Page images
PDF
EPUB

and 140 New York State Reporter
Alimony, see “Divorce," $ 2.

could be obtained, held void.-Stewart v. Wool.
Claims against estate of decedent, see "Exec ley (Sup.) 99.

utors and Administrators," $ 3.
Compensation for property taken for public use,

*A direction that the share of a certain child

of rents and profits of land be held in trust for
see "Eminent Domain," § 1.

his life, remainder to his children, held void.-
County warrant, see "Counties," $ 3.

Stewart v. Woolley (Sup.) 99.
Defective sidewalk, see "Municipal Corpora-
tions," $ 7.

Trust in will construed, and held invalid as

suspending power of alienation.-Whitefield v.
§ 1. Requisites and sufficiency.

Crissman (Sup.) 630.
*Payment is made by the debtor delivering

8
to his creditor money or other valuable thing

A devise to A. of corporate stock, the stock
to extinguish the debt, which is received by the

I to be held in trust for seven years after the
creditor for the same purpose.- Persons v. Gard-

death of testatrix, with a provision that on his
ner (Sup.) 616.

death within the seven years without children
the shares bequeathed should go to certain other

persons, is valid ; the suspension of the absolute
PENAL STATUTES.

ownership of said stock being measured by the

life of A.-Orange County Trust Co. v. Morri-
Construction of, see “Statutes," $ &

son (Sup.) 940.

PENALTIES.

PERSONAL INJURIES.
For adulteration of milk, see “Adulteration." Particular causes or means of injury.
For discrimination by telephone company, see See “Negligence."
"Telegraphs and Telephones," $ 2.

Defective condition of demised premises, see
Under contracts, see "Damages," $ 3.

"Landlord and Tenant," $ 3.

Explosion, see "Explosives."
PENDENCY OF ACTION.

Operation of railroads, see "Railroads." $ 5.

Operation of street railroad, see "Street Rail-
Effect as to property involved, see "Lis Pen-

roads," $ 2.
dens."

Particular classes of persons injured.

Employé, see "Master and Servant," $8 2-11.
PENSIONS.

Passenger, see "Carriers," $$ 3, 4.

Traveler on highway, see "Municipal Corpo-
Of police officers, see "Municipal Corporations," rations," $ 7.
$ 3.

Traveler on highway crossing railroad, see
To school teachers, see "Schools and School "Railroads," $ 5.
Districts," $ 1.

Remedies.

Bill of particulars, see "Pleading," $ 7.
PERCOLATING WATERS. Correction of errors at trial, see "Trial," § 6

Excessive damages, see "Damages,” $ 5.
See "Waters and Water Courses,” s 1.

Harmless error in rulings on evidence, see "Ap-

peal," $ 8.

Jurisdiction of municipal court, see "Courts,"
PERFORMANCE.

$ 3.

Opinion evidence, see "Evidence," $ 5.
Of contract, see "Contracts,” $ 5; "Sales,” 1. Pleading damages, see “Damages," $ 6.

Special findings, see “Trial," $ 5.
PERJURY.

PERSONAL PROPERTY.
Charge of perjury by newspaper as libelous,
see “Libel and Slander,” § 1.

See "Property.”
PERPETUITIES.

PETITION.
*Will construed, and held to create no unlaw. | In bankruptcy, see "Bankruptcy," $ 1.
ful suspension of the power of alienation.-Dex- In pleading, see "Pleading," 8 2.
ter v. Watson (Sup.) 80.
*An express trust created in executors to sell

PHYSICIANS AND SURGEONS.
real property held to unlawfully suspend the
absolute power of alienation.-Stewart v. Wool-

Physician as expert witness, see “Evidence,"
ley (Sup.) 99.

$ 5.
*An express trust to receive and accumulate Privileged communications, see "Witnesses,"
rents and profits of certain of testator's real prop- $ 1.
erty until a sale thereof, the sale to be made at Right to take deposition of physician, see “Dep-
such time within five years as a certain price ositions."

