and 95 New York State Reporter.

END OF CASES IN VOL 61

INDEX.

Right of action by or against personal repre- Admissibility of evidence determined.-Traitel
sentative, see "Executors and Administra- v. Dwyer (City Ct. N. Y.) 1100.
tors," § 6.

Cause of personal injuries, see "Negligence," Actions by or against particular classes of
§ J.

(1153)

and 95 New York State Reporter.

Construction of will, see "Wills," § 4.
Dissolution of partnership, see "Partnership,"
$ 4.
Enforcement or foreclosure of lien, see "Mechan-
ics' Liens," § 6.

Setting aside assignment for benefit of creditors,
see "Assignments for Benefit of Creditors,"
§ 3.

Particular proceedings in actions. See "Costs"; "Damages"; "Depositions"; "Evidence"; "Execution"; "Judgment"; "Limitation of Actions"; "Parties"; "Process"; "Trial"; "Venue."

Default, see "Judgment," § 3.

Offer of judgment, see "Judgment," § 2.

§ 1. Grounds and conditions precedent. Where a suit in equity was brought by Indians to recover possession of wampum belts, held, that a demand on defendant for their delivery was a necessary prerequisite to the action.-Onondaga Nation v. Thatcher (Sup.) 1027.

§ 2. Nature and form.

Action for damages for nondelivery of goods should not be changed to replevin.-Brookstone v. Wescott Exp. Co. (Sup.) 72.

A complaint held such that the action did not sound in tort, so as to exclude a counterclaim, but to declare on a contract.-Stoneman v. Van Vechten (Sup.) 513.

§ 3. Joinder, splitting,

and severance.

consolidation,

An action uniting several causes of action in the same complaint held maintainable, in view of Code Civ. Proc. § 484.-Whiting v. Elmira Industrial Ass'n (Sup.) 27.

AMENDMENT.

A complaint, alleging for a cause of action damages resulting from a conspiracy on the part On appeal, see "Appeal," § 14; "Pleading," § 4. of defendants in the libeling and slandering of plaintiff and the unlawful taking of certain of its property, is not demurrable because of improperly uniting causes of action.-Kolel America Vatiferes Jerusalem v. Eliach (Sup.) 935.

ANIMALS.

In action to recover damages for injuries to plaintiff's horse, caused by its being bitten by a vicious dog belonging to defendant, notice of the dog's vicious disposition to defendant's foreman held notice to the owner.-Niland v. Geer (Sup.) 696.

Where plaintiff's child was bitten by defendant's dog. in order to recover plaintiff must show that the defendant had notice of the dog's vicious disposition.-Strubing v. Mahar (Sup.) 799.

ANNEXATION.

Of territory to municipal corporation, see “Municipal Corporations," § 1.

APPEAL.

Accounting by executor or administrator, see
"Executors and Administrators," § 7.
Assessment of taxes, see "Taxation," § 1.
Costs, see "Costs," § 4.

Review of agreed statement of facts, see "Sub-
mission of Controversy."

of proceedings of justices of the peace, see "Justices of the Peace," § 2.

§ 1. Nature and grounds of appellate
jurisdiction.

Leave will not be granted to appeal to the
court of appeals, in order that a question of
law may be determined, where the decision of
the appellate division was based on a question
of fact.-Village of Bronxville v. New York, W.
& C. Traction Co. (Sup.) 719.

§ 2. Decisions reviewable.

Code Civ. Proc. § 3056. providing for course to
be pursued on appeal, where justice is unable
to make a return, held to apply to appeals from
the municipal court. - Walker v. Baermann
(Sup) 91.

An appeal can be taken from an order direct-
ing a peremptory mandamus.-People v. Hertle
(Sup.) 965.

No appeal lies from a default judgment.-
Reidy v. Bleistift (City Ct. N. Y.) 915.

Where demurrer to complaint is sustained, de-
fendants may appeal from so much of the order
as denies them costs.-Kellar v. Shrady (City
Ct. N. Y.) 1123.

3. Right of review.

One who is not a party to the proceeding can-

§ 6.

Supersedeas or stay of proceedings.
Order staying proceedings on a judgment, to
allow parties to appeal after being notified of
judgment against them disposing of all issues of
the case, held an abuse of discretion.-Bauer v.
Parker (Sup.) 1021.

Under Code Civ. Proc. c. 12, tit. 1, § 1310, and
Id. tit. 2. § 1326, letters testamentary cannot
issue to executors while the decree admitting the
will to probate is pending on appeal.-In re
Gihon's Will (Sur.) 244.

