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1. Right of way and other interests in actions for alimony, see “Divorce,” s 2.
in land.

Liability of receiver appointed in state court
I city held to have had authority to revoke to account to trustee in bankruptcy, see
rmission granted a railroad to lay its tracks "Bankruptcy," $ 1.
a certain street. Railroad Law, Laws 1850, Of foreign corporations, see “Corporations,"
224, c. 140. $ 28, subd. 5; Oswego City Char- $ 6.
f. Laws 1518, p. 103, c. 116,5 14.-Dela-
ire, L. & W. R. Co. v. City of Oswego (Sup.) 3 1. Management and disposition of


Approval of Attorney General, required by
Facts held to warrant a finding that a rail-Laws 1902, p. 114, c. 60, $ 4, for contract by
ad company had abandoned its rights to lay receiver employing attorney, held to go to com-

tracks in a certain street.-Delaware, L. & pensation, and not to expediency of employ,
: R. Co. v. City of Oswego (Sup.) 1027.

ment, so that the Attorney General's approval
2. Construction, maintenance, and

of a contract not specifying compensation could

not be compelled. - Candee v. Cunneen (Sup.)
Cnder Laws 1897, c. 499, commissioner ap-

inted to superintend the improvement of At- & 2. Actions.
itic avenue held not entitled to recover for

One whose private property was mistakenly
compensation against railroad companies, in turned over to a receiver of a corporation should
e absence of any showing that his claim was have obtained relief by application to the court,
er passed upon by the board of commission-

or bave obtained leave to sue the receiver.-
3.-Linton v. Long Island R. Co. (Sup.) 903. Case v. Duffy (Sup.) 778.
3. Operation.

§ 3. Accounting and compensation.
The question of whether a plaintiff in a per- Receiver in state court of a firm held entitled
nal injury action against a railroad company to settlement of his accounts, where firm is ad-
ed that degree of care and caution in apijudicated bankrupt, and assets are turned over
oaching the railroad tracks which he should to receiver in bankruptcy.-Bloch v. Bloch
ve done is for the jury.-Wood v. New York (Sup.) 1047.
int. & H. R. R. Co. (Sup.) 817.
In an action against a railroad for the neg-

ent killing of a pedestrian at a crossing, evi-
ince held insufficient to show deceased free Defense to prosecution for removing public
om contributory negligence.- Meinrenken v. records from office, see "Criminal Law," 8 1.
ew York Cent. & H. R. R. Co. (Sup.) 1075.

Harmless error in prosecution for removing

public records from office, see Criminal

Law," $ 5.
Judicial records as evidence, see “Evidence,”

$ 6.
facts of corporate officers, see "Corporations," of judgment, see "Judgment," $ 3.

f city contract, see "Municipal Corporations,"

Transcript on appeal, see "Appeal,” $ 4.
$ 2.

On charge of attempt to remove indictments
f release, see "Release."

of accused's friend from a public office, evidence

of proceedings against the friend held compe-

tent.–People v. Jills (Sup.) 529.

One who secured indictments by bribing dis-
2 "Ejectment"; "Forcible Entry and Detain-trict attorney's oflice held to bave violated Pen.
er," $ 1.

Code, $ 94, prohibiting removal of papers from

public office.- People v. Mills (Sup.) 529.

Evidence held to authorize finding that accused

| attempted to bribe district attorney's office to
ee “Brokers."

deliver to him indictments of a friend.-People

v. Mills (Sup.) 529.

de "Criminal Law," $$ 3, 4.

By dispossessed tenant, see “Landlord and Ten-

ant," 8 6.

From tax sales, see “Taxation," $ 6.
'istinguished from release, see "Release," $ 1.
ffect of receipt in full, see "Accord and Sat-


In divorce proceedings, see "Divorce," § 1.

$1. Referees and proceedings.
ontrol by mandamus of attorney general's ap- A referee held subject to removal for discuss-
proval of receiver's contract for employmenting the facts with a witness in the absence of
of attorney, see “Mandamus," $ 1.

counsel.--Smith v. Dunn (Sup.) 307.

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120 New York State Reporter
An amendment of a complaint by a referee held

made at the trial, though motion therefor was
not decided on the day it was made.-Barnum Of cause on appeal, see "Appeal," $ &
v. Williams (Sup.) 821.
An application for leave to amend a com-

plaint, in an action by an assignee of a claim,
held to make a sufficient showing.-Barnum v. Effect on jurisdiction of equity, see “Specifie
Williams (Sup.) 821.

Performance," $ 1.
A motion before a referee, on the day agreed
on by the parties as the first day for hearing

the reference, held made at the beginning of the
trial, and not before it.-Barnum v. Williams Of cause on appeal, see "Appeal," $ 8.
(Sup.) 821.
$ 2. Report and findings.

