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5. Concurrent and conflicting juris-
diction, and comity.
*Where the validity of the franchises of
certain corporations sought to be dissolved by
the Attorney General was pending in the fed-
eral courts, the state court would restrain the
Attorney General's action pending final deter-
mination of the controversy in the federal
courts. In re Consolidated Gas Co. of New
York (Sup.) 407.

Where a New Jersey receiver of a New Jer-
sey corporation was appointed as receiver of
the corporation's assets in New York, such ap-
pointment was subsidiary only, so that the or-
ders and decrees of the New Jersey court in
the receivership proceedings were binding on
the New York courts.-Coe v. Patterson (Sup.)
659.

COVENANTS.

In lease, see "Landlord and Tenant," §§ 1, 3.

COVERTURE.

See "Husband and Wife."

CREDITORS.

See "Assignments for Benefit of Creditors";
"Bankruptcy"; "Creditors' Suit."

Rights as to chattel mortgage by debtor, see
"Chattel Mortgages," 8 3.
Subrogation to rights of creditor, see "Subro-
gation."

CREDITORS' SUIT.

Answer pleading counterclaim and defense in
an action by a judgment creditor to reach prop-
erty of a debtor held not subject to demurrer.
-Gitler v. Russian Co. (Sup.) 886.

*In an action by a judgment creditor to reach
property of his debtor, it is no defense that the
judgment was obtained by perjury; the reme-
dy of defendant being by a motion for new tri-
al.-Gitler v. Russian Co. (Sup.) 886.

CRIMINAL LAW.

§ 1. Venue.

*Where defendant objected to the jurisdiction
of the court to try him because a certified copy
of an order changing the venue had not been
filed in the county in which the trial was had,
as required by Code Cr. Proc. §§ 351, 353, but
stated that he would waive the question, he
could not thereafter object that the court erred
in discharging the jury.-People v. Neff (Sup.)
747.

§ 2. Limitation of prosecutions.
*A criminal prosecution for bribery held not
barred, though the only act done within five
years previous to the finding of the indictment
was the actual receiving of the bribe.-People
v. Gibson (Sup.) 590.

§ 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
venue, such proceeding did not constitute jeop-
ardy precluding a subsequent trial, under Code
Cr. Proc. § 430.-People v. Neff (Sup.) 747.
§ 4. Evidence.

*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.

§ 5. Motions for new trial and in ar-
rest.

*A motion for new trial under Code Cr. Proc.
8 465 (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-
peached, and whose credibility is attacked only
by hearsay.-People v. Way (Sup.) 52.

*Motion for new trial for newly discovered
evidence denied for want of diligence.-People
v. Way (Sup.) 52.

§ 6. Judgment, sentence, and final
commitment.

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
amending Code Cr. Proc. § 11a, relating to pro-
hibition officers.-People v. Flynn (Sup.) 925.

Construction of penal statutes, see "Statutes," not repealed by Laws 1905, p. 1666, c. 655,
§ 3.

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*Point annotated. See syllabus.

and 140 New York State Reporter

§ 7. Appeal and error, and certiorari.
*Accused held not entitled to a reversal of a
conviction because the prosecution was barred
by limitations, where such ground of objection
was not specifically raised at the trial.-People
v. Blake (Sup.) 319.

*Under a rule stated and Code Cr. Proc. §§ 756, 763, held an appeal from a conviction must be dismissed for an insufficient record.-People v. Soloman (Co. Ct.) 1110.

Application for leave to appeal from conviction before magistrate returned for the purpose of striking out unjust or unreasonable attacks on trial magistrate.-People v. Harris (Gen. Sess.) 1035.

CROPS.

Rights as to crops on demised premises, see "Landlord and Tenant," § 1.

CROSS-EXAMINATION.

See "Witnesses," § 2.

CROSSINGS.

Railroad crossings, see "Railroads," § 4.

CUSTODY.

Of illegitimate child, see "Bastards," § 2.

DAMAGES.

Amendment of pleading in action for damages, see "Pleading," § 5.

Compensation for property taken for public use, see "Eminent Domain," § 1.

Damages for particular injuries.
See "Death," § 1.

