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$ 3.

and 120 New York State Reporter
Plaintiffs in partition held to have the burden

of proving they were bona fide purchasers, on
defendant's proof of his right to the property See "Carriers," $$ 3, 4.
against their grantor.-Heyman v. Swift (Sup.)


Specifications in advertisement for our
See “Associations"; "Joint Adventures."

improvement as to use of patented in a
Dower in partnership property, see "Dower,” see “Municipal Corporations," $ %

§ 1.
f 1. The relation.

In an action against members of a former
firm on a firm obligation, defendants cannot set
up the fraudulent organization of the partner- See “Accord and Satisfaction"; "Teader."
ship as a defense.—Johanning v. Wilson (Sup.) | Jurisdiction of municipal court of actie!

cover payments under duress, see len

$ 2.
82. The firm, its name, powers, and

Of particular classes of obligations or lic
Partnership real estate retains its character See "Costs," $ 5.
as such, except so far as it is necessary to treat Bill of exchange or promissory note, se
it as personalty for the payment of debts of the
firm and of one partner to the other.-Haupt- Price of goods sold, see “Sales," $ 2.

and Notes," $ 4.
mann v. Hauptmann (Sup.) 427.

Price of land sold, see "Vendor and Pe
§ 3. Mutual rights, duties, and liabili.

ties of partners.
Services of partner contributing lesser amount : 1. Pleading, evidence, trial, es

of capital held not intended to offset other part-
ner's greater contribution.-Mallett v. Kellar

A seller's acceptance of the note
(Sup.) 917.

person for goods sold to defendant i

ate a presumption of payment for the
Salaries to be paid by firm to each member Blum v. Sadofsky (Sup.) 22.
held, on final dissolution, chargeable to each
member in final adjustment, and not to be char-

In an action to establish the lien et
ged up as losses before distribution of assets.

mere proof of demand of payment
- Mallett v. Kellar (Sup.) 917.

acy is no proof of actual nonpark

---Conkling v. Weatherwax (Sup.)
§ 4. Rights and liabilities as to third

Payments upon a total bill will be

in the absence of proof of some
A cause of action against defendant, the com-
plaint alleging that he was carrying on busi- rangement, to have been applied to -

items.-Hurd v. Wing (Sup.) 907.
ness under a firm name, held not sustained by
proving a contract between plaintiff and a firm
consisting of defendant and another.-Holmes

v. Daniels (Sup.) 19.
$ 5. Dissolution, settlement, and For delay in performance of contrit.

tracts 2, 3.
All the members of a former firm held bound For keeping and selling adulterar
by a note, executed after dissolution, to one *Food."
having no knowledge thereof.-Johanning v. For violation of ordinances re'se;
Wilson (Sup.) 7.

tion of street railroad, see "Sint.
Permitting continued use of firm stationery. For violation of regulations by ear:

$ 1.
held not to preclude retiring partner from plead-
ing firm's dissolution.–Barkley v. Lewis (Sup.) Imposed by municipal ordinances :-

riers," $ 1.

pal Corporations," $ 4.
Facts held to justify a finding that the part- Under contracts, see Damages * {.
nership affairs were settled at its dissolution,
so that an action by a partner for an account: $ 1. Nature and grounds, se
ing, more than 11 years thereafter, was barred

by limitations.-Fellowes v. Johnson (Sup.) 436. Where a statute punishes an :

meanor and also impost's a 1.-

necessary to obtain a concis

for the penalty.-People r. Snje
Covenant of one adjoining lot owner to pay Acquittal in criminal proses
another before making use of a party wall to Laws 1900, p. 66, c. 20, $ 0.
be erected by the latter held not enforceable Civ. Proc. $ 1899, not a bar te
by the latter's grantee.-Schwenker v. Picken ple for penalty, therein presso
(Sup.) 681.

Snyder (Sup.) 415.

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emption of property purchased with pension Conformity of judgment to pleadings,
noney, see "Exemptions," $ 1.

“Judgment,” $ 2.
Harmless error in rulings on, see "Appeal," $ 7.

Objections in lower court for purpose of review,

see "Appeal,” $ 3.
clause in a will, invalid as unlawfully sus. Allegations as to particular facts, acts, or
ling the power of alienation, not essential

he purpose of testator in creating the prior See "Damages,” $ 4; “Judgment,” g 7.
tes. heid not to invalidate them.-Denison Megality of contract, see "Contracts," $ 1.
Denison (Sup.) 604.

Prescriptive right to water supply, see “Wa-
ill construed, and held not to unlawfully ters and Water Courses," 8 2.
end the power of alienation.-Denison v. Statute of frauds, see "Frauds, Statute of," $ 3.
son (Sup.) 601.
ovision of will construed, and held, that in actions by or against particular classes of

of a beneficiary therein took vested re-
ders.-Nichols v. Nichols (Sup.) 719.

