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§ 5. Concurrent and conflicting juris- 1 8 1. Venue.
diction, and comity.

*Where defendant objected to the jurisdiction
*Where the validity of the franchises of of the court to try him because a certified copy
certain corporations sought to be dissolved by of an order changing the venue had not been
the Attorney General was pending in the fed- filed in the county in which the trial was had,
eral courts, the state court would restrain the as required by Code Cr. Proc. $$ 351, 353, but
Attorney General's action pending final deter- stated that he would waive the question, he
mination of the controversy in the federal could not thereafter object that the court erred
courts.-In re Consolidated Gas Co. of New in discharging the jury.-People v. Neff (Sup.)
York (Sup.) 407.

Where a New Jersey receiver of a New Jer-/ 2. Limitation of prosecutions.
sey corporation was appointed as receiver of *A criminal prosecution for bribery held not
the corporation's assets in New York, such ap- barred, though the only act done within five
pointment was subsidiary only, so that the on years previous to the finding of the indictment
ders and decrees of the New Jersey, court in was the actual receiving of the bribe. -People
the receivership proceedings were binding on

V. Gibson (Sup.) 590.
the New York courts.-Coe v. Patterson (Sup.)

$ 3. Former jeopardy.

*Where a jury impaneled and sworn to try

accused was discharged because of failure to

file a certified copy of an order for change of
In lease, see “Landlord and Tenant," 88 1, 3. venue, such proceeding did not constitute jeop-

ardy precluding a subsequent trial, under Code

Cr. Proc. $ 430.-People v. Neff (Sup.) 747.

§ 4. Evidence.
See "Husband and Wife.”

*In a trial for intoxication in a public place,
statements made to the arresting officer by the

complaining witness outside defendant's pres-

ence are inadmissible against defendant.-Peo-

ple v. Soloman (Co. Ct.) 1110.
See “Assignments for Benefit of Creditors" ;
“Bankruptcy"; "Creditors' Suit."

§ 5. Motions for new trial and in ar-

Rights as to chattel mortgage by debtor, see
"Chattel Mortgages," § 3.

*A motion for new trial under Code Cr. Proc.
Subrogation to rights of creditor, see “Subro- 465 (7), will be denied when attacked on the

ground of newly discovered cumulative evidence.

-People v. Way (Sup.) 52.

*A new trial will not be granted in order to

discredit a witness whose motives are unim-
*Answer pleading counterclaim and defense in peached, and whose credibility is attacked only
an action by a judgment creditor to reach prop- by hearsay.-People v. Way (Sup.) 52.
erty of a debtor held not subject to demurrer.
-Ġitler v. Russian Co. (Sup.) 886.

*Motion for new trial for newly discovered

evidence denied for want of diligence.-People
*In an action by a judgment creditor to reach v. Way (Sup.) 52.
property of his debtor, it is no defense that the
judgment was obtained by perjury; the reme- 8 6. Judgment, sentence, and final
dy of defendant being by a motion for new tri-

al.-Gitler v. Russian Co. (Sup.) 886.

Code Cr. Proc. $ 490a, providing that, where
judgment is suspended after conviction, the

court may pronounce judgment at any time

thereafter within the longest period for which

the defendant might have been sentenced, was
Construction of penal statutes, see “Statutes," not repealed by Laws 1905, p. 1666, c. 655,
$ 3.

amending Code Cr. Proc. $ 11a, relating to pro-

hibition officers.-People v. Flynn (Sup.) 925.
Offenses by particular classes of persons.
See "Indians."

Court held authorized to revoke suspension of

sentence and inflict punishment.--People v.
Particular offenses.

Flynn (Sup.) 925.
See “Adulteration": "Bribery"; "Contempt":
"False Pretenses"; "Homicide"; "Larceny.'

Power of suspending sentence after conviction

held resident in the Court of General Sessions
Against election laws, see "Elections," $ 5.
Conspiracy in creating monopoly, see “Monopo- 925.

as an inherent right.-People v. Flynn (Sup.)
lies," $ 1.
Drunkenness in public place, see “Drunkards.” *The court, after conviction, is without pow-
Injury to forest preserve, see "Woods and For- er to revoke a sentence lawfully imposed and

partly executed for the purpose of imposing a
Violations of municipal ordinances, see “Mu- heavier sentence.-People v. Sullivan (Gen. Sess.)
nicipal Corporations," $ 5.

