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INDEX.

use might be a benefit to the business.-Burden v. Burden Iron Co. (Sup.) 390.

Corporation held to have no license to use the inventions of its president without compensation. -Burden v. Burden Iron Co. (Sup.) 390. § 2.

Title, conveyances, and contracts. A contract by which assignee of a patentee was to assign to the patentee a certain interest therein held without consideration.-Cowles v. Rochester Folding Box Co. (Sup.) 811.

Where a contract contains no express provision for a formal assignment in writing of an interest in a patent, the law will imply such agreement, if essential to pass title.-Thourot v. Holub (Sup.) 1083.

Vendees held not entitled, under a contract for sale of a patent, to an assignment thereof until purchase price is paid in full.-Thourot v. Holub (Sup.) 1083.

PAYMENT.

See "Accord and Satisfaction"; and Settlement."

"Compromise

Part payment within statute of limitations, see
"Limitation of Actions," § 3.

Subrogation on payment, see "Subrogation."
Of particular classes of obligations or liabilities.
See "Costs," § 3.

Bill of exchange or promissory note, see "Bills
and Notes," § 3.

Claims against estate of decedent, see "Executors and Administrators," § 4. Compensation for property taken for public use, see "Eminent Domain.'

§ 1. Pleading, evidence, trial, and review.

Proof that property transferred by a partner to a firm creditor was worth more than the no presumption, credit given held to raise

Provision of will directing trustee to hold personal property for a certain time held void under Personal Property Law (Laws 1897, c. 417) § 2.-McGuire v. McGuire (Sup.) 497.

Provision of will suspending an alienation of real property for three years held void as a perpetuity.-McGuire v. McGuire (Sup.) 497.

Will construed, and held to vest title in remainderman absolutely, and not to be in violation of Laws 1897, c. 417, § 2, relative to perpetuities, in that respect.-In re Conger's Will (Sup.) 933.

Will construed, and held not to create a trust in the executors, in violation of Laws 1897, c. 417, § 2, relative to perpetuities. In re Conger's Will (Sup.) 933.

PERSONAL INJURIES.

See "Negligence."

Caused by defects in demised premises, see "Landlord and Tenant," § 3.

Caused by vicious animals, see "Animals." Caused in construction of telephone line, see "Telegraphs and Telephones," § 1.

Excessive and inadequate damages, see "Damages," § 2.

Expert and opinion evidence, see "Evidence,"
§ 9.
To employé, see "Master and Servant," § 3.
To passenger, see "Carriers," § 2.

To person on or near railroad tracks, see "Railroads," § 1.

To person on street railroad tracks, see "Street Railroads," § 2.

To traveler on highway, see "Municipal Corporations," & 8.

To traveler on highway crossing railroad, see "Railroads," § 1.

PHOTOGRAPHS.

against positive evidence to the contrary, that it As evidence, see "Evidence," § 7. was intended to wipe out the whole debt.-Leggat v. Leggat (Sup.) 327.

Payment is an affirmative defense, which must be pleaded.-Forbes v. Wheeler (City Ct. N. Y.) 373.

§ 2. Recovery of payments.

PHYSICIANS AND SURGEONS.

Expert testimony, see "Evidence,” § 9.

PLEA.

In an action to recover for money paid by mutual mistake, an allegation, in defense, that In civil actions, see "Pleading," § 2. the payment was not made under duress and was voluntary, is frivolous.-Jaeger v. City of New York (Sup.) 356.

PERPETUITIES.

Will construed, and active trust in personalty held not invalid by a void direction as to accumulations.-Tobin v. Graf (Sup.) 5.

Provision in will for accumulation of income on legacy to infant after he becomes of age held invalid.-Tobin v. Graf (Sup.) 5.

Provisions of a will directing an accumulation of interest for adults held void under Real Property Law (Laws 1896, c. 547) § 51. -McGuire v. McGuire (Sup.) 497.

