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and 114 New York State Reporter
Submission of controversy to court without ac- Establishment of will, see "Wills," $ 3.
tion, see "Submission of Controversy."

Foreclosure of mortgage, see "Mortgages," § 1.
Actions between parties in particular relations. Reformation of written instrument, see "Refor
See “Master and Servant,” 88 2, 3; “Partner- Setting aside fraudulent conveyance, see "Fraud-
ship," $ 3.

ulent Conveyances," 1.
Corporation and members, see "Corporations,"
$ 2.

Particular proceedings in actions.
Co-tenants, see "Partition," $ 1.

See “Continuance"; "Costs”; “Damages”; “Dep-
Principal and agent, see "Brokers," 88 1, 3. ositions"; "Dismissal and Sonsuit"; "Evi-
Actions by or against particular classes of

dence"; "Execution"; "Judgment"; "Jury";

"Limitation of Actions"; "Motions"; "Par-
See “Brokers," $81, 3; “Carriers," $$ 1, 2;

ties"; "Pleading"; "Reference"; "Stipula-

tions"; "Trial."
"Corporations," 8 4; “Executors and Adminis-
trators,".. § 6; "Infants," $ 2; Municipal Bill of particulars, see "Pleading,” $ 5.
Corporations," $ 8; "Sheriffs and Constables," Default, see “Judgment," $ 2.
$ 1.

Particular remedies in or incident to actions.
Assignees, see “Assignments," $ 2.
Corporate officers, see "Corporations," $ 3.

See "Attachment”; “Bail," $.1; “Discovery";
Foreign corporations, see “Corporations," 8 6

"Garnishment"; "Injunction"; "Receivers."
Receiver of corporation, see "Corporations," $ 5. Proceedings in exercise of special jurisdictions.
Remaindermen, see "Remainders.'

Courts of limited jurisdiction in general, see
Stockholders, see “Corporations," $ 2.

“Courts," $ 2.
Surviving partners, see “Partnership,” § 2.

Criminal prosecutions, see “Criminal Law."
Trustees, see “Trusts," $8 4, 6.

Suits in justices' courts, see "Justices of the
Trustees in bankruptcy, see "Bankruptcy," $ 1.

Peace," $ 1.
Particular causes or grounds of action.
See “Account Stated"; "Bills and Notes," $ 4; ADEQUATE REMEDY AT LAW.

"False Imprisonment," $ 1; "Libel and Slau-
der," § 3; "Money Received"; "Negligence," As affecting equitable relief on account, see "Ac-
$ 3; "Trover and Conversion," $ 2.

count," $ 1.
Attachment bond, see “Attachment," $ 6.
Breach of contract, see “Contracts," $ 5;
“Sales," $ 6.

Breach of warranty, see "Sales," $ 6.

See “Boundaries."
Compensation, see "Brokers," $ 3.
Fires caused by operation of railroad, see "Rail-
roads," 8 1.

Loss of goods by carrier, see "Carriers," § 1.
Personal injuries, see "Carriers,” $ 2; "High- or courts in general, see "Courts," $ 1.

ways," $ 2; "Master and Servant," 8'3;. "VIU- Operation and effect of former adjudication, see
nicipal Corporations," $ 8; "Railroads,” $ 1; "Judgment," 88 5, 6.
"Street Railroads," $ 2.
Price of goods, see "Sales," $ 5.

Recovery of payment, see "Payment,” $ 2.
Taking of or injury to property in exercise of Of estate of decedent, see "Executors and Ad.
power of eminent domain, see "Eminent Do-

main," 8.3.

Of trust property, see “Trusts," $ 4.
Wages, see "Master and Servant," $ 2.
Particular forms of action.

See "Ejectment”; “Replevin”; “Trover and

As evidence in civil actions, see "Evidence," $ 4.
Particular forms of special relief.

See “Account"; "Divorce"; "Injunction"; "Par-

tition," § 1; "Quieting Title"; "Specific Per- See “Food."

Accounting by broker, see “Brokers," $ 1.

Admeasurement or assignment of dower, see Evidence of, in action for divorce, see “Divorce,"

"Dower," $ 1.
Construction of will, see "Wills," $ 10.

