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? care were questions for the jury.-Frank v.

tropolitan St. Ry. Co. (Sup.) 1018.
n an action for injuries to passenger on Of civil action, see “Venue," $ 2.
eet railway, the court properly refused to
I to the charge given a further charge as
the pa ramount rights of defendant over driv-

of teams to the use of its tracks.-Frank v.
tropolitan St. Ry. Co. (Sup.) 1018.

Of legacies on property by will, see “Wills,"
Cvidence, in an action by a street car passer To jury in civil actions, see Trial,” 9.4

$ 5.
for injuries received, held to sustain a ver-
t for plaintiff, founded on the negligence of To jury, in criminal prosecutions, see “Criminal
motorman.-Smith v. Metropolitan St. Ry.

Law," 8 4.
. (Sup.) 1087.
i. Contributory negligence of

person injured.
'vidence in action for injury to street car Jurisdiction of municipal courts as to action for
senger in attempting to alight held too uucer- conversion of mortgaged goods, see “Courts,"
i to warrant submitting issue of contributory § 2.
ligence to jury.-Baker v. Interurban St.
. Co. (Sup.) 9.

8 1. Foreclosure.
Cvidence in a street çar passenger's action Court Act, Laws 1902, P. 1532, c. 580, 88 137,

When mortgagee brings suit under Municipal
injuries in alighting held to show contribu- 139, to foreclose lien on chattels, he must be
y negligence.-Grabenstein v. Metropolitan deemed lien holder, and not owner of chattels,
Ry. Co. (Sup.) 727.

and hence must join mortgagor.-Fishel v.
'vidence in action for injury to passenger | Hamilton Storage Warehouse Co. (Sup.) 196.
running board of street car held insufficient
show absence of contributory negligence.-

Though mortgagee's title became absolute
sick v. Interurban St. Ry. Co. (Sup.) 758.

through wrongful act of mortgagor, there re-

mained in her the right of redemption, and she
Vhether plaintiff attempting to board moving was a necessary party to foreclosure proceed-
Pet car was guilty of contributory negligence ings.-Fishel v. Hamilton Storage Warehouse
i a question for the jury-Clinton v. Brook- Co. (Sup.) 196.
Heights R. Co. (Sup.) 932.

Junior chattel mortgagee held entitled, on

tender of payment due under senior mortgage,

to an injunction restraining its foreclosure.

Bernheimer & Schwartz Pilsener Brewing Co.
king and settlement, see “Appeal," § 4. v. H. Koehler Co. (Sup.) 716.

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See “Fraud."



See "Banks and Banking," $ 2; “Bills and


Indorsement by personal representatives, see

"Executors and Administrators," $ 1.
ndemnation of property for, see "Eminent
Pomain," $ 1.


See “Bastards"; "Infants."
tified copies, see "Evidence," $ 6.

Contributory negligence of, see "Negligence,"

8 3.

“Banks and Banking," $ 2; “Bills and Assignment, see "Assignments."
Totes," 88 24.


See “Process."
view of tax assessment, see "Taxation," $ 3.


See “Municipal Corporations."

and 120 New York State Reporter CITIZENS.


See “Monopolies," $ 1.
Equal protection of laws, see "Constitutional

Law," $ 5.
Privileges and immunities, see "Constitutional

Law," $ 4.

Carriage of goods and passengers, see "CarCIVIL RIGHTS.


$_1. Power to regulate in general. See “Constitutional Law," $$ 3-5.

Laws 1902, p. 487, c. 194, 141, prohibitir:

the possession during the closed season of tryil. CLAIM AND DELIVERY.

taken outside the state, is void as an interfer

ence with interstate commerce, and not a proba See "Replevin."

exercise of police power.-People v. A. Booth

& Co. (Sup.) 272. CLASS LEGISLATION.

See "Constitutional Law," § 4.

Of broker, see “Brokers," $ 2.

Of trustee, see “Trusts," $ 6.
See "Quieting Title."


See “Carriers."
See “Associations."


As to appointment of interpreters by courts, see

“Courts," $ 1. Parol evidence, see "Evidence," $ 7.

Presumption as to change in by statute, ste

"Statutes," $ 2. COLLATERAL ATTACK.

COMMON SCHOOLS. On valuation of property for taxation, see "Taxation,” $ 5.

See "Schools and School Districts," § 1.