The court at Special Term has no power to
review, on motion, action of the referee in al- of officer of fire department, see “Municipal
lowing an amendment of the complaint.-Bar- Corporations," $ 1.
num v. Williams (Sup.) 821.

Of referee, see "Reference," $ 1.

§ 1. Right of action and defenses.

Change of venue or place of trial, see "Venue,"
Facts held to require reformation of a quit-

$ 2.
claim, so as to except a covenant against use
of the premises for saloon purposes.-Uihlein

V. Matthews (Sup.) 924.

See "Quieting Title."
& 2. Proceedings and relief.

A complaint to reform a mortgage of cor-
porate property held insuficient.--Trust Co. of

New York v. Universal Talking Mach. Co.
(Sup.) 60.

See “Landlord and Tenant," $ 5.

Authority of agent to receive, see "Principal

and Agent," $ 3.

Illegal accumulation, see "Perpetuities."
See “Records."


Of highway, see "Highways," $ 2.
See "New Trial."


Of premises demised, see "Landlord and Ted-
See “Corporations,” g 4.

ant," $ 4.
Jurisdiction of municipal courts, see “Courts,"

$ 2.

Review of excessive verdict on appeal, see
See “Accord and Satisfaction"; "Payment.”

“Appeal," $ 6.
$1. Requisites and validity.

f 1. Right of action and defenses.
Writing held a release from contract liability,

One who obtained lawful possession of arti-
and not merely a receipt.- Cammarata v. Penn:cles used in constructing his building held Dot
sylvania Coal Co. (Sup.) 787.

liable therefor in replevin, brought after be soli

the building.-Murray v. Lese (Sup.) 581.
In an action on a contract, in which plaintiff
claimed that a release had been executed under & 2. Pleading and evidence.
duress, failure to return money received when

Defendants in replerin held entitled to ask
release was executed held a ratification of the questions of plaintiff, to show that the articles
release.--Cammarata v. Pennsylvania Coal Co. were some that had been paid for.-Murray F.
(Sup.) 787.

Lese (Sup.) 581.

Of evidence in civil actions, see "Evidence," For instructions to jury in civil actions, se

"Trial," $ 4.

Restrictions on creation of future estates, see

See "Judgment," $$ 4, 5.

RESTRAINT OF TRADE. der, there was no contract.-E. Bement & Sons

v. Rockwell (Sup.) 876.
lists and other combinations, see “Monop- Sale of personalty on credit held induced by
lies," $ 1.

the fraudulent representations of the buyer as

to his solvency.--Fitchard v. Doheny (Sup.)

e "Taxation."

Sale of personalty held induced by fraudulent

misrepresentations of the buyer to a commer-

cial agency.-Pier Bros. v. Doheny (Sup.) 971.

In an action to recover property alleged to
property dedicated to public use, see "Dedi- have been sold on credit, in reliance on false

representations to a commercial agency as to

the solvency of the purchaser, evidence con-
sidered, and held to show that the agency had,

at the time the false representations were made,
e "Appeal”; “Criminal Law," $ 5; “Justices no knowledge of certain_unsatisfied judgments
of the Peace," § 1.

against the purchaser.-Pier Bros. v. Doheny

(Sup.) 971.

$ 2. Performance of contract.

Plaintiff held entitled to recover the purchase
: judgment, see "Judgment," $ 6.

price of a machine sold to defendant.-Gold-

stein v. Hochberg (Sup.) 11.

Cash payment for goods sold held waived by

delivery.-Albert v. R. Lewis Steiner Mfg. Co.
[ licenses, see "Licenses," $$ 1, 2.

(Sup.) 162.
f liquor license, see “Intoxicating Liquors,"
$ 1.

In action for price of 11 volumes of set of 12

books, plaintiff held entitled to recover.-James

T. White & Co. v. Corbin (Sup.) 216.
de "Easements.”

§ 3. Warranties.
etween street railroad cars and pedestrians, approval of fire department, defendant held not

In an action for the price of hose, subject to
see “Street Railroads." § 1.

liable, though the hose had not been rejected.
f railroads, see "Railroads," $ 1.

Eureka Fire Hose Co. v. Reynolds (Sup.) 753.

Representation that eggs sold were "faucy
selected eggs in storage" held to be a warranty.

-Egbert v. Hanford Produce Co. (Sup.) 1118.
ssumed by employé, see “Master and Sery-
ant," 8 2.

Buyer of eggs on warranty as to quality held
Within insurance policy, see "Insurance,” $ 5. entitled to them iu separate lots, and to rely on

the warranty.-Egbert v, Hanford Produce Co.

(Sup.) 1118.

§ 4. Remedies of seller.
ee "Highways."

Seller, who sold goods which buyer refused
treets in cities, see "Municipal Corporations," to accept, was entitled to recover as damages
88 5, 6.

difference between contract price and that for

which goods sold.--Blick v. l'abian (Sup.) 207.

