In re Yawger

No opinion. Parts of the decree appealed from amrmed, with costs against the appellant personally.

*1153 INDEX ABATEMENT AND REVIVAL. ACCOUNT STATED. Right of action by or against personal representative, see “Executors and Administrators,” § 6. ABUTTING OWNERS. Assessments for expenses of public improvements, see “Municipal Corporations,” § 5. Compensation for taking of or injury to lands or easements for public use, see “Eminent Domain,” §§ 1, 3. ' ACCEPTANCE. Of goods sold in general, see “Sales,” 3. ACCIDENT. Admissibility of evidence determined.—Traitel v. Dwyer (City Ct. N. Y.) 1100. ACTION. Actions between parties in particular relations, see “Master and Servant,” § 8; “Partnership,” § 2. Election of remedy, see “Election of Remedies.”' Jurisdiction of courts, see “Courts.” Particular forms of action, see “Trespass,” § 2; “Traver and Conversion.” - remedies in or incident to actions, see-“Attachment” ; “Discovery.” Review of proceedings, see “Appeal”; “Certiorari” ; “Judgment,” § 4. Submission of controversy to court without action, see “Submission of Controversy.” Suits in equity, see “Equity.” . ause of personal injuries, see “Negligence,” § 1. ACCORD AND SATISFACTION. ee “Compromise and Settlement.” ACCOUNT. ee “Account Stated.” ccounting by executor or administrator, see “Executors and Administrators,” § 7. - by trustee, see “Trusts,” § 5. 1. Proceedings and relief. To make available a defense that a decree of e surrogate on defendant’s previous accounting an administrator was conclusive on plaintiff, fendant should allege the jurisdictional facts, ose v. Durant (Sup.) 15. sufficient answer to an objection that the irt, in ordering an accounting as to property an intestate, did not specifically state that intate had interest in the property, is that the e was whether plaintiff was entitled to the punting.—Rose v. Durant (Sup.) 15. ‘ at there were other persons interested held objection to an order for accounting, as for referee, in his report, if there were others insted, could make provision for their protec.—Rose v. Durant (Sup.) 15. finding that a fiduciary relationship existetween the parties, a judgment for an acting held proper.—Rose v. Durant (Sup.) 15. 61 N.Y.S.—73 (11 Actions by or against particular classes of pa/rties. See “Carriers,” § 1; “Master and Servant,” § 9; “Municipal Corporations,” § 8; “Partner- - ship,” § 3; “Receivers,” § 3. Assignees, see “Assignments,” § 2. Corporate officers, see “Corporations,” § 5. Stockholders, see “Corporations,”- § 4. Particular causes or grounds of action. See “Account Stated”; “Bills and Notes,” § 6; “Bonds,” § 2; “Conspiracy,” § 1; “Insurance,” ' §§ 3, 5; “Libel and Slander,” § 4: “Money Received”; “Negligence,” § 3; “Penalties,” § 1; “Traver and Conversion,” § 2; “Work . and Labor.” Breach of contract, see “Contracts,” § 6? . “Sales,” § 7. - of warranty, see “Sales,” § 7. Discharge from employment, see “Master and : Servant,” § 1. Particular causes or grounds of action, sea-“Trespass.” Personal injuries, see “Master and Servant,”" § 8. Price of goods, see “Sales,” § 6. Recovery of price paid for land, see “Vendor and Purchaser,” § 4. - of tax paid, see “Taxation,” § 2. Rent, see “Landlord and Tenant,” § 6. Taking of or injury to property in exercise of power of eminent domain, see “Eminent Domain,” § 3. Particular forms of special relief. See "Account”; “Creditors’ Suit”; “Divorce”; “Partition,” § 1; “Specific Performance.”

*1154 1154 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. Construction of will, see “Wills,” § 4. Dissolution of partnership, see “Partnership, § 4. Enforcement or foreclosure of lien, see Mechanics’ Liens,” § 6. Setting aside assignment for benefit of creditors, see “Assignments for Benefit of Creditors,” § 3. Particular proceedings in actions. See “Costs” ; “Damages” ; “Depositions” ; “Evidence” ; “Execution”; “Judgment”; “Limitation of Actions” ; “Parties” ; “Process” ; “Trial” ; “Venue.” Default, see “Judgment,” § 3. Offer of judgment, see “Judgment,” § 2. § 1. Grounds and conditions precedent. Where a suit in equity was brought by Indians to recover possession of wampum belts, held, that a demand on defendant for their delivery was a necessary prerequisite to the action.—Onondaga Nation v. Thatcher (Sup.) 1027. § 2. Nature and form. Action for 'damages for nondelivery of goods should not be changed to replevin.—Brookstone v. Wescott Exp. Go. (Sup.) 72. A complaint held such that the action did not ■sound in tort, so as to exclude a counterclaim, "but to declare on a contract.—Stoneman v. Van "Vechten (Sup.) 513. ADMISSIONS. As evidence, see “Evidence,” § 4. AFFIDAVITS. See “Depositions.” In attachment proceedings, see “Attachment,” § 2. AGENCY. See “Principal and Agent.” AGREED CASE. Submission of controversy to court, see “Submission of Controversy.” AGREEMENT. See “Contracts.” ALIENS. See “Indians.” ALIMONY. See “Divorce,” § 2; “Husband and Wife,” § 4. ■§ 3. Joinder, splitting, consolidation, and severance. An action uniting several causes of action in the same complaint held maintainable, in view of Code Civ. Proc. § 484.—Whiting v. Elmira Industrial Ass’n (Sup.) 27. A complaint, alleging for a cause of action ■damages resulting from a conspiracy on the part •of defendants in the libeling and slandering of plaintiff and the unlawful taking of certain of "its property, is not demurrable because of improp•erly uniting causes of action.—IColel America 'Vatiferes Jerusalem v. Eliach (Sup.) 935. ;§ 4. Commencement, prosecution, and termination. Decision of appeal in another action between same parties held not to settle pending controversy, and hence motion to stay pending such appeal was denied.—Lowenstein v. Schiffer (Sup.) ion • ADEQUATE REMEDY AT LAW. "Effect on jurisdiction of equity, see “Equity,” ADMINISTRATION. 'Of estate of decedent, see “Executors and Adenmistrators.” Of property by receiver, see “Receivers,” § 1. Of trust property, see “Trusts,” § 4. ADMIRALTY. See “Shipping”; “Towage.” ALTERATION OF INSTRUMENTS. See “Reformation of Instruments.” • AMENDMENT. On appeal, see "Appeal,” § 14; “Pleading,” § 4. ANIMALS. In action to recover damages for injuries to plaintiff’s horse, caused by'its being bitten by vicious dog belonging to defendant, notice of th dog’s vicious disposition to defendant’s forema' held notice to the owner.—Niland v. Geer (Sup., 696. Where plaintiff’s child was bitten by defend ant’s dog, in order to recover plaintiff mus show that the defendant had notice of the dog’ vicious disposition.—Strubing v. Mahar (Sup. 799. ANNEXATION. Of territory to municipal corporation, see “Mi nicipal Corporations,” § 1. APPEAL. Accounting by executor or administrator, s “Executors and Administrators,” § 7. Assessment of taxes, see “Taxation,” § 1. Costs, see “Costs,” § 4. Review of agreed statement of facts, see “S mission of Controversy.” - of proceedings of justices of the peace, “Justices of the Peace,” § 2.

*1155 INDEX. 1155 § 1. Nature and grounds of appellate jurisdiction. Leave will not be granted to appeal to the court of appeals, in order that a question oí law may he determined, where the decision of the appellate division was based on a question of fact.—Village of Bronxville v. New York, W. & C. Traction Co. (Sup.) 719. $ 2. DecisioEs reviewable. Code Civ. Proc. § 3056, providing for course to he pursued on appeal, whore justice is unable (o make a return, licit} to apply to appeals from the municipal court. — Walker v. Baermann (Sup.) 91. An appeal can he taken from an order directing a peremptory mandamus.—People v. Hertle (Sup.) 965. No appeal lies from a default judgment — Reidy v. Bieistift (City Ct. N. Y.) 915. Where demurrer to complaint is sustained, defendants may appeal from so much of the order as denies them costs.—ICellar v. Shrady (City Ct. N. Y.) 1123. § 3. Right of review. One who is not a party to the proceeding cannot bring an appeal.—People v. Sanborn (Sup.) 529. § 4. Presentation and reservation in lower court of grounds of review. Defendant, on appeal in a proceeding for an accounting, held precluded from urging an objection as to parties.—Rose v. Durant (Sup.) 15. Under Code Civ. Proc. § 992. a question of fact in a case tried by the court may be reviewed, without exceptions, if the record is certified to contain ail the evidence.—1-Iill v. White (Sup.) 515. Objections to a charge will not he considered where no exception was taken.—Naily v. Hitchcock (Sup.) 902. Exceptions to denial of motion for nonsuit ifld insufficient on appeal.—Gowing v. Warner (City Ct. N. Y.) 500. An objection to the appearance of a receiver f a party in a proceeding prior to the notice of ippp.nl cannot be first raised on appeal.—ICubin -. Miller (City Ct. N. Y.) 1121. 5. Requisites and proceedings for transfer of cause. Two successive holidays, followed by a Sunday, eld to extend the limit of appeal to the Monday Bowing.—Lucia v. Omei (Sup.) 659. Where an order required modification in a ma-.rial matter, the facts that more than 10 days ■as occupied in malting the correction, and that ic corrected order was made to take effect nunc •o tune, will not affect the right to appeal.— ubin v. Miller (City Ct. N. Y.) 1121. Service of a copy of an order for judgment, ithout notice of the entry of the original, is no't fficient to limit the time in which to appeal; id a notice of appeal served before service of e notice of entry is sufficient.—Kubin v. Miller ity Ct. N. Y.) 1121. § 6. Supersedeas or stay of proceedings. Order staying proceedings on a judgment, to allow parties to appeal after being notified of judgment against them disposing of all issues of the case, held an abuse of discretion.—Bauer v. Parker (Sup.) 1021. Under Code Civ. Proc. c. 12, tit. 1, § 1310, and-Id. tit. 2. § 1326, letters testamentary cannot issue to executors while the decree admitting the will to probate is pending on appeal.—In re Gibon’s Will (Sur.) 244. § 7. Record and proceedings not in record—Matters to be shown by record. In an action in the municipal court of New York City for a money judgment, the failure of the record to show defendant’s residence within the jurisdiction of the court is fatal.—De Sis-to v. Stimmel (Sup.) 57., Failure of the record on appeal from a judgment for plaintiff in the New York municipal court to show where defendant resides is fatal. —R. H. Wolf & Co. v. Ritt (Sup.) 61. A judgment of the municipal court for plaintiff will be reversed where the record fails to show that defendant resides within the jurisdiction of the court.—Bang v. McAvoy (Sup.) S3. Where the record fails to show that defendants resided within the jurisdiction of the court, judgment for plaintiff will be reversed.—White v. Holding (Sup.) 771. A judgment of the municipal court for plaintiff will be reversed where it does not appear that defendant resides within the territorial jurisdiction of the court.—Price v. Bisen (Sup.) 805. A judgment of the municipal court in favor of plaintiff will be reversed where the record does not show that defendant resides within the territorial jurisdiction of the trial court, and the defendant attacks the judgment on that ground. —Currier v. Roseff (Sup.) 83S. It must appear from the record that the defendant resides within the jurisdiction of the trial court.—Bristor v. Flaherty (Sup.) 872. § 8. - Scope and contents of record. A judgment will be affirmed, on appeal, where the record discloses a conflict of evidence on a disputed question of fact, and it does not appear that injustice has been done.—Pascareia v. Manello (Sup.) 838. § 9. —— Defects, objections, amendment, and correction. Code Civ. Proc. § 3056, held to provide proper course to be pursued on appeal, where the testimony taken at the trial has been lost, and, therefore, not included in the return.—Walker v. Baermann (Sup.) 91. A defense with relation to which no findings of fact were made by the trial court cannot be considered on appeal. — Goddard v. American Queen (Sup.) 133. Where evidence showing that chattel mortgagees did not take immediate possession was received without objection, defendant cannot object for the first time on appeal that such