§ 7. Record and proceedings not in rec-
ord-Matters to be shown by rec-

ord.

In an action in the municipal court of New
York City for a money judgment, the failure
of the record to show defendant's residence with-
in the jurisdiction of the court is fatal.-De Sis-
to v. Stimmel (Sup.) 57.

Failure of the record on appeal from a judg-
ment for plaintiff in the New York municipal
court to show where defendant resides is fatal.
-R. H. Wolf & Co. v. Ritt (Sup.) 61.

A judgment of the municipal court for plaintiff
will be reversed where the record fails to show
that defendant resides within the jurisdiction of

not bring an appeal.-People v. Sanborn (Sup.) the court.-Bang v. McAvoy (Sup.) 83.

529.

§ 4. Presentation and reservation in
lower court of grounds of review.
Defendant, on appeal in a proceeding for an
accounting, held precluded from urging an objec-
tion as to parties.-Rose v. Durant (Sup.) 15.

Under Code Civ. Proc. § 992, a question of fact
in a case tried by the court may be reviewed,
without exceptions, if the record is certified to
contain all the evidence.-Hill v. White (Sup.)

515.

Objections to a charge will not be considered
where no exception was taken.-Nally v. Hitch-
cock (Sup.) 962.

Exceptions to denial of motion for nonsuit
held insufficient on appeal.-Gowing v. Warner
(City Ct. N. Y.) 500.

An objection to the appearance of a receiver
of a party in a proceeding prior to the notice of
appeal cannot be first raised on appeal.-Kubin
v. Miller (City Ct. N. Y.) 1121.

$ 5. Requisites and proceedings for
transfer of cause.

Two successive holidays, followed by a Sunday,
held to extend the limit of appeal to the Monday
following.-Lucia v. Omel (Sup.) 659.

Where an order required modification in a ma-
terial matter, the facts that more than 10 days
was occupied in making the correction, and that

the corrected order was made to take effect nunc
pro tune, will not affect the right to appeal.-
Kubin v. Miller (City Ct. N. Y.) 1121.

Service of a copy of an order for judgment.
without notice of the entry of the original, is not
sufficient to limit the time in which to appeal;
and a notice of appeal served before service of
the notice of entry is sufficient.-Kubin v. Miller
(City Ct. N. Y.) 1121.

Where the record fails to show that defend-
ants resided within the jurisdiction of the court,
judgment for plaintiff will be reversed.-White
v. Holding (Sup.) 771.

A judgment of the municipal court for plain-
tiff will be reversed where it does not appear
that defendant resides within the territorial ju-
risdiction of the court.-Price v. Eisen (Sup.)
805.

A judgment of the municipal court in favor
of plaintiff will be reversed where the record

does not show that defendant resides within the

territorial jurisdiction of the trial court, and the
defendant attacks the judgment on that ground.
--Currier v. Roseff (Sup.) 838.

It must appear from the record that the de-
fendant resides within the jurisdiction of the
trial court.-Bristor v. Flaherty (Sup.) 872.
§ 8.

Scope and contents of record.
A judgment will be affirmed, on appeal, where
the record discloses a conflict of evidence on a
disputed question of fact, and it does not appear
that injustice has been done.-Pascarela v. Man-
ello (Sup.) 838.

§ 9. -Defects,

objections,

amend-

ment, and correction.
Code Civ. Proc. § 3056, held to provide proper
course to be pursued on appeal, where the testi-
mony taken at the trial has been lost, and,
therefore, not included in the return.-Walker
v. Baermann (Sup.) 91.

A defense with relation to which no findings
of fact were made by the trial court cannot be
Goddard v. American
considered on appeal.
Queen (Sup.) 133.

Where evidence showing that chattel mortga-
gees did not take immediate possession was re-
ceived without objection, defendant cannot ob-
ject for the first time on appeal that such

and 95 New York State Reporter.

ground of invalidity was not alleged in the com- |§ 16. — -Discretion of lower court. plaint.-Robinson v. Hawley (Sup.) 138.

An objection to a question as incompetent, and an exception, does not give the excepting party any broader ground for argument on appeal than was fixed by the objection.-Marquis v. Wood (City Ct. N. Y.) 251.

An objection to evidence which does not state grounds is not available on appeal.-Marquis v. Wood (City Ct. N. Y.) 251.

An appeal from a judgment and an order deny-greater credit than his opponent's.-Barrett v. ing a new trial should be dismissed when the motion for a new trial was not made until after the taking of the appeal.-Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.)