
*An express trust created in executors to sell
real property held to unlawfully suspend the
absolute power of alienation.-Stewart v. Wool-
ley (Sup.) 99.
*An express trust to receive and accumulate
rents and profits of certain of testator's real prop-
erty until a sale thereof, the sale to be made at
such time within five years as a certain price
Special findings, see "Trial," § 5.
*Point annotated. See syllabus.
Restraining picketing by union strikers, see
"Injunction," § 2.
In civil actions, see "Pleading," § 3.
Conformity of judgment to pleadings, see “Judg-
ment," § 2.
Presumptions as to pleadings on motion for
nonsuit, see "Trial," § 4.
cause of action as to one of the items claimed
will not be sustained.-Babcock v. Anson (Sup.)
642.
*A complaint in an action for the negligent
death of an employé, brought against the employ-
er and a third person, held to state separate
causes of action against defendants within the
rule requiring separate causes of action to be
separately stated and numbered.-Hamnstrown
V. New York Contracting Co., Pennsylvania Ter-
minal (Sup.) 880.
§ 3. Plea or answer, cross-complaint,
and affidavit of defense.
*Denials on information and belief held prop-
er.-Connolly v. Schroeder (Sup.) 303.
*Demurrer to answer sustained, where defend-
Allegations as to particular facts, acts, or trans- ant by mistake referred to paragraphs of his
Right to lis pendens, see "Lis Pendens."
answer as paragraphs of "this amended com-
plaint."-Etna Life Ins. Co. v. North Star
Mines Co. (Sup.) 545.
*Where defendant sets up separate defenses,
In actions by or against particular classes of each must be complete in itself, either by the
See "Master and Servant," §§ 1, 9.
express reaverment of other parts of the answer,
or by reference thereto.-Walsh v. Lispenard
Foreign corporations, see "Corporations," § 9. Realty Co. (Sup.) 570; Same v. Bergen Realty
In particular actions or proceedings.
See "Ejectment," § 1; "Libel and Slander."
§§ 1, 3; "Negligence," § 3.
For accounting as to royalties under patent,
see "Patents," § 1.
For breach of contract, see "Contracts," § 6.
For breach of contract for transportation and
delivery of shipment, see "Carriers," § 2.
For compensation of broker, see "Brokers,"
§ 3.
Foreclosure, see "Mortgages," § 3.
For loss of passenger's effects, see "Carriers,"
§ 3.
For partnership accounting, see "Partnership,"
§ 2.
For personal injuries, see "Master and Serv-
ant," § 9.
For price of goods sold, see "Sales," § 3.
For wages, see "Master and Servant," § 1.
On receiver's bond, see "Receivers," § 5.
To enforce mechanic's lien, see "Mechanics'
Liens," § 3.
To restrain unfair competition, see "Trade-
Marks and Trade-Names," § 3.
§ 1. Form and allegations in general.
*The County Court being of limited jurisdic-
tion is not within the rule that jurisdiction of
courts of general jurisdiction is presumed and
under Const. art. 6, § 14, held necessary that
a complaint allege defendant's residence in the
county in order to show jurisdiction.-Henneke
v. Schmidt (Sup.) 138.
§ 2. Declaration, complaint, petition, or
statement.
*Where averments of a complaint are con-
sistent with a demand for damages without re-
sort to equity to fix the amount, it is not open
to demurrer, though equitable relief is also
sought.-Kelsey v. Walls (Sup.) 575.
*Certain evidence held not admissible under
the answer pleading only payment.-Thalmann
v. Lewis (Sup.) 1056.
§ 4. Demurrer or exception.
Complaint in equitable action not pleading
facts justifying equitable intervention held de-
murrable.-Cozzens v. American General En-
gineering Co. (Sup.) 548.
*The allegations of a complaint must be tak-
en as true for the purpose of a demurrer there-
to.-People v. Luke (Sup.) 621.
*A demurrer to a reply in ejectment, where
the answer is defective, held not sustainable.-
Lewis v. Ryan (Sup.) 646.
On demurrer plaintiff is entitled to have the
facts stated in the complaint taken as true.-
Shaw v. Feltman (Sup.) 1043.