*1156 1106 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. ground of invalidity was not alleged in the complaint.—Robinson v. Hawley (Sup.) 138. An objection to a question as incompetent, and an exception, does not give the excepting party any broader ground for argument on appeal than was fixed by the objection.—Marquis v. Wood (City Ct. N. Y.) 251. An objection to evidence which does not state grounds is not available on appeal.—Marquis v. Wood (City Ct. N. Y.) 251. §10. —— Questions presented for review. Where the evidence is not returned, it is presumed that it was sufficient to support the findings.—Drake v. Beil (Sup.) 657. Where the only exception taken was to the denial of a motion for new trial, the only question for review was whether the verdict was against the weight of evidence.—Trenkmann v. Schneider (City Ct. N. Y.) 920. §11. Dismissal, withdrawal, or abandonment. An appeal from a judgment and an order denying a new trial should he dismissed when the motion for a new trial was not made until after the taking of the appeal.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 12. Hearing and rehearing. The fact that the appellate court did not, in its opinion, detail the evidence and circumstances showing the process by which it reached its conclusion, is not ground for reargument.—Edgerley v. Long Island R. Co. (Sup.) 677. Under Sup. Ct. Rule 4, App. Div. Rule 8, and Code, § 323, a motion for a reargument of an appeal in the city court or appellate term must be made to the general term not later than at the next succeeding term after the decision.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. §13. Review—Scope and extent in general. On an appeal from the city court of New York, the weight of evidence cannot be considered.—Mahoney v. O’Neil (Sup.) 69. Under Code Civ. Proc. § 1002, evidence cannot be reviewed when the appeal was taken and notice thereof given before the motion for new trial was filed and overruled.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 14. — Amendments, additional proofs, and trial of cause anew. A letter of a justice of the municipal court as to conclusions drawn will not be considered on appeal from his judgment, where it is not submitted for consideration until after submission of the appeal.—Routenberg v. Schweitzer (Sup.) 84. §15. —— Presumptions. On appeal from dismissal of a complaint, plaintiff's testimony must he taken as true, and given the benefit of all inferences which the jury might properly have found in plaintiff’s favor, had the case been submitted.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. §16. - Discretion of lower court. The decision of the court in setting aside a verdict as against the weight of evidence will not be disturbed, unless the record shows an abuse of discretion.—Bauer v. Metropolitan St. Ry. Co. (Sup.) 164. Discretion of trial court in refusing to permit plaintiff to amend his complaint on ground of loches held not reviewable.—Dennison v. Mus-grave (Sup.) 188. Refusal of motion to dismiss is reviewable.— Jacot v. Marks (Sup.) 1040. The exercise of a referee’s discretion to open a case, after the evidence is closed, to permit a party to give new evidence, will not be reversed, unless abused.—De Witt v. Mon jo (Sup.) 1046. §17. - Questions of fact, verdicts, and findings. The jury’s finding on conflicting evidence will not be disturbed, where it does not appear that the defeated party’s testimony was entitled to greater credit than his opponent’s.—Barrett v. New York Cent. & H. R. R. Co. (Sup.) 9. Judgment based on conflicting evidence will not be disturbed.—Donnelly v. Vanbeuren (Sup.) 57. Scrutiny of evidence held necessary only so far as to enable the court to determine whether the conclusions of the city court were sufficiently supported by any evidence,—Poliak v. Metropolitan St. Ry. Co. (Sup.) 92. A verdict based on conflicting evidence will not be disturbed.—Banta v. Merchant (Sup.) 218. The finding of a referee on conflicting evidence will not be disturbed.—Darling v. Hunt (Sup.) 278. The decision of a question of fact by a referee on conflicting testimony should not be disturbed.—Nugent v. Metropolitan St. Ry. Co. (Sup.) 476. Questions of fact -litigated before a referee must be considered as conclusively disposed of by his finding, though not specifically referred to in his report.—Lennon v. Ingersoll (Sup.) 668. • A referee’s finding, in a proceeding for contempt in violating an injunction, made on an inspection by consent of the parties, as well as on the evidence, cannot he reviewed.—Braisted v. Brooklyn & R. B. R. Co. (Sup.) 674. ' A verdict will not be disturbed, as against th weight of the evidence, where it is not so clearlj preponderating as to warrant an interference.Driscoll v. Nelligan (Sup.) 692. The supreme court will not reverse a judgmen on the ground that the verdict was contrary t the weight of the evidence, where it was ren dered on conflicting testimony, and the tri judge has denied a motion for a new trial. Cushman v. De Mallie (Sup.) 878. Findings of the jury on questions of fact in mandamus case held conclusive on the supre court at special term.—People v. Hertle (Sup 965. A verdict on conflicting evidence will not disturbed.—Moissen v. Rooney (Sup.) 1004.

*1157 INDEX. 1157 The supreme court will not interfere with a verdict on conflicting evidence.—Aron Pelt v. Chapter General of American Knights of St. John and Malta (Snp.) 1010. A verdict based on conflicting evidence will hot he disturbed.—Franken v. McAIpin. (City Ct. N. Y.) 406. Verdict for plaintiff on conflicting evidence will not he disturbed where there is evidence to sustain it.—Stephens v. Cowen (City Ct. N. Y.) 025. §18. - Harmless error. It is not prejudicial error to sustain an objection to evidence, where witness had previously testified to the fact.—Northam v. International Ins. Co. (Sup.) 45. Where substantial justice does not require it, an appellate court will not grant a new trial on. errors in ruling of the lower court; such refusal being authorized by Code Civ. Proc. § 1003.— Smith v. Balcom (Sup.) 777. Error in charging that one injured in alighting from a car was conceded to be a passenger was harmless, though he was a trespasser; the charge imposing only ordinary care on the company.— Rosenberg v. Third Ave. R. Co. (Sup.) 1052. § 19. -Decisions of intermediate courts. Where the evidence is conflicting, it will not be weighed on appeal from a judgment on a referee’s report.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. § 20. —— Subsequent appeals. AA'here no exceptions are filed to the decision on a trial to the court, the only questions reviewable are those raised by exceptions to rulings.— Buell v. City of Johnstown (Sup.) 1060. } 21. Determination and disposition of cause. On appeal from order granting new trial on vidonco introduced after the trial and on minies of trial judge, the court is not bound by the act that they are in opposition to conclusions of rial judge.—Driscoll v. Nelligan (Sup.) 692. Where referee dismissed the complaint on the rroneous assumption that the case was submitted n limitations set up in answer, and the record lows submission on the question of the comlaint only, the plaintiffs were entitled to a rersal.—Field v. Pinkus (Sup.) 1038. On the reversal of a judgment for a defendlt, who has interposed a general denial and a untorclaim, the case must be sent back for w trial.—Block v. Garfield (City Ct. N. Y.) S. APPEARANCE. t was error, where defendant appeared special-to pass on a question beyond the subject sub-ted for determination by the special appear-e.—Stone v. Smith (City Ct. N. Y.) 1106. APPLIANCES. bility of employer for defects, see d Servant,” § 5. “Master APPOINTMENT. Of executor or administrator, see “Executors and Administrators,” § 2. Of guardian, see “Guardian and Ward,” § 1. ASSESSMENT. Of compensation for property taken for public use, see “Eminent Domain,” § 2. Of expenses of public improvements, see “Municipal Corporations,” § 5. Of tax, see “Taxation,” § 1. ASSIGNMENTS. For benefit of creditors, see “Assignments for Benefit of Creditors.” Transfers of particular species of property, rights, or instruments, see “Mortgages,” § 4. § 1. Requisites and validity. An assignment of a portion of a fund in the hands of a third person to the credit of assignee held an assignment pro tanto.—Danvers v. Lu-gar (Sup.) 778. § 2. Actions. In an action on an assignment of what might be dne assignor on a contract for work, legal set-offs which defendant had after the contract’s completion should be allowed.—McMann v. Meehan (Sup.) 58. Assignment of money may be enforced without making assignor party.—Danvers v. Lugar (Sup.) 77S. A complaint alleging the assignment of a claim to plaintiffs from a firm held sufficient.—Crinnian v. Knauth (Sup.) 976. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See “Bankruptcy,” § 1. § I. Requisites and validity. If, after property is delivered to the assignee under an assignment for creditors, he allows it to escape from his possession, the assignment is not invalidated.—Troescher v. Cosgrove (Sup.) 1036. § 2. Administration of assigned estate. Right to vend assigned property in existence passed to the assignee, though a trade-name thereon, which his assignor was . entitled to use exclusively, did not.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. An assignment by an insolvent corporation does not vest in the assignee the right to sell the corporation’s exclusive right to use a trade-name as against the original owner.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. Declarations of an agreement held to contemplate payment of rent by a tenant who was to be procured, and not an assignee to whom the lease passed under assignment.—Baehrach v. Leventritt (Sup.) 343.

*1158 1158 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 3. Rights and remedies of creditors. Facts held to show that certain moneys received by an assignor from his wife did not create a debt to her.—Patehen v. Waefelaer (Sup.) 949. The inclusion by an assignor in his schedule of liabilities of a pretended debt to his wife of $15-500, and the payment, three days before his assignment, of $1,500 interest thereon, is sufficient to invalidate his assignment.—Patehen v. Waefelaer (Sup.) 949. The omission from the inventory and schedules in an assignment for creditors of personal property in fact delivered to the assignee is not fraud sufficient in itself to warrant setting aside the assignment.—Troescher v. Cosgrove (Sup.) 1036. § 4. Accounting, settlement, and discharge of assignee. The question whether an action will lie to remove an assignee for misconduct, and to obtain an accounting, cannot be raised by demurrer to the complaint.—Morrell v. Ball (Sup.) 405. ASSOCIATIONS. See “Beneficial Associations” ; “Exchanges.” ATTACHMENT. § 1. Property subject to attachment. Where the owner of shares of corporate stock deposited same as security for a loan, his reversionary interest or right to the possession of the stock upon the payment of the loan is property, and subject to levy by attachment.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 2. Proceedings to procure. Affidavit held sufficient to justify warrant on the ground that defendant was about to dispose of her property with intent to defraud creditors. —Fox v. Mays (Sup.) 295. § 3. 'Writ or warrant. Warrant held sufficient.—Fox v. Mays (Sup.) 295. § 4. Levy, lien, and custody and disposition of property. The last clause of Code Civ. Proc. § 649,. subd. 3, applies only to domestic corporations.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. Where the question as to whether, or not, a certain levy under attachment is valid, is presented, the same is properly determinable upon proceedings to enforce the levy, and not upon a motion to set aside and vacate the levy.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 5. Quashing, vacating, dissolution, or abandonment. In deciding a motion to vacate, only the sufficiency of the papers before the court when the attachment was granted should be considered.— Fox v. Mays (Sup.) 295. That the cause of action alleged in the affidavit was incorrectly described in the warrant would not justify vacation, if a good cause was alleged in the affidavit.—Fox v. Mays (Sup.) 295. That the warrant contained superfluous averments would not justify vacation.—Fox v. Mays (Sup.) 295. Though Code Civ. Proc. § 682, does not provide that an attachment against a foreign state may be vacated on motion of a United States attorney, the court will vacate such an attachment on his motion, since the court has no jurisdiction of such an action.—Hassard v. United States of Mexico (Sup.) 939. ATTORNEY AND CLIENT. § 1. Retainer and authority. A client is not liable for work in printing briefs in his case, when the work was done for, and the credit extended to, the attorney, without instructions from or notice to the client.— Livingston Middleitch Co. v. New York College of Dentistry (City Ct. N. Y.) 918. § 2. Compensation and lien of attorney. A counterclaim, in an action by an attorney to recover for professional services, held not to state facts sufficient to constitute a cause of action against plaintiff.—Kissam v. Bremerman (Sup.) 75. Where the parties to an action for damages settle by plaintiff withdrawing his action, nothing being paid in settlement, his attorney is not entitled to prosecute the action in aid of his lien. —Burpee v. Townsend (Sup.) 467. AVhere the sum paid in settlement of an action without the knowledge of the plaintiff’s attorney will serve as a basis for fixing the amount of his lien for services, it is not necessary to continue the action of which settlement was made in order to enforce such lien.—Schriever v. Brooklyn-Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, a defendant who, without the knowledge of plaintiff’s attorney, settled with the plaintiff, who was irresponsible, becomes liable for the lien for services of such attorney.—Schriever v. Brooklyn Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, giving a lien t attorneys on a cause of action, an attorney can not be allowed or compelled to prosecute a com promised case to judgment, in order to enfore his lien, when the compromise is made withou his consent.—Schriever v. Brooklyn Heights R Co. (Sup.) 890. An attorney has a lien, irrespective of sta ute, upon a surrogate’s decree for his servie rendered in the proceedings resulting in such d cree.—In re Regan (Sur.) 1074. Code Civ. Proc. § 66, does not give an attorn a lien against a surrogate’s decree rendered b fore the amendment to such act was passed gi ing an attorney’s lien in special proceedings.In re Regan (Sur.) 1074. AUTHORITY. Of agent, see “Principal and Agent,” § 2. Of attorney, see “Attorney and Client,” § 1.