*Point annotated. See syllabus.

and 140 New York State Reporter § 7. Appeal and error, and certiorari. § 2. Grounds and subjects of comper*Accused held not entitled to a reversal of a

satory damages. conviction because the prosecution was barred *Prospective damages lost held a proper eleby limitations, where such ground of objection ment of damages for refusal of a city to exe was not specifically raised at the trial.-People cute a contract for work properly awarded to v. Blake (Sup.) 319.

the lowest bidder.-Beckwith v. City of New

York (Sup.) 175. *Under a rule stated and Code Cr. Proc. $$ 756, 763, held an appeal from a conviction must *Interest on prospective profits lost, damages be dismissed for an insufficient record. - People for refusal to execute a contract for work, held v. Soloman (Co. Ct.) 1110.

not recoverable; such profits not having been

ascertainable by_mere computation.-Beckwith Application for leave to appeal from convic v. City of New York (Sup.) 175. tion before magistrate returned for the purpose of striking out unjust or unreasonable attacks & 3. Liquidated damages and penalties. on trial magistrate. People v. Harris (Gen.

*In determining whether a stipulation in a Sess.) 1035.

contract for the payment of a specified sum in

case of a breach provides for liquidated damages CROPS.

or for a penalty, the intention of the parties, a s

certained from the language of the contract Rights as to crops on demised premises, see and the surrounding circumstances, must be "Landlord and Tenant,” $ 1.

considered.-Perley v. Schubert (Sup.) 593.

§ 4. Measure of damages. CROSS-EXAMINATION.

Statement of items to be deducted in arriving at prospective profits lost, to be awarded as

damages for refusal to execute a contract.See “Witnesses," $ 2.

Beckwith v. City of New York (Sup.) 173.

*Measure of damages of permanent and temCROSSINGS.

porary injury to real estate defined.-Cooper v.

New York, L. & W. Ry. Co. (Sup.) 611 ; Same Railroad crossings, see "Railroads," 8 4.

v. Delaware, L. & W. R. Co., Id.

§ 5. Inadequate and excessive damages. CUSTODY.

*In an action for personal injuries, a verdict

of $3,375 held not excessive.--Sparks v. City of Of illegitimate child, see “Bastards," $ 2.

North Tonawanda (Sup.) 44.

*A verdict for $35,000 for the loss of a leg DAMAGES.

by a 16 year old girl, held excessive.- Neakes r.

New York Cent. & H. R. R. Co. (Sup.) 522. Amendment of pleading in action for damages, $ 6. Pleading, evidence, and assessment. see "Pleading," $ 5.

*In an action for personal injuries, evidence Compensation for property taken for public use, relating to the amount of damages held inadsee "Eminent Domain," $ 1.

missible under the pleadings.-Hart v. MetroDamages for particular injuries.

politan St. Ry. Co. (Sup.) 494.
See "Death," § 1.
Breach of contract of sale, see “Sales," $ 4.

Breach of covenant in lease, see "Landlord and
Tenant," $ 3.

Liability of state for injuries caused by operaBreach of warranty, see “Sales," $ 4.

tion of, see “States," § 1. Overflow, see “Waters and Water Courses," $ 2.

DEAD BODIES. § 1. Nominal damages.

A provision in a license for the use of a pat- Contract with county for removal of, see "Counented machine that defendant should use no other machine during the life of plaintiff's pat

ties," § 2. ents held a covenant, and not a condition prece. dent, so that plaintiff could only recover nom

DEATH. inal damages for the breach, in the absence of proof of actual damage.- Warth v. Greif (Sup.) Harmless error in rulings in action for, see "Ap163.

peal," $ 8.

Liability for death caused by negligence in gen*In an action for breach of contract to furnish eral, see “Negligence," $ 1. money to pay for boring an oil well, plaintiff's Liability for death of passenger, see “Carriers," damage held to be the excess of the agreed $ 3. cost of boring the well over the value of the Liability of master for death of servant, see stock which was to be transferred in consid *Master and Servant," $8 10. 11. eration of such payment, and there being, no Negligence causing death as questions for jury, evidence of the value of the stock, only nominal see "Negligence," $ 3. damages could be given.--Pardee v. Douglas Separate causes of action in pleading in action (Sup.) 775.

for, see "Pleading," $ 2. *Point annotated. See syllabus.

