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and 114 New York State Reporter

Submission of controversy to court without ac-
tion, see "Submission of Controversy."
Actions between parties in particular relations.
See "Master and Servant," §§ 2, 3; "Partner-
ship," § 3.

Corporation and members, see "Corporations,"
$ 2.

Co-tenants, see "Partition," § 1.

Principal and agent, see "Brokers," §§ 1, 3.
Actions by or against particular classes of
parties.

See "Brokers." §§ 1, 3; "Carriers," §§ 1, 2;
"Corporations," § 4; "Executors and Adminis-
trators." § 6; "Infants," § 2; "Municipal
Corporations," § 8; "Sheriffs and Constables,"
§ 1.

Assignees, see "Assignments," § 2.

Corporate officers, see "Corporations," § 3.
Foreign corporations, see "Corporations," § 6
Receiver of corporation, see "Corporations," § 5.
Remaindermen, see "Remainders.
Stockholders, see "Corporations," § 2.
Surviving partners, see "Partnership," § 2.
Trustees, see "Trusts," §§ 4, 6.
Trustees in bankruptcy, see "Bankruptcy,” § 1.

Particular causes or grounds of action.
See "Account Stated"; "Bills and Notes," § 4;
"False Imprisonment," § 1; "Libel and Slau-
der," § 3; "Money Received"; "Negligence,"
§ 3; "Trover and Conversion," § 2.
Attachment bond, see "Attachment," § 6.
Breach of contract, see "Contracts," § 5;
"Sales," § 6.

Breach of warranty, see "Sales," § 6.
Compensation, see "Brokers," § 3.

Fires caused by operation of railroad, see "Rail-
roads," § 1.

Loss of goods by carrier, see "Carriers," § 1.
Personal injuries, see "Carriers," § 2; "High-
ways," § 2; "Master and Servant." § 3; "Mu-
nicipal Corporations," § 8; "Railroads," § 1;
"Street Railroads," § 2.

Price of goods, see "Sales," § 5.

Recovery of payment, see "Payment," § 2.
Taking of or injury to property in exercise of
power of eminent domain, see "Eminent Do-
main," § 3.

Wages, see "Master and Servant," § 2.

Particular forms of action.

See "Ejectment"; "Replevin"; "Trover and
Conversion."

Particular forms of special relief.

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Particular proceedings in actions.
See "Continuance"; "Costs"; "Damages"; "Dep-
ositions"; "Dismissal and Nonsuit"; "Evi-
dence"; "Execution"; "Judgment"; "Jury";
"Par-
"Limitation of Actions"; "Motions'
ties"; "Pleading"; "Reference"; "Stipula-
tions"; "Trial."

Bill of particulars, see "Pleading," § 5.
Default, see "Judgment," § 2.

Particular remedies in or incident to actions.
See "Attachment"; "Bail," § 1; "Discovery";
"Garnishment"; "Injunction"; "Receivers."
Proceedings in exercise of special jurisdictions.
Courts of limited jurisdiction in general, see
"Courts," & 2.

Criminal prosecutions, see "Criminal Law."
Suits in justices' courts, see "Justices of the
Peace," 1.

ADEQUATE REMEDY AT LAW.
As affecting equitable relief on account, see "Ac-
count," § 1.

ADJOINING LANDOWNERS.

See "Boundaries."

ADJUDICATION.

Of courts in general, see "Courts." § 1.
Operation and effect of former adjudication, see
"Judgment," §§ 5, 6.

ADMINISTRATION.

Of estate of decedent, see "Executors and Ad-
ministrators."

Of trust property, see "Trusts," § 4.

ADMISSIONS.

As evidence in civil actions, see "Evidence," § 4.

See "Account"; "Divorce"; "Injunction"; "Par-
tition," § 1; "Quieting Title"; "Specific Per- See "Food."
formance."

Accounting by broker, see "Brokers," § 1.

ADULTERATION.

ADULTERY.

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

"Dower," § 1.

Construction of will, see "Wills," § 10.

§ 1.

Determination of adverse claims to real proper-

ty, see "Quieting Title."

ADVERSE CLAIM.

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

$ 3.

Enforcement or foreclosure of lien, see "Mechan-

ies' Liens," § 3.

Establishment and enforcement of trust, see
"Trusts," § 6.

ADVERSE POSSESSION.

See "Limitation of Actions."

AFFIDAVITS.

See "Depositions."

In particular proceedings.