*1159 INDEX. 1158) BAILMENT. See “Innkeepers”; “Livery Stable Keepers”; “Pledges.” BALLOTS. See “Elections,” § 2. BANKRUPTCY. See “Assignments for Benefit of Creditors.” § 1. Assignment, administration, and distrilration of bankrupt’s estate. A complaint to set aside a transfer voidable under bankrupt act need not allege the evidence, nor show why a creditor had cause to believe the transfer was intended to give a preference.— Orooks v. People’s Nat. Bank (Sup.) 604. Allegations of a complaint to set aside a transfer by a bankrupt held sufficient to show that a creditor would receive by an assignment a greater percentage of his debt than other creditors.— Orooks v. People’s Nat. Bank (Sup.) 604. An allegation that the effect of a transfer will be to enable a creditor to obtain a greater percentage of his debt than other creditors, and to obtain a preference, is an allegation of a fact, and not a conclusion.—Crooks v. People’s Nat. Bank (Sup.) 604. Facts held to bring a case within the bankruptcy act, making voidable a transfer before bankruptcy giving a preference.—Crooks v. People’s Nat. Bank (Sup.) 604. In a complaint to set aside a transfer as voidable under the bankrupt act, the value of the debtor’s property and the extent of his indebtedness need not be set out.—Crooks v. People’s Nat. Bank (Sup.) 604. BANKS AND BANKING. A bank held not required to account for funds of an estate deposited by an executor in his own name.—Woodbridge v. First Nat. Bank (Sup.) 258. § 3. Savings banks. A savings bank held not entitled to make a person for whose benefit a deposit was made a party defendant to an action to recover it by the depositor’s administrator, who alleged that such person was fictitious.—Washington, v. Seaman’s Bank for Savings (Sup.) 971. BASTARDS. § 1. Property. The domestic relations law, legitimatizing illegitimate children whose parents afterwards marry, does not, because it protects against the devestment of ail estate or interest vested at the time of the marriage, devest all estate or interest which has vested since; and, if it did,- it would be void, under Const, art. 1, § 6.—In re Barringer’s Estate (Sur.) 1090. BENEFICIAL ASSOCIATIONS. . Records of a beneficial association, showing that amendments to by-laws had been favorably voted on by three-fourths of the members present at the meeting voting therefor, it will be presumed, in the absence of evidence to the contrary, that all members present participated in the vote.— Cowan v. New York Caledonian Club (Sup.) 714. A member of a beneficial association, in arrears for over a year, and liable to have his name stricken from the rolls, held not in good standing, so as to be entitled to benefits.—Cowan v. New York Caledonian Club (Sup.) 714. By-laws of a mutual benefit association held reasonable and valid.—Cowan v. New York Caledonian Club (Sup.) 714. § I. Banking corporations and associations. Const. 1846, art. 8, §§ 1-3, held to apply to ank corporations.—Barnes v. Trevor (Sup.) 85. The stock corporation law (Laws 1890, c. 564, 58) held not to relieve stockholders of an insolent bank from claims against it for depositsarnes v. Trevor (Sup.) 85. A stockholder, who is also a creditor of an inolvent bank, cannot set off its debt to him gainst his statutory liability.—Barnes v. Trevor up.) 85. 2. Functions and dealings. Where an executor deposited estate funds in a nk in his own name, there is no contractual lotion between the bank and the estate, renting the bank liable to account to the estate.— Woodbridge v. First Nat. Bank (Sup.) 258. A bank, in the absence of notice of an adverse im, has the right to assume that <a person desiting money to his own credit has a right to thdraw it.—Woodbridge v. First Nat. Bank up.) 258. A by-law, requiring notice within 24 hours after sickness and certificate of society’s physician as condition to benefits, held not unreasonable, and failure to comply therewith bars recovery of benefit.—Falcone v. Societa Sarti Italiani cli Mutuo Soccorso (Sup.) 873. Failure of a member to notify the secretary of his illness -was not excused by his incapacity, where, long before his recovery, he was able to give such notice, but failed to do so.—Falcone v. Societa Sarti Italiani di Mutuo Soccorso (Sup.) 873. ' • One who, as a charter member of an association, either participated in the adoption of a bylaw or assented to it when he joined the society, and who thereafter recognized it by acting thereon. is estopped to question its reasonableness.— Falcone v. Societa Sarti Italiani di Mutuo Soccorso (Sup.) 873. Member absent from home lodge, not having procured traveling card, as required by by-law, held not entitled to recover sick benefit.—Markowitz v. Joseph Eckert Lodge, No. 82, I. O. B. A. (Sup.) 874.

*1160 <1160 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. BEQUESTS. ■ See “Wills.” BILL OF PARTICULARS. •See “Pleading,” § 5. BILLS AND NOTES. § 1. Requisites and validity. Failure to recite therein that a note was given for value received does not affect its legal import.—McLeod v. Hunter (Sup.) 73. Denial that plaintiff was the owner of a note sued on held not frivolous.—Jones v. Brown (Sup.) 972. Where, in an action on notes, plaintiff pleaded as consideration a promise to discontinue an action, and proved an actual settlement thereof by means of the notes, it was sufficient to warrant recovery.—Wesselman v. Stuart (City Gt. N. Y.) 1110. It is a good defense, as going to lack of consideration, in an action upon a note given in accordance with a contract, to show that the plaintiff, to whom the note was given, failed to perform his part of the contract.—Richardson & Morgan Go. v. Gudewill (City Ct. N. Y.) 1120. § 2. Construction and operation. Under Laws 1897, c. 612, § 26, subd. 2, a note which promises to pay a certain sum, without fixing a time for payment, is due on demand,— McLeod v. Hunter (Sup.) 73. | 3. Rights and liabilities on indorsement or transfer. _ Without proof that the indorser of a note before delivery intended to become surety, he is presumed to he a subsequent indorser, and is not liable to the payee.—Howard v. Van Gieson (Sup.) 349. In an action against one who indorsed a note on agreement that he should not be held liable thereon, held, defendant could show that he received no benefit from the transaction.—Twelfth Ward Bank v. Rogers (City Ct. N. Y.) 496. Question of indorser’s liability on a note delivered under an agreement that indorser should be held harmless held a question for the jury.— Twelfth Ward Bank v. Rogers (City Ct. N. Y.) 496. BODY EXECUTION. See “Execution,” § 2.. BONA FIDE PURCHASERS. Of goods, see “Sales,” § 4. Of land, see “Vendor and Purchaser,” § 3. BONDS. Bonds for performance of duties of trust or office, see “Executors and Administrators,” § 8. - in legal proceedings, see “Costs,” § 2. Secured by mortgage, see “Mortgages,” § 3. Sureties on bonds, see “Principal and Surety.” § 1. Construction and operation. Provisions of a bond held sufficient to show an intent to protect obligee against loss through defect of title to property transferred by bill of sale.—Prank v. Porgotston (City Ct. N. Y.) 1118. § 4. Presentment, demand, notice, and protest. A notice of protest held insufficient to charge an indorser.—Howard v. Van Gieson (Sup.) 349. Where the holder of a note was requested by the indorsers to delay suit thereon after the note became due, such indorsers cannot take advantage of a failure to serve notice of protest within the regular time.—Bush v. Gilmore (Sup.) 682. | 5. Payment and discharge. The return of property by a purchaser, under a claim that it was not satisfactory, acts as an extinguishment of a note given therefor, when the vendor agreed that the same might be returned if. not satisfactory.—Cushman v. De Mallie (Sup.) 878. § 6. Actions. A complaint in an action on a note need not show presentment and demand.—Wells v. Simpson (Sup.) 56. Evidence held to support finding that makers of note signed as individuals, and not as corporate officers.—Bush v. Gilmore (Sup.) 682. An affidavit of defense held not to sustain defendant’s answer that a note was given without consideration and for accommodation of the payee.—Jones v. Brown (Sup.) 972. : 2. Actions. Under Code Civ. Proc. § 1915, in a suit on a bond for the performance of a covenant for renewal of a lease, held error to add interest to the amount of the bond in assessing damages.—Join Polhemus Printing Co. v. Hallenbeek (Sup. 1056. BREACH. Of contract, see “Contracts,” § 5. Of covenant, see “Covenants,” § 1. Of warranty, see “Insurance,” § 2; § 7. BRIDGES. “Sales, § 1. Regulation and use for travel. A pile of sweepings, including banana pe ings, left on the public stairway of a bridge, he to constitute a dangerous obstruction.—Cooley Trustees of New York & Brooklyn Brid (Sup.) 1. BROKERS. § 1. Compensation and lien. A vendor, who refuses to contract for sale realty to a club because the officer presented the broker had no authority to agree to the sa held not liable for the broker’s commissions Kirwan v. Barney (Sup.) 122.

*1161 INDEX. 1161 Facts held not to entitle plaintiff to recover commission for sale of real estate.—O. H. Diamond & Co. v. Hartley (Sup.) 1022> 1 Rev. St. p. 709, restricting brokers’ fees for negotiating loans, applies to a contract for a loan procured while such statute was in force, although such statute was subsequently changed.— Anderson v. Dwyer (City Ct. X. Y.) 1114. CALENDARS. Of causes for trial, see “Trial,” § 2. CARRIERS. § 1. Carriage of goods. Damages cannot be allowed, in an action for nondelivery of goods, -where there is no depreciation in value and the goods are tendered back to the consignor.—Brookstone v. Wescott Exp. Co. (Sup.) 72. A contract for transportation of goods, limiting the carrier’s liability, held not to relieve it from liability for a loss by its negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for loss of goods shipped under a contract limiting its liability, evidence as to the value of the goods held admissible, where the loss was due to carrier’s negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for a portion of goods lost in shipment, evidence as to the value of those delivered, as fixing relatively, the value of those not delivered, is admissible.—Marquis v. Wood (City Ct. N. Y.) 251. A provision in a bill of lading that the carrier shall not be liable for any loss or breakage does not exempt the carrier from its own negligence.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. Evidence held to raise a presumption that defendant was negligent in handling freight in its possession as a carrier.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. $ 2. Carriage of passengers — Relation between carrier and. passenger. Where a passenger notified the conductor where to let him off, but was carried by through fault of the conductor, and was permitted to remain on the car till its return trip, he remained a passenger, though he paid but one fare.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. 3. —— Personal injuries. Evidence held to justify a finding that a pasenger's fall from a street car was due to its egligent operation.—Brainard v. Nassau Elecric R, Co. (Sup.) 74. Evidence held not to warrant a finding that a epression in a flight of stairs at station was the roximate cause of accident to plaintiff.—Rusk . Manhattan Ry. Co. (Sup.) 3S4. Failure to put sand or ashes on light snow or in ice at platform near railway station held ot negligence.—Rusk v. Manhattan Ry. Co. up.)' 384. Presence of a light snow and thin ice at platform near railway station will be presumed due to the snow-storm prevailing, so that railway company was not negligent in not clearing it off. —Rusk v. Manhattan Ry. Co. (Sup.) 384. Street railroad’s failure to provide a safe place for passengers to alight held sufficient to require the submission of plaintiff’s negligence, in stepping on a parallel track in front of another car, to the jury.—Wise v. Brooklyn Heights R. Go. (Sup.) 530. An instruction that the burden was on defendant to show that the accident causing the injury to plaintiff did not occur by reason of defendant’s negligence held erroneous. — Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence held insufficient to support a finding of negligence in the operation of a street ear, which ivas suddenly stopped, throwing plaintiff from her seat in the car to the floor.—Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence that the conductor of an open street car did not stop it, though he knew plaintiff was on the side step, and that a passing truck was dangerously close, held sufficient to support a finding that defendant was negligent. — Faris v. Brooklyn City & N. R. Co. (Sup.) 670. Passenger held entitled to assume that an engine would approach a car on which she entered so as not to cause her injury, and not to be required to look for its approach.—Jones v. New York Cent. ■ & H. R. R. Co. (Sup.) 721. Evidence held, sufficient to go to the jury on question whether conductor of a street car knew plaintiff intended to alight, and was negligent in prematurely starting his car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. Negligence cannot be attributed to street-railway company, where passenger, after the car had stopped, and then started up, stepped off, without notice, from the front platform.—Steuer v. Metropolitan St. Ry. Co. (Sup.) 1059. § 4. - Contributory negligence of person injured. A man ivho surrenders his seat in a crowded street car to a w-oman, and stands on the running board of the ear is not, as matter of law, negligent.—Brainard v. Nassau Eledtrie R. Co. (Sup.) 74. Riding on the running board of a crowded street car is not, per se, negligence.—Brainard v. Nassau Electric R. Co. (Sup.) 74. Where a passenger was injured by being struck by a street car on a parallel track from the one from which he alighted, evidence held sufficient to require the submission of the question of his negligence to the jury. — Wise v. Brooklyn Heights R. Co. (Sup.) 530. A passenger on the side step of a street car, who was injured by a passing truck, held not guilty of contributory negligence, when he tried to enter the nearest cross aisle in the car upon seeing his peril.—Faris v. Brooklyn City & N. R. Co. (Sup.) 670. A passenger on a crowded ear, standing on the running board, injured by striking a van