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COMPROMISE AND SETTLEMENT. To sustain adverse possession, see “Adverse See “Accord and Satisfaction"; "Payment"; Possession."




period of limitation, see "Limitation of Ac- Provisions relating to particular subjects.
ions," $ 1.

See “Carriers," $ 1; "Commerce,” g 1.

Enactment and validity of statutes, see “Stat-

utes," § 1.

Necessity of indictment or presentment in crim-
witness, see "Evidence," 8 8.

inal prosecution, see “Indictment and Infor-

mation," 8 1.

§ 1. Construction, operation, and

forcement of constitutional pro-

king property for public use, see “Eminent

In the construction of a statute, which is
susceptible of two constructions, one of which

will render it valid and the other void, and both

are equally reasonable, the courts will adopt
the construction which renders the act valid,

rather than the one which avoids it.-Rosin v.
"Sales," $ 6.

Lidgerwood Mfg. Co. (Sup.) 49.

§ 2. Police power in general.

Pen. Code, 610, subd. 16, prohibiting mu-

tilating, defacing, or casting contempt on the
insurance policies, see “Insurance," $ 4.

United States flag, or state flag, etc., held a
liquor dealer's bónd, see "Intoxicating Liq- proper exercise of the state's police power.-
iors," $ 1.

People v. Van De Carr (Sup.) 644.
i dismissal of suit, see "Dismissal and Non-
zuit," $ 1.

8 3. Personal, civil, and political rights.
i grant of new trial, see "New Trial," $ 2. Pen. Code, $ 640, subd. 16, prohibiting the use
! opening default judgment, see "Judgment," of the American flag, etc., for advertising pur-
; 1.

poses, held unconstitutional, as a deprivation of
ecedent to action for breach of covenant, see

the liberty of the citizen.-People v. Van De
'Covenants," $ 1.

Carr (Sup.) 644.
ecedent to action on insurance policy, see “In-8 4. Privileges or immunities, and class
surance," $ 10.


Laws 1903, p. 1420, c. 625, § 166, providing

for the registration and tagging of motor ve-
hicles, held not unconstitutional, as class legis-

lation, in excepting manufacturers and dealers
uthority of foreign corporation to issue stock from its operation. - People v. MacWilliams
with guaranty of dividends, see “Corpora- (Sup.) 357.
cions," § 6.

Pen. Code, $ 640, subd. 16, prohibiting the

use of the American flag for advertising pur-
CONNECTING CARRIERS. poses, held unconstitutional, as class legislation.

-People v. Van De Carr (Sup.) 614.
e “Cari rs," $ 2.

Agricultural Law, Laws 1893, p. 667, c. 338,
$ 50, defining adulterated vinegar, held uncon-

stitutional, as containing an unjust discrimina-

tion in favor of farmers and purchasers of cider

from them.-State v. Windholz (Sup.) 1015.
vidence of consideration of bill or note, see $ 5. Equal protection of laws.
"Bills and Notes," $ 5.
bill or note, see “Bills and Notes," $ 3.

Laws 1902, p. 1748, c. 600, relative to em-

ployers' liability, and imposing condition of re-
contract, see “Contracts." $ 1.
contract to devise, see “Wills," § 1.

covery, would, if construed as applicable to the
coutract with broker, see "Brokers," $ 2.

common-law action for servant's injuries or the
fraudulent conveyance,


statutory action for death, be repugnant to

Const. U. S. Amend. 14, guarantying equal pro-
Conveyances," 1.

tection of the law.-Rosin v. Lidgerwood Mfg.

Co. (Sup.) 49.

$ 6. Due process of law.

Laws 1902, p. 1748, c. 600, relative to em-
imbinations to monopolize trade, see "Mo- ployers' liability, and imposing condition of re-
nopolies," $ 1.

covery, would, if construed as applicable to
the common-law action for servant's injuries or

the statutory action for death, be repugnant

to Const. art. 1, 81, securing to all citizens

equal rights and privileges.- Rosin v. Lidger-
e "Sheriffs and Constables,"

wood Mig. Co. (Sup.) 49.







and 120 New York State Reporter Laws 1902, p. 487, c. 194, § 141, prohibiting | Liquidated damages or penalties, see "Das the possession in the closed season of trout tak- ages," $ 1. en outside the state, is void as depriving citi- Novation, see “Novation.” zens of the rights of property and liberty guar. Parol or extrinsic evidence, see "Evidence" 47. antied by the state Constitution, and not a prop- Reformation, Reformation of Instruer exercise of the police power.- People v. A. ments." Booth & Co. (Sup.) 272.

