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ACTION ON THE CASE.

AFFIDAVITS.
"Trespass," 8 2.

Inconsistent with testimony as basis for im-

peachment of witness, see "Witnesses," $ 3.
ADECUATE REMEDY AT LAW.

In particular proceedings.
ct on jurisdiction of equity, see “Specific See "Attachment,” | 1; "Injunction," $ 1.
erformance,” g 1.

Intervention, see “Parties," $ 1.
ADJOINING LANDOWNERS.

AGE.
"Boundaries"; "Party Walls."

Estoppel on appeal to deny existence of evi-

dence as to age, see “Appeal," $ 5.
ADJUDICATION.

AGENCY.
ration and effect of former adjudication,
e "Judgment," 88 4, 5.

See “Principal and Agent."
ADJUSTMENT.

AGREEMENT.
loss within insurance policy, see "Insur-See “Contracts."
ice," $8 8, 11.

AGRICULTURE.
ADMINISTRATION.

Law defining adulteration of vinegar as un.
estate of decedent, see "Executors and Ad- just discrimination, see “Constitutional Law,"
inistrators."

§ 4.
property by receiver, see “Receivers," § 1. Partial invalidity of agricultural law, see “Stat-
trust property, see “Trusts," $ 4.

utes," 8 1.
ADMISSIONS.

ALIENATION.
evidence, see "Evidence," $ 5.

Suspension of power of alienation of property,

see "Perpetuities.”
pleading, see “Pleading," $ 3.

ALIENS.
ADULTERATION.

§ 1. Disabilities.
"Food.”

An alien's right to take real estate in New
vs defining as unjust discrimination, see York by descent is governed by the statutes in
Constitutional Law," $ 4.

force at the time of the death of the owner
through whom such alien claimed title.-Stew-

art v. Russell (Sup.) 625.
ADVERSE CLAIM.

Where plaintiff's grandfather was living at
real property, see “Quieting Title."

the time of the death of S., and would have in-
herited certain real estate belonging to S.,

plaintiff could not recover such real estate,
ADVERSE POSSESSION. after his grandfather's death, as heir of S.-

Stewart v. Russell (Sup.) 625.
"Limitation of Actions.”

Laws 1845, p. 95, c. 115, $ 4, as amended
1. Nature and requisites.

by Laws 1875, p. 32, c. 38, providing for the
Inder Code Civ. Proc. $ 309, adverse posses- transmission of real estate of a citizen who has
, must be under claim of title exclusive of purchased or taken a conveyance thereof to his
· other right.--Fortier v. Delaware, L. & W. heirs, whether citizens or aliens, held not to
Co. (Sup.) 896.

apply to land taken by descent.-Stewart v.
Inder Code Civ. Proc. 88 371, 372, one who

Russell (Sup.) 625.
ve piles marking space which he did not oth-
'ise occupy held not to have adverse pos 28-

ALIMONY.
1.-Fortier v. Delaware, L. & W. R. Co.
P.) 896.

See “Divorce," $ 2.
2. Pleading, evidence, trial, and re-
view.

ALLOWANCE.
vidence held to support finding that one had

occupied land adversely, continuously for To surviving wife, husband, or children of de-
years.-Fortier v. Delaware, L. & W. R. cedent, see "Executors and Administrators,"
(Sup.) 896.

$ 2.

or

$ 2.

and 120 New York State Reporter ALTERATION.

Review in special proceedings.

Assessment of taxes, see "Taxation," § 3. Of geographical political divisions, Bee Proceedings before referee, see "Reference," “Schools and School Districts," $ 1.

$ 2.

Under inheritance tax laws, see “Taxation," ALTERATION OF INSTRUMENTS. $ 7.

Review of criminal prosecutions. See "Reformation of Instruments."

See "Criminal Law,” g 5; "Homicide," § 5. AMBASSADORS AND CONSULS. f 1. Decisions reviewable.

Judgment entered without decision of court, Acknowledgments before, see "Acknowledg- no motion to vacate being made, held rerersible. ment,” $ 1.

--Kent v. Common Council of City of Binghan

ton (Sup.) 411. AMENDMENT.

Right of review.