Breach of contract of sale, see "Sales." § 4.
Breach of covenant in lease, see "Landlord and
Tenant," § 3.

Breach of warranty, see "Sales," § 4.
Overflow, see "Waters and Water Courses," § 2.

§ 1. Nominal damages.

A provision in a license for the use of a patented machine that defendant should use no other machine during the life of plaintiff's patents held a covenant, and not a condition prece dent, so that plaintiff could only recover nominal damages for the breach, in the absence of proof of actual damage.-Warth v. Greif (Sup.) 163.

*In an action for breach of contract to furnish money to pay for boring an oil well, plaintiff's damage held to be the excess of the agreed cost of boring the well over the value of the stock which was to be transferred in consideration of such payment, and there being no evidence of the value of the stock, only nominal damages could be given.-Pardee v. Douglas (Sup.) 775.

§ 2. Grounds and subjects of compensatory damages.

*Prospective damages lost held a proper element of damages for refusal of a city to exe cute a contract for work properly awarded to the lowest bidder.-Beckwith v. City of New York (Sup.) 175.

*Interest on prospective profits lost. damages for refusal to execute a contract for work, held not recoverable; such profits not having been ascertainable by mere computation.-Beckwith v. City of New York (Sup.) 175.

8 3. Liquidated damages and penalties. *In determining whether a stipulation in a contract for the payment of a specified sum in case of a breach provides for liquidated damages or for a penalty, the intention of the parties, ascertained from the language of the contract and the surrounding circumstances, must be considered.-Perley v. Schubert (Sup.) 593.

§ 4. Measure of damages.

Statement of items to be deducted in arriving at prospective profits lost. to be awarded as damages for refusal to execute a contract.Beckwith v. City of New York (Sup.) 175.

*Measure of damages of permanent and temporary injury to real estate defined.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id.

5. Inadequate and excessive damages. *In an action for personal injuries, a verdict of $3,375 held not excessive.-Sparks v. City of North Tonawanda (Sup.) 44.

*A verdict for $35,000 for the loss of a leg by a 16 year old girl, held excessive.-Neakes v. New York Cent. & H. R. R. Co. (Sup.) 522. § 6. Pleading, evidence, and assessment. *In an action for personal injuries, evidence relating to the amount of damages held inadmissible under the pleadings.-Hart v. Metropolitan St. Ry. Co. (Sup.) 494.

DAMS.

Liability of state for injuries caused by operation of, see "States," § 1.

DEAD BODIES.

Contract with county for removal of, see "Counties," § 2.

DEATH.

Harmless error in rulings in action for, see "Ap-
peal." $ 8.

Liability for death caused by negligence in gen-
eral, see "Negligence," § 1.
Liability for death of passenger, see "Carriers,"
$ 3.

Liability of master for death of servant, see
"Master and Servant," §§ 10. 11.
Negligence causing death as questions for jury,
see "Negligence," § 3.

Separate causes of action in pleading in action
for, see "Pleading," § 2.

*Point annotated. See syllabus.

§ 1. Actions for causing death.

INDEX.

*Under Code Civ. Proc. § 1904, in an action

DEFAMATION.

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.

DEBTOR AND CREDITOR.

See "Assignments for Benefit of Creditors";
"Bankruptcy"; "Creditors' Suit."

DECEDENTS.

DEFAULT.

Judgment by, see "Judgment," § 1.

DELAY.

1175

Affecting right to specific performance of con-
tract, see "Specific Performance," § 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."

DECEIT.

See "Fraud."

DECLARATION.

In pleading, see "Pleading," § 2.

DECLARATIONS.

As evidence in criminal prosecutions, see "Crim-
inal Law," § 4.

DEDICATION.

§ 1. Nature and requisites.

gages," § 3.

DELIVERY.

Of goods by carriers, see "Carriers," § 2.
Of goods sold, see "Sales." § 1.

Of mortgage, see "Chattel Mortgages," § 3.

DEMAND.

As condition precedent to action for price of
land, see "Vendor and Purchaser," § 6.

DEMURRER.

In pleading, see "Pleading," § 4.

DENIALS.