Remedy by action for breach and for tort dis. The fact that trout acquired in Canada were

tinguished, see "Action," $ 1. shipped out of the country in violation of its Repair of demised premises, see “Landlord abi game laws held not to render them subject to

Tenant," $ 4. the New York game laws (Laws 1902, p. 487. Specific, performance, see "Specific Perierne

ance." c. 194, § 141).-People v. A. Booth & Co. (Sup.) 272.

Contracts of particular classes of parties. Laws 1902, c. 506, p. 1216, $ 40, prohibiting See “Carriers," $ 2; “Corporations," @ 3; "Vas. a hackman from permitting his horse or vehi- ter and Servant"; "Municipal Corporations, cle to stand in a public street or drive through $$2; 3; “Receivers," § 1; "Warehouse the same soliciting patronage, held not unconstitutional as depriving him of his property with Corporate officers, see "Corporations," $ 2. out due process of law.-People v. Sewer. Water Foreign corporations, see "Corporations," & Street Commission of Village of Saratoga Springs (Sup.) 415.

Contracts relating to particular subjects.

Ground for mechanics' liens, see "Vechanics CONTEMPT.

Liens," 8 1.

Making bequest or devise, see "Wills," $ 1. Disobedience to order or subpana in supple- Support of bastard, see “Bastards," $ 1. mentary proceedings as contempt, see "Exe Transportation of goods, see "Carriers," < 2. cution," 8 1.

Particular classes of express contracts. § 1. Power to punish and proceedings See “Bailment"; "Bills and Notes"; "Core therefor.

nants"; "Guaranty"; "Insurance Motion for appointment of a referee to take

Adventures"; "Sales"; "Subscriptions." a deposition, under Code Civ. Proc. $ 885, and Bills of lading, see “Carriers," $ 2. a motion to the same effect in a separate pro- Employment, see “Master and Serrant." ceeding. held properly refused, under section Leases, see "Landlord and Tenant." 2280.- People v. 'Paine (Sup.) 1109; In re Marriage settlements, see "Husband and Wife," Tuell, Id.

§ 2. Under Code Civ. Proc. $ 11, an order adjudg-Mutual benefit insurance, see "Insurance," }

11. ing one guilty of contempt for violating an injunctional order of the court held fatally de- Sale of realty, see “Vendor and Purchaser." fective.-Roncoroni v. Gross (Sup.) 1113.

Separation agreemeuts, See "Husbard and

Wife," $ 3.

Suretyship, see "Principal and Surety." CONTINGENT REMAINDERS.

Particular classes of implied contracts. Creation, see "Wills," § 4.

See "Account Stated"; "Contribution"; "Moc

ey Lent"; "Work and Labor." CONTINUANCE.

Particular modes of discharging contracts.

See “Accord and Satisfaction"; "Payment"; Of injunction, see "Injunction," $ 1.

Release." Continuance, sought on account of party's $ 1. Requisites and validity. absence, held properly refused.-Daly v. Minke ('ontract with physician to testify as expert (Sup.) 92.

witness for 10 per cent. of plaintiffs recuFA continuance for absence of a witness was ery held illegal.-Latin . Billington (Sup.) properly denied, where he had not been sub 267. ponaed and no other effort had been made to A conveyance by a wife, in which her bos secure his attendance.--Hosman v. Kinneally band joined, of property previously conregel to (Sup.) 263.

her by her husband is not a consideration of

ing from the husband so to support 40 CONTRACTS.

agreement by the grantee to pay a debt of the

husband.-Hurd v. Wing (Sup.) 907. Agreements within statute of frauds, “Frauds, Statute of."

Right of materialman to file lien against Assignment, see “Assignments."

wife's property for materials furnished hushanc Bill of particulars in action for breach, see her grantee to assume debt, so as to enable ma

held liability of wife supporting agreemect by “Pleading," $ 6. Damages for breach, see "Damages," $ 2.

terialman to enforce it.-Hurd v. Wing (Sog.) Documentary evidence in artiou for delay in

907. performance of, see "Evidence," 8 6.