*1162 1162 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. while looking for a seat, held not guilty of negligence, as a matter of law.—Henderson v. Nassau Electric ft. Co. (Sup.) 690. It is not negligence per se for a passenger to alight from a street car without taking hold of the railings to guard against sudden movement of the car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. § 5. - Palace cars and sleeping cars. Allowing a valise to. stand in the aisle of a dimly-lighted car, where passengers are likely to stumble over it, is negligence.—Levien v. Webb (City Ct. N. Y.) 1113. Contributory negligence of a passenger, who was injured by stumbling over a valise left in the aisle of the sleeping car, held for the jury. —Levien v. Webb (City Ct. N. Y.) 1113. CAUSE OF ACTION. See "Action.” CERTIORARI. CHATTEL MORTGAGES. § 1. Requisites and validity. Evidence held sufficient to show that chattel mortgages were fraudulent in fact as to judgment creditors.—Robinson v. Hawley (Sup.) 138. § 2. Rights and liabilities of parties. Mortgagee, purchasing at chattel-mortgage sale, held liable for conversion of property to pri- or lienholder, although a year had elapsed at time of sale from date of filing the lien, which had not been refiled.—American Box Mach. Co. v. Zentgraf (Sup.) 417. § 3. Rights and remedies of creditors. Chattel mortgages held invalid, as against a prior executed judgment confession, not filed until after the execution of the mortgages, where the mortgagees failed to show that they took possession within a reasonable time.—Robinson v. Hawley (Sup.) 138. •. Chattel mortgage on hay held not void because of an agreement that the mortgagor might feed certain of the hay before sale under the mortgage.—Spurr v. Hall (Sup.) 854. § 1. Nature and grounds. Where plaintiff alleges that the disallowing of a claim by him as constable, on ground that he-was not constable, was illegal, as involving collaterally a trial to the office, his remedy is by certiorari, and not by action.—Adams v. Town of Wheatfield (Sup.) 738. § 2. Proceedings and determination. Under Code Civ. Proc. §§ 2138, 2139, in proceedings to review dismissal of an officer, affidavits of third parties cannot he considered, where returns were made both by the officer dismissing him and such officer’s successor.—People v. York (Sup.) 400. A return denying knowledge as to whether witnesses in proceedings sought to be reviewed were sworn, and alleging a custom to receive unsworn testimony, held an admission of an allegation that unsworn' testimony was received.—People v. York (Sup.) 400. CHANCERY. See “Equity.” CHANGE OF VENUE. Of civil action, see “Venue,” § 2. CHOSE IN ACTION. Assignment, see “Assignments.” CITIES. See “Municipal Corporations.” CITIZENS. See “Indians.” CLAIM AND DELIVERY. See “Replevin.” CLAIMS. Against county, see “Counties,” § 1. - estate of decedent, see “Executors and Administrators,” I 4. - town', see “Towns,” § 2. CLASS LEGISLATION. See “Constitutional Law,” § 2. CLUBS. CHARITIES. § 1. Creation, existence, and validity. A bequest for charitable uses held intended for a branch organization attached to a particular church, and not for the chief society.—In re Fitzsimmons’ Will (Sur.) 485. A bequest for charitable uses held valid, under Acts 1893, c. 701, § 1, providing that a bequest should not fail for indefiniteness of beneficiaries. —In re Fitzsimmons’ Will (Sur.) 485. Where a club, at a meeting of its members directs its president to purchase realty for club site, an officer subsequently empowered b; the trustees has no authority to purchase tin site; the power conferred by the club bein. superior to that of the trustees.—Kirwan v. Bar ney (Sup.) 122. COLLATERAL ATTACK. On judgment, see “Judgment,” § 5.

*1163 INDEX. 1163 COLLECTION. CONDITIONS. Of estate of decedent, see “Executors and Ad•ministrators,” § 3. Precedent to action, see “Action,” § 1. COMBINATIONS. See “Conspiracy.” CONFESSION. Of judgment, see “Judgment,” § 1. COMMISSIONS. CONFIDENTIAL RELATIONS. Of broker, see “Brokers,” § 1. Of trustee, see “Trusts,” § 5. • COMMITTEE. Guardianship of insane persons, See “Insane Persons,” § 1. Disclosure of § 1. communications, see “Witnesses,”" CONSIDERATION. Of bill of exchange or promissory note, see “Bills and Notes,” § 1. Of contract, see “Contracts,” § 1. COMMON CARRIERS, CONSPIRACY. See “Carriers.” COMPARATIVE NEGLIGENCE. See “Negligence,” § 2. COMPENSATION. For property taken for public use, see “Eminent Domain,” § 1. For services, see “Master and Servant,” § 2. Of attornei', see “Attorney and Client,” § 2. Of executor or "administrator; see “Executors and Administrators,” § 7. f trustee, see “Trusts,” § 5. § 1. Civil liability. A complaint which, for a cause of action, alleged a conspiracy in the doing of certain acts which resulted in damage to plaintiff, is demurrable, since a conspiracy to do certain things, the doing of which caused damage, does not, of itself, constitute a cause of action upon which a recovery can he had.—Kolel America Vatiferes Jerusalem v. Eliach (Sup.) 935. CONSTABLES. See “Sheriffs and Constables.” CONSTITUTIONAL LAW. COMPETENCY. f experts as witnesses, see “Evidence,” § 7. f witnesses in general, see “Witnesses,” § 1. COMPLAINT. n civil actions, see “Pleading,” § 1. COMPROMISE AND SETTLEMENT. A fair settlement of an action for personal iniries will not be set aside because defendants died to employ plaintiff after he got well, ough they promised it as part consideration for e settlement.—Szymanski v. Chapman (Sup.) 0. See “Jury,” § 1. § 1. Distribution of governmental powers and functions. Laws 1899, c. 700, § 1 et seq., providing that municipal corporations shall pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official duties, is unconstitutional.—In re Straus (Sup.) 37. " § 2. Privileges or immunities, and class legislation. Laws 1895, c. 322, § 1, prohibiting use of soft coal in certain portions of city of Brooklyn, held not a grant of exclusive privilege by a local act, within Const, art. 3, § 18—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. CONCLUSION CONTEMPT. witness, see “Evidence,” § 7. CONDEMNATION. king property for public use, amain. see “Eminent CONDITIONAL SALES. “Sales,” § 8. § 1. Acts or conduct constituting contempt of court. A litigant’s false swearing will justify a finding that he is guilty of contempt of court.—Bernheimer v. ICelleber (City Ct. N. Y.) 1125. § 2. Punishment. Code Civ. Proc. § 111, which prohibits successive terms of imprisonment, does not apply where the earlier commitment is founded on mesne process, and a second commitment is ordered under

*1164 1164 i 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. final judgment in the samp action.—Reese v. Rees (Sup.) 760. Under Code Civ. Proe. § 2284, a person may he fined for an omission to perform an act, without any order requiring him to perform the act.—Hommel v. Buttling (Sup.) 811. A fine, imposed for contempt for false swearing, of the amount of plaintiff’s judgment, held not excessive.—Bernheimer v. Kelleher. (City Ct. N. Y.) 1125. CONTEST. Of will, see “Wills,” § 3. CONTINUANCE. Amendment of a complaint, averring that a car was “stopped” to permit plaintiff to alight, so as to conform to proof that it was moving “very slowly,” held not cause for suspension of the trial.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. CONTRACTS. Agreements within statute of frauds, see “Frauds, Statute of.” Contracts of municipalities, see “Municipal Corporations,” §§ 4, 5. Damages for breach, see “Damages,” § 2. Novation, see “Novation.” ■Operation and effect of customs or usages, see “Customs and Usages.” Particular classes of express contracts, see “Bills and Notes”; “Covenants”; “Insurance” ; “Joint Adventures”; “Landlord and Tenant” ; “Liens’”; “Principal and Agent” ; “Principal and Surety”; “Sales”; “Vendor and Purchaser.” - employment, see “Master and Servant.” - separation agreements, see “Husband and Wife,” § 4. Particular modes of discharging contracts, see “Compromise and Settlement” ; “Payment.” Reformation, see “Reformation of Instruments.” Specific performance, see “Specific Performance.” '§ 1. Requisites and validity. Failure of contractor to disclose information regarding the' character of the subject-matter of contract with the state held not to invalidate it. —People v. Roberts (Sup.) 148. A contract for a lower price, after delivery •and acceptance at a certain price, is without consideration.—O’Sullivan v. New York Lumber Corp. (Sup.) 493. Where defendant promised that, if windows placed in his house by mistake were left, he would pay for work done, leaving the windows is a consideration for the promise.—Drake v. Bell (Sup.) 657. Evidence held not to show contract by defendant to pay plaintiff for services rendered third .person— Balmford v. Peffer (Sup.) 787. , The fact that parties to a tripartite agreement attempted to obtain possession thereof after it had been delivered to plaintiff held not sufficient to show want of delivery.—Day v. Dow (Sup.) 793. Money paid by an employe’s wife, under an employer’s agreement to refrain from arresting his employs, in an action to recover money alleged to have been stolen by him, held paid under duress.—Jaeger v. ICoenig (City Ct. N; Y.) 505. A wife’s agreement to pay her husband’s employer money in consideration of the employer’s forbearance to arrest her husband, in an action to recover money which it was alleged he had stolen, held an agreement to refrain from a civil arrest merely, and not to- amount to the compounding of felony.—Jaeger v. Koenig (City Ct. N. Y.) 505. § 2. Construction and operation. A contract that may be discontinued “in” three months cannot be discontinued after the expiration of such time—Feree v. Moquin-Offerman-Hessenbuttel Coal Co. (Sup.) 120. . On a contract by defendants to pay plaintiff a certain price for all ice used by them for two years, he cannot recover for ice purchased by them from others.—Banker v. Willard (Sup.) 447. Contract authorizing owner to make “omissions” held to refer to things abandoned, and not those given to some other contractor to perform. —Gallagher v. Hirsh (Sup.) 609. § 3. Modification and merger. In an action to recover for ice sold under a contract, evidence held, to raise a question for the jury as to plaintiff’s intention to modify the original contract as to the price.—Taylor v. Citizens’ Ice Co. (Sup.) 213. In an action to recover for ice sold under contract, evidence held admissible to show a modification of the contract as to the price. Taylor v. Citizens’ Ice Co. (Sup.) 213. 4. Rescission and abandonment. The giving of a note as provided in a contrae does not, in the absence of evidence of furthei or different agreement, constitute a waiver o rights under the contract.—Richardson & Morga~ Co. v. Gudewill (City Ct. N. Y.) 1120. 5. Performance or breach. Where plaintiff contracted to phy all of de fendant’s obligations as shown on the latter’ books, held, in the absence of misrepresentation,, he was bound by the books.—State Bank Napier (Sup.) 779. Whether or not delay of third person in d livering building material justified a contrac or’s failure to complete contract in time spe ified held question for jury.—McLaren Fischer (Sup.) 808. Delay of contractor for 51 days to comple building contract held prima facie unreaso able, and places burden of excusing same o contractor.—McLaren v. Fischer (Sup.) 808. § 6. Actions for breach. Code, § 519, does not authorize introduction i evidence to prove an implied contract, where express one is pleaded.—Dennison v. Musgra (Sup.) 188.