8 1.
Determination of adverse claims to real proper-

ty, see “Quieting Title.”
Dissolution of partnership, see “Partnership,” To real property, see “Quieting Title."

$ 3.
Enforcement or foreclosure of lien, see “Mechan.
ics' Liens," $ 3.

Establishment and enforcement of trust, see
“Trusts," $ 6.

See “Limitation of Actions."


See "Depositions."

In pleading, see "Pleading,” g 2.
In particular proceedings.
See "Attachment," $ 2.

To procure examination of person having prop- See “Certiorari."

erty of attachment defendant, see "Attach-
ment,” g 3.

Review in special proceedings.

Assessment of taxes, see "Taxation," $ 3.

Condemnation proceedings, see "Eminent Do-

main," $ 1.
See “Principal and Agent."

Review of criminal prosecutions.

See "Criminal Law," $ 5.

8 1. Nature and form of remedy.
Submission of controversy to court, see "Submis- The right of appeal by plaintiff from a mu-
sion of Controversy."

nicipal court order opening a default and setting

aside his judgment, in an action brought before

Laws 1902, c. 580, $ 257, held reserved by sec-
tion 361 thereof. Johnson v. Manning (Sup.)

See “Contracts."

§ 2. Decisions reviewable.

An indorsement on an order held equivalent to

the entry of the order in the clerk's office, suffi.
Suspension of power of alienation of property, cient to sustain an appeal therefrom.-O'Connor
see "Perpetuities."

v. McLaughlin (Sup.) 741.

8 3. Presentation and reservation in

lower court of grounds of review.

Where a trial court filed but one conclusion
See "Husband and Wife,” | 1.

of law, and it was entirely erroneous, a general
exception thereto was sufficient.-Eckerson v.

City of New York (Sup.) 168.

A failure to object to a permission granted

opposing counsel to comment on a matter with-
Of appeal or writ of error, see "Appeal," $ 4. drawn from evidence held to preclude a predica-
Of costs, see "Costs," 8 2.

tion of error on such ruling.-M. Groh's Sons v.

Groh (Sup.) 438.

§ 4. Requisites and proceedings for

transfer of cause.
Of geographical political divisions,

A notice of appeal from an order as resettled
“Towns," § 1.

by an order entered on a later day specified,
and from each and every part thereof, held suf-

ficient to authorize a review of the entire order

as resettled.- Seligsberg v. Schepp (Sup.) 154.
See "Reformation of Instruments."

Decision in personal injury action held to pre-
sent no distinctive feature justifying allowance
of appeal to the Court of Appeals.- Vandecar v.

Universal Trust Co. (Sup.) 783.
Of by-laws of beneficial association, see "Insur- $ 5. Record and proceedings not in reo-
ance," $ 7.

Of judgment, see "Judgment," 8.4.

A failure of the record to disclose the alleged
Of pleading, see “Pleading," $ 4.

improper remarks of opposing counsel held to
Of statutes, see “Limitation of Actions," $ 1. preclude the consideration on appeal of alleged

error therein.-M. Groh's Sons v. Grob (Sup.)


Where, upon appeal from a judgment dismiss-
Evidence held to show that an owner knew of ing the complaint upon the merits, it does not ap-
the vicious character of a bull, confided by him, pear what answer was given to specific questions
without warning, to the care of a party injur: submitted to the jury, the record comes up for
ed by the animal.—Talmage v. Mills (Sup.) 637. review, the same as if no verdict had been ren-

dered.-O'Sullivan v. Knox (Sup.) 848.
It is no defense to an action by one working
a farm on shares, for injuries from a vicious $ 6. Dismissal, withdrawal, or aban.
bull belonging to the owner of the land, that

the parties were not master and servant.- Appeal from so much of an order entered by
Talmage v. Mills (Sup.) 637.

defendant as released parties to an injunction






and 114 New York State Reporter
bond held dismissed.--Kraeger v. Warnock (Sup.) | Rules governing interference with jury's ver-

dict for personal injuries, as excessive, stated. -

Bachmann V. Paul Weidmann Brewing Co.
§ 7. Review.