*Point annotated. See syllabus.

[graphic]
[graphic]

PICKETING.

cause of action as to one of the items claimed

will not be sustained.-Babcock v. Anson (Sup.)
Restraining picketing by union strikers, see

642.
“Injunction," $ 2.

*A complaint in an action for the negligent

death of an employé, brought against the employ-
PLEA.

er and a third person, held to state separate

causes of action against defendants within the
In civil actions, see “Pleading," 3.

rule requiring separate causes of action to be
separately stated and numbered.-Hamnstrown

v. New York Contracting Co., Pennsylvania Ter-
PLEADING.

minal (Sup.) 880.

$ 3. Plea or answer, cross-complaint,
Conformity of judgment to pleadings, see "Judg-

and affidavit of defense.
ment," $ 2.

*Denials on information and belief held prop-
Presumptions as to pleadings on motion for er.-Connolly v. Schroeder (Sup.) 303.
nonsuit, see "Trial," 8 4.

*Demurrer to answer sustained, where defend-
Allegations as to particular facts, acts, or trans- ant by mistake referred to paragraphs of his
actions.

answer as paragraphs of "this amended com-
See “Damages," $ 6.

plaint."- Ætna Life Ins. Co. v. North Star
Right to lis pendens, see “Lis Pendens."

Mines Co. (Sup.) 545.
In actions by or against particular classes of each must be complete in itself, either by the

*Where defendant sets up separate defenses,
persons.

express reaverment of other parts of the answer,
See “Master and Servant," $81, 9.

or by reference thereto.- Walsh v. Lispenard
Foreign corporations, see “Corporations," § 9. Realty Co. (Sup.) 570; Same v. Bergen Realty

Co., Id.
In particular actions or proceedings.

*Certain evidence held not admissible under
See Ejectment," § 1;. "Libel and Slander.”
$8 1, 3; “Negligence," $ 3.

the answer pleading only payment.-Thalmann

v. Lewis (Sup.) 1056.
For accounting as to royalties under patent,
see “Patents," $ 1.

8 4. Demurrer or exception.
For breach of contract, see "Contracts," § 6.

Complaint in equitable action not pleading
For breach of contract for transportation and facts justifying equitable intervention held de-

delivery of shipment, see “Carriers,” $ 2. murrable.-Cozzens V. American General En-
For compensation of broker, see “Brokers," gineering Co. (Sup.) 548.

$ 3.
Foreclosure, see “Mortgages," $ 3.

*The allegations of a complaint must be tak-
For loss of passenger's effects, see "Carriers,” en as true for the purpose of a demurrer there-
$ 3.

to.-People v. Luke (Sup.) 621.
For partnership accounting, see “Partnership,” *A demurrer to a reply in ejectment, where
$ 2.

the answer is defective, held not sustainable.-
For personal injuries, see “Master and Serv. Lewis v. Ryan (Sup.) 646.

ant,” 8 9.
For price of goods sold, see “Sales," $ 3.

On demurrer plaintiff is entitled to have the
For wages, see “Master and Servant,” $ 1.

facts stated in the complaint taken as true.-
On receiver's bond, see "Receivers," $ 5.

Shaw v. Feltman (Sup.) 1043.
To enforce mechanic's lien, see "Mechanics' & 5. Amended and supplemental plead-
Liens," $ 3.

ings and repleader.
To restrain unfair competition, see “Trade-

In an action in County Court the court could
Marks and Trade-Names,” s 3.

permit plaintiff to amend the complaint by
§ 1. Form and allegations in general. showing defendant's residence in the county.

*The County Court being of limited jurisdic- Henneke v. Schmidt (Sup.) 138.
tion is not within the rule that jurisdiction of *The court erred in allowing a complaint to
courts of general jurisdiction is presumed and be amended nunc pro tunc, where the amend-
under Const. art. 6, § 14, held necessary that ment constituted a new cause of action.--City
a complaint allege defendant's residence in the of New York v. Knickerbocker Trust Co. (Sup.)
county in order to show jurisdiction.-Henneke 506.
v. Schmidt (Sup.) 138.

