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INDEX.

ABANDONMENT.

Of attachinent, ee Attachment, § 3.

Of easement, see Easements, § 1.

Of husband or wife, see Husband and Wife,
§ 2.

Of oil lease, see Mines and Minerals, § 1.

ABATEMENT.

Of legacy, see Wills, 8 4.

Of rent for failure of landlord to comply with
contract, see Landlord and Tenant, § 4.

ABATEMENT AND REVIVAL.

Right of action by or against personal represen-
tative, see Executors and Administrators, § 5.
Substitution of parties, see Parties, § 1.

1. Objections to jurisdiction.
*Where there are two proceedings pending
between the same parties for the same object,
the proceeding first commenced is a bar to that
commenced afterwards.-In re Moran (Sur.)
207.

§ 2. Another action pending.
*The pendency of one action is a defense to
a second action on the same cause of action;
but the dismissal of the first action for want
of prosecution invalidates the defense.-Con-
lon v. National Fireproofing Co. (Sup.) 652.

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see Municipal Corporations, § 3.
Compensation for taking of or injury to lands
or easements for public use, see Eminent
Domain, § 1.

Rights in streets in cities, see Municipal Cor-
porations, § 5.

ACADEMIES.

See Schools and School Districts, § 1.

ACCEPTANCE.

Of bill of exchange, see Bills and Notes, § 1.
Of dedication, see Dedication, § 1.
Of goods sold in general, see Sales, § 3.

112 N.Y.S.-73

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Bailor and bailee, see Bailment.
Corporation and corporate officers, see Corpora-
tions, § 3.

Co-tenants, see Partition, § 1.

*Point annotated. See syllabus.
(1153)

and 146 New York State Reporter

Actions by or against particular classes of per

sons.

See Carriers, §§ 2, 3; Executors and Administrators, § 5; Infants, § 1; Municipal Corporations, 8; Partnership, § 2; Street Railroads, 2; Warehousemen. Assignees, see Assignments, § 1. Stockholders, see Corporations, § 2. Taxpayers, see Municipal Corporations, § 7. Actions relating to particular species of property or estates.

Party wall, see Party Walls.

Particular causes or grounds of action. See Bills and Notes, § 6; Conspiracy, § 1; Fraud, 2; Insurance, §§ 9, 10; Libel and Slander, § 2; Money Lent; Money Paid; Negligence, 2; Nuisance, § 1; Trespass; Trover and Conversion, § 2; Work and La bor.

Breach of contract, see Contracts, § 4; Sales, § 5; Vendor and Purchaser, § 5. Cancellation of liquor tax certificate, see Intoxicating Liquors, § 3.

Compensation of broker, see Brokers. § 2. Failure to deliver shipment of goods, see Carriers, § 2.

Infringement of trade-mark or trade-name, see Trade-Marks and Trade-Names, § 1. Judgment for infant, see Infants, § 1.

Loss of or injury to goods shipped, see Carriers,

§ 2.

Negligence of attorney, see Attorney and Client, $ 3.

Personal injuries, see Animals; Carriers, §

Master and Servant, § 8; Railroads, §
Shipping, § 1; Street Railroads, § 2.
Price of goods, see Sales, § 5.

Recovery of land sold by vendor, see Vendor and Purchaser, § 4.

Recovery of payment, see Payment, § 3. Recovery of price paid for land, see Vendor and Purchaser, § 5.

Recovery of tuition, see Schools and School Districts, § 1.

a

Rent, see Landlord and Tenant, § 4. Services, see Master and Servant, § 2; and Labor.

Storage, see Warehousemen.

Enforcement of stockholder's liability, see Corporations, § 2.

Enforcement or foreclosure of lien, see Mechan-
ics' Liens, 8 4; Railroads, § 4.
Establishment and enforcement of charity, see
Charities, 2.

Establishment of will, see Wills, § 2.
Foreclosure of mortgage, see Mortgages, § 5;
Railroads, § 4.

Removal of cloud on title, see Quieting Title. Setting aside will, see Wills, § 2.

Particular proceedings in actions. See Appearance; Costs; Damages: Depositions; Dismissal and Nonsuit: Evidence: Execution; Judgment; Judicial Sales; Jury; Limitation of Actions; Parties; Pleading; Process; Removal of Causes; Trial; Venue. Bill of particulars, see Pleading, § 5. Default, see Judgment, § 1. Nonsuit, see Trial, § 4.