In an action to recover a balance due for

goods sold, the direction of a verdict for plain-
Orders, see "Motions."

tiff for the amount claimed held error.–Coons

v. Sanguinetti (Sup.) 367.

In an action to recover the price of coal, where

the evidence is conflicting as to the person who
lee "Vendor and Purchaser."

made the sale, the question is for the jury.-

Williams v. Brandt (Sup.) 389.
Documentary evidence in action for price of
goods, see "Evidence," $ 6.

Where, in an action for the price of goods
f intoxicating liquors, see "Intoxicating Liq. sold, the complaint fails to allege either indebt-

edness or nonpayment, it is demurrable.-Don-
f pledge, see "Pledges."

ald v. Gearhardt (Sup.) 598.
In foreclosure of mortgage, see “Mortgages," Evidence, in an action for price of goods sold,
$ 2.

held insufficient to show liability for the amount
Presumptions in action for price of goods, see of the recovery. – Jefferson Bank v. Gossett
"Evidence," $ 2.

(Sup.) 752.
1 1. Requisites and validity of

Pleadings in action by materialman against

grantee of wife, on agreement to assume hus-
Where defendant ordered goods for future de band's liability for lumber furnished for build-
ivery, but before acceptance canceled the or- ings on wife's premises, held to permit plain-




120 New York State Reporter
tiff to show that some of the lumber was used | tee, in the absence of vacation of office by him.
in constructing the buildings after the husband-School Dist. No. 23 of Town of Mooers T.
deeded the premises to the wife.- Hurd v. Wing Raymond (Sup.) 182.
(Sup.) 307.

Where there is no effort or purpose on the
8 5. Remedies of buyer.

part of school districts to have a new one ere-
In an action for the price of hose warranted ated therefrom, the election of a trustee of such
to pass the fire department inspection, the bur- new district should not be recognized, unless
den held on plaintiff to show that certain re-

the proceedings under which it is done are
quirements of the department were merely nom- strictly those required by Consolidated School
inal.-Eureka Fire Hose Co. v. Reynolds (Sup.) Law. Laws 1894, p. 1181, c. 336.-School Dist.

No. 23 of Town of Mooers v. Raymoud (Sup.)

Purchaser of a corn-husking machine, injured

Under Laws 1894. p. 1207, c. 556, tit. 6, § 2.
while using it, owing to a defect therein, held
not entitled to recover on a warranty made by providing for the alteratiou' of school districts
the seller.-Birdsinger v. McCormick Harvest by the school commissioner, an effort to re-create

a dissolved district, without obtaining consent
ing Mach. Co. (Sup.) 781.

of trustees of affected districts, was inopera-
Rule for measure of damage for breach of tive, and consequent election of trustees oi no
warranty as to quality on sale of eggs stated. effect.--School Dist. No. 23 of Town of Mooers
-Egbert v. Hanford Produce Co. (Sup.) 1118. v. Raymond (Sup.) 182.

On conflicting evidence, breach of warranty Under Code Civ. Proc. $ 2236, providing for
as to quality of eggs sold held to be question for summary proceedings for possession of laad,
jury:- Egbert v. Hanford Produce Co. (Sup.) the lawfully elected trustee of a school district

is the proper person to maintain such proceed-

ings for district property, under Laws 1894, P.
6 6. Conditional sales.
The seller of goods held estopped from assert- or Town of Mooers v. Raymond (Sup.) 182.

1227, c. 556, tit. 7, § 47.-School Dist. No. 33
ing a condition reserving title until paid, as
against a subsequent purchaser.-Albert v. R.
Lewis Steiner Mig. Co. (Sup.) 162.

The question of waiver of the condition re-on certified copies offered in evidence, see "Evi.
serving title in the seller held a question of fact
for the court.--Albert v. R. Lewis Steiner Mfg.

dence," $ 6.
Co. (Sup.) 162.

The failure of the record of a deed to shor
Plaintiff, in an action for conversion of a

the presence of a seal is not affirmative eri.
piano, which defendant took from H., may, to dence of the absence of the seal from the deed.
show title, introduce a conditional bill of sale --Dana v. Jones (Sup.) 1000.
to H. from him.-Schleicher v. Wirth (Sup.) 205.


In civil actions, see “Evidence," § 4
See “Accord and Satisfaction"; "Payment";


As justification of assault, see "Assault and

Battery," $ 1.
See “Banks and Banking,” $ 3.

As justification of homicide, see “Homicide,"

8 2.

Evidence, see "Homicide," $ 3.
SCHOOLS AND SCHOOL DISTRICTS. Harmless error in instruction as to, see "Homi-

cide," § 5.
$ 1. Public schools.
Laws 18994, p. 1211, c. 536, tit. 7. & 9, relative

to notice of meetings to transact business of an
annual meeting of school districts, held not to See "Husband and Wife," $ 3.
apply to abandoned districts.-School Dist. No.
23 of Town of Mooers v. Raymond (Sup.) 182.