§ 1. Actions for causing death.

*Under Code Civ. Proc. $ 1904, in an action
for negligent death, a verdict for more than See “Libel and Slander."
$2,500 held excessive; defendants being lia-
ble only for decedent's mother's pecuniary dam-
age.-Rice v. Interurban St. Ry. Co. (Sup.) 463.


Judgment by, see "Judgment,” s 1.
See “Assignments for Benefit of Creditors”;

"Bankruptcy"; "Creditors' Suit.”

Affecting right to specific performance of con-

tract, see "Specific Performance," 8 1.

As grounds for refusal of mandamus, see "Man-

damus," $ 2.
Estates, see "Descent and Distribution”; “Ex- In filing chattel mortgage, see "Chattel Mort-
ecutors and Administrators."

gages,” $ 3.


Of goods by carriers, see “Carriers," $ 2.
See "Fraud."

Of goods sold, see "Sales," $ 1.

Of mortgage, see “Chattel Mortgages," $ 3.

In pleading, see "Pleading," $ 2.

As condition precedent to action for price of

land, see "Vendor and Purchaser," 8 6.
As evidence in criminal prosecutions, see "Crim-

inal Law," § 4.

In pleading, see "Pleading," § 4.

$ 1. Nature and requisites.

*To constitute a dedication of private property In pleading, see “Pleading,” $ 3.
for a public highway, there must be an inten-
tion on the part of the owner to dedicate and
an unequivocal acceptance by or on behalf of

the public.-Newton v. City of Dunkirk (Sup.)

See "Deposits in Court."
*In an action to restrain a city from building
a sidewalk, etc., evidence held sufficient to sus-

tain a finding that a certain street had been
dedicated and accepted as such.-Newton v. City See "Witnesses."
of Dunkirk (Sup.) 125.

Motion to racate order settling interrogatories

to be annexed to commission as affected by

other remedies, see "Motions."

*Under the express provisions of Code Civ.
Estoppel by deed, see “Estoppel," 1.

Proc. $ 887, the examination of any party to
In trust, see "Trusts," $ 1.

an action may be had by commission-Gilroy
Of trust, see “Mortgages.

v. Interborough-Metropolitan Co. (Sup.) 171.
Tax deeds, see “Taxation," $ 4.

*Though part of the testimony taken by depo.
8 1. Construction and operation.

sition is inadmissible, the unobjectionable por-
Where fee of land over which the grantor tion is not therefore to be excluded.–Dambmann
claimed a right of way was conveyed to the

v. Metropolitan St. Ry. Co. (Sup.) 221.
grantee, it vested in him absolute ownership *A physician's deposition not allowed in a
of the right of way, except as restricted by a negligence action, where it was not shown that
reservation in the deed.-Hale v. Jenkins (Sup.) he was infirm or sick, or that the deposition

was necessary as expressly provided by Code
Effect of a reservation in a deed to the Civ. Proc. 8 872, subd. 4.-Wood v. Flagg (Sup.)

grantor's daughter reserving the right to com-
fortable maintenance in the daughter's fam- *Under Code Civ. Proc. $ 895, an order that
ily stated.-Tucker v. Tucker (Sup.) 713. one of two coplaintiffs be examined upon such

*Point annotated. See syllabus.

and 140 New York State Reporter oral questions as counsel for plaintiffs and de

DIRECTING VERDICT. fendant may think proper is unauthorized.-Stuart v. Spofford (Sup.) 903.

In civil actions, see "Trial," $ 4. Where a deposition is to be taken out of the state, the justice under whom the interrogatories are settled has no power, under Code Civ.

DISBARMENT. Proc. 88 887-892, inclusive, to pass upon objections to the interrogatories.-J. J. Spurr & Sons Of attorney, see "Attorney and Client," $ 1. v. Empire State Surety Co. (Sup.) 1009.