(Sup.) 931.
Under the facts, held, that an order awarding
full statutory costs against a defendant execu-

Judgment on a fourth verdict for plaintiff on
tor, pursuant to Code Civ. Proc. § 1836, on practically the same evidence will not be dis-
the ground that the claim was unreasonably turbed on the weight of evidence.-Williams F.
resisted or neglected, could not be disturbed | Delaware, L. & W. R. Co. (Sup.) 945.
on appeal.–Ballantyne v. Steenwerth (Sup.) 37. $ 8. Determination and disposition of

In au action for personal injuries, tried be-
fore a referee, any error in the admission of

A failure of defendant to object to evidence
certain expert testimony held harmless under until appeal held to render it reasonable on a
the facts.-Walden v. City of Jamestown (Sup.) | the cost to that time, amend so as to admit

retrial that the plaintiff, without paying all

the evidence.-Miller v. Carpenter (Sup.) 82.
In an action for personal injuries, a finding
of the referee as to the nature of the injuries assessed was easily ascertainable on appeal,

Where the amount of damages erroneously
held to cure any error in the admission of cer- plaintiff will be given the optiou to consent to
tain testimony in relation thereto.-Walden v.

a reduction of the judgment or a new trial.-
City of Jamestown (Sup.) 65.

United States v. A. S. Abell Co. (Sup.) 454.
In action for injuries, certain error held avail-
able on appeal by plaintiff by reason of other

Defendant, on vacation of interlocutory judg
error relative to primary questions of negli- ment sustaining demurrer to defense, held enti-
gence and contributory negligence.-McEvoy v.

tled to vacation of final judgment.-Schieck v.
Lommel (Sup.) 71.

Donohue (Sup.) 739.
A judgment of the appellate division, revers-

The court cannot, on appeal, reverse the
ing a judgmeut dismissing a complaint ou the judgment, and direct judgment for the other
pleadings, held the law of the case ou the ques. | liams' v. Delaware, L. & W. R. Co. (Sup.) 945.

party; there being evidence for the jury.-Wil-
tions decided, on a subsequent appeal from a
judgment on a verdict in favor of plaintiff.-
Leeds v. New York Tel. Co. (Sup.) 114.

In an action against a city for personal in- For inspection of books, see "Discovery," $ 1.
juries, the admission of evidence as to a per-
manent illness, not connected with the injuries,
held harmless.-Wynn v. City of Yonkers (Sup.)


Of executor or administrator, see “Executors
Error in admitting evidence held harmless.- and Administrators," $ 1.
Phoebus v. Webster (Sup.) 292.

Of municipal officers, see "Municipal Corpora-
The part of a judgment from which appeal is

tions," $ 2.
pot taken cannot be complained of on appeal. Of public officers in general, see "Officers," $ 1.
Lord v. Murchison (Sup.) 321.

Of receiver for corporation, see "Corporations,"

8 5.
A charge given on the request of a party who
bad objected to the introduction of evidence
held to cure any error in the admission of such

evidence.-M. Groh's Sons v. Groh (Sup.) 438.

See "Reference"; "Submission of Controversy."
Under Code Civ. Proc. $$ 190, 1316, 1324, de-
nial of motion for settlement of issues, and for

jury trial, held reviewable on appeal from final
judgment.-Herb v. Metropolitan Hospital & In civil actions, see "Trial," $ 3.
Dispensary (Sup.) 552.

Where the complaint showed that the action
was not brought within statutory time, granting Sce "Bail."

of leave to amend so as to set up limitations held
pot injurious to plaintiff.--Colell v. Delaware, Illegal arrest, see “False Imprisonment."
L. & W. R. Co. (Sup.) 675.

A party must be presumed to have been preju- ASSAULT AND BATTERY.
diced by the improper exclusion of evidence. Liability of carrier for assaults on passengers.
Hanlon v. Ehrich (Sup.) 692.

see “Carriers," $ 2.
Where the question as to whether verdict is
contrary to the evidence is presented on appeal,
the law imposes on the Appellate Division the

duty of passing on that question. Schooler vor compensation for property taken for publie
New York Cent. & H. R. R. Co. (Sup.) 800.

use, see "Eminent Domain," f 2.
Where the evidence does not clearly preponder of expenses of public improvements, see *Wu-
ate in appellant's favor, a second judgment will nicinal Corporations." $ 5.
not be set aside.-Moore v. Eldridge (Sup.) 922. Of tax, see “Taxation," $ 3.



| Co. v. Industrial Federation of America (Sup.)