*1165 INDEX. 1165 Complaint setting forth, contract and its breach held to state good cause of action, though theory of damages was erroneous.—Kraft v. Rice (Sup.) 3G8. Complaint alleging pledge of liquor to secure a note, and payment, and refusal to return liquor, does not state breach of contract without alleging demand for return.—Kraft v. Rice (Sup.) 308. A contract cannot be considered, on demurrer to a complaint for its breach, which did not refer to the contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Facts held insufficient to constitute a cause of action for breach of contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Nature of contract, as set out by the pleadings, held for the jury.—Gallagher v. Hirsh (Sup.) 609. CORONERS. Laws 1897, c. 378, §§ 1570, 1571, held to abolish the office of county coroner within the territory of Greater New York as it theretofore existed.—Tuthill v. City of New York (Sup.) 968. CORPORATIONS. Particular classes of corporations, see “Municipal Corporations”; “Street Railroads," § 1. - banks, see “Banks and Banking,” § 1. § 1. Incorporation and organization. In an action against a stockholder for an indebtedness of the company because the capital stock was not fully paid in, evidence held sufficient to support a finding of an overvaluation of the property when the company was organized. —White, Corbin & Co. v. Jones (Sup.) 21. An answer to an action on a written contract, which alleged an agreement outside the writing and did not seek to reform the contract, but to repudiate it, held insufficient.—International Food Co. v. Beckerd (Sup.) 1001. Where defendant’s answer to an action on a contract alleged a counterclaim, to which she would not be entitled if the contract was valid, and did not allege that it was void, the answer •as insufficient.—International Food Co. v. leckerd (Sup.) 1001. Action for a breach of a contract held mainainable, in the form brought, to recover a balnce of salary due under such contract.—Purdy . C. C. White Paper Mfg. Co. (City Ct. N. Y.) 54. Admission of evidence of a special contract held rroneous, where plaintiff had elected to proceed n a quantum meruit.—Morris v. Sire (City Ct. “. Y.) 1098. Where complaint alleges due performance of ritten contract, plaintiff cannot show omissions, nperforraance, and waiver.—Bloch v. Remelius Yty Ct. N. Y.) 1124. CONTRIBUTORY NEGLIGENCE. e “Negligence,” § 2. CONVERSION. rongful conversion of personal property, see ‘Traver and Conversion.” CONVEYANCES. veyances of particular species of property, e “Easements,” § 1. mortgaged property, see “Mortgages.” § 5. fraud of creditors, see “Fraudulent Conveyces.” trust, see “Trusts,” § 1. ticular classes of conveyances, see “Assignents for Benefit of Creditors”; “Chattel ortgages” ; “Deeds” ; “Mortgages.” § 2. Corporate existence and. franchise. One who had recognized a corporation de facto, and officially directed its affairs, held estopped to assert, when sued by it, that it lacked corporate existence.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. Refusal to find that one corporation carried on its projects through the agency of another corporation held proper.—In re Griffin’s Will (Sup.) § 3. Capital, stock, and dividends. Mere recording of a certificate reciting that a company’s stock was fully paid up held not to terminate stockholder’s liability for unpaid stock. —White, Corbin & Go. v. Jones (Sup.) 21. Payments for capital stock, represented by expenditures in developing property, held properly computable in determining stock actually paid in.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. • § 4. Members and stockholders. In an action to enforce a stockholder’s statutory liability for corporate debts, evidence of the value of property transferred for stock issued was admissible.—White, Corbin & Co. v. Jones (Sup.) 21. In an action by a minority stockholder of a corporation to restrain the payment of exorbitant salaries, it must be alleged and proved that a demand to sue was made on the corporation, and that the same was refused.—Fitchett v. Murphy (Sup.) 182. That a person claiming to have been defrauded of his interest in the corporate assets may maintain an action to restrain the payment of exorbitant salaries, he must be a stockholder at the time of the institution of the action.—Fitchett v. Murphy (Sup.) 182. § 5. Officers and agents. In an action to restrain the further payment of exorbitant salaries to officers of a corporation, the court has no power to fix a gross sum to be divided as salaries among the officers.— Fitchett v. Murphy (Sup.) 182. In an action to enforce the personal liability of directors for failure to file an annual report, as required by Laws 1892, c. 688, § 30, the var

*1166 1166 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. lidity of the corporation’s act in changing the location of its principal office could not be questioned. — Uptegrove v. Schwarzwaelder (Sup.) 623. Laws 1892, c. 688, § 30, held complied with where the annual report of a corporation was filed in the county where its principal business office was in fact located, though the certificate of incorporation located it in a different county, from which it was legally removed.—Uptegrove v. Schwarzwaelder (Sup.) 623. Complaint for penalties, under Gen. Laws, c. 36, § 29. for refusal to permit an inspection of corporate books, should aver specifically the facts relied on to constitute the offense.—Gunst v. Gcldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, is defective, if it ".does, not allege that the company is a stock corporation, and the circumstances connected with the demand for inspection.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, need not show that defendant was an officer of the corporation, if it shows that he was an agent.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection, of corporate books, need not make the corporation a party.—Gunst v. Goldstein (Sup.) 707. § 8. Dissolution and forfeiture of franchise. A corporation once legally created continues, in the absence of statute, until either its charter period has expired or its dissolution has been judicially declared.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. An order authorizing the assignment by the receiver of a bank of certain judgments held by it. duly made in the .dissolution proceedings of the bank, is prima facie binding upon all the stockholders of the bank, and the title of the assignee can only be assailed by a direct proceeding, to which he is made a party.—1Treacy v. Bilis (Sup.) 600. § 9. Foreign corporations. An arrangement begun under section 161 of the English companies act, providing for a voluntary winding-up, does not ceaso to be within the section because presented to the court for approval.—Bank oE China, Japan & the Straits v. Morse (Sup.) 268. A reorganization scheme under the English companies act held to violate the rule that calls on unpaid subscriptions should be equal.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. It is a defense to an action against a stockholder to recover a call on his shares that the call was made for unauthorized purpose.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. ^ 6. Corporate powers and liabilities. In an action against a corporation on an apparently ultra vires contract, proof of its execution by the secretary and treasurer was insufficient to authorize its admission in evidence.— Broadway Theater Co..v. Dessau Co. (Sup.) 335. Acts and declarations of the president, secretary, and treasurer of a corporation, without action by directors or stockholders, held not sufficient to show ratification of an ultra vires contract.—Broadway Theater Co. v. Dessau Co. <Sup.) 335. Where an electric light company received and used poles purchased by one of its trustees, before its organization, under representations as its agent, the company is liable.—Davis v. Valley Electric Light Co. (Sup.) 580. | 7. Insolvency and receivers. Where a corporation has become insolvent, and its stock valueless, the granting of a motion to make its receiver a party to an action against it and another by one of its stockholders, for the return of certain of its stock delivered to it by such stockholder, should he denied.— Marshall v. Wendell (Sup.) 13. Under Laws 1858, c. 314, § 2, and Laws 1892, c. 688, § 48, a general receiver of a corporation may maintain an action at law for the conversion of property received under a void bill of sale.—McQueen v. New (Sup.) 464. A bookkeeper is not a “mechanic, workingman, or laborer,” within Laws 1897, c. 415, § 8, preferring the wages of such employes of an insolvent corporation.—Cochran v. A. S. Baker Co. (Sup.) 724. A reorganization scheme under section 161 of the English companies act held to go beyond the statute.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. A liquidator of a corporation .being wound up under section 161 of the English companies act held to have no authority to make calls on unpaid subscriptions, in an amount more than neces sary to satisfy the debts of the company.—Ban! of China, Japan ■ & the Straits v. Morse (Sup. 268. “Business and property,” as used in EnglisI statute authorizing sale thereof by a corporatio being wound up, held not to include unpaid su’ scriptions for which a call has not been made-Bank of China, Japan & the Straits v. Mors (Sup.) 268. A contract made by a Pennsylvania corpor; tian, in Pennsylvania, by which certain goo' were to he delivered in New York City, is not violation of the provisions of sections 15 and of the general corporation law of New York. In re Simonds Burnace Co. (Sup.) 974. Where the owner of stock of a foreign cor ' ration had deposited same with a resident of ti state, who thereupon actually held same, or t indicia of title which would enable a transfer to acquire title thereto by virtue of such r dent’s title or right to possession, such stock came subject to the jurisdiction of the cou of this state.—Simpson v. Jersey City Goritr ing Co. (Sup.) 1033. Where no issue was raised that an officer the defendant, a foreign corporation, was the state, service upon one who was a

*1167 INDEX. 1167 aging agent, within the meaning of Code, § 432, was sufficient.—Evans v. American Steel Foundry Go. (City Ct. N. Y.l 922. CORRECTION. Of assessment of taxes, see “Taxation,” § 1. COSTS. In particular actions or proceedings, foreclosure, see “Mortgages,” § 6. - probate proceedings, see “Wills,” § 3. § 1. Nature, grounds, and extent of right in general. Under Code Civ. Proc. § 544, it was improper to require defendant, as condition to filing supplemental pleading, to pay costs accruing before the time when such pleading could have been filed.—Halley v. Lynch (Sup.) 736. Linder Code Civ. Proc. § 3228, subd. 4, and Id. § 3229, it was error, in an action for the recovery of money only, where a verdict was rendered in favor of defendant on a counterclaim, tor the clerk to refuse to tax his bill of costs.— Smith v. Bryant (Sup.) 943. Defendant, who had not filed a note of issue on service of notice of trial, hold not entitled to costs on having the action dismissed for want of prosecution.—Gilroy v. Stampfer (City Ct. N. Y.) 924. Defendants, where demurrer in common-law suit is sustained, held entitled to costs where only issue of law is presented.—Kellar v. Slirady (City Ct. N. Y.) 1123. 2. Security for payment. Under Code Civ. Proc. § 3272, a court has no uthority to require plaintiff, in an action by a "uardian ad litem, to give security for costs in sum greater than $2o0.—Turell v. Erie B. Co. Sup.) 308; Degraw v. Same, Id. Under Code Civ. Proc. § 3268, a defendant rho does not apply for security for costs until fter cause has been tried is guilty of loches, hich authorizes denial of application.—Turell . Erie B. Co. (Sup.) 308; Degraw v. Same, Id. An application to require a nonresident, apointed administratrix in New York, to give seirity for costs in an action for the intestate’s rongful death, held within the discretion of the urt.—Pursley v. Bodgers (Sup.) 1015. Facts held to require the favorable action of e court’s discretion on an application to re-ire a nonresident, appointed administratrix in action in New York, to give security for sts.—Pursley v. Bodgers (Sup.) 1015. L foreign corporation, plaintiff in an action, <Z not exempt from giving security for costs, der Code Civ. Proc. §§ 3160, 3268, because it s a place of business in New York City.— nry Huber Co. v. Warren (City Ct. N. Y.) 7. implication to sue as poor person held properly ied.—Mendello v. Bosati (City Ct. N. Y.) 1102. § 3. Amount, rate, and items. In an action for an accounting of trust funds, the amount claimed being greatly in excess of the sum proven that defendant received, the latter amount is the value of the subject as affecting an extra allowance of costs.—Woodbridge v. First Nat. Bank (Sup.) 258. § 4. On appeal or error. Where an issue tried between several defendants is wholly distinct, and bears no relation to the issue between the plaintiff and the defendants, a judgment, on an appeal between the .defendants, to which plaintiff was a necessary respondent, which awards costs to “respondents,” entitles both the plaintiff and the responding defendant to costs. — Beynolds v. iEtna Life Ins. Co. (Sup.) 901. COUNTERCLAIM. See “Set-Off and Counterclaim.” . COUNTIES. § 1. Claims against county. Including a claim against a county in the assessment roll among claims for which assessments are levied constitutes an audit of the claim.—Adams v. Town of Wheatfield (Sup.) 738. Where plaintiff appeared before a committee appointed to audit his claim against a county, he cannot thereafter object to a report disallowing the claim on the ground it was not regularly before the committee.—Adams v. Town of Wheat-field (Sup.) 738. Where a board of county supervisors audited a claim without investigation, the adoption without investigation of the report of a committee disallowing the claim is a valid reaudit.—Adams v. Town of Wheatfield (Sup.) 738. COURTS. Contempt of court, see “Contempt.” Judges, see “Judges.” Jurisdiction of and proceedings relating to criminal law, see “Criminal Law,” § 1. Province of court and jury, see “Trial,” § 5. Beview of decisions, see “Appeal.” § 1. Nature, extent, and exercise of jurisdiction in general. A record containing neither averment nor proof of defendant’s residence does not show jurisdiction, and will not sustain a judgment of the municipal court. — Parker v. Dennett Surpassing Coffee Co. (Sup.) 785. Evidence that the “home” of defendant was “Eighty-Sixth street” does not sufficiently establish residence within the jurisdiction of the court.—Wilson v. Hogan (Sup.) 854. § 2. Courts of limited or inferior jurisdiction. Under Const, art. 6, § 18, and Code Civ. Proc. § 340, subd. 3, a judgment rendered by the municipal court in the borough of Brooklyn against one whose residence does not appear is not void for lack of jurisdiction.—Dodge Mfg. Co. v. Nassau Showcase Co. (Sup.) 111.