A party who fails to take advantage of an of particular legal proceedings.

order granting him a new trial has no ground See “Pleading," § 5; “Process," $ 3.

for complaint, on an appeal from the judgment. Pleading in proceeding before referee, see "Ref- --Carter v. Interurban St. Ry. Co. (Sup.) 206. erence.'

§ 3. Presentation and reservation in

lower court of grounds of review. ANIMALS.

On appeal from a judgment, the question as See “Game."

to the reasonableness of conditions imposed in Expert testimony as to value of, see "Evi- an order granting a new trial held not rerier. dence," 8 8.

able.-Carter v. Interurban St. Ry. Co. (Sup.)

206. Keeping and use of in cities, see "Municipal Corporations," 8 4.

On appeal from order refusing new trial, pourt Presumptions as to disposition of dog, see "Evi- may determine sufficiency of eridence, though dence," $ 2.

no motion was made on trial.-Glaser F. Micbel

son (Sup.) 286. Where one, with kuowledge of the propensities of a vicious dog, keeps it, if the dog does

Where the instructions do not fully state the mischief, negligence will be presumed.-Boler v. correct theory of the case, there must be a new Sorgenfrei (Sup.) 180.

trial, though plaintiff did not except thereto.

Gorman v. Milliken (Sup.) 699. Evidence in action for personal injuries inflicted by vicious dog held sufficient to make out

Statement of a witness, open to the criticism a prima facie case for plaintiff.—Boler v. Sor- of expressing an opinion not called for be the geufrei (Sup.) 180.

question, is not ground for reversal; no motion

being made to strike it out.-Rosenblatt 5. In an action against a husband and wife for Joseph M. Cohen House Wrecking Co. (Sup.) personal injuries inflicted by a dog, the com- 801. plaint is properly dismissed against the wife, where the evidence does not counect her with

Objection that the evidence as to breach of the ownership of the dog.-Boler v, Sorgenfrei the contract sued on was not admissible under (Sup.) 180.

the answer, not having been made at the trial,

may not be made on appeal.-Hellinger v. Var ANSWER.

shall (Sup.) 1031.

§ 4. Record and proceedings not in recIn pleading, see “Pleading," $ 3.

ord.

Presumption of sufficiency of evidence to susANTENUPTIAL CONTRACTS. tain referee's findings indulged in absence of

case on appeal, not falling within Code Cir. See "Husband and Wife," $ 2.

Proc. $ 1022.- Tompkins v. Morton Trust Co.

(Sup.) 520. APPEAL.

Question presented on appeal from referee's

judgment, not falling within Code Cir. Proe See "New Trial."

1022, held to be whether facts found justified Appellate jurisdiction of particular courts, see Co. (Sup.) 520.

conclusions of law.–Tompkins v. Morton Trust "Courts," $ 3. Costs, see "Costs," $ 4.

Where a case on appeal has no certificate Review of proceedings of justices of the peace, stating that it contains all the evidence taken see “Justices of the Peace," 8 1.

on the trial, the appellate court will not er. Stay of action pending appeal in different ac

amine the facts; but in an action tried by s tion, see “Action," $ 2.

jury it may review the exceptions to the rul

ings of the trial justice.-Baker 5. Griffin (Sup. Review in particular civil actions.

3579. See "Specific Performance," $ 4.

Under Code Civ. Proc. $ 1353, the judge In municipal courts, see “Courts," $ 2.

trying the cause should order the printed pa

9

a

person file, before an appeal founded on A judgment on conflicting evidence will not
case can be heard.-Odendall v. Haebler (Sup.) be disturbed on appeal.-Leonardi v. Stemmler
599.

(Sup.) 242.
Question of propriety of dismissal of com- Where the evidence is conflicting, the ver-
plaint held sufficiently reserved in lower court dict of the jury will not be disturbed on appeal.
to permit review on appeal.-Boehringer v. Deitch v. Feder (Sup.) 802; Keating v. Mott
Hirsch (Sup.) 726.

(Sup.) 1041.
Exceptions of prevailing party to exclusion
of evidence held not to be incorporated in the ty that the court erred, a reversal of its find-

Unless it can be said with reasonable certain-
case.-In re Levy's Will (Sup.) 862.

ing of a fact would not be justified.-Palmer
Mere assertion of counsel's view of the law v. Ward (Sup.) 990.
will not be incorporated in the case on appeal.
-In re Levy's Will (Sup.) 862.