In order to invalidate a contract as immoral Ilarmless error in action on, see "Appeal,” g 7. or against public policy, it must appear that the



agreement contemplated the illegal or immoral, counterclaim, based on alleged breach of con-
acts.- Drake v. Lauer (Sup.) 986.

tract.-Gorodes v. Bruml (Sup.) 18.
A contract for services in securing contracts In an action for repairs to an elevator, evi-
by favoritism from state officers by reason of dence held to show that defendant authorized
social and political relations with such officers the performance of the work, and knew that
is void as against public policy.--Drake v. Lauer it was being performed by plaintiff during the
(Sup.) 986.

progress thereof.-James Reilly's Sons Co. v.
Where the general public is affected by an

Aaron (Sup.) 732.
illegal contract, the courts will refuse aid to In an action on a contract, the burden re-
the parties, although the contract has been per- | mains on plaintiff throughout the case.-Pol-
formed by one party so that the other has re- stein v. Blauner (Sup.) 794.
ceived its benefits.- Drake v. Lauer (Sup.) 986.

Evidence in an action on a contract to fur-
Where a contract is opposed to good morals nish cuts to advertise a business held admissible
or public policy, the courts will refuse to en- to show a material breach.-Hellinger v. Mar-
force it, although the illegality is not pleaded.- shall (Sup.) 1051.
Drake y. Lauer (Sup.) 986.
§ 2. Construction and operation.

A clause in a building contract, authorizing
the owner to make alterations, etc., held not to Of witness, see "Witnesses," $ 3.
require the contractor to perform within the
time provided, or pay a penalty for delays oc-
casioned by alterations so made.--Small V.

Burke (Sup.) 1066.

Promises to contribute, see "Subscriptions."
$ 3. Performance or breach.
Demand of architect's certificate, required by

Clients of stock brokers, who pledged stock
a building contract before payments, held not carried on margins, held not entitled to contribu-
necessary; the architect being one of the own-

tion from owner of stock deposited with brok-
ers refusing payment.--Abramson-Engesser Co. ers for safe-keeping and also pledged.–Tomp-
v. McCafferty (Sup.) 185.

kins v. Morton Trust Co. (Sup.) 520.
Demand for architect's certificate, required

Owner of stock, pledged as collateral and
by a building contract before the several pay- wrongfully hypothecated by pledgee, held not
ments, held waived; all but part of the last entitled to contribution from owner of stock
pa yment being made without a certificate.- deposited for safe-keeping and likewise hypothe-
Abramson-Engesser Co.v. McCafferty (Sup.) 185. cated.- Tompkins v. Morton Trust Co. (Sup.)

A contractor held excused from performing
work within the time required, where such
performance was delayed by other contractors

employed by defendant.-New York Metal Ceil-
ing Co. v. Raub (Sup.) 249.

See “Negligence," $ 3.
A contractor held not liable for delay in com- Estoppel on appeal to allege exoneration from,
pleting the building, if he was prevented from of driver of 'wagon injured by operation of

see "Appeal," $ 5.
completing any particular part of the work by

street railroad, see "Street Railroads," $ 1.
delays occasioned by the acts of the owner, of person injured by electricity, see "Elec-
his contractors, servants, or agents.-Cornell v.

Standard Oil Co. (Sup.) 633.

Of person injured by explosion, see “Explo-
A penalty contained in a building contract sives."
did not begin to run until the contractor had Of person injured by operation of railroad, see'
full opportunity to complete the work in ac-

“Railroads, $ 3.
cordance with the terms of the contract. Of person injured by operation of street rail-
Cornell v. Standard Oil Co. (Sup.) 633.

road, see "Street Railroads," 8 1.
A finding that a building contractor was only Of tenant, see “Landlord and Tenant,” 4.
liable for delays, occurring after the removal
of a bridge built by other contractors, neces-

sary to enable him to complete his contract,
held justified.-Cornell v. Standard Oil Co. Equitable conversion of partnership property,
(Sup.) 633.

see “Partnership," 8 2.
A building contractor held entitled, in deter- Wrongful conversion of personal property, see
mining the extent of the delay for which he

"Trover and Conversion."
was chargeable, to be allowed for the time
that the final completion of the contract work

was necessarily delayed by changes, etc., or-
dered by the owner.-Small v. Burke (Sup.) Contracts to convey, see “Vendor and Pur-

chaser," $ 3.
$ 4. Actions for breach.

In fraud of creditors, see "Fraudulent Con-
In an action to recover for goods sold, evi- veyances.'
dence held insufficient to sustain defendant's In trust, see "Trusts," § 1.

86 N.Y.S.-74

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