See "Landlord and Tenant," $ 6; "Partnership,"

§ 4.
1,-ll construed, and held not to create an il-

accumulation of rents for persons not in Stockholders, see "Corporations,” $ 1.
-Nichols v. Nichols (Sup.) 719.

In particular actions or proceedings.

See "Ejectment,” 8 2; “Forcible Entry and De-

tainer,” § 1; "Libel and Slander," § 2; "Spe-

cific Performance," $ 4.

For malpractice, see "Physicians and Surgeons.”
if particulars, see "Pleading,". $ 6.

For possession of demised premises, see "Land-
d by animals, see “Animals."

lord and Tenant," $ 6.
d by explosion, see "Explosives."

Indictment or criminal information or
d by operation of street railroad, see plaint, see "Indictment and Information."
eet Railroads," $ 1.

In municipal courts, see "Courts," $ 2.
rmity of judgment to pleadings, see “Judg. For price of goods sold, see “Sales," § 4.
t," $ 2.

On bill or note, see "Bills and Notes," $ 5.
yers' liability law as denial of due pro- Proceedings before referee, see "Reference."
of law, see "Constitutional Law," $ 6.
yers' liability law as denial of equal pro- 8 1. Form and allegations in general.
on of law, see “Constitutional Law," $ . Where the allegations of a complaint are
el to allege error in action for, see "Ap- jumbled together, having no relation to each
" $ 5.

other or to one distinct cause of action sought
ce as to damages, see “Damages," 8 4. to be enforced, it cannot be sustained by pick-

ire damages, see “Damages," $ 3. ing out independent allegations having no par-
11. Wess error in action for, see "Appeal," 8 7. I ticular relation to each other.-- Phillips v. So-

i evidence in action for, see "Evidence," nora Copper Co. (Sup.) 200.
-ig damages, see "Damages,” $ 4.

A complaint to enjoin defendant, as presi-
ptions in actions for, see "Evidence," $ 2. Ident of a corporation, from excluding plaintiff
Dertlry of evidence in action for, see "Evi: from his privileges as a member, held not de-
," $ 3.

murrable, though a verring conclusions of law.

-Williamson v. Wager (Sup.) 684.
§ 2.

Au allegation in an answer that “any notes""
loyé on city street, see “Municipal Cor- made by defendant in favor of plaintiff were
ons," $ 5.

procured through willful misrepresentation was
enger, see “Carriers," $ 4; "Ferries,” too general to raise an issue as to the validity of

the notes in question.-Story v. Richardsou
on on or near railroad tracks, see "Rail. (Sup.) 843.

$ 3.
zler on highway, see “Municipal Corpo- 2. Declaration, complaint, petition, or
8 6.

Complaint construed, and held to allege two
causes of action, for ejectment and damages for
withholding possession, and for breach of cove

enant of quiet enjoyment and for eviction,
s for testimony of as affected by pub- which, under Code Civ. Proc. $ 483, must be
cy, see “Contracts," $ 1.

separately stated and numbered.-Rockey
statement of causes of action in ac- Haslett (Sup.) 320.
: malpractice, see “Pleading," $ 2.


post and loyé in general, see “Master and Sery-

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A complaint in an action for malpractice held
laint in an action for malpractice held to state a single cause of action, and not subject
ct to a motion to make it more definite to a motion to separately state and number,
in, under Code Civ. Proc. § 516.- under Code Civ. Proc. § 183.-Brown v. Cady
Cady (Sup.) 939.

(Sup.) 959.

tal in care



120 New York State Reporter
$ 3. Plea or

cross complaint, 1 bearing on the subject matter of the litigation
and affidavit of defense.

under any possible circumstances.-Dinke spiel
Defendant's ownership of a building held ad-v. New York Evening Journal Pub. Co. (Sup.)
mitted under the pleadings.-Keating v. Mott 375.
(Sup.) 1041.

$ 8. Defects and objections, waiver, and
$ 4. Demurrer or exception.

aider by verdict or judgment.
Demurrer to answer, in action to recover for Objection to admission of proof in support
injuries to plaintiff's land by pumping water of counterclaim held not waived by failing to
over adjoining premises, held properly overrul- demur thereto.-Story F. Richardson (Sup.) 893.
ed for insulliciency of the complaint.--George
v. City of New York (Sup.) 610.