PLEADING.

Conformity of judgment to pleadings, see "Judgment," § 3.

Allegations as to particular facts, acts, or transactions. See "Deeds," § 2; "Payment," § 1.

In actions by or against particular classes of parties.

See "Master and Servant," § 3; "Municipal Corporations," § 8.

Assignees, see "Assignments," § 2.
Foreign corporation, see "Corporations," § 6.
Stockholders, see "Corporations," § 2.

and 114 New York State Reporter

In particular actions or proceedings. See "Divorce." § 1; "Ejectment," § 1; "False Imprisonment," § 1; "Libel and Slander," § 3; "Negligence,' $ 3.

For personal injuries, see "Master and Servant,"
§ 3; "Municipal Corporations," § 8.
For price of goods, see "Sales," § 5.
Indictment or criminal information or complaint,
see "Indictment and Information."

On bond, see "Principal and Surety," § 1.
On contract, see "Contracts," § 5.
On note, see "Bills and Notes," § 4.
To construe will, see "Wills," § 10.

To foreclose mechanic's lien, see "Mechanics'
Liens," § 3.

To recover payment, see "Payment," § 2.

1. Form and allegations in general. A complaint alleging that an assignment of a life policy was fraudulently obtained or made as security for a loan which has been paid held not bad because of such averment in the alternative.-Hasberg v. Mutual Life Ins. Co. (Sup.) 867.

§ 2. Plea or answer, cross complaint. and affidavit of defense.

However inconsistent with the complaint the allegations in the defense may be, they cannot be treated as having the effect of a denial. -Jaeger v. City of New York (Sup.) 356.

A denial must be stated separately, and not mingled with a defense.-Jaeger v. City of New York (Sup.) 356.

Admissions in defenses in an answer will be stricken out as irrelevant.-Sanford v. Rhoads (Sup.) 404.

Denials must be stated separately and before affirmative allegations of an answer.-Carpenter v. Mergert (Sup.) 615.

§ 3. Demurrer or exception.

Demurrer to defense, where general denial is

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Under the facts, held, that order permitting service of further bill of particulars by plaintiff, as required by a former order, would not be disturbed. though there had been great laches on plaintiff's part in serving same.Romer v. Kensico Cemetery (Sup.) 38.

In an action to set aside an assignment of plaintiff's interest in an estate, plaintiff held not entitled to a bill of particulars showing the net value of the property of the estate.-Toomey v. Whitney (Sup.) 826.

An affidavit by an attorney in support of an application for a bill of particulars held insufficient to justify an order requiring such bill to be furnished. Toomey v. Whitney (Sup.) 826. 6. Motions.

A cause of action may not be stricken from a complaint on motion, unless its insertion is prohibited by some order.-Craig v. James (Sup.) 235.

§ 7. Defects and objections, waiver, and aider by verdict or judgment. Failure to demur to complaint held not waiver of objection that no such action could be maintained against defendant.-Town of Ulysses v. Collins (Sup.) 924.

PLEDGES.

Pledgee of bank stock on which bank had a also pleaded, sustained.-Jaeger v. City of Newien held bona fide holder with lien superior to York (Sup.) 356. that of the bank.-Lyman v. State Bank of Randolph (Sup.) 901.

Demurrer to answer consisting of general de

nial and a defense held aimed at the new matter set up in the defense.-Jaeger v. City of New York (Sup.) 356.

POLICE DEPARTMENT.

That new matter alleged as a separate de- See "Municipal Corporations," § 3. fense, under Code Civ. Proc. § 500, subd. 2, could be proved under the general denial, is not ground for demurrer, but for motion to strike out.-Kraus v. Agnew (Sup.) 518.

Judicial notice should be taken that an action was not begun prior to the date of the summons.-Keene v. Newark Watch Case Mfg. Co. (Sup.) 859.

POLICE POWER.

Of municipality, see "Municipal Corporations," § 6.