Of estate of decedent, see “Executors and Ad- & 3. Proceedings

$ 3. Proceedings to support or enforce.
ministrators," $ 2.

Under Code Civ. Proc. $ 638, proof of the is-
suance of the summons is not required in the

first instance as a condition to the issuance of

an attachment.—Belmont v. Sigua Iron Co. (Sup.)
Fraud as to creditors, see "Fraudulent Convey-

Under Code Civ. Proc. $ 651, it is not neces-
Transfer of cause of action ground for abate-

sary, in order to secure the examivation of a
ment, see "Abatement and Revival," $ 1.

person who refuses to give a certificate specify-

ing what property of an attachment defendant
Transfers of particular species of property, he has in his possession, to show that he ac-
rights, or instruments.

tually had property which would be subject to
See "Iusurance," $ 4; "Patents," $ 2.

levy.-Donner v. Mercy (Sup.) 1030.
Leases, see “Landlord and Tenant," 8 2.

Affidavit made to obtain the examination of

person alleged to have property of an attach-
& l. Requisites and validity.

ment defendant in his possession held to suff.
Materialman's filing with county clerk order

ciently aver service of the warrant.-Donner v.
given him by owner of building on person agree-

| Mercy (Sup.) 1030.
ing to furnish advances held not to constitute
notice to the latter.-Curtis Bros. Lumber Co.

Under Code Civ. Proc. $ 650, right to demand
v. McLoughlin (Sup.) 1016.

certificate from person believed to have proper-

ty of an attachment defendant in his possession
Laws 1896. p. 995, c. 915, providing that no does not depend on service of the warrant of
assignment of any moneys due or to become due

| attachment.--Donner v. Mercy (Sup.) 1030.
for labor or materials, or any order drawn by
any contractor or subcontractor for the pay-

Affidavit made to secure examination of per-
ment thereof, shall have any force until such son alleged to have property of an attachment
assignment or order shall be filed with the coun:

defendant in his possession held to be defective.
ty clerk, held not to relate to lender agreeing in -Donner v. Mercy (Sup.) 1030.
writing to furnish owner with money to com- | 4. Quashing, vacating, dissolution, or
plete buildings.-Curtis Bros. Lumber Co. v.

McLoughlin (Sup.) 1016.

Where defendant in an attachment suit has
2. Actions.

not appeared, except specially, plaintiff has the
Evidence held to warrant dismissing of com-

right to discontinue.-Straus v. Guilhou (Sup.)
plaint of a materialmau in suit on order given

by owner on person contracting to furnish ad | Where defendants moved to vacate an attach-
vances for buildings. Laws 1896, p. 995, c. ment on the papers, and on a judgment subse-
915.-Curtis Bros. Lumber Co. v. McLoughlinquently rendered, such judgment was available
(Sup.) 1016.

to both parties.-Belmont v. Sigua Iron Co.

(Sup.) 771.

Where a motion to set aside an attachment

was based on the judgment, which recited the

facts necessary to sustain the attachment, it

was immaterial that such facts were not suffi-
See "Bankruptcy."

ciently proved by the attachment affidavits.-Bel-
mont v. Sigua Iron Co. (Sup.) 771.
§ 5. Claims by third persons.

A debt is "goods or effects," within Code Civ.
See "Account Stated"; "Money Received." Proc. $ 657, relating to claims of third parties

in attachment.- Minor v. Gurley (Sup.) 596.

& 6. Liabilities on bonds or undertak-

of risk by employé, see "Master and Servant.” After discontinuance on plaintiff's motion of

an attachment suit in which defendant has only

appeared specially, a judgment against plain-

tiff for defendant's costs and damages could not

be entered in the suit.-Straus v. Guilhou (Sup.)
See "Execution"; "Garnishment."
& 1. Nature and grounds.

Defendant, on the discontinuance, without his
Attachment will not lie to recover a debt,

consent, on plaintiff's motion, of an attachment
where the situs thereof is in a foreign state.

suit, held entitled to an action on the undertak-

ing executed by plaintiff, pursuant to Code Civ.
-Allen v. United Cigar Stores Co. (Sup.) 401.