See "Attachment," § 2.

ANSWER.

In pleading, see "Pleading," § 2.

To procure examination of person having prop- See "Certiorari."
erty of attachment defendant, see "Attach-
ment," § 3.

AGENCY.

See "Principal and Agent."

AGREED CASE.

Submission of controversy to court, see "Submis-
sion of Controversy."

AGREEMENT.

See "Contracts."

ALIENATION.

APPEAL.

Review in special proceedings.

Assessment of taxes, see "Taxation," § 3.
Condemnation proceedings, see "Eminent Do-
main," § 1.

Review of criminal prosecutions.

See "Criminal Law," § 5.

§ 1. Nature and form of remedy.

The right of appeal by plaintiff from a mu-
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.)
738.

§ 2. Decisions reviewable.

An indorsement on an order held equivalent to
the entry of the order in the clerk's office, suffi
v. McLaughlin (Sup.) 741.

Suspension of power of alienation of property, cient to sustain an appeal therefrom.-O'Connor
see "Perpetuities."

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§ 3. Presentation and reservation in
lower court of grounds of review.
Where a trial court filed but one conclusion
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-
drawn from evidence held to preclude a predica-
tion of error on such ruling.-M. Groh's Sons v.
Groh (Sup.) 438.

§ 4. Requisites and proceedings for
transfer of cause.

A notice of appeal from an order as resettled
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.

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 rec-
ance," § 7.

Of judgment, see "Judgment," § 4.
Of pleading, see "Pleading," § 4.

Of statutes, see "Limitation of Actions," § 1.

ANIMALS.

Evidence held to show that an owner knew of
the vicious character of a bull, confided by him,
without warning, to the care of a party injur
ed by the animal.-Talmage v. Mills (Sup.) 637.

It is no defense to an action by one working
a farm on shares, for injuries from a vicious
bull belonging to the owner of the land, that
the parties were not master and servant.-
Talmage v. Mills (Sup.) 637.

ord.

A failure of the record to disclose the alleged
improper remarks of opposing counsel held to
preclude the consideration on appeal of alleged
error therein.-M. Groh's Sons v. Groh (Sup.)
438.

Where, upon appeal from a judgment dismiss-
ing the complaint upon the merits, it does not ap-
pear what answer was given to specific questions
submitted to the jury, the record comes up for
review, the same as if no verdict had been ren-
dered. O'Sullivan v. Knox (Sup.) 848.

6. Dismissal, withdrawal, or aban-
donment.

Appeal from so much of an order entered by
defendant as released parties to an injunction

and 114 New York State Reporter

bond held dismissed.-Kraeger v. Warnock (Sup.)
687.

§ 7. Review.

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In an action for personal injuries, a finding
of the referee as to the nature of the injuries

held to cure any error in the admission of cer-
tain testimony in relation thereto.-Walden v.
City of Jamestown (Sup.) 65.

In action for injuries, certain error held avail-
able on appeal by plaintiff by reason of other
error relative to primary questions of negli-
gence and contributory negligence.-McEvoy V.
Lommel (Sup.) 71.

Rules governing interference with jury's ver-
dict for personal injuries, as excessive, stated.-
Bachmann v. Paul Weidmann Brewing Co.
(Sup.) 931.

Judgment on a fourth verdict for plaintiff on
practically the same evidence will not be dis-
turbed on the weight of evidence.-Williams v.
Delaware, L. & W. R. Co. (Sup.) 945.
§ 8. Determination and disposition of

cause.

until appeal held to render it reasonable on a
A failure of defendant to object to evidence
retrial that the plaintiff, without paying all
the cost to that time, amend so as to admit
the evidence.-Miller v. Carpenter (Sup.) 82.

Where the amount of damages erroneously
plaintiff will be given the option to consent to
assessed was easily ascertainable on appeal.
a reduction of the judgment or a new trial.-
United States v. A. S. Abell Co. (Sup.) 454.

Defendant, on vacation of interlocutory judg
ment sustaining demurrer to defense, held enti-
Donohue (Sup.) 739.
tled to vacation of final judgment.-Schieck v.

A judgment of the appellate division, revers-
The court cannot, on appeal, reverse the
ing a judgment dismissing a complaint on the judgment, and direct judgment for the other
pleadings, held the law of the case on 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.

APPLICATION.

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.)
257.

Error in admitting evidence held harmless.—
Phoebus v. Webster (Sup.) 292.