Regulations for supply of gas, see "Gas."

POLICY.

When, by reason of allegations in the complaint in the alternative, the defendant is left Of insurance, see "Insurance." in uncertainty, the remedy is by motion to make definite, and not by demurrer.-Hasberg v. Mutual Life Ins. Co. (Sup.) 867.

POLITICAL RIGHTS.

§ 4. Amended and supplemental plead-Suffrage, see "Elections."

ings and repleader.

Amendment to complaint held not to set up

a new cause of action, so as to make it neces

POSSESSION.

sary for plaintiff to pay all costs before it was Of demised premises, see "Landlord and Tengranted. Miller v. Carpenter (Sup.) 82.

aut," § 5.

POWERS.

Creation by will, see "Wills," § 9.

Of attorney, see "Principal and Agent."

Of executors under will, see "Executors and Ad-
ministrators," § 3.

Powers of executors under will, see "Executors
and Administrators," § 3.

PRACTICE.

Procedure of particular courts, see "Courts."

In particular civil actions or proceedings.

PRESUMPTIONS.

In civil actions, see "Evidence," § 2.
On appeal, see "Appeal," § 7.

PRIMARY ELECTIONS.

See "Elections," § 1.

PRINCIPAL AND AGENT.

See "Brokers."

Insurance agents, see "Insurance," § 1.

persons.

See "Account," § 1; "Divorce." § 1;"Eject-1. Rights and liabilities as to third
ment"; "Mandamus," § 1; "Replevin."
Accounting by executor or administrator, see
"Executors and Administrators," § 7.
Condemnation proceedings, see "Eminent Do-
main," § 2.

Particular proceedings in actions.
See "Abatement and Revival"; "Bail," § 1;
"Continuance"; "Costs"; "Depositions"; "Dis-
missal and Nonsuit"; "Evidence"; "Execu-
tion"; "Judgment": "Jury"; "Limitation of
Actions"; "Motions"; "Parties"; "Pleading";
"Reference"; "Stipulations"; "Trial."
Particular remedies in or incident to actions.
See "Attachment"; "Discovery"; "Garnish-
ment", "Injunction"; "Receivers."

Procedure in criminal prosecutions.

See "Criminal Law."

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Complaint in an action to recover on certain
notes made by an agent held to show a good
cause of action against defendant as an undis-
closed principal.-Ranger v. Thalmann (Sup.)
19.

Suing agent held not an election to release his
undisclosed principals. - Ranger v. Thalmann
(Sup.) 19.

Instructions to agent authorized to sell goods
held not to have been violated.-Bristol v. Men-
te (Sup.) 52.

In action against carrier for loss of bag-
gage, evidence held insufficient on which to
base damages. Talcott v. Wabash R. Co.
(Sup.) 149.

-

A commercial traveler's contract for carriage
of his goods by paying excess baggage rate on
trunks held to bind the carrier to the travel-
ing man's employer.-Talcott v. Wabash R.
Co. (Sup.) 149.

In an action for the price of goods sold, the
purchaser held not entitled to defend on an
agreement with plaintiff's agent, who made
the sale, varying the terms of the contract.—
Flower City Plant Food Co. v. Roberts (Sup.)
1060.

Warrant of quality of goods sold by agent
without authority held not to bind his principals.
-Ellner v. Priestley (City Ct. N. Y.) 371.

PRINCIPAL AND SURETY.

See "Bail."

Liabilities of sureties on bouds for performance
of duties of trust or office, see "Executors and
Administrators," § 8.
Liabilities of sureties on bonds in legal proceed-
ings, see "Attachment," § 6.
Liabilities of sureties on bonds of liquor dealer,
see "Intoxicating Liquors," § 1.

§ 1. Remedies of creditors.

A complaint on a bond to secure performance
of a contract held not demurrable as showing
a termination of the contract by plaintiff prior
to the date provided for its completion.-Keene
v. Newark Watch Case Mfg. Co. (Sup.) 859.

