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7. Legacy, inheritance, and transfer

TIME. taxes. A remainderman, recovering back a transfer For application for new trial, see "New Trial," tax illegally exacted by Laws 1899, p. 100, c. $ 2. 16, held entitled to interest on the amount so re- For performance of contract, see "Contracts," covered.-In re Wood's Will (Sup.) 269.

$ 2. Laws 1901, pp. 380, 1226, cc. 173, 493, amend- For proof of loss insured against, see “Insur

ance," 8 7. ing the tax law (Laws 1896, p. 795, c. 908, § 230, as amended by Laws 1897, c. 284, and

TITLE. again amended by Laws 1899, p. 100, c. 76), held not to operate to make contingent estates as- Color of title, see “Adverse Possession." sessable in the future, instead of in the pres. Removal of cloud, see "Quieting Title.' ent, but merely to provide for cases where no proceedings had been taken under the amend

Particular matters affecting title. ment of 1897 prior to 1899.-Miller v. Tracy See “Bankruptcy," § 2; “Dedication." (Sup.) 1024. Under section 232 of the tax law, as amend

Particular species of property or rights. ed 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 spec

TORTS. ified in the notice of appeal to the surrogate.Miller y. Tracy (Sup.) 1021.

Assignment of cause of action for tort, see

“Assignments," $ 1. TELEGRAPHS AND TELEPHONES. Remedy by action in tort and on contract dis

tinguished, see “Action," § 1. Erection of telephone lines in highways, see

By particular classes of partics. “Eminent Domain," $8 2, 4.

See “Municipal Corporations," $ 6.

Employés, see “Master and Servant," § 4. TEMPORARY INJUNCTION.

Particular remedies for torts.

See “Trespass," $ 2; “Trover and Conversion," See “Injunction," $ 1.

§ 1.

Particular torts.

See “Forcible Entry and Detainer," § 1;

"Fraud”; “Libel and Slander"; "Negligence”; A party to a suit in equity, to be entitled “Trespass”; “Trover and Conversion. to a decree for conveyance of land, held not required to make a tender of the consideration at

Circumstances under which a default judgment the trial.-Heyman v. Swift (Sup.) 584.

was entered by an attorney after the remission

of the amount claimed held not to render the A tender, made after suit brought, not in- attorney or the plaintiffs liable therefor.-Clark cluding interest and costs up to the time of the v. Smith (Sup.) 472. tender, is invalid.- James Reilly's Sons Co. v. Aaron (Sup.) 732.


See "Schools and School Districts," $ 1.
Of tenancy, see “Landlord and Tenant,” $$ 2, 3. Liability, for repairs of highways, see "High-

ways, § 2. TERMS.

8 1. Actions.

The remedy provided by Town Law, Laws Of leases, see "Landlord and Tenant,” $ 2.

1890, pp. 1222, 1233, 1237, c. 569, 88 80, 162, 180, subd. 7, for the payment of claims, held

exclusive, so that an action could not be mainTESTAMENT.

tained on a claim not presented nor audited.

Goodfriend v. Town of Lyme (Sup.) 422.
See "Wills."

TRADE-MARKS AND TRADE-NAMES. Creation, see “Wills," § 4.

§ 1. Marks and names subjects of own


A manufacturer cannot obtain an exclusive THEFT.

right to adopt as a trade-mark a phrase of a

foreign language describing the manufactured See “Larceny."

article.-Roncoroni v. Gross (Sup.) 1112.


and 120 New York State Reporter $ 2. Infringement and unfair competi- For damages for worful lery, see “Sherits tion.

and Constables," $ 1. A manufacturer will be restrained from using For injuries due to defective premises, see a label in imitation of the label of another *Landlord and Tenant," $ 4. manufacturer of the same product.-Roncoroni For injuries to horse on village street, see v. Gross (Sup.) 1112.

“Municipal Corporations," & 6.

For injuries to vehicle (aused be operation of TRANSCRIPTS.

street railroad, see “Street Railroads." $ 1. For negligence of carrier, see “Carriers," $ 2.

For personal injuries, see **Carriers," § 1; As evidence, see "Evidence," 8 6.

"Electricity"; "Master and Servant," § 3;

"Street Railroads," $ 1. TRANSFERS.

For price of goods soll. see "Sales," $ 4.

For rent, see "Landlord and Tenant,” $ 5. Duty of street railroad to furnish, see "Car- On bote, see "Bills and Notes," 5. riers," $ 3.

Trial of criminal prortentions.

See “Criminal Law,” $ 4; "Homicide," s 4. TRANSFER TAX.

$1. Dockets, lists, and calendars. See "Taxation,” $ 7.