Where a defense does not contain new matter,
it is insutficient in law on the face thereof, un- Where stock is bought of brokers on Darzin,
der Code Civ. Proc. 88 194, 500.-George v. City the failure of the purchaser or pledgor to put
of New York (Sup.) 610.

up further margins, after notice to do so. does
§ 5. Amended and supplemental plead- tice of the time and place of a subsequent sale

not excuse the giving to him of reasonable DO-
ings and repleader.
Amendment of complaint held not to change (Sup.) 42.

thereof by the pledgee.-Rothschild v. Allen
cause of action, and hence permissible under
Code Civ. Proc. $723.-Rosseau v. Rouss (Sup.)


An amendment of a complaint, which, in place See “Municipal Corporations," $ 1.
of an allegation of full performance, alleges
performance in part and excuse for nonperform-

ance of the remainder, hold not to change the
cause of action.-Barnum v. Williams (Sup.) See "Constitutional Law,” $ 2.

Of municipality, see “Municipal Corporations,"
Amended complaint in action for injury to

$ 4.
plaintiff's premises from drainage held not to
state new cause of action.-Coyle v. Davidson

(Sup.) 1089.
§ 6. Bill of particulars and copy of ac-

Of insurance, see “Insurance."
In an action against a street railroad to re-

cover for personal injuries inflicted upon a pas-
senger, an objection that plaintiff had filed no See “Constitutional Law," $ 3.
bill of particulars is without merit, where no
order therefor was procured by the defenda nt.
-Kearns y. New York & Q. C. Ry. Co. (Sup.)


See "Adverse Possession."
Defendants held not entitled to a bill of par- As condition to action for partition, see “Parti-
ticulars as to one of the counts in a complaint.

tion," $ 1.
--Gowans v. Jobbins (Sup.) 312.

Of demised premises, see "Landlord and Tel-
In an action for breach of a contract of em- ant,” 8 6.
ployment, plaintiff held entitled to a bill of
particulars.--Engineer Co. v. Senn (Sup.) 1115.

$ 7. Motions.

Where the cause of action alleged was suffi- See “Trusts," $ 1.
cient for defendant to apprehend precisely what Creation by will, see “Wills,” $ 4.
Wus charged, it was improper to eliminate alle-
gations so interwoven with others that to strike

them out would measurably weaken the force
of the facts sought to be stated.-Gowans v. Procedure of particular courts, see “Courts."
Jobbins (Sup.) 312.

Prosecution of actions in general, see **
Counts in a complaint held not consistent, so

tion," & 2.
as to authorize an order for an election between

In particular civil actions or proceedings.
them.-Gowans v. Jobbins (Sup.) 312.

See "Contempt." $ 1; "Divorce," $ 1; "Eject.
In an action for breach of a lease executed by

ment”; “Replerin."
a widow, defendants held entitled to have the Condemnation proceedings, see “Eminent D-
complaint made more definite and certain as to

main," $ 3.
the capacity in which the widow acted, and as

In municipal courts, see "Courts," $ 2.
to whether her authority to act for certain re-
maindermen was in writing or rested in parol. Particular proceedings in actions.
-Rockey v. Haslett (Sup.) 320.

See "Abatement and Revival"; "Contipuance";
Facts pleaded will not be stricken out as ir- “Costs"; "Damages," $ 4; "Dismissal ani
relevant, unless evidence thereof could have no Nonsuit”; “Evidence"; "Execution"; "Judg: 1

ment"; "Limitation of Actions"; "Motions";that of trustee and cestui que trust, plaintiff
"Parties”; “Pleading”; “Process"; "Refer- was entitled to maintain a suit for an account-
ence"; "Trial”; “Venue."

ing.-Jordan v. Underhill (Sup.) 620.
Sonsuit, see "Trial," $ 3.
Revival of judgment, see "Judgment," $ 6.

That an agent had rendered full accounts of

his acts as such to his principal did not pre-
Particular remedies in or incident to actions.

clude her from maintaining a suit for an ac-
see "Attachment”; “Injunction"; "Receivers”; ther account would be vexatious.-Jordan v.

counting, on the ground that to require a fur-

Underhill (Sup.) 620.
Procedure in criminal prosecutions.

8 3. Rights and liabilities as to third
See "Criminal Law.”

Procedure in exercise of special jurisdictions. Where goods were delivered on the order of
n bankruptcy, see “Bankruptcy,” $ 1.

defendant's son, where she was conducting a
equity, see "Equity.”

business in her son's name, she was liable there-

for.-Ernst v. Harrison (Sup.) 247.
Procedure on review.

In action to dispossess a tenant for nonpay-
ee "Appeal”; “Justices of the Peace," § 1; ment of rent, a payment of the rent to the jani-
"New Trial."

tress held payment to the landlord.-Gross V.

Owen (Sup.) 266.

