Under section 232 of the tax law, as amended by Laws 1901, p. 380, c. 173, the Appellate Fee of highway, see "Highways," § 1. Division, on appeal from the Surrogate's Court, cannot consider questions for reversal not specified in the notice of appeal to the surrogate.Miller v. Tracy (Sup.) 1024.

Of tenancy, see "Landlord and Tenant," §§ 2, 3. Liability for repairs of highways, see "High

and 120 New York State Reporter

§ 2. Infringement and unfair competition.

A manufacturer will be restrained from using a label in imitation of the label of another manufacturer of the same product.-Roncoroni v. Gross (Sup.) 1112.

TRANSCRIPTS.

As evidence, see "Evidence," § 6.

TRANSFERS.

For damages for wrongful levy, see "Sherifs and Constables," § 1.

For injuries due to defective premises, "Landlord and Tenant," § 4.

For injuries to horse on village street, see "Municipal Corporations," § 6.

For injuries to vehicle caused by operation of
street railroad, see "Street Railroads." $ 1.
For negligence of carrier, see "Carriers," § 2.
For personal injuries, see "Carriers.” § 4;
"Electricity"; "Master and Servant," § 3;
"Street Railroads," § 1.

For price of goods sold, see "Sales," § 4.
For rent, see "Landlord and Tenant," § 5.

Duty of street railroad to furnish, see "Car- On note, see "Bills and Notes," § 5.
riers," § 3.

TRANSFER TAX.

See "Taxation," § 7.

TRESPASS.

Trial of criminal prosecutions.
See "Criminal Law," § 4; "Homicide," § 4.

81. Dockets, lists, and calendars.

Under Code Civ. Proc. § 977, where plaintiff noticed the case for trial and placed the same on the October term calendar, defendants were not entitled to notice it for the succeeding De

Commission of, as element of larceny, see "Lar- cember term and on such notice base an applceny," § 1.

§ 1. Acts constituting trespass and liability therefor.

A person who by blasting rock breaks a water pipe, from which water escapes and flows onto the premises of another, causing damage, is liable as a trespasser.-Wheeler v. Norton (Sup.) 1095.

§ 2. Actions.

cation for preference.-Montgomery v. Daniel (Sup.) 344.

Where complaint seeks equitable relief, but shows cause for a remedy at law, it is error to dismiss the complaint; but it should be placed on the law calendar.-Gilbert v. Bunnell (Sup.) 1123.

§ 2. Reception of evidence.

In an action on an account stated, defendant's exceptions, taken to evidence. held to sufficiently raise question of its admissibility.

Grantee of land, having notice of existence of a parol license to lay mains therein, held en--Baker v. Griffin (Sup.) 579. titled to sue for continuing_trespasses and recover nominal damages.-Jayne v. Cortland Waterworks Co. (Sup.) 571.

TRESPASS TO TRY TITLE.

See "Ejectment."

TRIAL.

See "New Trial"; "Reference"; "Witnesses."
Authority of agent as question for jury, see
"Principal and Agent," § 3.

Contributory negligence of passenger as ques-
tion for jury, see "Carriers," § 5.
Harmless error in instructions, see "Homicide,"
§ 5.

Proceedings incident to trials.

See "Continuance."

Refusal of the court to strike out answers of a witness to questions, not objected to before acswer, held a proper exercise of discretion.— Pescia v. Societa Co-operativa Corleonese Francesco Bentivegua (Sup.) 952.

The granting of a motion to strike out testimony, not objected to before the questions asked had been answered, is within the discretion of the court.-Pescia v. Societa Co-operativa Corleonese Francesco Bentivegna (Sup.) 952.

3. Taking case or question from jury. In an action for wages, plaintiff's evidence held sufficient to require submission to the jury, even though the trial justice were of opinion that any verdict for plaintiff should be set aside.-McCrystal v. O'Neill (Sup.) 84.

A direction of a verdict held equivalent to a nonsuit because of insufficiency of the evidence. -Romaine v. New York, N. H. & H. R. Co.

Entry of judgment after trial of issues, see (Sup.) 248. "Judgment," § 2.

Place of trial, see "Venue," § 2.

Trial of particular civil actions or proceedings. See "Divorce," § 1; "Money Lent"; "Negligence," § 4.

Against savings bank, see "Banks and Banking," § 3.

For breach of duty by attorney, see "Attorney and Client." § 2.

For breach of warranty, see "Sales," § 5.

On appeal from a judgment dismissing a complaint, held, that every material issue must be resolved in plaintiff's favor.-Kennedy v. White (Sup.) 852.

§ 4. Instructions to jury.

No error can be predicated on instructions which, if standing alone, are subject to criticism, but which are correct, if considered with the instructions as a whole.-Allison v. Long Clove Trap Rock Co. (Sup.) 833.

A request to charge should be complete in exercise the power, on the other renouncing his
itself, and a refusal of the court to charge a office. In re Wilkin (Sup.) 360; In re Cunning-
request which does not state the law correctlyham's Estate, Id.
is not error.-Frank v. Metropolitan St. Ry.
Co. (Sup.) 1018.