*The power of the court, even after trial, to
§ 2. Declaration, complaint, petition, or amend a pleading so that it will conform with
statement.

the proof, does not permit the importation into
*Where averments of a complaint are con- the complaint of what is in effect a new cause
sistent with a demand for damages without re- of action.-City of New York v. Knickerbocker
sort to equity to fix the amount, it is not open Trust Co. (Sup.) 506.
to demurrer, though equitable relief is also

*Where a complaint is amended by inserting
sought.-Kelsey v. Walls (Sup.) 575.

matter constituting a new cause of action, the
*Unless no cause of action is stated in the inserted matter should not be passed upon till
complaint, a dismissal for failing to state a defendant has had full opportunity to meet it

*Point annotated. See syllabus.

and 140 New York State Reporter
upon proper pleadings.-City of New York V. *Where the complaint setting forth a second
Knickerbocker Trust Co. (Sup.) 506.

cause of action alleges “the entire contents of
*The court should allow an amendment to a

folio one" of the complaint, the remedy for the
defective complaint on such terms as it deems uncertainty is by motion.-Babcock v. Anson
equitable.---Babcock v. Anson (Sup.) 642.

(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. *Under Code Civ. Proc. $ 546, the court held

*The court may allow a supplemental answer without authority to require a complaint to be
setting up facts which have come into existence made more definite and certain.-Friedman v.
subsequent to the former pleading.–Silver & Denousky (Sup.) 780.
Co. v. Waterman (Sup.) 899.

§ 9. Defects and objections, waiver,
Where a default in pleading is set aside, and

and aider by verdict or judgment.
defendant is allowed to answer and serves an

Defendant under the facts held to have elected
answer she has a right to amend the same once to stand on his answer.-Thalmann v. Lewis
within 20 days after its service.-O'Reilly v. (Sup.) 1056.
Skelly (Sup.) 1082.
*In an action for damages, an amendment to

PLEDGES.
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.

POLICE.
§ 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.

POLICE POWER.
§ 7. Bill of particulars and copy of ac- Construction of statutes passed in exercise of,
count.

see “Statutes," $ 3.
*Under the complaint and bill of particulars Exercise of to control liquor traffic, see “In-
served in an action by an attorney for services, toxicating Liquors," $ 1.
defendant held entitled to a further bill indicat. Of municipality, see “Municipal Corporations,"
ing more specifically in what manner plaintiff

§ 5.
made up his lump charge.-Squires v. Kissam
(Sup.) 373.

POLICY.
*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

POLITICAL RIGHTS.
may apply for an order preventing defendants
from giving any evidence as to those items as to See “Constitutional Law," $ 1.
which the bill was ordered.--Foster v. Curtis Suffrage, see “Elections."
(Sup.) 388.
*In a suit for specific performance of agree-

POOR LAWS.
convey certain property defendant
held entitled to further bill of particulars.- See “Paupers."
Fische] v. Fischel (Sup.) 815.
*In an action for injuries to a servant, de-

POSSESSION.
fendant held entitled to a bill of particulars dis-
closing certain designated facts.-Kaplan v. Sher Of demised premises, see “Landlord and Ten-
(Sup.) 1094.

ant," $ 5.
$ 8. Motions.

Of nortgaged property, see "Chattel Mortga-
Where an original complaint was answered,

ges," $ 3.
and a supplemental complaint which did not
state a cause of action in itself was demurred

POUNDAGE.
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.-

POWERS.
People v. Westchester Traction Co. (Sup.) 389.
*If it requires argument to show that a plead-

Of attorney, see "Principal and Agent."
ing is frivolous, it may not be overruled on § 1. Creation, existence, and validity.
that ground.-Consolidated Rubber Tire Co. v. Real Property Law, $ 154, Laws 1896, p. 583.
Vehicle Equipment Co. (Sup.) 399.

c. 547, relating to powers, held not applicable
* Point annotated. See syllabus.

ment

to

to transactions before its passage.-Wells v.