*1168 1168 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. Under Code Civ. Proc. §§ 2244. 2954, municipal court of the city of New York is not ousted of jurisdiction of a summary proceeding to recover possession of real estate merely by reason of the fact that defendant denies plaintiff’s title and claims title in himself.—Quinn v. Quinn (Sup.) 684. The municipal court of the city of New York has jurisdiction of the person of a defendant residing in the city of New York, but in a county other than that of plaintiff, when the process in the action is served in the county of defendant.— Luban v. Simonds (Sup.) 697. The municipal court of the city of New York has jurisdiction of an action to replevin chattels, although they were unlawfully taken and detained by defendant in the city of New York, in a county other than that of plaintiff.—Luban v. Simonds (Sup.) 697. § 3. Courts of probate jurisdiction. Where the decree of a surrogate has been settled between the parties and satisfied of record without the attorney’s consent, the surrogate court has power to enforce his lien against the decree, when the value of his services has been fixed by judgment.—In re Regan (Sur.) 1074. COVENANTS. § 1. Performance or breach. Covenant for quiet enjoyment, in deed conveying lot 35 feet wide, held not broken by ouster from a strip off the west side of said lot, as the location of the east line did not appear, and the covenant .did not guaranty the width, and description did not cover such strip.—Gunn v. Moore (Sup.) 519. It was error to permit a recovery for breach of a covenant contained in a bill of sale which occurred before the execution of the bill of sale.— Droste v. Palmer (Sup.) 660. An answer to a complaint for breach of covenant against incumbrarices on account of nonpayment of taxes held insufficient.-—Brenen v. Kelly (Sup.) 695. A complaint for breach of covenant against incumbrances, alleging unpaid taxes at the delivery of the deed, presents a cause of action.—Brenen v. Kelly (Sup.) 695. Under Laws 1882, c. 410, §§ 990, 995, an assessment for benefits was not an incumbrance on land till final confirmation of report of commissioners; and hence, till then, there was no breach of covenant against incumbrances.—Hastings v. Twenty-Third Ward Land Improvement Co. (Sup.) 998. COVERTURE. See “Husband and Wife.” CREDITORS. See “Assignments for Benefit of Creditors”; “Bankruptcy”; “Creditors’ Suit”; “Fraudulent Conveyances.” Rights as to chattel mortgage by debtor, see “Chattel Mortgages,” § 3. CREDITORS’ SUIT. Held, that a creditor has priority, on fraudulent conveyance by the debtor, over other creditors who first acquire a lien by a suit in the nature of a creditors’ action.—Mandeville v. Campbell (Sup.) 443. CRIMINAL LAW. Particular offenses, see “Contempt”; “Disorderly House.” Penalties, see “Penalties.” § 1. Jurisdiction. Where defendant was within the court’s jurisdiction, the fact that he was arrested by an officer without a warrant does not invalidate his conviction.—People v. Iverson (Sup.) 220. CROSS-EXAMINATION. See “Witnesses,” § 2. CUSTOMS AND USAGES. A custom of giving two weeks’ notice of an intention to leave cannot affect a specific contract of employment for a specified period.—Mitchell v. Waite (City Ct. N. Y.) 1108. DAMAGES. Compensation for property taken for public use, see “Eminent Domain,” § 1. Damages for particular injuries, see “Fraud,” § 1; “Libel and Slander,” § 4; “Trespass,” § 2. - injuries caused by public improvements, see “Municipal Corporations,” § 5. § 1. Nature and grounds in general. Evidence, in an action for damages caused by collapse of a gas holder, held not to show defendant’s ownership or control of the gas holder. —Wodroczka v. Consolidated Gas Co. (Sup.) 186. § 2. Measure of damages. Measure of damages for preventing one iron completmg contract after part performanc when specific sum is to be paid on performanc is difference between contract price and cost o performance.—Birnhak v. Hollander (Sup.) 118. Measure for breach of contract to furnish ploc to store brick held cost of removing and. storin them.—Gallagher v. Hirsh (Sup.) 609. The measure of damages for being depriv of part of a contract is the profit the contract would have made in doing the work -at the ogre price.—Gallagher v. Hirsh (Sup.) 609. § 3. Inadequate and excessive damage A verdict for $8,537, in an action for the lo of a right arm, and injuries to a leg, which e dence indicated might he permanent, held, n excessive.—Barrett v. New York Cent. & H. R. Co. (Sup.) 9. § 4. Pleading, evidence, and assessme" Proof of the collapse of a gas holder alo held insufficient to raise the presumption of n

*1169 INDEX. 1169 Iigence—Wodroczka v. Consolidated Gas Co. (Sup.) 186. A complaint seeking to recover money expended to secure return of property pledged after payment of debt alleges special damages, and, in ■ absence of facts showing the same, is insufficient.—Kraft v. Rice (Sup.) 368. DEATH. § 1. Actions for causing death. The absence of contributory negligence on the part of the person killed may be inferred from the circumstances of the accident.—Boyle v. Deg-non-McLean Const. Co. (Sup.) 1043. tracks, including switches.—New York Cent. & H. R. R. Co. v. Needham (Sup.) 992. DEFAULT. Judgment by, see “Judgment,” § 3. DELIVERY. Of goods by carrier, see “Carriers,” § 1. DEMURRAGE. See “Shipping,” § 1. DEBTOR AND CREDITOR. DEMURRER. See “Assignments for Benefit of Creditors”; “Creditors’ Suit.” DECEDENTS. See “Executors and Administrators.” Testimony as to transactions with persons since deceased, see “Witnesses,” § 1. DEEDS. See “Easements,” § 1. Covenants in deeds, see “Covenants.” In fraud of creditors, see “Fraudulent Conveyances.” In trust, see “Trusts,” § 1. Of trust, see “Mortgages.” Tax deeds, see “Taxation,” § 4. § 1. Requisites and validity. A description reading, “1,128 acres of land, being the northwesterly corner of township No. 4 of T. & C.’s purchase, in H. county, be the same more or less,” is not void for uncertainty. —Wallace v. Curtis (Sup.) 994. § 2. Construction and operation. A second deed, conveying property to the granee and his wife, held not to affect grantee’s title nder a prior conveyance, but to create a lien in is wife’s favor only.—Washburn v. Benedict Sup.) 387. A deed, beneficial to the grantee, executed and ecorded without the grantee’s knowledge, pass-s title, as acceptance is presumed.—National ank v. Bonneli (Sup.) 521. Where a deed is delivered to a custodian, with straction to deliver to the grantee on the gran-r’s death, the title vests at time of delivery to le custodian.—Ranken v. Donovan (Sup.) 542. Deeds and mortgages by the grantor, after the nveyance of her property, though she remains possession, are not admissible to show her innt in making the conveyance.—Ranken v. Donon (Sup.) 342. n a deed conveying a house and lot, describing southern boundary as 25 feet from the cen- • line of the railroad, held, that the “center e” intended was the center line between main cks of railroad, and not center line of all 61 N.Y.S.—74 In pleading, see “Pleading,” § 3. DEPOSITARIES. See “Deposits in Court.” DEPOSITIONS. An order to examine a party before trial cannot be vacated because the affidavit showed more than was required by Code Civ. Proc. § 872, subds. 1-4.—Trotter v. Brevoort (Sup.) 181. Code Civ. Proc. § 872, subd. 5, will not he considered, in deciding whether a party is entitled to an order for his examination before trial.— Trotter v. Brevoort (Sup.) 181. Where plaintiff inadvertently failed to file a deposition de bene esse within 10 days, as required by Code Civ. Proc. § 880, he was entitled to an order granting permission to file the same nunc pro tune.—Israel v. Israel (Sup.) 328. The affidavit on an application to take the deposition of a party whose residence is unknown must show an attempt and failure to ascertain it.—Dennis v. Tebbitts (City Ct. N. Y.) 503. Under Code Civ. Proc. § 872, subd. 1, an affidavit for the examination of defendant to an action pending, and also another not a party, held' insufficient.—Dennis v. Tebbitts (City Ct. N. Y.) 503. DEPOSITS. In hank, see “Banks and Banking,” § 2, DEPOSITS IN COURT. Where loss resulted from an investment together of different funds deposited, held, that it should fall pro rata on all.—Elkin v. Elkin (Sup.) 947. DESCENT AND DISTRIBUTION. See “Executors and Administrators.” Inheritance by, from, or through bastards, see “Bastards,” § 1. Property and interests undisposed of by will, see “Wills,” § 5.

*1170 1170 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 1. Nature and course in general. A person leaving a will is not “an intestate,” within the statutes of descent (1 Rev. St. p. 754, § 23), though he does not dispose of all of his property because some parts of the will violate the statute against perpetuities.—Messmann v. Egenberger (Sup.) 556. DESCRIPTION. Of property conveyed, see “Deeds,” § 2. DEVISES. See “Wills.” DISORDERLY HOUSE. One cannot be convicted, under Pen. Code, § 388, of keeping a place where opium is smoked by others, when the evidence shows that opium was smoked at a place maintained by defendant,, but does not show who did the smoking.—People v. Reed (Sup.) 520. DISSOLUTION. Of corporation, see “Corporations,” § 8. Of partnership, see “Partnership,” § 4. DIVORCE. DILIGENCE. Of party asking relief, see “Specific Performance,” § 3. DIRECTING VERDICT. In civil actions, see “Trial,” § 4. DISCHARGE, From employment, see “Master and Servant,” I 1. From liability ns assignee, see „ “Assignments for Benefit of Creditors,” § 4. - as surety, see “Principal and Surety,” § 1. DISCOVERY. § 1. Under statutory provisions. Discovery and inspection of defendant’s books will not be allowed, no reason being shown why it is necessary for the reply, and inspection thereof to enable him to reply not being allowable until case is at issue.—Allen v. Fowler & Wells Go. (Sup.) 325. Code Civ. Proc. § 872, subd. 5, does-not apply to the examination of a party, hut only to witnesses.—Hay v.- Zeiger (Sup.) 647. Code Civ. Proc. §§ 870, 872. 873, held intended to secure the defendant’s testimony in a plaintiff’s behalf before trial, where the material information sought is wholly and solely known to the former.—Cahill v. Kurscheedt (City Ct. N. T.) 1100. § 1. Jurisdiction, proceedings, and relief. In an action against a wife for divorce, the uncorroborated testimony of a single witness that he had had sexual intercourse with the wife is insufficient evidence of adultery, though she makes no appearance.—Fawcett v. Fawcett (Sup.) 108. Evidence held insufficient corroboration of a husband’s confession of adultery to justify a decree of divorce.—Fowler v. Fowler (Sup.) 109. Court, in action for divorce, held not warranted in granting a decree, in absence of evidence that the action was brought by defendant’s procurement, and that plaintiff desired a divorce.— Ivison v. Ivison (Sup.) 118. Evidence held insufficient to show adultery as grounds of divorce.—Isaacs v. Isaacs (Sup.) 956. § 2. Alimony, allowances, and disposition of property. After judgment determining questions of alimony without reservation of power to modify it, a reservation cannot be inserted.—Livingston v. Livingston (Sup.) 299. DOCKETS. Of causes for trial, see “Trial,” § 2. DOCUMENTS. As evidence in civil actions, see “Evidence,” § 5. • Production and inspection of writings, see “Dis covery,” § 1. DISCRETION OF COURT. Review in civil actions, see “Appeal,” § 16. DISMISSAL AND NONSUIT. At trial, see “Trial,” § 4. Dismissal of appeal, see “Appeal,” § 11. $ I. Involuntary. Denial of defendant’s motion to dismiss held erroneous, although defendant had filed an answer and counterclaim in the case.—Jacot v. Marks (Sup.) 1040. DONATIONS. See “Gifts.” DUPLICITY. In indictment, see “Indictment and Inform tian,” - § 2. EASEMENTS. § 1. Creation, existence, and transfer. Where a railroad conveyed a house and pa of its land, and an outhouse on the conveyed lar extended over the company’s remaining land, tl

*1171 INDEX. 1171 grantee had an easement on the land remaining for the maintenance of the outhouse.—New York Cent. & H. R. R. Co. v. Needham (Sup.) 992. ELECTION OF REMEDIES. Rescission of sale and replevin of part of goods purchased under false pretenses held not to preclude action to recover difference between value of goods replevied and original contract price.—Shout v. Schauroth (Sup.) 767. ELECTIONS. § 1. Qualifications of voters. thider Const, art. 2, § 3, the evidence relied on by a student to show an intention to change liis legal residence must be of acts independent of his status as a student.—In re Barry (Sup.) 124. § 2. Ballots. Ballot marked by voter held void, under Election Law, § 110, subd. 2, rule 9.—In re Holmes (Sup.) 775. Action of inspectors in rejecting a ballot marked by a voter as being void held erroneous, under Election Law, $ 110, subd. 2, rules 6, 9.—In re Holmes (Sup.) 775. , ELECTRICITY. An electric light company held liable for acts of its employes, in wrongfully cutting branches from plaintiff’s trees to prevent contact with its wires, done under general direction of defendant’s managing agent.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. An electric light company is not authorized to cut branches from overhanging trees, to prevent their wires from touching them, if by' proper insulation of the wires the cutting could be avoided.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. nation of water rights.—City of Syracuse v. Stacey (Sup.) 163. In proceeding to take property, held, appraisal commissioners properly based valuation on the fact that part of the property had been declared a nuisance.—In re Daly (Sup.) 480. An award of $2,000 damages for property taken for public use held not inadequate.—In re Daly (Sup.) 480. Evidence at hearing to ascertain damage arising from taking property for public use held properly disregarded.—In re Daly (Sup.) 4S0. § 3. Remedies of owners of property. In an action for damages to real property by an elevated railroad, defendants signed n. stipulation that the property belonged to plaintiff’s father, and there was proof that plaintiff inherited it. Held sufficient to show plaintiff’s title—Douglas v. New York El. R. Go. (Sup.) 411. Customary use of neighboring property, and probable effect thereon of annoyance caused by elevated railroad, may he shown in action for damages therefor.—Douglas v. New York El. R. Co. (Sup.) 411. Value of neighboring property may be shown, in action for damages caused to real property by proximity of elevated railroad.—Douglas v. New York El. R. Go. (Sup.) 411. An assessment against an elevated railway company for damges to an abutting landowner will be sustained, ■ though he was entitled to damages on only a two-thirds interest, where record _ does not show that the remaining one-third interest was considered.—Bon v. Kings County El. Ry. Co. (Sup.) 675. . An assessment against an elevated railroad company for damages to an abutting landowner will be sustained, unless it is palpably erroneous. —Bon v. Kings County El. Ry. Co. (Sup.) 675. EMPLOYES. EMINENT DOMAIN. See “Master and Servant.” I. Compensation. Damages to riparian owners, where right to livert waters of lake is condemned, held to be he difference in the value of their lands with nd without the water rights.—City of Syramse v. Stacey (Sup.) 105. Where plaintiff leases lot to defendants, they o erect a building and leave it in repair on ex-iration of the lease, and part of the lot is conemned, held, plaintiff is not entitled to damges awarded to repairs.—Eargo v. Browning 'up.) 301. Measure of damages caused by the operation f elevated railroad is the difference between acal value of property and what would be the lue if there were no elevated railway.—Doug-s v. New York El. R. Co. (Sup.) 411. 2. Proceedings to take property and assess compensation. Evidence of profits in milling business held not missible on question of damages for condemEQUITY. Equitable estoppel, see “Estoppel,” § 2. - set-off, see “Set-Off and Counterclaim.” Particular subjects of equitable jurisdiction and equitable remedies, see “Partition,” § 1; “Specific Performance’’; “Trusts.” | 1. Jurisdiction, principles, and maxims. Where plaintiff was dismissed from a position he held in the comity clerk’s office, an action in equity 'for reinstatement will not lie.—McNiece v. Sohmer (Sup.) 193; O’Neill v. Same, Id. To avoid multiplicity of suits, equity will take jurisdiction, and afford relief by injunction, where, after judgment for plaintiff in ejectment, the latter is powerless to remove encroachment complained of, — Hahl v. Sugo (Sup.) 770.