It is not error to refuse a requested instruc-
tion fully covered by the court's charge.-Keat-
ng v. Mott (Sup.) 1041.

5. Trial by court.

Where there was a conflict of evidence, suffi-
cient, had there been a jury, to require sub-
mission of the case, the jute of the Municipal
Court had no power to grant a nonsuit.-Weis-
berger v. Martin (Sup.) 115.

Facts held insufficient to support a finding sus-
taining the termination of a spendthrift trust as
a proper exercise of the trustee's discretion.-
In re Wilkin (Sup.) 360; In re Cunningham's
Estate, Id.

Will construed, and held to give the shares of
a life beneficiary, dying and leaving issue, to
such issue immediately on the death of the
parent.-Denison v. Denison (Sup.) 604.

Will construed, and held to create a valid ex-
press trust.-Nichols v. Nichols (Sup.) 719.

Unsigned opinion by trial court held not a
Sufficient compliance with Code Civ. Proc. §§
1022, requiring decision by court.-Kent v. Com-
mon Council of City of Binghamton (Sup.) 411.

TROVER AND CONVERSION.

Examination of witnesses, see "Witnesses,"
§ 2.
Harmless error in action for, see "Appeal," § 7.
Jurisdiction of municipal courts as to action
for conversion of mortgaged goods, see
"Courts." § 2.

Right of assignee of stock to sustain action for
conversion of, see "Assignments," § 2.
Wrongful conversion by broker, see "Brokers,"
§ 1.
Wrongful conversion of property held under
conditional contract of sale, see "Sales," § 6.
§ 1. Actions.

Evidence in an action for conversion of a
piano held to sufficiently identify it to prevent a
nonsuit.-Schleicher v. Wirth (Sup.) 265.

Measure of plaintiff's damages in action for
conversion, where defendant returned property
prior to trial, stated.-Flagler v. Hearst (Sup.)

308.

2. Construction and operation.
Rights of judgment creditor in property held
by trustee under a will for the benefit of the
judgment debtor determined.-Marshall v. Unit-
ed States Trust Co. (Sup.) 617.

The fact that the trustees under a will were
also among the beneficiaries did not incapaci-
tate them.-Nichols v. Nichols (Sup.) 719.

Discretion under express trust for support of
testatrix's brother held not terminated by the
death of trustee.-Button v. Hemmens (Sup.)
829.

§ 4.

Management and disposal of trust

property.

Code Civ. Proc. § 2818, as amended by Laws
1903, p. 732, c. 370, held not to validate the
exercise of a power delegated to two trustees
by one of them, after the other had renounced,
prior to the amendment.-In re Wilkin (Sup.)
360; In re Cunningham's Estate, Id.

Trustee held not liable, on unauthorized loans,
for more than the amount of interest received,
where it was the going rate. In re Rowe (Sur.)

253.

Expense of legal services to executor and
trustee apportioned between the estates bene-
fited.-In re Rowe (Sur.) 253.

5. Execution of trust by trustee or by

One to whom coupons were turned over as re-
ceiver of a corporation cannot be held liable
for their conversion, without a demand for their
return and refusal.-Case v. Duffy (Sup.) 778.
Where a father took possession of his son-in-§
law's furniture without the latter's consent, the
fact that he did so to protect the wife from
Discretion which vests in the court, on admin-
supposed ill treatment was no justification.-istration of trust fund after decease of trustee,
Heyert v. Reubman (Sup.) 797.

Where possession of personalty is wrongfully
taken, no demand for its return is necessary,
to maintain conversion.-Heyert v. Reubman
(Sup.) 797.

TRUSTS.

Combinations to monopolize trade, see "Mo-
nopolies," & 1.

Fiduciary relation between principal and agent
giving right to accounting, see "Principal and
Agent." § 2.

Trust deeds, see "Chattel Mortgages"; "Mort-
gages.'

1. Creation, existence, and validity.
Where a will delegated a power to two trus-

court.

to pay principal to cestui que trust, held ex-
ercisable only on evidence of necessities of ces-
tui que trust.-Button v. Hemmens (Sup.) 829.
§ 6. Accounting and compensation of

trustee.

Bequest to executors in lieu of commissions
held to preclude him from accepting commis-
sions from the estate.-In re Rowe (Sur.) 253.

ULTRA VIRES.

See "Corporations," § 3.

UNDISCLOSED AGENCY.

tees jointly, one of them had no authority to See "Principal and Agent," § 3.

86 N.Y.S.-77

and 120 New York State Reporter

UNFAIR COMPETITION.

See "Trade-Marks and Trade-Names," § 2.

§ 1. Requisites and validity of contract. A deed absolute in form, but in fact a mortgage, with an option to buy, and a subsequent notice to the owner of exercise of the option,

with a statement of the owner that she released the land, held not sufficient to constitute a sale, so as to authorize recovery of the consideration.-Reich v. Dyer (Sup.) 544.

§ 2. Construction and operation of contract.

Executory contract for the sale of real estate construed.-Carpenter v. Hewitt (Sup.) 566.