Under Laws 1894, p. 1210, c. 5.56, tit. 7. $$
1, 2, notice of time and place for first meeting of process, see “Process," $ 2.
of a school district must be a six-day notice
in writing, prepared by the commissioner him-
self and delivered to the voter who is to serve

the same.-School Dist. Vo.. 233 of Town of See "Master and Servant," § 1; “Work and
Mooers v. Raymond (Sup.) 182.

Where a school district was regularly dis-
solved, trustee at time of dissolution continued

in office, under Laws 1891, p. 1209, c. 5.36, tit.
6, § 12, and another could not be elected trus- See "Easements."

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SET-OFF AND COUNTERCLAIM. plaintiff, as required by the contract.-Interna-

tional Paper Co. v. Hudson River Water Pow-
Det off of claim for taxes paid for benefit of er Co. (Sup.) 736.
third person

as against claim against such $ 3. Good faith and diligence.
third person, see "Taxation," $ 4.

An offer in good faith to pay the price, being
Waiver of objections as to proof of, see “Plead- refused, authorizes an action for specific per-
ing," $ 8.

formance.- Murray v. Harbor & Suburban
1. Subject-matter.

Building & Savings Ass'n (Sup.) 799.
Under Code Civ. Proc. & 501, defendant could $ 4. Proceedings and relief.
not counterclaim, to action on notes given for In an action for specific performance, with
purchase of stock, damages for false represen- an abatement for defect in title, certain words
ations, inducing defendant to advance money held to qualify the description sufficient to obvi-
o the corporation whose stock he bought.- ate plaintiff's objection as to a fragment pre-
Story y. Richardson (Sup.) 813.

viously conveyed.--Felix v. Devlin (Sup.) 12.

In an action for specific performance, with an

abatement for defect of title, an allowance of

interest on the purchase price from the date of
See “Accord and Satisfaction"; "Account Stat- sale veld improper, where plaintiff was
ed"; "Payment"; "Release.

pelled to accept the title; the rents in the
By executor or administrator, see "Executors meantime having gone to defendants.-Felix v.
and Administrators," § 4.

Devlin (Sup.) 12.
arriage settlements, see "Husband and Wife," Alternative relief of specific performance or
8 2.

rescission of a contract may be demanded in the

same action.-International Paper Co. v. Hud-

son River Water Power Co. (Sup.) 736.

In action in equity, where accounting is in-
1. Powers, duties, and liabilities. volved, offer to perform obligations by party
In an action for damages growing out of the bringing the action held sufficient.--Internation-
alleged wrongful levy of an execution, instruc- al Paper Co. v. Hudson River Water Power Co.
tions held erroneous for failure to explain with (Sup.) 736.
sufficient clearness the nature of the action.-

A general statement, in complaint in action
Goldstein v. Abramson (Sup.) 30.

for specific performance, that there is no ade-

quate remedy at law, held unnecessary.-Inter-

national Paper Co. v. Hudson River Water
See “Ferries."

l'ower Co. (Sup.) 7:36.

Where specific performance or rescission of a

contract is sought, one affected only by rescis-

sion held proper party defendant.-International

Paper Co. v. Hudson River Water Power Co.
See "Libel and Slander."

(Sup.) 736.

Trust company, holding funds involved in a

transaction between the parties, held a proper

party defendant in an action by one to enforce
See “Associations."

specific performance.-International Paper Co.

1. Hudson River Water Power Co. (Sup.) 736.

Trust company, to which corporation had

mortgaged land, held proper party defendant in
$ 1. Nature and grounds of remedy in action for specific performance of the contract

by the corporation to convey the land. --Interna-
A company held to have no adequate remedy tional Paper Co. v. Hudson River Water Pow-
at law for breach of a contract to convey to it er Co. (Sup.) 736.
land to develop a water power.-International
Paper Co. v. Hudson River Water Power Co.

(Sup.) 736.

Complaint held not to state a case for equita- See "Intoxicating Liquors."
ble relief.-Gilbert v. Bunnell (Sup.) 1123.
$ 2. Contracts enforceable.

In an action for specific performance, with an
abatement for defective title, held, that plaintiff Operation and effect of judgment as bar to
should be relieved from the purchase of the subsequent action, see "Judgment,” 8 4.
land, the title to which was objected to; the
case presented showing reasonable doubt as to

the title and the absence of the party in whom
the outstanding right was vested.-Felix v. Dev-By witness inconsistent with testimony, see
lin (Sup.) 12.

"Witnesses," $ 3.
Contract held sufficiently definite to authorize Of case or facts for purpose of review, see
equitable relief for failure to convey land to “Appeal," $ 4.

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