$ 7. Harmless error.

Amendment of auswer in action on fire in-
5. Review.
On an appeal from the dismissal of a com-

surance policy, setting up failure to mail proofs
plaint at the end of plaintiff's case, the Su- & Loomis Ice & Transportation Co. v. Wielar

of loss, held not prejudicial to plaintiff.-Huse
preme Court must examine the entire record. (Sup.) 24.
Baker v. Interurban St. Ry. Co. (Sup.) 9.
On an appeal from a nousuit, plaintiff is en plaintiff's witness ou cross-examination, is to

Any error in excluding the question, put to
titled to the presumption that he could have what driver he delivered certain goods to, was
proved material facts contained in his offer of cured when the same witness was subsequently
proof.-O'Connor v. Moody (Sup.) 214.

allowed to state that he gave the goods to a
On appeal from final judgment to obtain re- certain driver named.-Brill v. Levin (Sup.) 109.
riew of intermediate order, notice required by
Code Civ. Proc. $ 1316, must be given.-Stearns sion of a letter written by plaintiff to her father-

Iu a suit for separation, the erroneous admis-
:: Shepard & Morse Lumber Co. (Sup.) 396.

in-law was harmless, where other evidence en-
Appellate Division, having once decided that titled her to the relief demanded.-Duryea v.
question was for jury, should, on an appeal Duryea (Sup.) 337.
fter a new trial, adhere to that decision, and
ffirm a judgment based on verdict of jury.-

Judgment introduced being binding on all
uwis v. Upton (Sup.) 397.

questions but that of damages, rulings on evi-

dence as to other matter held immaterial.-
Under Code Civ. Proc. $ 1022, it will be as-
umed on appeal that, where record contains no

Stearns v. Shepard & Morse Lumber Co. (Sup.)

391.
ecision, noue was filed. – Kent v. Common
Council of City of Binghamton (Sup.) 411.

In action on account stated, where the ex-
Where plaintiff did not appeal from an ad-istence of account was put in issue, exclusion
erse ruling that certain real estate belonged to Baker v. Griffin (Sup.) 579.

of certain evidence held prejudicial error.-
partnership of which her husband was a mem-
er, she could not contend, on defendant's ap- The introduction of a power of attorney, al-
eal, that some of such property did not belong leged to have been improperly acknowledged,
the firm.-Hauptmann v. Hauptmann (Sup.) in a suit not depending thereon, held without
27.

prejudice.-Jordan v. Underhill (Sup.) 620.
Defendant, who prevented testimony as to In an action on a building contract, defend-
bild's age by refusing to permit use of an in-ant held not prejudiced by the submission of a
erpreter, could not contend, in support of a question as to the date the contract was com-
dgment for dismissal, that there was no evi- pleted.-Cornell v. Standard Oil Co. (Sup.)
ence as to the age of the child, so as to ex-

633,
perate it from contributory negligence.-Men-
ella v. Metropolitan St. Ry. Co. (Sup.) 930. Instruction in an action for conversion, held

too favorable to defendant.-Heyert v. Reub-
Where parties moved for disposition of case

man (Sup.) 797.
s upon questions of law, it was the duty of
1e Appellate Division on appeal to adopt in- Error in admission of evidence to an admit-

rences favoring trial justice's decision.-Cul- ted fact held harmless.-Pescia v. Societa Co-
nan v. Burkhard (Sup.) 1003.

operativa Corleonese Francesco Bentivegna
A party cannot claim on appeal that evidence (Sup.) 952.
ffered on a particular issue was erroneously Contradiction of plaintiff's own witness, in
scluded, because relevant to a different issue.-

personal injury case against a street car com-
1. H. Ogden Lumber Co. v. Busse (Sup.) pany, in the course of which plaintiff's husband
6. Questions of fact, verdicts, and testified to his declaration that plaintiff was
findings.

thrown from the car, held prejudicial error.--
Where a judgment in replevin gives defend-Wimmer v. Metropolitan St. Ry. Co. (Sup.)