3. Performance of contract.

Loose and indefinite knowledge as to the title possessed by the agent of the purchaser at a

Bona fide purchasers held protected against the claim of former owner of property on account of purchase thereof by her guardian in socage.-Cahill v. Seitz (Sup.) 1009.

VENUE.

§ 1. Domicile or residence of parties. Where an action was brought in the county where plaintiff resided, the venue was properly laid.-Hirshkind v. Mayer (Sup.) 836.

§ 2. Change of venue or place of trial. A change in the place of trial will not be ordered for convenience of witnesses alore, where the change is from a rural county to the county of New York.-Hirshkind v. Mayer (Sup.) 836.

Facts in a libel suit held to require change of venue to the county where the paper was published.-Woolworth v. Klock (Sup.) 1111.

judicial sale could not destroy the force and See "Municipal Corporations."
effect of a subsequent contract.-Felix v. Dev-
lin (Sup.) 12.

Irregular payments on a contract of sale of land having been received without objection, the parties will be considered as treating time as not of the essence of the contract.-Murray v. Harbor & Suburban Building & Savings Ass'n (Sup.) 799.

§ 4.

VINEGAR.

Imitations of, see "Food."

Laws defining adulteration of as unjust dis crimination, see "Constitutional Law," § 4. Partial invalidity of laws relating to, see "Statutes," § 1.

WAGES.

Rights and liabilities of parties. A judgment roll in foreclosure held not to impose on grantees of the purchaser the duty See "Master and Servant," § 1. of ascertaining that such purchaser was incapacitated to buy at the sale, because of his guardianship in socage of the owner.-Cahill v. Seitz (Sup.) 1009.

The fact that the paternal uncle of an infant, with whom she was living, bid in her property at a foreclosure sale, was not sufficient to excite inquiry as to any impropriety in his conduct in purchasing the property.-Cahill v. Seitz (Sup.) 1009.

Issue of bona fide purchasers is not to be determined by whether the purchaser could have ascertained defects, but whether he acted with ordinary prudence.--Cahill v. Seitz (Sup.) 1009.

See "Estoppel."

WAIVER.

Of objections to particular acts or proceedings.
See "Pleading," § 8.
Erroneous delivery of goods by carrier, see
"Carriers," § 2.
Jurisdiction in attachment, see "Attachment,"
§ 3.

Of rights or remedies.
Appraisal of loss within insurance policy, see
"Insurance," $ 8.

Measure of damages in action for using
pumps, exhausting the water on plaintiff's land,
held diminution in the rental value of the land.
-Reisert v. City of New York (Sup.) 576.

WEIGHTS AND MEASURES.

Municipal regulations, see "Municipal Corpora-
tions," § 4.

WIDOWS.

Dower, see "Dower."

WILLS.

See "Descent and Distribution"; "Executors and

Administrators."

Admissions by devisees as evidence, see "Evi-
dence," § 5.

Construction
"Trusts."

and execution of trusts, see
Legacy and succession taxes, see "Taxation,"
§ 7.

Restrictions on perpetuities, see "Perpetuities."

1. Contracts to devise or bequeath.

Recital of consideration in instrument by
which testatrix agreed to leave money to claim-
ant held sufficient to support promise, in ab-
sence of evidence of want of consideration.-In
re Steglich's Estate (Sup.) 257.

Support of husband by wife held sufficient
consideration to support agreement of husband's
mother to leave money to wife.-In re Steglich's
Estate (Sup.) 257.

§ 2. Requisites and validity.

A will could not be adjudged invalid, on the
ground that testator attempted to devise prop-
erty which he did not own, or that he intended
to make an equal distribution, which by the
Owner of farm injured by pumping system failure of title could not be rendered effectual.
of city held entitled to recover for injury to-Beetson v. Stoops (Sup.) 332.
the productive capacity of his farm.-Dinger v.
City of New York (Sup.) 577.

2. Appropriation and prescription.
In action against city for injuries to plaintiff's
land by pumping driven wells on adjacent prop-
erty, answer held not to plead prescriptive right
based on adverse user.-George v. City of New
York (Sup.) 610.

§ 3. Ice.

One obtaining license from the state to cut
ice on state canal basin held to acquire an ex-
clusive right thereunder.-Green Island Ice Co.
v. Norton (Sup.) 613.

Temporary injunction will be granted in case
of litigation and acts of violence resulting
from permission to cut ice in the state canal
basin.-Green Island Ice Co. v. Norton (Sup.)
613.

Ice formed in a state canal basin, construct-
ed upon and entirely surrounded by state land,
belongs to the state.-Green Island Ice Co. v.
Norton (Sup.) 613.

WAYS.

Private rights of way, see "Easements."

3. Probate, establishment, and annul-

ment.

Will construed, and held to empower testa-
tor's widow to sell and convey real estate.-
Dana v. Jones (Sup.) 1000.

Distribution under bequest to lawful heirs, to
be divided equally among them, must be per

Public ways, see "Highways"; "Municipal Cor- capita.-In re Griswold (Sur.) 250.
porations," §§ 5, 6.