From service as juror, see "Jury." $ 2.
As security for performance of covenants in On habeas corpus, see “Habeas Corpus," $ 2.

lease, see “Landlord and Tenant," $ 4. In bank, see "Banks and Banking," $ 1.

From indebtedness, obligation, or liability. On purchase price of land, see "Vendor and See "Bankruptcy," $ 4; “Compromise and SetPurchaser," $ 4.

tlement" ; "Execution," $ 2; "Judgment," $

7; "Mechanics' Liens," $ 2. DEPOSITS IN COURT.

Liability as surety, see "Principal and Surety,"

§ 1. Where plaintiffs were directed to deposit in

DISCOVERY court a specified sum with interest from a certain date, it was error for the court, after ad- Contempt by party in refusing to appear for judging plaintiffs guilty of contempt, to author

examination, see “Contempt," § 1. ize them to purge themselves by making the deposit of the sum directed with interest at 242 8 1. Under statutory provisions, per cent.–Lawrence v. Binninger (Sup.) 500. *No examination of defendant in an action

for an accounting is necessary to enable plainDESCENT AND DISTRIBUTION.

tiff to frame a complaint. - Pierce v. McLaugh

lin Real Estate Co. (Sup.) 28. See "Executors and Administrators”: “Wills.”, will

be set aside where it appears that plaintiff

*An order for the examination of plaintiff Inheritance and transfer taxes, see “Taxation,” is a resident of Scotland, and is not at the

$ 5. Property and interests undisposed of by will, time, within this country.-Gilroy y. Interbore

ough-Metropolitan Co. (Šup.) 171. see "Wills," $ 6. § 1. Persons entitled and their respec- may not examine plaintiff before trial as to

*Ordinarily defendant in a negligence action tive shares. *Under Real Property Law, Laws 1896; p. (Sup.) 308.

the general issues in the action.-Wood v. Flagg 619, c. 547, § 285, intestate's mother held to inherit only a life estate with remainder to *In connection with a physical examination of the other heirs.-Tucker v. Tucker (Sup.) 713. plaintiff before trial, defendant may examine

him under oath as to the character and extent DESCRIPTION.

of his injuries.-Wood v. Flagg (Sup.) 308.

*Papers on which an order for the examina. Of devisees or legatees in will, see "Wills.” $ 5. tion of plaintiff before trial was obtained not Of property conveyed, see "Boundaries," $ 1. complying with general rules of practice, rule Of property demised, see "Landlord and Ten- 25, the order held properly vacated.-Mitchell ant," $ 3.

v. Greene (Sup.) 449. of property devised or bequeathed, see "Wills,” *An order for the examination of an in8 5.

dividual defendant before trial cannot properly Of property mortgaged, see “Mortgages," $ 2. require him to produce books and papers for in

spection.--Coin Novelty Co. v. Lindenborn (Sup.)


An order of the court fixing a new date for See "Replevin.”

an examination of a party as a witness before

trial held not in effect an adjournment in vioDEVISES.

lation of Code Civ. Proc. $ 876, vesting author

ity to adjourn the examination in the judge See “Wills."

or referee before whom held.-Grant v. Greene

(Sup.) 535. DILIGENCE.

Though Code Civ. Proc. $ 873, requiring &

judge to order an examination of a party as a In procuring evidence as affecting right to new witness, does not authorize a court to make such trial, see "Criminal Law," $ 5.

order, yet where the examination could not be of party asking relief, see “Specific Perform- had at the time originally prescribed, owing to ance," $ 1.

a stay, the court, on vacation of the stay, held *Point annotated. See syllabus.

to have power to fix & new date.-Grant . action, and not on the merits.-Keuthen v. Stache
Greene (Sup.) 535.

(Sup.) 198.
*In an action for slander, defendant held not Refusal to dismiss an action for want of pros-
entitled to examination of plaintiff before trial, ecution held improper under Code Civ. Proc.
in view of the issues raised.-Nocito v. Acierno $ 822, and rule 36 of the general rules of prac-
(Sup.) 785.

tice.-Crisenza v. Auchmuty (Sup.) 335.
Plaintiff held not to need an examination of *Dismissal of an action for want of prosecu-
defendant to enable him to frame a complaint; tion held properly refused.-Bauer v. Hart
a general allegation of facts being sufficient, if (Sup.) 877; Same v. Parker (Sup.) 878.
he had a cause of action for an accounting on
the theory of defendant having been a fiduciary
agent.---Boskowitz v. Sulzbacher (Sup.) 865,

872; Same v. Ulmann (Sup.) 870, 871.