In an action to recover the price of coal,
fround for reversal in civil actions, see "Ap-thority of plaintiff's agent, the question is for

where the evidence is conflicting as to the au-
peal," § 7.

the jury.-Williams v. Brandt (Sup.) 389.

ee “Injunction," § 1.

See “Guaranty."

Actions by sureties of personal representatives

for accounting, see "Executors and Adminis-
icquisition of rights, see "Adverse Posses- trators,” $ 4.
sion," § 1; “Waters and Water Courses,” 8 2. Bonds of liquor dealers, see "Intoxicating Liq-

uors," 8 1.

Liabilities of sureties on bonds for payment of

alimony, see "Divorce," $ 2.
o civil actions, see “Evidence," g 2.

Liabilities of sureties on bonds for performance

of duties of trust or oflice, see "Executors
in appeal, see “Appeal," $ 5.

and Administrators," $ 5.

Liabilities of sureties on bonds of municipal

contractors, see “Municipal Corporations," § 3.
ee "Criminal Law," $ 2; "Homicide," $ 1.

§ 1. Remedies of creditors.

The burden is on a plaintiff, suing a surety,

to show that she herself has not been guilty of

anything altering the surety's position, taken

when he gave the undertaking.–Stendal v, Ack-
ee "Attorney and Client”; “Brokers."

erman (Sup.) 468.
dmissions by agent, see "Evidence," $ 5.
gency of wife for husband, see "Husband and
Wife," $ 1.

isurance agents, see "Insurance," $ 2.
iability of liquor dealer for acts of agent, see Rights of way, see "Ea sements."
“Intoxicating Liquors," $ 1.
unicipal agents, see “Municipal Corporations,"
$ 1.

endency of action for determination of value
of agent's services as bar to action against | Effect on limitation, see “Limitation of Ac-
agent for accounting, see “Abatement and Re-

tions," § 1.
vival,” g 1.
1. The relation.

Defendant held estopped to deny authority of
presentative to act for it.-Stearns v. Shepard Of will, see “Wills,” $ 3.
Morse Lumber Co. (Sup.) 391.
2. Mutual rights, duties, and liabili.

Where it had been previously held that the
lation between plaintiff and defendant was Of insurance policy, see "Insurance," $ 9.

and 120 New York State Reporter

In actions against particular classes of parties. Of injury in general, see "Negligence." § 2
See "Corporations," $ 3.

Of injury to passenger, see "Carriers," ģ
Foreign insurance companies, see "Insurance,"
$ 1.

In particular actions or proceedings. Of notice of divorce proceedings, see "Dirorce,"
See "Divorce," $ 1.

8 1.
Particular forms of writs or other proce88.

See “Execution”; “Injunction"; "Mandamus”; See “Municipal Corporations," $ 7.

§ 1. Nature, issuance, requisites, and PUBLIC IMPROVEMENTS.

A defect in summons held such that court ac- By municipalities, see "Municipal Corpont-
quired no jurisdiction.-Mutual Alliance Trust

tions," § 3.
Co. v. Greenberger (Sup.) 729.
§ 2. Service.

That a summons, served otherwise than as
prescribed by statute, reached the defendant, See "Schools and School Districts," 1
does not render the service valid.-Eisenhofer v.
New Yorker Zeitung Publishing & Printing Co.

(Sup.) 438.
§ 3. Defects, objections, and amend- Dedication of property, see “Dedication."

Taking property for public use, see "Eminest
In an action against an individual on a con-

tract between plaintiff and a firm of which de-
fendant was a member, an amendment to the

summons by inserting the name of the other
partner as a defendant held properly denied.- See “Penalties."
Holmes v. Daniels (Sup.) 19.

For contempt in supplementary proceedings,

see "Execution," § 1.

or traffic in intoxicating liquors, see "Intoxi-
cating Liquors."

See “Work and Labor."

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See “Animals"; "Fish”; “Trade-Marks and 1. Right of action and defenses.

A person may maintain equitable suit to
Adverse possession, see "Adverse Possession."

move a cloud from title, if he is in actual per
Constitutional guaranties of rights of proper- session.-Mitchell v Einstein (Sup.) 739.
ty. see "Constitutional Law," $ 6.

An action to determine claims to real estate
Dedication to public use, see “Dedication." under Code Civ. Proc. $ 1638, may be paint
Licenses in respect to real property, see "Li-ed on proof of legal title.- Mitchell v. Einstead
censes," $ 2.

(Sup.) 759.
Taking for public use, see "Eminent Domain."


See “Street Railroads."

As employers, see "Master and Serrant."
Words charging keeping house of, as slanderous Carriage of goods and passengers, see ta*
per se, see “Libel and Slander," $ 1.


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