§ 5. Amended and supplemental plead-
ings and repleader.
In an action in County Court the court could
permit plaintiff to amend the complaint by
showing defendant's residence in the county.-
Henneke v. Schmidt (Sup.) 138.
*The court erred in allowing a complaint to
be amended nunc pro tunc, where the amend-
ment constituted a new cause of action.-City
of New York v. Knickerbocker Trust Co. (Sup.)
506.
*The power of the court, even after trial, to
amend a pleading so that it will conform with
the proof, does not permit the importation into
the complaint of what is in effect a new cause
of action.-City of New York v. Knickerbocker
Trust Co. (Sup.) 506.
*Where a complaint is amended by inserting
matter constituting a new cause of action, the
inserted matter should not be passed upon till
defendant has had full opportunity to meet it
*Point annotated. See syllabus.
*Unless no cause of action is stated in the
complaint, a dismissal for failing to state a
and 140 New York State Reporter
upon proper pleadings.-City of New York v.
Knickerbocker Trust Co. (Sup.) 506.
*The court should allow an amendment to a
defective complaint on such terms as it deems
equitable.-Babcock v. Anson (Sup.) 642.
*Where the complaint setting forth a second
cause of action alleges "the entire contents of
folio one" of the complaint, the remedy for the
uncertainty is by motion.-Babcock v. Anson
(Sup.) 642.
*Upon a motion for leave to file a supplement-
*The complaint to enjoin obstruction of a way
al answer, the court will not determine whether held to sufficiently describe, as against objection
the facts pleaded are available as a defense for first made at the trial, the land to which the
the reasons stated in the opposing affidavits, way was appurtenant. Code Civ. Proc. § 546.
where the facts stated in the application are-Palmer v. Van Deusen (Sup.) 707.
sufficient. Silver & Co. v. Waterman (Sup.) 899.
*The court may allow a supplemental answer
setting up facts which have come into existence
subsequent to the former pleading.-Silver &
Co. v. Waterman (Sup.) 899.
Where a default in pleading is set aside, and
defendant is allowed to answer and serves an
answer she has a right to amend the same once
within 20 days after its service.-O'Reilly v.
Skelly (Sup.) 1082.
*Under Code Civ. Proc. § 546, the court held
without authority to require a complaint to be
made more definite and certain.-Friedman v.
Denousky (Sup.) 780.
9. Defects and objections, waiver,
and aider by verdict or judgment.
Defendant under the facts held to have elected
to stand on his answer.-Thalmann v. Lewis
(Sup.) 1056.
*In an action for damages, an amendment to
the complaint by increasing the amount of dam- Of goods by factor, see "Factors."
ages claimed held properly allowed.-Sohman v.
Metropolitan St. Ry. Co. (City Ct.) 1033.
§ 6. Signature and verification.
*A verification by one of the defendants, with- See "Municipal Corporations," § 3.
out a statement that he was acquainted with
the facts, held proper under Code Civ. Proc. §
525.-Connolly v. Schroeder (Sup.) 303.
§ 7. Bill of particulars and copy of ac-
*Under the complaint and bill of particulars
served in an action by an attorney for services,
defendant held entitled to a further bill indicat-
ing more specifically in what manner plaintiff
made up his lump charge.-Squires v. Kissam
(Sup.) 373.
Construction of statutes passed in exercise of,
see "Statutes," § 3.
Exercise of to control liquor traffic, see "In-
toxicating Liquors," § 1.
Of municipality, see "Municipal Corporations,"
§ 5.
*It is improper to include in an order requir- Of insurance, see "Insurance."
ing defendant to serve a bill of particulars a
provision imposing a penalty for failure to file.
the same, but, if the bill be not filed, plaintiff
may apply for an order preventing defendants
from giving any evidence as to those items as to
which the bill was ordered.-Foster v. Curtis
(Sup.) 388.
See "Constitutional Law," § 1.
Suffrage, see "Elections."
*In a suit for specific performance of agree-
ment to convey certain property defendant
held entitled to further bill of particulars. See "Paupers."
Fischel v. Fischel (Sup.) 815.
*In an action for injuries to a servant, de-
fendant held entitled to a bill of particulars dis-
closing certain designated facts.-Kaplan v. Sher
(Sup.) 1094.