Under Code Civ. Proc. & 977, where plaintiff noticed the case for trial and placed the sale

on the October term calendar. defendants were TRESPASS.

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 appt. ceny," $ 1.

cation for preference.-Montgomery v. Daniel

(Sup.) 344. § 1. Acts constituting trespass and lie. Where complaint seeks equitable relief, bot bility therefor.

shows cause for a remedy at law, it is error to A person who by blasting rock breaks a wa- ' dismiss the complaint; but it should be placed ter pipe, from which water escapes and flows on the law calendar.-Gilbert v. Buddell (Sup.) onto the premises of another, causing damage, 1123. is liable as a trespasser.- Wheeler v. Norton (Sup.) 1095.

$ 2. Reception of evidence.

In an action on an account stated, defend. $ 2. Actions. Grantee of land, having notice of existence sufficiently raise question of its admissibility.

ant's exceptions, taken to evidence, hrld to 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

Refusal of the court to strike out answers of a Waterworks Co. (Sup.) 571.

witness to questions, not objected to before adswer, held a proper exercise of discretion.

Pescia v. Societa Co-operativa Corleonese Fran. TRESPASS TO TRY TITLE. cesco Bentivegua (Sup.) 952.

The granting of a motion to strike out testiSee "Ejectment."

mony, not objected to before the questions asko

ed had been answered, is within the discretion TRIAL.

of the court.-Pesciav. Societa Co-operativa

Corleonese Francesco Bentivegna (Sup.) 932. See “New Trial"; "Reference"; "Witnesses."

§ 3. Taking case or question from jury. Authority of agent as question for jury, see In an action for wages, plaintiff's evidence


"Principal and Igent," $ 3. Contributory negligence of passenger as ques. even though the trial justice were of opinion

held sufficient to require submission to the jury, tion for jury, see “Carriers," $ 5. Harmless error in instructions, see "Homicide,” aside.--cCrystal v. O'Neill (Sup.) St.

that any verdiet for plaintiff should be set Proceedings incident to trials.

A direction of a verdict held equivalent to a See "Continuance.”

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.

On appeal from a judgment dismissing a com

plaint, held, that every material issue must be Trial of particular civil actions or proceedings. resolved in plaintiff's favor.-Kennedy v. White See “Divorce," § 1; “Money Lent”; “Negli- (Sup.) 852. gence," 8 4.

$ 4.

Instructions to jury. Against savings bank, see “Banks and Bank- No error can be predicated on instructions ing," 8 3.

which, it standing alone, are subject to criti For breach of duty by attorney, see “Attorney 'cism, but which are correct, if considered with and Client," 8 2.

the instructions as a whole.- Allison 7. Long For breach of warranty, see “Sales," $ 5. Clove Trap Rock Co. (Sup.) 833.

$ 5.


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 correctly ham's Estate, Id.
is not error.-Frank v. Metropolitan St. Ry.

Facts held insufficient to support a finding sus-
Co. (Sup.) 1018.

taining the termination of a spendthrift trust as
It is not error to refuse a requested instruc- a proper exercise of the trustee's discretion.-
tion fully covered by the court's charge.-Keat. In re Wilkin (Sup.) 360; In re Cunningham's
ing v. Jott (Sup.) 1041.

Estate, Id.
$ 5. Trial by court.

Will construed, and held to give the shares of
Where there was a couflict of evidence, suffi- a life beneficiary, dying and leaving issue, to
cient, had there been a jury, to require sub- such issue immediately on the death of 'the
mission of the case, the juice of the Municipal parent.-Denison v. Denison (Sup.) 604.
Court had no power to grant a nonsuit.-Weis- Will construed, and held to create a valid ex-
berger v. Martin (Sup.) 115.

press trust.-Nichols v. Nichols (Sup.) 719.
Insigned opinion by trial court held not a
sutficient compliance with Code Civ. Proc. & 8 2 Construction and operation.
1022, requiring decision by court.-Kent v. Com-

Rights of judgment creditor in property held
mon Council of City of Binghamton (Sup.) 411. by trustee under a will for the benefit of the

judgment debtor determined.-Marshall v. Unit-

ed States Trust Co. (Sup.) 617.

$ 3. Appointment, qualification, and
Examination of witnesses, see "Witnesses,"

tenure of trustee.
§ 2.

The fact that the trustees under a will were
Harmless error in action for, see "Appeal," $ 7. also among the beneficiaries did not incapaci-
Jurisdiction of municipal courts as to action tate them.- Nichols v. Nichols (Sup.) 719.
for conversion of mortgaged goods,

Discretion under express trust for support of
"Courts," $ 2.

testatrix's brother held not terminated by the
Right of assignee of stock to sustain action for death of trustee.-Button v. Hemmens (Sup.).

couversion of, see "Assignments,” $ 2. 829.
Wrongful conversion by broker, see “Brokers,"
$ 1.