1052.
at "possession of the chattels or their value,
xed at $400," and the evidence showed the The erroneous admission of evidence on an
alue was but $100, the judgment will be re-immaterial issue is harmless.-E. H. Ogden
ersed.-Lipschitz v. McCarty (Sup.) 21. Lumber Co. v. Busse (Sup.) 1098.

cause.

and 120 New York State Reporter $ 8. Determination and disposition of In a prosecution for assault, a verdict of con

viction held contrary to the weight of evidence. Portion of order appealed from held reversi

--People v. Dankberg (Sup.) 423. ble, without reversing remainder.-O'Connor v. Hendrick (Sup.) 1. Under Code Civ. Proc. & 194, providing for

ASSESSMENT. remittitur by the Court of Appeals, the Supreme Court must conform its order to the re- Of compensation for property taken for pubmittitur, and error therein can be corrected only lic use, see “Eminent Domain," $ 3. by the Court of Appeals.-Zapf v. Carter (Sup.) | Of expenses of public improvements, see “Mu175.

nicipal Corporations," $ 3. A judgment dismissing the complaint on the Of tax, see “Taxation,” $ 3. merits affirmed, notwithstanding it did not clearly appear from the return on appeal that

ASSIGNMENTS. it was at the close of the whole case, as required by Municipal Court Act, Laws 1902, p. Fraud as to creditors, see "Fraudulent Con1561, c. 580, $ 219.-Cohen v. Boccuzzi (Sup.) veyances." 187.

In bankruptcy, see “Bankruptcy," 8 2. Under express provisions of Code Civ. Proc. of insurance, see "Insurance," $ 3. 1022. prior to amendment by Laws 1903, c.

Of note, see “Bills and Notes," $ 2. 85, p. 237, the Appellate Division must review a short-form decision on both law and fact.

§ 1. Requisites and validity,

Where several stockholders in a corporation Multz v. Price (Sup.) 480.

were induced to purchase their stock by defendWhere a building contractor was entitled to ant’s misrepresentations, they were entitled to be allowed a large part of, if not the entire. assign their causes of action for deceit to plaintime for which a penalty for delay was charged tiff, in order that a recovery for the entire wrong by the trial court, the Appellate Division, on the might be had in a single action.-Benedict 5. contractor's appeal, was required to order a Guardian Trust Co. (Sup.) 370. new trial.--Small v. Burke (Sup.) 1066.

§ 2. Actions.

Assignment of stock held to carry with it right APPLIANCES.

of action for its conversion.-Rothschild v. Al

len (Sup.) 42. Liability of employer for defects, see "Master and Servant," $ 3.

ASSIGNMENTS FOR BENEFIT OF APPLICATION.

CREDITORS. For security for costs, see "Costs," $ 2.

See "Bankruptcy," $ 1.

APPOINTMENT.

ASSOCIATIONS. of receivers of foreign corporations, see “Cor- See “Beneficial Associations."

porations," $ 6. Of trustee, see “Trusts," $ 3.

An action cannot be maintained against an

officer of au unincorporated association of more APPRENTICES.

than seven members, unless all of the associates were liable jointly or severally.-Hosman 5.

Kinneally (Sup.) 263. Attempt to get possession of nonresident infant jockey, for purposes of gain, all the par

Members of an unincorporated political orgadties being residents of another state, will notization held not liable for services of a person be entertained by the Supreme Court.-Reiss v. employed by the manager of a paper publishPlicque (Sup.) 701,

ed by the organization, without proof of his
authority to pledge their individual credit-

Hosman v. Kinneally (Sup.) 263.
ARBITRATION AND AWARD.
See "Reference."

ASSUMPSIT, ACTION OF.

See “Account Stated"; "Yoney Lent"; “Work ASSAULT AND BATTERY.

and Labor." Jurisdiction of municipal courts as to action for assault on passenger, see "Courts," $ 2.

ASSUMPTION. § 1. Criminal responsibility.

Of debts of old corporation by reorga nized corIn a prosecution for assault, an instruction on poration, see "Corporations," $ 4. self-defense held erroneous.--People v. Dank- oi risk by employé, see “Master and Serrant," berg (Sup.) 423.

$ 2.

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ATTACHMENT.

The statute of limitations does not begin to

run against an attorney's claim for compensa-
See "Execution.”

tion until the termination of his relation as at-
Against foreign corporations, see "Corpora- torney in the suit.-McCrea v. Scofield (Sup.)
tions," $ 6.

10.
Exemptions, see "Exemptions."

Client held not entitled to recover fees pre-
In actions for alimony, see "Divorce," $ 2. paid attorney on electing to abandon case.-
§ 1. Proceedings to procure.