Where an original complaint was answered,
and a supplemental complaint which did not
state a cause of action in itself was demurred
Of demised premises, see "Landlord and Ten-
ant," § 5.
Of mortgaged property, see "Chattel Mortga-
ges," § 3.
to, plaintiff could not obtain judgment on the To sheriff, see "Sheriffs and Constables," § 1.
pleadings on the ground that the demurrer was
frivolous, while the issue raised by the answer
to the original complaint was undisposed of.-
People v. Westchester Traction Co. (Sup.) 389.
*If it requires argument to show that a plead-
ing is frivolous, it may not be overruled on
that ground.-Consolidated Rubber Tire Co. v.
Vehicle Equipment Co. (Sup.) 599.
Of attorney, see "Principal and Agent."
§ 1. Creation, existence, and validity.
Real Property Law. § 154, Laws 1896, p. 583,
c. 547, relating to powers, held not applicable
See syllabus.
to transactions before its passage.-Wells v.
Brooklyn Union Elevated R. Co. (Sup.) 77, 79;
Phillips v. Same (Sup.) 79; Hillebrecht v. Same,
Id.
*Where a testatrix devised her land to a
trustee with power to sell with the consent of
her son, but did not dispose of the corpus, and
the son died before consenting to a sale, the
power of sale and the trust terminated with his
death.-Wells v. Brooklyn Union Elevated R.
Co. (Sup.) 77, 79; Phillips v. Same (Sup.) 79;
Hillebrecht v. Same, Id.
§ 2. Construction and execution.
The appointee of the donee of a power by
will to appoint a remainderman held to be the
owner of a vested remainder, and, having con-
veyed it to the life tenant, the latter may con-
vey the life estate to herself as an individual
and owner of the remainder and terminate the
trust under the express provisions of Laws
1893, p. 939, c. 452.-Phillips v. Pike (Sup.)
486.
In particular civil actions or proceedings.
See "Account," § 1; "Contempt," § 2; "Di-
vorce," § 1; "Ejectment"; "Habeas Corpus,"
§ 2; "Mandamus," § 2; "Replevin."
Ground for reversal in civil actions, see "Ap-
peal," § 8.
PRELIMINARY INJUNCTION.
See "Injunction," § 4.
For insurance, see "Insurance," §§ 3, 4.
Of claims against estate of decedent, see "Ex-
ecutors and Administrators," § 3.
PRESUMPTIONS.
In civil actions, see "Evidence," § 2.
In criminal prosecutions, see "Homicide," § 2.
On appeal, see "Appeal," § 8.
Accounting by executor or administrator, see See "Elections," § 1.
"Executors and Administrators," § 6.
Condemnation proceedings, see "Eminent Do-
main," § 2.
Particular proceedings in actions.
See "Abatement and Revival"; "Bail," § 1
"Continuance"; "Costs"; "Damages," 86
"Depositions"; "Dismissal and Nonsuit".
"Evidence"; "Execution"; "Judgment"; "Ju-
dicial Sales"; "Jury"; "Limitation of Ac
tions"; "Motions"; "Parties"; "Pleading";
"Process"; "Reference"; "Trial"; "Venue.'
Nonsuit, see "Trial," § 4.
Verdict, see "Trial," § 5.
Particular remedies in or incident to actions.
See "Arrest," § 1; "Deposits in Court"; "Dis-
covery"; "Injunction"; "Receivers"; "Ten-
Procedure in criminal prosecutions.
See "Criminal Law."
Procedure in exercise of special or limited juris-
diction.
Procedure in or by particular courts or tribunals.
See "Courts."
PRINCIPAL AND AGENT.
Declarations of agent as res gestæ, see "Evi-
dence," § 3.
Memorandum by agent within statute of frauds,
see "Frauds, Statute of," § 2.
Recovery of property taken from agent under
execution, see "Execution," § 1.
Validity of note given to employment agency,
see "Bills and Notes," § 1.
Agency in particular relations, offices, or oc-
cupations.
See "Attorney and Client"; "Brokers"; "Fac-
tors."
Corporate agent, see "Corporations," § 5.
Insurance agents, see "Insurance," § 1.