*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.)
125.

*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
of Dunkirk (Sup.) 125.

DEEDS.

Estoppel by deed, see "Estoppel," § 1.
In trust, see "Trusts," § 1.
Of trust. see "Mortgages."
Tax deeds, see "Taxation," § 4.

1. Construction and operation.
Where fee of land over which the grantor
claimed a right of way was conveyed to the
grantee, it vested in him absolute ownership
of the right of way, except as restricted by a
reservation in the deed.-Hale v. Jenkins (Sup.)
282.

Effect of a reservation in a deed to the
grantor's daughter reserving the right to com-
fortable maintenance in the daughter's fam-
ily stated.-Tucker v. Tucker (Sup.) 713.

DEPOSITARIES.

See "Deposits in Court."

DEPOSITIONS.

See "Witnesses."

Motion to vacate order settling interrogatories
to be annexed to commission as affected by
other remedies, see "Motions."

*Under the express provisions of Code Civ.
Proc. 887, the examination of any party to
an action may be had by commission.-Gilroy
v. Interborough-Metropolitan Co. (Sup.) 171.

*Though part of the testimony taken by depo-
sition is inadmissible, the unobjectionable por-
tion is not therefore to be excluded.-Dambmann
v. Metropolitan St. Ry. Co. (Sup.) 221.

*A physician's deposition not allowed in a
negligence action, where it was not shown that
he was infirm or sick, or that the deposition
was necessary as expressly provided by Code
Civ. Proc. § 872, subd. 4.-Wood v. Flagg (Sup.)

308.

*Under Code Civ. Proc. § 895, an order that
one of two coplaintiffs be examined upon such
See syllabus.

*Point annotated.

and 140 New York State Reporter

oral questions as counsel for plaintiffs and defendant may think proper is unauthorized.-Stuart v. Spofford (Sup.) 903.

DIRECTING VERDICT.

In civil actions, see "Trial," § 4.

DISBARMENT.

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. 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.

DEPOSITS.

DISCHARGE.

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.
On purchase price of land, see "Vendor and
Purchaser," § 4.

DEPOSITS IN COURT.

Where plaintiffs were directed to deposit in court a specified sum with interest from a certain date, it was error for the court, after adjudging plaintiffs guilty of contempt, to authorize them to purge themselves by making the deposit of the sum directed with interest at 2% per cent.-Lawrence v. Binninger (Sup.) 500.

DESCENT AND DISTRIBUTION.

See "Executors and Administrators": "Wills." Inheritance and transfer taxes, see "Taxation." § 5.

Property and interests undisposed of by will, see "Wills," § 6.

§ 1. Persons entitled and their respective shares.

*Under Real Property Law, Laws 1896, p. 619, c. 547, § 285, intestate's mother held to inherit only a life estate with remainder to the other heirs.-Tucker v. Tucker (Sup.) 713.

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From indebtedness, obligation, or liability. See "Bankruptcy," § 4; "Compromise and Settlement"; "Execution," § 2; "Judgment," 7; "Mechanics' Liens," § 2.

Liability as surety, see "Principal and Surety," § 1.

DISCOVERY.

Contempt by party in refusing to appear for examination, see "Contempt," § 1.

§ 1. Under statutory provisions. *No examination of defendant in an action for an accounting is necessary to enable plaintiff to frame a complaint.-Pierce v. McLaugh lin Real Estate Co. (Sup.) 28.

*An order for the examination of plaintiff will be set aside where it appears that plaintiff is a resident of Scotland, and is not, at the time, within this country.-Gilroy v. Interborough-Metropolitan Co. (Sup.) 171.

*Ordinarily defendant in a negligence action may not examine plaintiff before trial as to the general issues in the action.-Wood v. Flagg (Sup.) 308.

*In connection with a physical examination of plaintiff before trial, defendant may examine him under oath as to the character and extent of his injuries.-Wood v. Flagg (Sup.) 308.

*Papers on which an order for the examination of plaintiff before trial was obtained not complying with general rules of practice, rule 25, the order held properly vacated.-Mitchell v. Greene (Sup.) 449.