*1172 1172 61 NEW YORK SUPPLEMENT ana 95 New York State Reporter, Articles of historical interest and value, for the loss of which money damages would not afford an adequate compensation, may be recovered by a suit in equity.—Onondaga Nation v. Thacher (Sup.) 1027. § 2. Pleading. If plaintiffs have an adequate remedy at law against another, and if, by virtue of any peculiar circumstances, that operates to discharge defendant in equity, his pleading should affirmatively show it.—Tripp v. Hunt (Sup.) 585. ESTABLISHMENT. Of railroads, see “Street Railroads,” § 1. In particular civil actions or proceedings, 'see “Account Stated”; “Negligence,” § 3; “Traver and Conversion,” § 2. - actions for causing death, see “Death,” § 1. - probate proceedings, see “Wills,” § 3. Reception at trial, see “Trial,” § 3. Review on appeal, see “Appeal,” § 17. § 1. Judicial notice. Judicial notice will not be taken of the'regulations of the civil service commissioners of the city of New York.—People v. Dalton (Sup.) 263. § 2. Presumptions. Presumption is in favor of the actions of public officials.—People v. Dalton (Sup.) 263. ESTATES. See “Life Estates.” Decedents’ estates, see “Executors and Administrators.” Estates for years, see “Landlord and Tenant.” Trusts, see “Trusts,” § 2. ESTOPPEL § 1. By record. Defendant, in his answer, having admitted receiving money alleged to have been paid him under duress, was estopped to deny his wife's agency to receive the money for him, she having in fact received it.—Jaeger v. Koenig (City Ct. N. Y.) 505. § 2. Equitable estoppel. An incorporator, who consented that the corporation might take the place of himself and co-lessees in developing a well, is estopped to assert that the assignment was invalid under the statute of frauds.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. The certificate of an incorporator held an admission that a lease which entitled him to bore for “minerals” included mineral waters, and es-topped to assert that it did not, when sued by the corporation to recover a well claimed by an assignment from him.—Geneva Mineral Springs Co. y. Coursey (Sup.) 98. Heirs, having sued an executor and an assignee to vacate an assignment of a mortgage taken for their benefit, and to recover payments to the executor, held estopped to deny the validity of the mortgage, and not entitled to question the executor’s powers to assign it.—Washburn v. Benedict (Sup.) 387. EVICTION. Of tenant of demised premises, see “Landlord and Tenant,” § 5. EVIDENCE. See “Witnesses.” As to particular facts or issues, see “Damages," § 4; “Fraudulent Conveyances," § 2; “Partnership,” § 1. In divorce, see “Divorce,” § 1. § 3. Relevancy, materiality, and competency in general. Witness for plaintiff, in action for collision with street car, cannot testify that a witness for defendant at the time said he would be willing to be a witness for plaintiff.—Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. Declaration of conductor of street car, after collision with wagon, held inadmissible as part of the res gestae.—Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. ■ Declaration of driver of street car to officer arresting him, after collision, held inadmissible. —Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. The letter of an agent to his principal, detailing the settlement of an account he was authorized to make, is inadmissible to prove such -settlement, as res gestae.—Ballard v. Beveridge (Sup.) 648. In an action for the value of a lost watch case, a design of a similar case is admissible to show value.—Ouebas v. Klein (City Ct. N. Y.) 923. § 4. Admissions. Admissions of a receiver of an insurance company as to liabilities on policy held not conclusive.—Insurance Co. of State of Pennsylvania v. Telfair (Sup.) 322. Where defendant’s answer admits certain allegations in the complaint, evidence on his part contradicting such admission was not admissible. —Traitel v. Dwyer (City Ct. N. Y.) 1100. § 5. Documentary evidence. Historical writings, based on hearsay and tra dition, relating to an Indian league, held campe tent evidence on an issue whether wampum belt, were historical emblems.—Onondaga Nation v Thacher (Sup.) 1027. Entries not shown or known to plaintiff made in defendant’s account books, held pro' erly excluded, in a suit to recover for leg services.—Stephens v. Cowen (City Ct. N. Y 925. § 6. Parol or extrinsic evidence afleo ing writings. Where a written lease required all signs to approved by the lessor, it was competent show paroi conditions attached to such approv —Imperial Bldg. Co. v. John H. Woodbury D matological Inst. (Sup.) 129.

*1173 INDEX. 1173 In an action for rent on a written lease, paroi evidence that the lease was executed on condition of the lessor’s making repairs held admissible.—Flommerfelt v. Englander (Sup.) 187. Parol evidence of an agreed compensation to be paid a trustee held inadmissible, as tending to contradict the trust deed.—Disbrow v. Disbrow (Sup.) 014. Evidence of the situation and relation of the parties at the time of the execution of a mortgage, and of the circumstances surrounding its execution, is admissible to determine the intention and meaning of the terms and conditions thereof.—State Bank v. Lighthall (Sup.) 794. A receipt “in full of all demands to date” may be contradicted or explained by paroi evidence. —Tower v. Blessing (Co. Ct.) 255. Parol evidence to vary the terms of a written instrument is inadmissible.—James v. Coe (City Ct. N. X.) 1099. § 7. Opinion evidence. Testimony of expert builder held sufficient to sustain verdict for damages because of lessee’s failure to restore demised premises to their original state.—Lazarus v. Ludwig (Sup.) 365. Evidence considered, and held, a statement of facts, and not an opinion.—Dean v. City of New York (Sup.) 374. A question as to when defendant had learned that he had been making overpayments on a mortgage held properly excluded, as calling for a conclusion.—Rowley v. Parsons (Sup.) 392. Expert testimony that injuries sustained were liable to result in a permanent loss of strength, and that danger existed that certain complications might arise, is conjectural and speculative, and inadmissible to prove the permanency of such injuries.—Bellemare v. Third Ave. R. Co. (Sup.) 981. Where the contestants of a will fail to introuce evidence of the existence, prior to the time he will was executed, of all the conditions upon vhich they propounded hypothetical questions o experts, such questions will be stricken out. -In re King’s Will (Sur.) 238. The testimony of experts as to the value of lost watch case, as determined from the vale of a case of a similar design, is admissible. -Cnebas v- Klein (City Ct. X X.) 923. Testimony of an expert as to the value of a st watch case, as determined from the val-of a case of similar design, held admissible, ithout hypothetical questions. — Cuebas v. lein (City Ct. N. X.) 923. 8. Weight and sufficiency. Whether testimony is to be credited, despite ■onsistent statements, is a matter resting with e trial justice.—Lazarus v. Spencer (Sup.) 78. EXAMINATION. adverse party before trial, see “Discovery,” 1. expert witnesses, see “Evidence,” § 7. witnesses in general, see “Witnesses,” § 2. EXCEPTIONS. To pleading, see “Pleading,” § 3. EXCEPTIONS, BILL OF. Necessity for purpose of review, see “Appeal,” § 4. Taking exceptions at trial, see “Trial,” § 3. EXCESSIVE DAMAGES. See “Damages,” § 3. EXCHANGES. Information as to transactions on a stock exchange, which is a private voluntary association, is not public property, so as to entitle a person not a member to compel the furnishing of such information.—In re Renville (Sup.) 549. EXCISE. Regulation of traffic in intoxicating liquors, see “Intoxicating Liquors.” EXECUTION. § I. Supplementary proceedings. Direction of a judgment debtor to her subtenant to pay rent to the debtor’s landlord held contempt of an injunction in supplementary proceedings restraining her from disposing of her property.—Browning v. Chadwick (City Ct; N. X.) 246. § 2. Execution against the person. Code Civ. Proc. § 1377, held not to require, as a condition for issuing a body execution after the lapse of five years, that a previous execution, of the same kind should have been issued and returned within that time.—Quigley v. Baumann (Sup.) 966. Though more than five years have elapsed since the recovery of a judgment before a body execution is issued, defendant is not entitled to a discharge, under Code Civ. Proc. § 572.—Quigley y. Baumann (Sup.) 966. EXECUTORS AND ADMINISTRATORS. See “Wills.” Testamentary trustees, see “Trusts.” § 1. Administration in general. While the probate of the will is pending on appeal in the court of appeals, special administrator may be appointed, under Code, § 2582.— In re Gihon’s Will (Sur.) 244. § 2. Appointment, qualification, and tenure. An executor will not be removed, as such, because the estate became liable to pay money lost by him as guardian of another estate.—In re Kasson’s Estate (Sup.) 569. Where it is to the interest of an estate to appoint an executor, charged with having unduly

*1174 1174 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. influenced the testator to make a will, as special administrator pending contest of the will, and most of the parties interested desire his appointment, he should be appointed.—In re Hilton’s Will (Sur.) -1073. § 3. Collection and management of estate. Clause in will hdd not to authorize executor to make investments outside the state, and in Western lands.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Where property oí deceased is sold nominally to another, but really to the administrator, the latter is accountable for its real value.—In re Tetter (Sup.) 175. Assignment of a mortgage, taken by an executor in trust for heirs, as executor, It eld to convey the entire interest, though he did not execute it also as a trustee.—Washburn v. Benedict (Sup.) 387. An executor is not relieved from misapplication of funds by an agreement of distributees to indemnify him for loss by any action against the estate.—Reilly v. Porcher (Sup.) 662. Legatees held not entitled to have legacy paid by residuary legatee, where latter’s co-executor embezzled funds set aside for purpose of paying legacies.—In re Smith (Sup.) 716. Temporary administrator must deposit moneys in a trust company, and. on failure to do so, is chargeable with interest.—In re Philp’s Estate (Sur.) 241. Temporary administrator hdd not justified in paying a creditor in full, where decedent’s personalty was insufficient to pay all his debts.— In re Philp’s Estate (Sur.) 241. Where a temporary administrator paid creditor more than his share of decedent’s assets, he was chargeable with the excess and interest. —In re Philp’s Estate (Sur.) 241. § 4. Allowance and payment of claims. Plaintiff held to waive right to costs, in prosecuting claim against decedent, by commencing action less .than 5 months and 20 days after rejection of claim.—Hart v. Hart (Sup.) 131. Where claimant presented his claim, verified in conformity to Oode Civ. Proc. § 27Í8, certifying that it was not paid, payment must be shown affirmatively by'the executor.—In re Row-ell (Sup.) 382. Plaintiff cannot enjoin the enforcement of a decree, where he had an adequate remedy by appeal.—Reilly v. Porcher (Sup.) 662. § 5. Sales and conveyances under order of court. Where an administrator received personal assets in excess of the debts and funeral expenses of the deceased, the estate cannot be sold to pay administration expenses of any debts incurred by the administrator after, the death of the intestate.—In re Quatlander’s Estate (Sur.) 1064. § 6. Actions. A complaint against administrators with will annexed to recover a legacy held to state a cause of action.—Weatherwax v. Shields (Sup.) 594. On reference by surrogate, held error to insert in order that petitioner had unbarred claim; that being a question to be determined on report of referee.—In re Hale’s Estate (Sup.) 596. On application to remove executor, surrogate can order a reference to obtain needed-informatian on questions of fact.—In re Hale’s Estate (Sup.) 596. Where limited letters of administration were granted to plaintiff, under Code Oiv. Proc. § 2664, plaintiff cannot maintain an action unauthorized by his letters.—Kirwin v. Malone (Sup.) 844. § 7. Accounting and settlement. Amount of judgment, in action against administrator personally by one claiming an interest in decedent’s business, hdd not evidence against administrator on accounting for value of such interest.—In re Tetter (Sup.) 175. Administrator, taking property of estate,, and being sued therefor, hdd not entitled to credit for the judgment against him.-—In re Tetter(Sup.) 175. Allowance of commissions to administrator, when, by misconduct, they might have been denied him, gives him no right to costs.—In re Tetter (Sup.) 175. A decree on accounting-by a surrogate, without filing facts found and conclusions of law, as required by Code Civ. Proc. § 2545, will be reversed.—In re Daymon (Sup.) 997. A stenographer’s fees for services rendered an estate, before a stipulation was entered into tq pay such fees, cannot be charged against the estate.—In re Maritch’s Estate (Sur.)' 237. Where the widow was not a party to a stipulation to pay stenographer’s fees out of the estate, such fees will lie charged against the estate, exclusive of the share therein of the widow.— In re Maritch’s Estate (Sur.) 237. The provisions of Code, §' 2743, do not apply to an accounting by a temporary administrator. —In re Philp’s Estate (Sur.) 24l. § 8. Liabilities on administration bonds. Administrator held not released, as such, by direction to retain funds till further order, and until appointment of committee of the heir.—Betts v. Avery (Sup.) 525. Limitations against an action to' recover money from an administrator and his bondsmen hdd to run from the date of the order discharging him on payment of balance due to the heir.—-Betts v. Avery (Sup.) 525. Settlement of an administrator’s accounts, anc a direction that he pay over to the person enti tied to receive the balance found due, does no release the sureties on his bond till he has o'*""1 ly paid over the money.—Betts v. Avery (Sup. 525. Sureties of an insolvent administrator musí though a co-administrator is sole distributee make good a loss on his failure to pay over a sm in his exclusive control, deposited by him in lv private hank, knowing its insolvency.—In re Ad ams (Sur.) 751.