Riehl v. Levy (Sup.) 464.
Affidavits held insufficient to support attach-

Order allowing financially responsible plaintiff
ment and default judgment founded thereon to dismiss action, pursuant to compromise, only
under Laws 1902, p. 1519, c. 580, § 91.-Dela- on paying his attorney's fee, otherwise the at-
ney v. Bouse (Sup.) 880.

torney to continue the suit, held erroneous.--

Witmark v. Perley (Sup.) 756.
$ 2. Levy, lien, and custody and dis-
position of property.

Where attorney and client agree that the at-
Notwithstanding Code Cit. Proc. $ 649, subd. torney's fee shall be 50 per cent. of any judg-
2, levy of attachment on promissory note in ment recovered, held that the client may not,
hands of pledgee held sufficient, when made by by a summary proceeding under Code Civ. Proc.
serving notice and permitting note to remain in 66, compel the attorney to forego his lien. -
pledgee's hands.-Hardon v. Dixon (Sup.) 346. Serwer v. Sarasohn (Sup.) 838.
$ 3. Proceedings to support or enforce.

ATTORNEY GENERAL,
Defendant against whom default judgment
was entered held not to have waived, by ap- Approval by attorney general of contract by re-
pearance, right to contest jurisdiction of court.

ceiver, see "Receivers," $ 1.
-Delaney v. Bouse (Sup.) 880.

Control by mandamus of attorney general's ap-

proval of receiver's contract for employment
ATTORNEY AND CLIENT.

of attorney, see “Mandamus," $ 1.
Attorneys in fact, see "Principal and Agent."

AUTHORITY.
Control by mandamus of attorney general's ap-

proval of receiver's contract for employment Of agent, see “Principal and Agent," $ 3.
of attorney, see "Mandamus," $ 1.

Of attorney, see "Attorney and Client,” $ 1.
Dismissal of suit conditional on payment of at: Of insurance agents, see "Insurance, $ 2.

torney's fees, see “Dismissal and Nonsuit,” | Of municipal court to award costs, see "Costs,"
$ 1.

$ 1.
Expenditures by personal representatives for at-To repair highways, see "Highways,” $ 2.
torney's fees, see "Executors and Adminis-

trators," $ 1.
Expenditure by trustee for attorney's fees, see

AUTOMOBILES.
"Trusts," $ 4.
Liability for wrongful entry of default judg- Laws relating to registration and tagging of
ment, see "Torts."

motor vehicles as class legislation, see "Con-

stitutional Law," $ 4.
1. Retainer and authority.
Court held to have no authority to require in-

AWNINGS.
terveners to defend through attorney employed
by original defendant.-O'Connor v. Hendrick Municipal regulations, see "Municipal Corpora-
(Sup.) 1.

tions," § 4.
§ 2. Duties and liabilities of attorney

BAILMENT.
to client.
An action against an attorney held for breach See “Banks and Banking," § 2; “Carriers," $
of duty, and not for conversion, so that a de-
mand before suit brought was not required.-

2; “Warehousemen."
Vooth v. McEachen (Sup.) 431.

In an action by plaintiff for work in polishing
In an action against an attorney for breach the value of a diamond lost in the course of the

diamonds, defendant was not entitled to set off
of duty in collecting a claim, a verdict for plain-work by a defect in the machine furnished by
tiff held not excessive.- Vooth v. McEachen
(Sup.) 131.

defendant.–Vroman v. Kryn (Sup.) 94.
In an action against an attorney for breach
of duty in collecting a claim, a verdict for plain-

BANKRUPTCY.
tiff heid not so contrary to the evidence as to re-

adjudication, warrant,
quire reversal.- Vooth v. McEachen (Sup.) 431. 8 1. Petition,

and custody of property.
$ 3. Compensation and lien of attor- Where, after receiver has been appointed in
ney.

state court for a firm, the firm is adjudicated
An attorney's right of action for compensa- bankrupt, the state receiver must pay over the
tion does not accrue until his relation as attor- funds to the court in bankruptcy and look to it
ney in the suit has terminated.-McCrea v. Sco- for his compensation.-Bloch v. Bloch (Sup.)
field (Sup.) 10.

1047.

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