An order for the examination of an individual defendant before trial cannot properly require him to produce books and papers for inspection.-Coin Novelty Co. v. Lindenborn (Sup.)

508.

An order of the court fixing a new date for an examination of a party as a witness before trial held not in effect an adjournment in violation of Code Civ. Proc. § 876, vesting author ity to adjourn the examination in the judge or referee before whom held.-Grant v. Greene (Sup.) 535.

Though Code Civ. Proc. § 873, requiring & judge to order an examination of a party as a witness, does not authorize a court to make such order, yet where the examination could not be had at the time originally prescribed, owing to a stay, the court, on vacation of the stay, held

*Point annotated. See syllabus.

to have power to fix a new date.-Grant v. | action, and not on the merits.-Keuthen v. Stache
Greene (Sup.) 535.
(Sup.) 198.

*In an action for slander, defendant held not
entitled to examination of plaintiff before trial,
in view of the issues raised.-Nocito v. Acierno
(Sup.) 785.

Plaintiff held not to need an examination of
defendant to enable him to frame a complaint;
a general allegation of facts being sufficient, if
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.

Affidavits for examination of defendant to en-
able plaintiff to frame 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.)
865, 872; Same v. Ulmann (Sup.) 870, 871.

*Statement of what a plaintiff must show to

entitle him to examination of a defendant to en-
able him to frame a complaint.-Boskowitz v.
Sulzbacher (Sup.) 865, 872; Same v. Ulmann
(Sup.) 870, 871.

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False statement as to institution of divorce ac-
tion as libelous, see "Libel and Slander,"
§§ 1, 3.

Statements as to what additional affidavits
plaintiff may use on motion to vacate the order
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.

An order providing, under Code Civ. Proc. $$
870, 872, 873, for the examination of plaintiff
before a referee and for a physical examination
by a physician and a subsequent examination
of the physician before a referee, is unwarrant-
ed as to the latter provision.-Wood v. Hoffman
(Sup.) 940.

DISCRETION OF COURT.

Cost in habeas corpus proceedings, see "Habeas
Corpus," § 2.

Review in civil actions, see "Appeal," § 8.

DISMISSAL AND NONSUIT.

At trial, see "Trial," § 4.

Costs on dismissal, see "Costs," § 1.

lief.

Findings of referee on the issues referred to
him held to entitle plaintiff to a decree for di-
vorce; findings outside the issues being disre-
garded.-Bowe v. Bowe (Sup.) 608.

*Under the direct provisions of Code Civ.
Proc. $ 1757, subd. 1, in an action for divorce,
defendant's motion for an order framing issues
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
plaintiff.-Keville v. Keville (Sup.) 993.

On application to discontinue an action for
divorce after interlocutory judgment for divorce
had been entered held the application should be
continued to give time for filing affidavits, etc.
-Adams v. Adams (Sup.) 1064.

The effect of a certain stipulation in lieu
of alimony held not to give a defendant offending
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.

In particular actions or proceedings.

See "Injunction," § 3.

Appeal, see "Appeal," § 7.

Appeal from justice's court, see "Justices of the
Peace," § 2.

On contract assigned, see "Assignments," § 2.

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*An action brought to recover money not due
when summons was served held prematurely
brought.-Anderson v. Rosenberg (Sup.) 171.
Where plaintiff suffered a dismissal because
of failure of proof, and the necessary proof
might be furnished on a new trial, the dismiss-
al should have been without prejudice to a new

complaining party, though the proper time had
elapsed after interlocutory judgment.-Adams
v. Adams (Sup.) 1064.

Under Code Civ. Proc. § 1774, held, that an
absolute judgment of divorce could not be en-
tered on the application of the offending party
without the consent of the innocent complain-
ing party, though the proper time had elapsed
after interlocutory judgment.-Adams v. Adams
(Sup.) 1064.

*Under Code Civ. Proc. 8 1774, a marriage
held not dissolved after interlocutory judgment
for divorce, and before entry of absolute judg-
ment.-Adams v. Adams (Sup.) 1064.

*For submitting to the jury the issue in a
divorce suit, whether the parties were married
*Point annotated. See syllabus.

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