The part of a judgment from which appeal is
not taken cannot be complained of on appeal.
Lord v. Murchison (Sup.) 321.

A charge given on the request of a party who
had 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.

APPOINTMENT.

Of executor or administrator, see "Executors
and Administrators," § 1.

Of municipal officers, see "Municipal Corpora-
tions." § 2.

Of public officers in general, see "Officers," § 1.
Of receiver for corporation, see "Corporations,"
§ 5.

ARBITRATION AND AWARD.

See "Reference"; "Submission of Controversy."

ARGUMENT OF COUNSEL.

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
of leave to amend so as to set up limitations held
not injurious to plaintiff.-Colell v. Delaware,
L. & W. R. Co. (Sup.) 675.

A party must be presumed to have been preju-
diced by the improper exclusion of evidence.
Hanlon v. Ehrich (Sup.) 692.

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 V.
New York Cent. & H. R. R. Co. (Sup.) 800.
Where the evidence does not clearly preponder
ate in appellant's favor, a second judgment wil'
not be set aside.-Moore v. Eldridge (Sup.) 922.

See "Bail.”

ARREST.

Illegal arrest, see "False Imprisonment."

ASSAULT AND BATTERY.
Liability of carrier for assaults on passengers,
see "Carriers," § 2.

ASSESSMENT.

Of compensation for property taken for publie
use, see "Eminent Domain," § 2.

Of expenses of public improvements, see "Ma-
nicipal Corporations." § 5.
Of tax, see "Taxation," § 3.

ASSETS.

Co. v. Industrial Federation of America (Sup.)
788.

Of estate of decedent, see "Executors and Ad- 3. Proceedings to support or enforce.
ministrators," § 2.

ASSIGNMENTS.

Fraud as to creditors, see "Fraudulent Convey-

ances.

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Transfer of cause of action ground for abate-
ment, see "Abatement and Revival," § 1.
Transfers of particular species of property,
rights, or instruments.

See "Insurance," § 4; "Patents," § 2.
Leases, see "Landlord and Tenant," § 2.

§ 1. Requisites and validity.

Materialman's filing with county clerk order
given him by owner of building on person agree-
ing to furnish advances held not to constitute
notice to the latter.-Curtis Bros. Lumber Co.
v. McLoughlin (Sup.) 1016.

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.)
771.

Under Code Civ. Proc. § 651, it is not neces-
sary, in order to secure the examination of a
person who refuses to give a certificate specify-
ing what property of an attachment defendant
he has in his possession, to show that he ac-
tually had property which would be subject to
levy.-Donner v. Mercy (Sup.) 1030.

Affidavit made to obtain the examination of
person alleged to have property of an attach-
ment defendant in his possession held to suffi-
ciently aver service of the warrant.-Donner v.
Mercy (Sup.) 1030.

Under Code Civ. Proc. § 650, right to demand
certificate from person believed to have proper-
ty of an attachment defendant in his possession
does not depend on service of the warrant of
attachment.-Donner v. Mercy (Sup.) 1030.

Laws 1896, p. 995, c. 915, providing that no
assignment of any moneys due or to become due
for labor or materials, or any order drawn by
any contractor or subcontractor for the pay-
ment thereof, shall have any force until such
assignment or order shall be filed with the coun-
ty clerk, held not to relate to lender agreeing in-Donner v. Mercy (Sup.) 1030.
writing to furnish owner with money to com-
plete buildings.-Curtis Bros. Lumber Co. v.
McLoughlin (Sup.) 1016.

Affidavit made to secure examination of per-
son alleged to have property of an attachment
defendant in his possession held to be defective.

2. Actions.

Evidence held to warrant dismissing of com-
plaint of a materialman in suit on order given
by owner on person contracting to furnish ad-
vances for buildings. Laws 1896, p. 995, c.
915.-Curtis Bros. Lumber Co. v. McLoughlin
(Sup.) 1016.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

See "Bankruptcy."

ASSUMPSIT, ACTION OF.

See "Account Stated"; "Money Received."

ASSUMPTION.

Of risk by employé, see "Master and Servant."
§ 3.

ATTACHMENT.

See "Execution"; "Garnishment."

1. Nature and grounds.
Attachment will not lie to recover a debt,
where the situs thereof is in a foreign state.
-Allen v. United Cigar Stores Co. (Sup.) 401.