Municipal agents, see "Municipal Corporations,"
§ 3.
8 1. Rights and liabilities as to third
persons.
*Where an agent employed to sell land failed
to make a contract of sale binding on the own-
ers, he was himself bound thereby.-Rowland
v. Hall (Sup.) 55.
*One applying to another for a loan to a third
person on the latter's property held not liable
for services in searching a title for the loan.-
See "Appeal"; "Certiorari," § 1; "Justices of Title Guarantee & Trust Co. v. Levitt (Sup.)
the Peace," § 2; "New Trial."
Effect of proceedings in bankruptcy, see "Bank-
ruptcy." & 2.
Of causes for trial, see "Trial." § 1.
*Plaintiff held not entitled to enforce a con-
tract as an
undisclosed principal.-Moore v.
Vulcanite Portland Cement Co. (Sup.) 393.
*In an action on a contract negotiated and
afterwards modified by a salesman, the ques-
tions whether he had authority to modify the
*Point annotated. See syllabus.
and 140 New York State Reporter
contract, and, if he had no such authority,
whether his principal did not ratify his act,
held, under the evidence, to be for the jury.
Lilienthal v. German American Brewing Co.
(Sup.) 402.
*Where defendant gave its salesman permis-
sion to reduce a price given in an estimate, it
did not confer authority on the salesman to
bind defendant on a contract with plaintiff.—
Falihee v. John Simmons Co. (Sup.) 764.
Liabilities on appeal bond, see "Appeal," § 10.
Liabilities on bail bonds, see "Bail.
Liabilities on receiver's bond, see "Receivers,"
§ 5.
§ 1. Discharge of surety.
*Constructing a tunnel in a straight line, in-
stead of according to a wavy center line of a
right of way, held not such a change of a con-
tract as to release the contractor's surety.-City
of Middletown v. Etna Indemnity Co. of Hart-
ford, Conn. (Sup.) 374.
Between judgment against receiver and other
claims, see "Receivers," § 2.
Of claims against estate of decedent, see "Ex-
ecutors and Administrators," § 3.
Of mortgages, see "Chattel Mortgages," § 1;
"Mortgages," §§ 2, 3.
PRIVATE ROADS.
Rights of way, see "Easements."
In actions against particular classes of persons.
See "Corporations," § 5.
Foreign corporations, see "Corporations," § 9.
Particular forms of writs or other process.
See "Arrest"; "Execution"; "Injunction";
"Mandamus"; "Replevin."
A written admission signed by the superin-
tendent of insurance held defective as proof of
process, since it does not identify the process
served in an action against a foreign insurance
F. (Sup.) 1041.
company.-McKeever v. Supreme Court I. O.
2. Defects, objections, and amend-
ment.
*Under the facts held jurisdiction of a defend-
ant sued under a wrong name was obtained, so
that correction in the spelling could be made.-
Hirsch v. Camman (Sup.) 814.
in the spelling of the name of a defendant in
*Under the facts held correction of a mistake
plaintiff's papers in the case could be made.-
Hirsch v. Camman (Sup.) 814.
Of traffic in intoxicating liquors, see "Intoxi-
cating Liquors."
PROMISSORY NOTES.
See "Bills and Notes."
False representation by promoter of corpora-
tion, see "Fraud," §§ 1, 2.
Of witness as to testimony, see "Witnesses," See "Good Will"; "Trade-Marks and Trade-
§ 2.
Constitutional guaranties of rights of proper
ty, see "Constitutional Law," § 3.
Dedication to public use, see "Dedication."
Licenses in respect to real property, see "Li-
censes," § 1.
Protection of rights of property by injunction,
see "Injunction," § 2.
Taking for public use, see "Eminent Domain."
*Independent of letters patent, an inventor
has by the common law an exclusive property
the property of the general public.-Westcott
in his invention until by publication it becomes
Chuck Co. v. Oneida Nat. Chuck Co. (Sup.) 1016.
PROXIMATE CAUSE.
Direct or remote consequences of injury, see
"Damages," § 2.
Of injuries to passenger, see "Carriers," § 3.
Of injury to servant, see "Master and Serv
ant." § 2.
*Point annotated. See syllabus.
|