Notice of action, see Process, § 1.

Particular remedies in or incident to actions. See Arrest, § 1; Attachment; Discovery; Injunction; Receivers.

Notice of pendency of action, see Lis Pendens. Proceedings in exercise of special or limited jurisdictions.

Courts of limited jurisdiction in general, see
Courts, § 2.

Criminal prosecutions, see Criminal Law.
Suits in justices' courts, see Justices of the
Suits in equity, see Equity.
Peace, § 2.

Review of proceedings.

See Appeal; Certiorari; New Trial.

§ 1. Joinder, splitting, consolidation,

and severance.

§ 57. Notwithstanding Code Civ. Proc. $$ 817, 818, held error to remove an action from the Municipal Court and consolidate it with an action in the Supreme Court.-Argyle Co. v. Griffith (Sup.) 773.

Work § 2. Commencement, prosecution, and termination.

Subscriptions to stock, see Corporations, § 1. Unfair competition in trade, see Trade-Marks and Trade-Names, § 1.

Wages, see Master and Servant, § 2.

Particular forms of action.
See Trespass, § 1; Trover and Conversion.

Particular forms of special relief.
See Divorce; Injunction; Partition, § 1; Quiet-
ing Title; Specific Performance."
Admeasurement or assignment of dower, see
Dower, § 1.

Alimony, see Divorce, § 3.

Determination of adverse claims to real property, see Quieting Title.

Dissolution of corporation, see Corporations, § 6.

Dissolution of partnership, see Partnership,

§ 4.

The issues in a partition held not the same as those in a proceeding in the Surrogate's Court by creditors to sell decedent's realty for debts, so that the Surrogate's proceeding_was improperly stayed.-Ryan v. Benjamin (Sup) 441.

In a partition by heirs, the costs being in the court's discretion, and it having power under Code Civ. Proc. § 1538, to require the entire proceeds of sale to be deposited with the county treasurer, creditors would be protected without staying the partition suit until the de termination of a pending proceeding to sell realty for intestate's debts.-Ryan v. Benjamin (Sup.) 441.

ACTION ON THE CASE.

See Trespass, § 1. *Point annotated. See syllabus.

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity to grant relief
from judgment, see Judgment, § 3.

ADJOINING LANDOWNERS.

See Boundaries; Party Walls.

Under an ordinance providing that, when an
excavation goes below 10 feet, the excavator
must preserve contiguous structures, etc., any
wall or structure is contiguous which is near
enough to be disturbed by the excavation.-
Baxter v. York Realty Co.. (Sup.) 455.

ADJUDICATION.

Operation and effect of former adjudication,
see Judgment, § 5.

ADMEASUREMENT.

Of dower, see Dower, § 1.

ADMINISTRATION.

Of charity, see Charities, § 2.

§ 1. Nature and requisites.
*Facts held to show title by adverse posses-
sion.-Lewine v. Gerardo (Sup.) 192.

§ 31. Elements necessary to perfect title by
adverse possession stated.-Green v. Horn (Sup.)
993.

71. Where a deed described the lands enter-
ed on by the purchaser, his possession was ad-
verse, under color of title, however groundless
the title.-Green v. Horn (Sup.) 993.

§ 2. Pleading, evidence, trial, and re-
view.

§ 114. Evidence held to authorize the jury to
find that one held premises under a title by ad-
verse possession.-Green v. Horn (Sup.) 993.

ADVERTISEMENT.

Official newspaper, see Newspapers.
Publication of process, see Process, § 1.

AFFIDAVITS.

See Depositions.

As part of record on appeal, see Appeal, § 3.
For arrest, see Arrest, § 1.

Of estate of decedent, see Executors and Ad- For publication of service, see Process, § 1.

ministrators.

Of trust property, see Trusts, § 4

Sufficiency to authorize extradition, see Extra-
dition, § 1.

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As evidence in civil actions, see Evidence, § 4. See Contracts.
In pleading, see Pleading, §§ 1, 2.

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ALIENATION.

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Of pleading, see Pleading, § 6.
On appeal, see Appeal, § 5.
*Point annotated. See syllabus.

ANIMALS.

and 146 New York State Reporter

$ 70. Under rule stated, an owner of a mad dog held not liable for injury inflicted by it.Van Etten v. Noyes (Sup.) 888.

§ 74. Evidence held insufficient to show that a dog, which inflicted injury while mad was previously vicious and likely to bite cattle.Van Etten v. Noyes (Sup.) 888.

