FOURTH DEPARTMENT, OCTOBER TERM, 1898.

33J 643 a162a 42

INDEX.

ABANDONMENT — Of husband or wife.

-

See HUSBAND AND WIFE.

PAGE.

ABATEMENT - Revivor against a decedent's representatives—the right is
not absolute - it may be denied for laches.] No absolute right to revive and
continue an action against an administratrix of a deceased party defendant,
is given by sections 755 and 757 of the Code of Civil Procedure; and, where
there is laches the court may properly exercise its discretionary power in deter-
mining whether or not relief should be accorded. CROWLEY. MURPHY.... 456
ACCEPTANCE Of negotiable paper.

See BILLS AND NOTES.

of goods sold.

See SALE.

See HUSBAND AND WIFE.

Committee of a lunatic- leave to sue him is not a determination that a
cause of action exists.

See INSANE.

A money judgment only can be sued upon under Code C. P. § 1913-
what is not a money judgment.

See JUDGMENT.

Misjoinder of causes of action.

See MISJOINDER.

For money received.

See MONEY RECEIVED.

Relating to municipal corporations.
See MUNICIPAL CORPORATION.
Proceedings on the trial of.

See TRIAL.

ADJUDICATION:

See JUDGMENT.

ADMISSION — Not binding on infants.] A judgment affecting the rights
of infants should not be based upon admissions as to the existence of crucial
facts and of the law of a foreign country relating thereto.

BATES . VIROLET.

436

APPEAL- From a judgment where no exceptions were taken.] 1. An appeal
from a judgment brings up for review only the record and the exceptions
taken upon the trial; and where the record is unimpeached and no excep-
tions were taken upon the trial of the action, the judgment must necessarily
be affirmed. RUBENFELD v. RABINER.

2. - When an exception must be taken.] An exception to a ruling cannot
be taken after the jury has been discharged. Id.

3. The insolvency of the plaintiff will not justify his restraint from the
use of money paid him on a judgment from which the defendant has perfected an
appeal.] Where, after the amount of a judgment for the plaintiff, affirmed
upon appeal, has been paid to his attorney and deposited in bank, an applica-
tion of the defendant for leave to appeal to the Court of Appeals is granted
and the appeal is perfected by the defendant, the latter is not entitled to obtain
by motion, upon proof that the plaintiff is insolvent, an injunction restraining
the plaintiff and his attorney from drawing, and the bank from paying out,
the money so deposited therein, until the further order of the court.

PAGE.

613

374

Quare, as to the right of the defendant to maintain an action to restrain the
withdrawal and delivery of the money. KLINKER v. THIRD AVENUE R. R. Co. 556
Costs-judgment in favor of a defendant reversed by the Court of Appeals,
"with costs to plaintiffs to abide the event" - costs taxable by the defendant suc-
ceeding on the new trial.

See BELT v. AMERICAN CENTRAL INS. Co......
Attachment-annulment of, by the entry of a judgment in favor of the
the annulment is suspended where an appeal is taken and a stay
See HENRY v. SALISBURY....

defendant

239

given.

293

An order permitting a plaintiff to discontinue will not be disturbed on
appeal because the defendant has set up a counterclaim.

See WALSH v. WALSH....

579

APPRAISAL - Under an insurance policy — waiver of.

See INSURANCE.

ARMY- Veteran acts—the position of a subpoena server in the New York
district attorney's office is not "a strictly confidential position.”

See PEOPLE EX REL. FLOOD v. GARDINER..

204

ARREST - Base ball playing on Sunday-duty of police commissioners to
arrest the players although no warrant is issued.

See MATTER OF RUPP....

ASSESSMENT - Of damages.

See DAMAGES.

For municipal works.

See MUNICIPAL CORPORATION.

468

ASSIGNMENT — Assignee for the benefit of creditors - authority of, to com-
promise a lease of his assignor for an unexpired term.] The authority of an
assignee for the benefit of creditors, which, by the terms of the assignment,
is limited to the payment of "all the debts and liabilities now due or to grow
due" from the assignor, is not exceeded when such assignee, acting in
good faith, and by advice of counsel, compromises to the advantage of the
assigned estate, and with the approval of the Supreme Court, although
obtained without notice given to the assignor, the obligation of his assignor
under an existing lease, the term of which continues for some four years after
the execution of the assignment, by the payment of a specified sum, where
the landlord has not taken advantage of a provision in the lease that, "if
the party of the second part shall abandon or vacate said premises, the
party of the first part shall be at liberty, if he shall think advisable, to
relet the same; and if sufficient shall not be realized on such reletting to
satisfy the rent hereby reserved, the party of the second part agrees to pay
or satisfy any deficiency which may arise thereon"- the entire liability of
the assignor under such a lease being one existing upon the day when the
assignment was delivered, and one which the assignee was directed by the
assignment to pay, and which, so long as the landlord did not avail himself
of the option to relet the premises, the landlord had the right to enforce
against the assigned estate. MATTER OF LUDEKE.

---

Contract for the building of a boat to be completed at a certain time —
imposition of a per diem penalty for delay — insolvency of the vendor — effect of
the vendee's taking the unfinished boat from the assignee of the vendor.
See VANDEGRIFT v. COWLES ENGINEERING CO..

Judicial settlement of the accounts of an assignee - his sureties must be
served with the citation.

See MATTER OF BETTS
Subrogation to collateral·

claim against an insolvent debtor.

-the proceeds thereof deducted in allowing the

See MATTER OF SAWYER, WALLACE & Co.........
ATTACHMENT- The necessary facts cannot be established by hearsay.]
1. An attachment issued on the ground that the defendant, being a resident
of the State of New York, has kept herself concealed with intent to defraud
her creditors and to avoid service of the summons in the action, is not sus-
tained by an affidavit averring that certain persons, not parties to the action,
have made certain statements to the affiant, as the facts which it is necessary
to establish in such a case must be proven by legal evidence.

HASKELL V. OSBORN......

2. If damages be unliquidated, the facts establishing them must be set
out.] In an action brought to recover unliquidated damages, the amount
of which depends upon the facts of the case, it is necessary for the plaintiff
to set out the facts which he claims establish his damages, in order that the
court may determine whether he has evidence of damages, and whether
his allegations in respect thereto are mere matter of speculation. Id.

3. Measure of damages in an action for the breach of a contract for per-
sonal services—what allegation of damage is insufficient.] Semble, that, in an
action to recover damages for a breach of contract for personal service in
a play, the measure of such damage is represented by the amount required
to be paid to supply the place of the party pending the contract; and where
the affidavits contain no evidence of efforts made to procure a proper substi-
tute, or of the superior attractions of the defendant, an allegation that, owing
to inability, arising from the shortness of the notice, to procure a proper
substitute, the play was produced at a loss, is not sufficient. Id.

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PAGE.

4. Annulment of an attachment by the entry of a judgment in favor of
the defendant the annulment is suspended where an appeal is taken and a stay
given.] Under subdivision 12 of section 3343 of the Code of Civil Procedure,
the annulment of an attachment, effected by the entry of final judgment in
favor of the defendant, is suspended where an appeal has been taken and an
undertaking staying proceedings upon the judgment, pending such appeal,
has been duly given.

397

148

257

300

127