2. Proceedings to procure.
Affidavit in attachment held not to show facts
constituting a cause of action.-American Audit

§ 4. Quashing, vacating, dissolution, or
abandonment.

Where defendant in an attachment suit has
not appeared, except specially, plaintiff has the
right to discontinue.-Straus v. Guilhou (Sup.)
180.

Where defendants moved to vacate an attach-
ment on the papers, and on a judgment subse-
quently rendered, such judgment was available
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-
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.
Proc. 657, relating to claims of third parties
in attachment.-Minor v. Gurley (Sup.) 596.
§ 6.

Liabilities on bonds or undertak-
ings.

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.)
180.

Defendant, on the discontinuance, without his
suit, held entitled to an action on the undertak-
consent, on plaintiff's motion, of an attachment
ing executed by plaintiff, pursuant to Code Civ.
Proc. § 640.-Straus v. Guilhou (Sup.) 180.

Defense in action on bond given for attach-
ment thereafter vacated held insufficient.-
Powell v. Bursky (City Ct. N. Y.) 480.

and 114 New York State Reporter

ATTORNEY AND CLIENT.

BAR.

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

AUTHORITY.

ment," § 5.

BAWDY HOUSE.

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§ 1. In civil actions.

An undertaking to procure discharge from ar- Of juror, see "Jury," § 2.
rest held to make liability depend on default in
obeying an order, so that, as there could be no
such order, the surety was not liable.-Bristol
v. Graff (Sup.) 39.

BAILMENT.

BILL OF PARTICULARS.

See "Divorce," § 1; "Pleading," § 5.

BILLS AND NOTES.

See "Carriers," § 1; "Depositaries"; "Pledges." Gift of, see "Gifts," § 1.

BANKRUPTCY.

§ 1. Assignment, administration, and
distribution of bankrupt's estate.
Agreement between a corporation and one
making advances to it, giving the latter a lien
on the corporation's property, held not fraudu-
lent as against trustee in bankruptcy of the cor-
poration.-Mathews v. Hardt (Sup.) 462.

A transfer of property held an unlawful pref-
erence, within Bankr. Act, § 60 [U. S. Comp.
St. 1901, p. 3445].-Mathews v. Hardt (Sup.)
462.

Judgment creditor, suing to set aside fraud-
ulent conveyances more than four months be-
fore petition filed in bankruptcy, held to obtain
a lien prior to that of the trustee in bank-
ruptcy.-Ninth Nat. Bank v. Moses (Sup.) 617.
Fact that creditor of insolvent demands securi§
ty does not show that he has reasonable ground
for believing debtor insolvent, so as to make
transfer voidable under section 60 of the bank-
ruptcy act (Act July 1, 1898, c. 541, 30 Stat. 562
[U. S. Comp. St. 1901, p. 3445]).-Perry v.
Booth (Sup.) 706.

Where complaint shows plaintiff suing as trus-
tee of a bankrupt, that his name is followed by
the word "trustee," and not by the words "as
trustee," does not deprive him of his repre-
sentative capacity.-Newland v. Zodikow (City
Ct. N. Y.) 375.

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§ 1. Rights and liabilities on indorse-
ment or transfer.

The rule that fraudulent diversion of a note is
a defense for accommodation indorsers against
one receiving it as collateral for an antecedent
debt held not changed by Negotiable Instru-
ments Law, § 51.-Sutnerland v. Mead (Sup.)
504.

The transferee in good faith for value and
in due course of a check may enforce it against
the drawer, free from defenses existing be-
tween the drawer and payee; no fraud being
pleaded.-Citizens' State Bank v. Cowles (Sup.)
598.

Certain facts held not to show such a delay,
as a matter of law, as to raise the presumption
that a check was overdue or dishonored at time
of negotiation.-Citizens' State Bank v. Cowles
(Sup.) 598.

2. Presentment, demand, notice, and
protest.

Delay of party in presenting check given in
settlement of an account until after the bank on
which it was drawn had failed held not to pre-
vent his recovery against the drawer on the ac-
count.-Williams v. Brown (Sup.) 247.
8 3. Payment and discharge.

A payment of a note need not necessarily be
Y.) 482.
made in money.-Root v. Kelley (City Ct. N.

§ 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
note.-Kramer v. Kramer (Sup.) 184.

The certificate that a note was a genuine busi-
ness note, given for value, and that there was
no defense to it, held not to estop an accom-
modation indorser from the defense of fraud-
lent diversion against one receiving it as col-

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