ANNUITIES.

§ 221. Though an order granting a motion for interest on an award of damages in eminent domain proceedings by a city was not opposed by the city, it being wholly irregular and contrary to law, the order will be reversed, on appeal by the city, without costs to either party on appeal.-In re Belmont Street in the City of New York (Sup.) 858; In re. Swain, Id.

§ 173. A claim that a defendant in mechanic's lien proceedings was entitled as a materialman to priority of lien over contractors and subcontractors, not presented by any request or exception in the lower court, cannot be considered

Agreements for payment of in general, see Con- on appeal.-Hurley v. Tucker (Sup.) 980. tracts, § 1.

ANNULMENT.

Of will, see Wills, § 2.

ANTICIPATED PROFITS.

Recovery of, see Damages, § 1.

APPEAL.

See Certiorari; New Trial.

Review of actions in municipal courts, see
Courts, § 2.

Review of criminal prosecutions, see Criminal
Law, 6.

Under section 253 of Municipal Court Act (Laws 1902, p. 1562, c. 580), as amended by Laws 1907, p. 554, c. 304, and under sections 253-257 inclusive, an order denying a motion to set aside a default judgment held not appealable.-Friedberger v. Stulpnagel (Sup.) 89. *Under Code Civ. Proc. § 1294, a party held not entitled to appeal from an order taken against him by default.-Stern v. Marcuse (Sup.) 653.

§ 1. Right of review.

*A party held not aggrieved by an order, and so, under Code Civ. Proc. § 1294, not entitled to appeal from it.-Stern v. Marcuse (Sup.) 653.

§ 2. Presentation and reservation in lower court of grounds of review. A ground for overruling an objection to a question asked a witness will not be considered on appeal where it is not urged in the trial court.-Wilber v. Gillespie (Sup.) 20.

*Where the court instructed, without objec tion or exception, as to plaintiff's measure of damages for breach of contract, it cannot be objected to on appeal.-Harrison v. Argyle Co. (Sup.) 477.

Plaintiff, by her exception and by her request to charge, held not to have challenged the court's statement in its charge that the statute had run as against an action for assault, and so to have acquiesced in the theory of submission.-Taranto v. North German Lloyd S. S. Co. (Sup.) 499, 501.

§ 197. An objection to defendant's evidence cannot be availed of on appeal where it was not urged at the trial.-Columbus Circle Hotel Co. v. Dobroczynski (Sup.) 1049.

§ 3. Record and proceedings not in record.

*Affidavit in brief held no part of record on appeal.-Murphy v. Lyon (Sup.) 152.

*Under Revised Greater New York Charter (Laws 1901, p. 602, c. 466) § 1409, subd. 3. conferring exclusive jurisdiction on the Courts of Special Sessions in bastardy proceedings, and adopting Code Cr. Proc. §§ 838-860, inclusive, and section 1414 (page 605), held, that a refusal to certify a case on appeal, as not disclosing a fact materially affecting the right to appeal and the jurisdiction of the appellate court, was justified.-People v. Culkin (Sup.)

702.

§ 624. Defendant held not entitled to a 20day extension to file the record on appeal.-MeMahon v. Myers (Sup.) 1028. § 4. Briefs.

*Where new material points are first alleged in appellant's reply briefs, respondent's remedy is by motion to strike from the files, and not for leave to file a rejoinder.-Ardolino v. Reinhardt (Sup.) 641.

§ 5. Review.

§ 864. Upon an appeal from a judgment alone, nothing but questions of law can be considered. -Wilber v. Gillespie (Sup.) 20; Sugden v. Peiser, Id., 1084.

A finding that property has been seriously and substantially injured by smoke emitted from a municipal pumping plant warrants a presumption on appeal that the court also found that the use of soft coal as fuel in the plant was unreasonable.-Gordon v. Village of Silver Creek (Sup.) 54.

*In an action for goods sold, where defendant set up a counterclaim for extra work caused by plaintiff's neglect, the judgment dismissing the counterclaim will not be disturbed on appeal.-Huber v. Klebold Press (Sup.) 203.

A jury finding of sanity upon the conflicting testimony of experts will not be disturbed on appeal.-In re Hammond (Sup.) 296.

*The decision on appeal that the questions of assumed risk and contributory negligence were for the jury held the law of the case on retrial, -Travis v. Haan (Sup.) 463. *Point annotated. See syllabus.

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