PRIVATE NUISANCE.

Of check for payment, see "Bills and Notes," § 2. See "Nuisance," § 1.

and 114 New York State Reporter

PRIVATE ROADS.

Rights of way, see "Easements."

PRIVILEGE.

Of witness as to testimony, see "Witnesses," § 2.

PRIVILEGED COMMUNICATIONS. Disclosure by witness, see "Witnesses," § 1.

PRIZE FIGHTING.

Physical contest held a prize fight, within Pen. Code, § 458, punishing the aiding of a prize fight.-People v. Finucan (Sup.) 929.

PROBATE.

Of will, see "Wills," § 3.

PROCESS.

To sustain judgment, see "Judgment," § 1.
In actions against particular classes of parties.
See "Corporations," § 4.

In particular actions or proceedings.
See "Attachment," § 3.

In criminal prosecutions, see "Criminal Law," § 2.

Particular forms of writs or other process. See "Execution"; "Garnishment"; "Injunction"; "Mandamus"; "Replevin."

PROHIBITION.

Of traffic in intoxicating liquors, see "Intoxicating Liquors."

PROMISSORY NOTES.

See "Bills and Notes."

PROOF.

Of loss insured against, see "Insurance," § 6.

PROPERTY.

Constitutional guaranties of rights of property, see "Constitutional Law," § 1. Taking for public use, see "Eminent Domain."

PROSTITUTION.

See "Disorderly House."
Place of imprisonment, see "Criminal Law," § 6.

PROVINCE OF COURT AND JURY. In civil actions, see "Trial," § 5.

PUBLIC IMPROVEMENTS.

By municipalities, see "Municipal Corporations," § 5. PUBLIC POLICY.

Effect on validity of contract, see "Contracts," § 1.

PUBLIC SCHOOLS.

See "Schools and School Districts," § 1.

PUBLIC USE.

Taking property for public use, see "Eminent Domain.'

PUNISHMENT.

See "Criminal Law," § 6.

For contempt of court, see "Contempt," § 1.

QUASHING.

Attachment, see "Attachment," § 4.

QUESTIONS FOR JURY.

In civil actions, see "Trial," § 4.

QUIETING TITLE.

§ 1. Right of action and defenses. A court of equity held to have jurisdiction to grant relief in an action to have deed set aside as procured by fraud, though plaintiff is not in possession.-Letson v. Letson (Sup.) 1032.

RAILROADS.

See "Street Railroads."

As employers, see "Master and Servant." Carriage of goods and passengers, see "Carriers.'

§ 1. Operation.

In an action against a railroad company for fire set by locomotive, case held sufficient to go to jury. Smith v. Long Island R. Co. (Sup.) 4.

Evidence in case of a pedestrian killed at a railroad crossing held insufficient to show freedom from contributory negligence. Ward v. New York Cent. & H. R. R. Co. (Sup.) 161.

Question of railroad engineer's negligence in threatening collision with street car, thereby causing street car passenger to jump and receive injuries, held for the jury.-Robson v. Nassau Electric R. Co. (Sup.) 698.

Evidence in an action for damages from collision with a railroad train at a street crossing examined, and held, that the verdict for plaintiff was against the weight of evidence.-Schooler v. New York Cent. & H. R. R. Co. (Sup.) 800.

In an action for injuries at a crossing, whether defendant was guilty of negligence held a

question for the jury.-Swart v. New York | 8 2. Accounting and compensation.
Čent. & H. R. R. Co. (Sup.) 906.

In an action for injuries at a crossing, a
statement by plaintiff that he looked, but did
not see an approaching train, does not raise a
question of fact on the issue of contributory
negligence.-Swart v. New York Cent. & H. R.
R. Co. (Sup.) 906.

In an action for injuries at a crossing, plain
tiff held guilty of contributory negligence in
law.-Swart v. New York Cent. & H. R. R. Co.
(Sup.) 906.