PREJUDICE.
Brooklyn Union Elevated R. Co. (Sup.) 77, 79;
Phillips v. Same (Sup.) 79; Hillebrecht v. Same, Ground for reversal in civil actions, see "Ap-
Id.

peal," $ 8.
*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

PRELIMINARY INJUNCTION.
the son died before consenting to a sale, the
power of sale and the trust terminated with his See “Injunction," $ 4.
death.--Wells v. Brooklyn Union Elevated R.
Co. (Sup.) 77, 79; Phillips v. Same (Sup.) 79;
Hillebrecht v. Same, Id.

PREMIUMS.
§ 2. Construction and execution.

For insurance, see "Insurance," $$ 3, 4.
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-

PRESENTMENT.
veyed it to the life tenant, the latter may con-
vey the life estate to herself as an individual Of claims against estate of decedent, see "Ex-
and owner of the remainder and terminate the

ecutors and Administrators," $ 3.
trust' under the express provisions of Laws
1893, p. 939, c. 452.-Phillips v. Pike (Sup.)
486.

PRESUMPTIONS.
PRACTICE.

In civil actions, see “Evidence," $ 2.

In criminal prosecutions, see "Homicide," § 2.
In particular civil actions or proceedings.

On appeal, see “Appeal," 8 8.
See “Account,” $ 1; "Contempt," $ 2; "Di.
vorce," $ 1; "Ejectment”; “Habeas Corpus,"

PRIMARY ELECTIONS.
$ 2; 'Mandamus," $ 2; "Replevin.”
Accounting by executor or administrator, see See “Elections," § 1.

"Executors and Administrators," $ 6.
Condemnation proceedings, see "Eminent Do-
main," $ 2.

PRINCIPAL AND AGENT.
Particular proceedings in actions. Declarations of agent as res gesta, see “Evi-
See "Abatement and Revival”; “Bail," $ 1;

dence," $ 3.
"Continuance"; "Costs"; "Damages," § 6; Memorandum by agent within statute of frauds,
"Depositions" “Dismissal and Nonsuit" see "Frauds, Statute of," 8 2.
"Evidence"; "Execution”; “Judgment"; "Ju’ Recovery of property taken from agent under
dicial Sales”; “Jury"; "Limitation of Ac

execution, see “Execution," $ 1.
tions”; “Motions"; "Parties"; "Pleading"; Validity of note given to employment agency,
“Process"; "Reference"; "Trial"; "Venue.”

see "Bills and Notes," $ 1.
Nonsuit, see "Trial," & 4.

Agency in particular relations, offices, or oc-
Verdict, see "Trial," $ 5.

cupations.
Particular remedies in or incident to actions. See "Attorney and Client”; “Brokers"; "Fac-

tors."
See “Arrest," $ 1; "Deposits in Court”; “Dis- Corporate agent, see "Corporations,” 8 5.
covery"; "Injunction"; "Receivers”; “Ten- Insurance agents, see "Insurance," $ 1.
der."

Municipal agents, see “Municipal Corporations,"
Procedure in criminal prosecutions.

§ 3.
See "Criminal Law.”

§ 1. Rights and liabilities as to third
Procedure in exercise of special or limited juris-

persons.
diction.

*Where an agent employed to sell land failed

to make a contract of sale binding on the own-
See "Bankruptcy,” $ 1.

ers, he was himself bound thereby.-Rowland
Procedure in or by particular courts or tribunals.

v. Hall (Sup.) 55.
See "Courts."

*One applying to another for a loan to a third

person on the latter's property held not liable
Procedure on reriew.

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."

147.

*Plaintiff held not entitled to enforce a con-
PREFERENCES.

tract

undisclosed principal.--Moore v.