§ 4. Management and disposal of trust
Wrongful conversion of property held under

conditional contract of sale, see "Sales," $ 6. Code Civ. Proc. $ 2818, as amended by Laws

1903, p. 732, c. 370, held not to validate the
$1. Actions.

exercise of a power delegated to two trustees
Evidence in an action for conversion of a

by one of them, after the other had renounced,
piano held to sufficiently identify it to prevent a prior to the amendment.--In re Wilkin (Sup.)
nonsuit.-Schleicher v. Wirth (Sup.) 265.

300; In re Cunningham's Estate, ld.
Measure of plaintiff's damages in action for

Trustee held not liable, on unauthorized loans,
conversion, where defendant returned property for more than the amount of interest received,
prior to trial, stated.-Flagler y. Hearst (Sup.) where it was the going rate.-In re Rowe (Sur.)

One to whom coupons were turned over as re-

Expense of legal services to executor and
ceiver of a corporation cannot be held liable trustee apportioned between the estates bene-
for their conversion, without a demand for their fited.--In re Rowe (Sur.) 233.
l'eturn and refusal.—Case v. Duffy (Sup.) 778.

Where a father took possession of his son-in- $ 5. Execution of trust by trustee or by
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,
Herert v. Reubman (Sup.) 797.

to pay principal to cestui que trust, held ex-

ercisable only on evidence of necessities of ces-
Where possession of personalty is wrongfully tui que trust.-Button v. Hemmens (Sup.) $29.
taken, no demand for its return is necessary,
to maintain conversion.-Ileyert v. Reubman $ 6. Accounting and compensation of
(Sup.) 797.


Bequest to executors in lieu of commissions

held to preclude him from accepting commis-

sions from the estate.-In re Rowe (Sur.) 253.
Combinations to monopolize trade, see "Mo-

nopolies," $ 1.
Fiduciary relation between principal and agent

giving right to accounting, see “Principal and
Agent," $ 2.

See "Corporations," $ 3.
Trust deeds, see "Chattel Mortgages”; “Mort-

§ 1. Creation, existence, and validity.

Where a will delegated a power to two trus-
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.

Bona fide purchasers held protected against the claim of former owner of property on ac

count of purchase thereof by her guardian in See "Trade-Marks and Trade-Vames," $ 2.

socage.-Cahill v. Seitz (Sup.) 1009.


VENUE. See “Forcible Entry and Detainer."

f 1. Domicile or residence of parties.

Where an action was brought in the county VALUE.

where plaintiff resided, the venue was properly

laid.-Hirshkind v. Mayer (Sup.) 836. Expert testimony as to, see "Evidence," $ 8.

§ 2. Change of venue or place of trial. Relevancy of evidence as to, see "Evidence,"

A change in the place of trial will not be $ 3.

ordered for convenience of witnesses alote, VARIANCE.

where the change is from a rural county to the

county of New York.-Hirshkind v. Vayer Objections in lower court for purpose of re

(Sup.) 836. view, see "Appeal," $ 3.

Facts in a libel suit held to require change of venue to the county where the paper was pub

lished.-Woolworth v. Klock (Sup.) 1111, VENDOR AND PURCHASER. See “Sales."

VERDICT. Specific performance of contract, see “Specific Directing verdict in civil actions, see "Trial." Performance."

$ 3. § 1. Requisites and validity of contract. In criminal prosecutions, see "Criminal Law,A deed absolute in form, but in fact a mort

$ 4. gage, with an option to buy, and a subsequent Review on appeal, see "Appeal," $ 6. notice to the owner of exercise of the option, Setting aside, see "New Trial," $ 1. with a statement of the owner that she rele:1sed the land, hcld not sufficient to constitute VETERINARY SURGEONS. a sale, so as to authorize recovery of the consideration.-Reich v. Dyer (Sup.) 514.

Expert testimony, see "Evidence," & 8 § 2. Construction and operation of con

tract. !

VICE PRINCIPALS. Executory contract for the sale of real estate construed.-Carpenter v. llewitt (Sup.) 566. See “Master and Servant," $ 2. 8 3. Performance of contract. Loose and indetinite knowledge as to the title

VILLAGES. possessed by the agent of the purchaser at a judicial sale could not destroy the force and See “Municipal Corporations.” effect of a subsequent contract.-Felix y. Devlin (Sup.) 12.