A person, killed on a paved way running
along the railroad's right of way from a grade

Where the facts concerning the administra-
tion of a receiver are not contained in the rec-
ord, the appellate division cannot review a re-
fusal to grant the receiver compensation.-
Slater v. Slater (Sup.) 363.

RECORDS.

Of foreign wills, see "Wills," § 3.
Transcript on appeal, see "Appeal," § 5.
REDEMPTION.

crossing, held a licensee, and not entitled to the From tax sales, see "Taxation," § 4.
degree of care required as to persons at a
public crossing.-Meinrenken V. New York
Cent. & H. R. R. Co. (Sup.) 1074.

In an action for killing a pedestrian at a
railroad grade crossing, or on a public way
near the same, a verdict in favor of plaintiff
held contrary to the weight of evidence.-Mein-
renken v. New York Cent. & H. R. R. Co.
(Sup.) 1074.

In an action for the killing of plaintiff's in-
testate at a railroad grade crossing, the bur-
den was on the plaintiff to show that decedent
was free from negligence contributing to his
death.-Meinrenken v. New York Cent. & H.
R. R. Co. (Sup.) 1074.

REFERENCE.

§ 1. Nature, grounds, and order of ref-

erence.

A case held not one requiring the examina-
tion of a long account, so as to allow of a
compulsory reference. Sartorius v. Gottlieb
(Sup.) 159.

2. Referees and proceedings.

In action for conversion of soil, referee's re-
port held prejudicially erroneous on the question
of damages. Radway v. Duffy (Sup.) 334.

Rules as to admissibility of evidence will not
be strictly adhered to in proceedings before a
In an action for killing a pedestrian at a referee.--People v. Rushford (Sup.) 891.
railroad crossing, a finding that plaintiff's in-
testate was not guilty of contributory negli-eree held to be harmless error.-People v. Rush-
Admission of incompetent evidence by a ref-
gence held contrary to the evidence.-Mein-
renken v. New York Cent. & H. R. R. Co.
(Sup.) 1074.

RATIFICATION.

Of performance of contract, see "Contracts,"
§ 4.
REAL ACTIONS.

See "Ejectment."

REAL-ESTATE AGENTS.

See "Brokers."

REAL PROPERTY.

Equitable conversion, see "Conversion."

RECEIVERS.

Compensation for winding up partnership, see
"Partnership." § 3.

In supplementary proceedings, see "Execution,"
§ 2.

Of corporations in general, see "Corporations,"
§ 5.

§ 1. Nature and grounds of receiver-
ship.

Receiver appointed, where testatrix executed
three conflicting wills, pending determination
as to validity.-Le Brantz v. Conklin (Sup.)
967.

ford (Sup.) 891.

REFORMATION OF INSTRUMENTS.

§ 1. Proceedings and relief.

Evidence held insufficient to show that a con
tract for purchase of land should be reformed
because of mistake of parties.-Roussel v. Lux
(Sup.) 341.

Reformation of contract for sale of land be-
cause of alleged mutual mistake denied for in-
sufficiency of the evidence.-Roussel v. Lux
(Sup.) 341.

RELEASE.

See "Accord and Satisfaction"; "Compositions
with Creditors"; "Compromise and Settle-
ment"; "Payment."

§ 1. Construction and operation.

A release of one of two corporations, whose
several acts contributed to cause an injury, held
not admissible in an action against the other.-
Leeds v. New York Tel. Co. (Sup.) 114.

One of two debtors in a judgment against
them in solido, from whom there had been col-
lected under execution more than his propor-
tionate share, contrary to Rev. Civ. Code La.
art. 2203, held entitled to sue the creditor in
New York for the excess.- -Moore v. Hanover
Nat. Bank (Sup.) 448.

In action by one of two debtors in a judg-
ment in solido in Louisiana, who had paid more
than his proportionate share, against the judg-

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