Vulcanite Portland Cement Co. (Sup.) 393.
Effect of proceedings in bankruptcy, see "Bank *In an action on a contract negotiated and
ruptcy," $ 2.

afterwards modified by a salesman, the ques-
Of causes for trial, see “Trial," $ 1.

tions whether he had authority to modify the
*Point annotated. See syllabus.

as

an

and 140 New York State Reporter
contract, and, if he had no such authority,

PROCESS.
whether his principal did not ratify his act,
held, under the evidence, to be for the jury:- In actions against particular classes of persons.
Lilienthal v. German American Brewing Co.
(Sup.) 402.

See "Corporations," $ 5.

Foreign corporations, see "Corporations," $ 9.
*Where defendant gave its salesman permis-
sion to reduce a price given in an estimate, it

Particular forms of writs or other process.
did not confer authority on the salesman to See “Arrest"; "Execution"; "Injunction";
bind defendant on a contract with plaintiff. "Mandamus”; “Replevin."
Falihee v. John Simmons Co. (Sup.) 764.

8 1. Service.

A written admission signed by the superin-
PRINCIPAL AND SURETY. tendent of insurance held defective as proof of

process, since it does not identify, the process
See "Guaranty."

served in an action against a foreign insurance
Liabilities on appeal bond, see "Appeal,” § 10. F. (Sup.) 1041.

company.-McKeever v. Supreme Court I. 0.
Liabilities on bail bonds, see “Bail.
Liabilities on receiver's bond, see "Receivers," $ 2. Defects, objections, and amend-
§ 5.

ment.

*Under the facts held jurisdiction of a defend-
§ 1. Discharge of surety.

ant sued under a wrong name was obtained, so
*Constructing a tunnel in a straight line, in that correction in the spelling could be made.-
stead of according to a wavy center line of a Hirsch v. Camman (Sup.) 814.
right of way, held not such a change of a con-
tract as to release the contractor's surety: --City in the spelling of the name of a defendant in

*Under the facts held correction of a mistake
of Middletown v. Ætna Indemnity Co. of Hart- plaintiff's papers in the case could be made.-
ford, Conn. (Sup.) 374.

Hirsch v. Camman (Sup.) 814.

PRIORITIES.

PROHIBITION.
Between judgment against receiver and other of traffic in intoxicating liquors, see "Intoxi-
claims, see "Receivers," $ 2.

cating Liquors."
Of claims against estate of decedent, see "Ex-
ecutors and Administrators," $ 3.

PROMISSORY NOTES.
Of mortgages, see “Chattel Mortgages," § 1;
"Mortgages," $8 2, 3.

See “Bills and Notes."

PRIVATE ROADS.

PROMOTERS.
False representation by promoter of corpora.

tion, see "Fraud," 88 1, 2.

Rights of way, see "Easements."

PRIVILEGE.

PROPERTY.
Of witness as to testimony, see "Witnesses," See "Good Will”; “Trade-Marks and Trade-
§ 2.

Names."

Constitutional guaranties of rights of proper
PRIVILEGED COMMUNICATIONS.

ty, see “Constitutional Law," $ 3.
Dedication to public use, see "Dedication."

Licenses in respect to real property, see "Li-
Defamatory communications, see "Libel and censes," $ 1.
Slander," § 2.

Protection of rights of property by injunction,
Disclosure by witness, see “Witnesses," $ 1. see “Injunction," 8 2.

Taking for public use, see “Eminent Domain."
PROBABLE CAUSE.

*Independent of letters patent, an inventor

has by the common law an exclusive property
For prosecution, see “Malicious Prosecution," in his invention until by publication it becomes
8 1.

the property of the general public.-Westcott

Chuck Co. v. Oneida Nat. Chuck Co. (Sup.) 1016.
PROBATE.

PROXIMATE CAUSE.
Of will, see "Wills,” 88 3, 4.

Direct or remote consequences of injury, see

"Damages," § 2.
PROBATE COURTS.

Of injuries to passenger, see "Carriers," & 3.

Of injury to servant, see “Master and Sert.
See “Courts," $ 4.

ant," $ 2.
*Point annotated. See syllabus.

« PreviousContinue »