1. Proc. $ 640.-Straus v. Guilhou (Sup.) 180.
§ 2. Proceedings to procure.

| Defense in action on bond given for attach-
Affidavit in attachment held not to show facts ment thereafter vacated held insufficient.-
constituting a cause of action.-American Audit | Powell v. Bursky (City Ct. N. Y.) 480.



and 114 New York State Reporter

Argument and conduct of counsel at trial in civil Of action by former adjudication, see "Judg-
actions, see “Trial," $ 3.

ment," 8 5.

Of agent, see "Principal and Agent,” 8 1.

See "Disorderly House."




See "Wills."
Pleading matter in avoidance, see “Pleading."


See “Gaming."

8 1. In civil actions.

An undertaking to procure discharge from ar- Or juror, see "Jury," $ 2.
rest held to make liability depend on default in
obeying an order, so that, as there could be 10

such order, the surety was not liable.-Bristol
V. Graff (Sup.) 39.

See "Divorce," 8 1; "Pleading," $ 5.

See "Carriers,” 1; “Depositaries”; “Pledges." Gift of, see "Gifts," $ 1.

§ 1. Rights and liabilities on indorse-

ment or transfer.

The rule that fraudulent diversion of a note is
§ 1. Assignment, administration, and a defense for accommodation indorsers against

distribution of bankrupt's estate. one receiving it as collateral for an antecedent
Agreement between a corporation and one debt held not changed by Negotiable Instrn-
making advances to it, giving the latter a lien ments Law, § 51.-Sutherland v. Mead (Sup.)
on the corporation's property, held not fraudu- 504.
lent as against trustee in bankruptcy of the cor-

The transferee in good faith for value and
poration.--Mathews v. Hardt (Sup.) 462.

in due course of a check may enforce it against
A transfer of property held an unlawful pref- the drawer, free from defenses existing be-
erence, within Bankr. Act, $ 60 [U. S. Comp. tween the drawer and payee; no fraud being
St. 1901, p. 3445).—Mathews v. Hardt (Sup.) pleaded.-Citizens' State Bank v. Cowles (Sup.)

Judgment creditor, suing to set aside fraud- Certain facts held not to show such a delay,
ulent conveyances more than four months be- as a matter of law, as to raise the presumption
fore petition filed in bankruptcy, held to obtain that a check was overdue or dishonored at time
a lien prior to that of the trustee in bank- of negotiation.-Citizens' State Bank v. Cowles
ruptcy.- Ninth Nat. Bank v. Moses (Sup.) 617. (Sup.) 598.

Fact that creditor of insolvent demands securi; 2. Presentment, demand, notice, and
ty does not show that he has reasonable ground

for believing debtor insolvent, so as to make

Delay of party in presenting check given in
transfer voidable under section 60 of the bank- settlement of an account until after the bank on
ruptcy act (Act July 1, 1898, c. 541, 30 Stat. 562 which it was drawn bad failed held not to pre
[U. $. Comp. St. 1901, p. 3445]).-Perry v.

vent his recovery against the drawer on the ac-
Booth (Sup.) 706.

count.-Williams v. Brown (Sup.) 247.
Where complaint shows plaintiff suing as trus- $ 3. Payment and discharge.
tee of a bankrupt, that his name is followed by
the word “trustee,” and not by the words "as

A payment of a note need not necessarily be
trustee," does not deprive him of his repre- made in money.—Root v. Kelley (City Ct. x.

Y.) 482.
sentative capacity.-Newland y. Zodikow (Õity
Ct. N. Y.) 375.

8 4. Actions.

Evidence that, three years before defendant

executed the note, he was indebted to plaintiff's

husband, held not to prove consideration for the
§ 1. Banking corporations and associa- note.-Kramer v. Kramer (Sup.) 184.

The certificate that a note was a genuine busi-
Articles of association of a bank held to give ness note, given for value, and that there was
it a lien on stock belonging to one indebted to no defense to it, held not to estop an accom-
the bank as drawer of a note.-Lyman v. State modation indorser from the defense of fraudu-
Bank of Randolph (Sup.) 901.

lent diversion against one receiving it as col-

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