VINEGAR. Irregular payments on a contract of sale of land having been received without objection, the Imitations of, see "Food." parties will be considered as treating time as Law's defining adulteration of as unjust disnot of the essence of the contract.-Murray v. crimination, see "Constitutional Law," § 4. Harbor & Suburban Building & Savings Ass'n Partial invalidity of laws relating to, see "Stat(Sup.) 799.

utes," & 1. 8 4. Rights and liabilities of parties.

WAGES. A judgment roll in foreclosure hold 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

WAIVER. guardianship in sorage of the owner.--Cahill v. Seitz (Sup.) 1009.

See "Estoppel." The fact that the paternal uncle of an infant, with whom she was living, bid in her of objections to particular acts or proceedings. property at a foreclosure sale, was not sufficient See “Pleading," $ 8. to excite inquiry as to any impropriety in bis Erroneous delivery of goods by carrier, see conduct in purchasing the property.-Cahill v. “Carriers," § 2. Seitz (Sup.) 1009.

Jurisdiction in attachment, see "Attachment," Issue of bona fide purchasers is not to be de.

$ 3. termined by whether the purchaser could have

Of rights or remedies. ascertained deferts, but whether he acted with Appraisal of loss within insurance policy, see ordinary prudence.-Cahill v. Seitz (Sup.) 1009. "Insurance," $ 8.



ash payment for goods sold, see "Sales," § 2.

onditions in contract, see “Contracts,” $ 3.
onditions in contract of sale, see “Sales,” $ 6; Municipal regulations, see “Municipal Corpora-
xemption from execution, see “Exemptions,”

tions," § 4.
§ 1.
ight to appeal, see “Appeal,” $ 2.


Dower, see "Dower."
Patron of commission firm, delivering fruit to
rarehousemen for storage pursuant to a con-

ract between the firm and warehousemen, held
ntitled to recover from the latter for negligent See “Descent and Distribution”; “Executors and
estruction.-O'Connor v. Moody (Sup.) 214.


Admissions by devisees as evidence, see "Evi-

dence," $ 5.

Construction and execution of trusts,
On sale of goods, see “Sales," $$ 3, 5.


Legacy and succession taxes, see “Taxation,"

$ 7.

Restrictions on perpetuities, see "Perpetuities.”
impairing security of mortgage, see “Mortga-
ges," $ 1.

$ 1. Contracts to devise or bequeath.

Recital of consideration in instrument by

which testatrix agreed to leave money to claim-
WATERS AND WATER COURSES. ant held suflicient to support promise, in ab-

sence of evidence of want of consideration.-In
Construction of water mains in highways, see re Steglich's Estate (Sup.) 257.

**Eminent Domain,” $ 2.
License to lay water mains in private property, I consideration to support agreement of husband's

Support of husband by wife held sufficient
see "Licenses,” 2.

mother to leave money to wife.-In re Steglich's
§ 1. Subterranean and percolating wa-

Estate (Sup.) 257.

8 2. Requisites and validity.
Measure of damages in action for using
pumps, exhausting the water on plaintiff's land, ground that testator attempted to devise prop-

A will could not be adjudged invalid, on the
held diminution in the rental value of the land. erty which he did not own, or that he intended
--Reisert v. City of New York (Sup.) 576.

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.

§ 3. Probate, establishment, and annul-

§ 2. Appropriation and prescription. Where the execution of a will is established,

In action against city for injuries to plaintiff's it will be admitted to probate, unless want of
land by pumping driven wells on adjacent prop- testamentary capacity or fraud is established
erty, answer held not to plead prescriptive right beyond a reasonable doubt.-In re Babcock's
based on adverse user.-George v. City of ew Will (Sur.) 670.
York (Sup.) 610.

$ 4.

83. Ice.

Will construed, and interest of legatee there-
One obtaining license from the state to cut under determined.- Mersereau v. Camp (Sup.)
ice on state canal basin held to acquire an ex- 568.
clusive right thereunder.-Green Island Ice Co.
v. Norton (Sup.) 613.

Will construed, and devisees held to take in

fee.- Mersereau v. Camp (Sup.) 568.
Temporary injunction will be granted in case
of litigation and acts of violence resulting

Will construed, and held to create an implied
from permission to cut ice in the state canal devise of fee of land to testator's son on his at-
basin.-Green Island Ice Co. v. Norton (Sup.) Paining majority.-Culbane v. Fitzgibbons (Sup.)

Ice formed in a state canal basin, construct-

Will construed, and executors held to have a
ed upon and entirely surrounded by state land, valid power of sale.- Nichols v. Nichols (Sup.)
belongs to the state.-Green Island Ice Co. v.

Norton (Sup.) 613.

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
Private rights of way, see “Easements."

be divided equally among them, must be per
Public ways, see "Highways”; “Municipal Cor-capita.-In re Griswold (Sur.) 250.

porations," $8 5, 6.

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