Of corporation, see "Corporations," $ 8.
Affidavits for examination of defendant to en-
able plaintiff to fraine a complaint held not to
show a cause of action against defendant for an

accounting on the theory that defendant was a
fiduciary agent.--Boskowitz v. Sulzbacher (Sup.) of estate of decedent, see "Descent and Dis-
865, 872; Same v. Ulmann (Sup.) 870, 871. tribution."

*Statement of what a plaintiff must show to Of proceeds of foreclosure, see “Mortgages,”
entitle him to examination of a defendant to en-
able him to frame a complaint.-Boskowitz v.
Sulzbacher (Sup.) 805, 872; Same v. Ulmann

(Sup.) 870, 871.

False statement as to institution of divorce ac-
Statements as to what additional affidavits tion as libelous, see “Libel and Slander,"
plaintiff may use on motion to vacate the order $$ 1, 3.
obtained by him for examination of defendant
to enable him to frame a complaint.-Boskowitz $ 1. Jurisdiction, proceedings, and re-
V. Sulzbacher (Sup.) 865, 872; Same v. Ulmann

(Sup.) 870, 871.

Findings of referee on the issues referred to
An order providing, under Code Civ. Proc. $g vorce ; findings outside the issues being disre-

him held to entitle plaintiff to a decree for di-
870, 872, 873, for the examination of plaintiff garded.-Bowe v. Bowe (Sup.) 608.
before a referee and for a physical examination
by a physician and a subsequent examination *Under the direct provisions of Code Oiv.
of the physician before a referee, is unwarrant- Proc. $ 1757, subd. 1, in an action for divorce,
ed as to the latter provision.-Wood v. Hoffman defendant's motion for an order framing issues
(Sup.) 940.

to be tried by a jury was improperly denied.-

Day v. Day (Sup.) 843.

*In an action for divorce for adultery, evi-

dence held insufficient to sustain a decree for
Cost in habeas corpus proceedings, see “Habeas

plaintiff.--Keville v. Keville (Sup.) 993.
Corpus,” & 2.

On application to discontinue an action for
Review in civil actions, see “Appeal," $ 8. divorce after interlocutory judgment for divorce

had been entered held the application should be

continued to give time for filing affidavits, etc.
DISMISSAL AND NONSUIT. -Adams v. Adams (Sup.) 1064.

The effect of a certain stipulation in lieu
At trial, see "Trial," $ 4.

of alimony held not to give a defendant offending
Costs on dismissal, see "Costs," § 1.

party the right to entry of absolute judgment
Review of questions of fact and findings on mo- of divorce against the wishes of the innocent
tion to dismiss, see "Appeal," $ 8.

complaining party, though the proper time had
In particular actions or proceedings.

elapsed after interlocutory judgment.--Adams
See “Injunction," $ 3.

V. Adams (Sup.) 1064.
Appeal, see "Appeal," $ 7.

Under Code Civ. Proc. $ 1774, held, that an
Appeal from justice's court, see “Justices of the absolute judgment of divorce could not be en-
Peace," $ 2.

tered on the application of the offending party
On contract assigned, see "Assignments," 8 2. without the consent of the innocent complain-

ing party, though the proper time had elapsed
§ 1. Involuntary.

after interlocutory judgment.-Adams v. Adams
*An action brought to recover money not due (Sup.) 1064.
when summons was served held prematurely *Under Code Civ. Proc. $ 1774, a marriage
brought.-Anderson v. Rosenberg (Sup.) 171. held not dissolved after interlocutory judgment

Where plaintiff suffered a dismissal because for divorce, and before entry of absolute judg-
of failure of proof, and the necessary proof ment.--Adams v. Adams (Sup.) 1064.
might be furnished on a new trial, the dismiss- *For submitting to the jury the issue in a
al should have been without prejudice to a new divorce suit, whether the parties were married

*Point annotated. See syllabus.

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