*1175 INDEX. 1175 EXPERT TESTIMONY. In civil actions, see “Evidence,” § 7. FEES. Foreclosure, see “Mortgages,” § 6. Of attorney, see “Attorney and Client,” § 2. Probate proceedings, see “Wills,” § 3. FELLOW SERVANTS. See “Master and Servant,” § 6. FINDINGS. FRAUDS, STATUTE OF. § 1. Promises to answer for debt, default, or miscarriage of another. A paroi agreement by owners of a building to pay laborers, if they would continue work thereon, was not within the statute of frauds, although they were employed by a contractor. —Almond v. Hart (Sup.) 849. § 2. Agreements not to be performed within one year. An oral contract for a lease for one year in futuro, the time intermediate the making of the lease and the taking possession being no part of the term, is not within the statute.—Nerter v. Muser (Sup.) 61. On reference, see “Reference,” § 2. Review on appeal, see “Appeal,” § 17. FOLLOWING TRUST PROPERTY. See “Trusts,” § 6. FORECLOSURE. Of lien, see “Mechanics’ Liens,” § 6. Of mortgage, see “Mortgages,” § 6. F0RÉIGN CORPORATIONS. See “Corporations,” § 9. FORFEITURES. Of franchise, see “Corporations,” § 8. FORMER ADJUDICATION. See “Judgment,” § 6. FORMS OF ACTION. See “Action,” § 2. FRANCHISES. Corporate franchises, see “Corporations,” § 2. § 3. Pleading and evidence. The statute of frauds must be pleaded to be available as defense.'—Geneva Mineral Springs Go. v. Coursey (Sup.) 98. In actions in justices' courts, the statute of frauds may be taken advantage of without being pleaded.—Campbell v. Porter (Sup.) 712. FRAUDULENT CONVEYANCES. By bankrupt, see “Bankruptcy,” § 1. § 1. Transfers and transactions invalid. In an action to set aside a deed from a mother to her daughter, where the consideration was money, converted by the mother, which belonged to the daughter, held, judgment for defendant should he affirmed.—National Bank v. Bonnell (Sup.) 521. A mortgagee’s failure to record a mortgage, or to mention it in answer to inquiries as to the mortgagor’s financial standing, furnishes no ground for declaring it invalid.—Hardin v. Dolge (Sup.) 753. A conveyance from husband to wife held not made with intent to hinder and defraud creditors. —Guy v. Craighead (Sup.) 988. Fraud must exist in the minds of both parties to invalidate a conveyance.—Ravin v. Subin (City Ct. N. Y.) 1104. That the seller intended to defraud his creditors by the sale would not make it fraudulent, unless the buyer had notice of the intention and was a party to the fraud.—Ravin v. Subin (City Ct. N. Y.) 1104. FRAUD. See “Fraudulent Conveyances.” 1. Actions. In an action to recover for fraudulent representations in a sale of corporate stock, the measure of damages is the difference in its real value at the time of the sale and the price paid.—Maoney v. O’Neil (Sup.) 69. § 2. Criminal responsibility. Resulting damages are essential to render one uiity of the crime of fraud.—People v. Kane Sup.) 632. § 2. Remedies of creditors. Evideitee held to justify a finding that a transfer was intended to hinder and delay creditors.— Gennerieh v. Voigt (Sup.) 620. Fraud, to invalidate a conveyance, may be deduced from indirect testimony.—Ravin v. Subin (City Ct. N. Y.) 1104. GIFTS. Charitable gifts, see “Charities.” § 1. , Cansa mortis. Deed held an absolute gift, and not a testamentary disposition.—Ranken v. Donovan (Sup.) 542.

*1176 1176 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. wife’s action for rent.—Aarons v. Klein (Sup.) 119. GRAND JURY. See- “Indictment and Information.” GUARDIAN AND WARD. | 1. Appointment, qualification, and tenure of guardian. A general guardian, who has given bond, as required by Code Civ. Proe. § 2830, upon his appointment, must, nevertheless, before receiving a legacy or distributive share coming to the minor, execute a new bond, under section 2746. —In re Mills (Sur.) 243. HABEAS CORPUS. § 1. Jurisdiction, proceedings, and relief. A sheriff held not justified in releasing an executrix committed to custody for default, and in making no effort to retake her.—In re Leggat (Sur.) 1093. HARMLESS ERROR. In civil actions, see “Appeal,” § 18. HIGHWAYS. Accidents at railroad crossings, see “Railroads,” § 1. § 1. Highway districts and officers. Conceding that highways may be taken as county roads in counties of less than 200,000 square miles-, the power of local authorities over a county road must be found in the statute under which it is taken.—Gaedeke v. Staten Island M. R. Co. (Sup.) 290. § 2. Regulation and use for travel. In a suit for injuries caused by a known defect, held error to dismiss complaint, where there was evidence that plaintiff exercised due care.—Rysdyke v. Town of Mt. Hope (Sup.) 645. HUSBAND AND WIFE. See “Divorce”; “Marriage.” § 1. Mutual rights, duties, and liabilities. A wife purchasing groceries for the family is presumed to act as her husband’s agent.—Bradt v. Shull (Sup.) 484. 0 § 2. Disabilities and privileges of coverture. A husband is not liable for the act of his wife in causing a dog to bite a child, when there is no evidence that the act was done by his coercion or instigation.—Strubing v. Mahar (Sup.) 799. § 3. Wife’s separate estate. Evidence held not sufficient to show that a lessor’s husband was authorized to contract for Improvements, so as to entitle the lessee 'to set up a bill for the same as a counterclaim to the The title acquired by a married woman at foreclosure of premises on which her husband holds a second mortgage as trustee held not voidable.—Potter v. Sachs (Sup.) 426. A husband is liable for groceries purchased for the family by his wife; but, without an agreement to become personally responsible, she is not liable for groceries purchased either by herself or her husband.—Bradt v. Shull (Sup.) 484. § 4. Separation and separate maintenance. A wife is not entitled to alimony and counsel fees when her grounds for divorce previously gave rise to an agreement of voluntary separation, under which the husband paid money to her.—Curtis v. Curtis (Sup.) 59. A contract between husband and wife, based upon an agreement that they shall thereafter live separate and apart, is void, as against public policy.—Paillon v. Poillon (Sup.) 582. Under Laws 1896, c. 272, a contract between a husband and wife, made after they have separated, and while they are living separate and apart, will not be-enforced, unless the agreement is made with a trustee for the wife.—Paillon v. Poillon (Sup.) 582. ILLEGITIMATE CHILDREN. See “Bastards.” IMPLIED CONTRACTS. See “Money Received.” IMPRISONMENT. Habeas corpus, see “Habeas Corpus.” IMPUTED NEGLIGENCE. See “Negligence,” § 2. INCOMPETENT PERSONS. See “Insane Persons.” INCORPORATION. See “Corporations,” § 1. INDEMNITY. Against mechanic’s lien, see “Mechanics’ Liens,” § 7. Obligors on an indemnity bond held not liable.—Beere v. Mayer (City Ct. N. Y.) 926. INDIANS. Under Act Cong. Feb. 19, 1875, as amende by Act Cong. Sept. 30, 1890. a lease of reserve

*1177 INDEX. 1177 lands of the Seneca Nation for 99 years, in renewal of prior leases to assignors of the lessee, Held valid.—Shongo v. Miller (Sup.) 281. Where wampum belts belonging to an Indian league were left in the “wampum keeper’s” possession as individual owner on dissolution of the league, and he sold them, held, that individual Indians belonging to one of the tribes composing the league could not recover them from the purchaser.—Onondaga Nation v. Thacher (Sup.) 1027. Under Indian Laws 1892, c. 679, individual Indians have capacity to sue in the state courts, except as limited in said act.—Onondaga Nation v. Thacher (Sup.) 1027. An Indian tribe has no capacity to sue in relation to tribal rights without statutory authority. —Onondaga Nation v. Thacher (Sup.) 1027. INDICTMENT AND INFORMATION. § 1. Requisites and sufficiency of accusation. The rule that it is sufficient for an indictment to charge in the words of the statute does not apply, where the statute does not define the offense. —People v. Kane (Sup.) 632. § 2. Joinder of parties, offenses, and counts, duplicity, and election. Under Code Cr. Proc. §§ 278, 279, an indictment consisting of one count, one paragraph of which charges facts inconsistent with the facts charged in another paragraph, is bad.—People v. Kane (Sup.) 195. An indictment charging several offenses is not duplicitous, where the facts alleged are insufficient to show defendant guilty of more than one Sense.—People v. Kane (Sup.) 632. An indictment may not be duplicitous, though t sets forth different acts committed necessarily different times.—People v. Kane (Sup.) 632. An indictment is not duplicitous, though it alges all of several breaches of a statute in a ingle count, employing “and,” when the statute ads “or.”—People v. Kane (Sup.) 632. INDORSEMENT. f bill of exchange or promissory note, s< “Bills and Notes,” § 3. INFANTS. “Guardian and Ward.” INFERIOR COURTS. “Courts,” § 2. INFORMATION. ’nal accusation, see “Indictment and Inrmation.” INFRINGEMENT. Of trade-mark, see “Trade-Marks and Trade-Names,” § 2. INJUNCTION. § 1. Subjects of protection and relief. Allegations of a complaint Held not to show sufficient facts upon which to base an injunction.— Castle v. Bell Tel. Co. (Sup.) 743. Injunction granted to restrain operation of pumping station—Forbell v. City of New York (Sup.) 1005. INNKEEPERS. Misconduct or immorality of a guest in a hotel held not to bar his right to recover for loss subsequent thereto.—Lucia v. Omel (Sup.) 659. An innkeeper is liable for the loss of goods of his guest, not caused by the act of God, the common enemy, or the guest’s neglect.—Lucia v. Omel (Sup.) 659. Evidence Held not to show want of ordinary care by a restaurant keeper, entitling a customer to recover for an overcoat lost in restaurant.—Montgomery v. Ladjing (Sup.) 840. Action of a customer in a restaurant hanging his overcoat on a hook Held not to constitute a bailment. — Montgomery v. Ladjing (Sup.) INSANE PERSONS. § I. Guardianship. A court exercising equity jurisdiction may. without statutory authority, on the application of a committee of an incompetent person, discharge him from his trust after the incompetent’s death.—Downing v. Whitney (Sup.) 540. Under Code Civ. Proc. § 2344, it is the duty of a committee of an incompetent person to render an accounting of his trust after the incompetent’s death.—Downing v. Whitney (Sup.) 540. § 2. Contracts. An assignee of property transferred in consideration of the support of an insane person Held entitled to compensation therefor as condition of its return.—Gilgallon v. Bishop (Sup.) 467. INSOLVENCY. See “Assignments for Benefit of Creditors.” Of corporation, see “Corporations,” § 7. INSPECTION. Of writings, see "Discovery,” § 1. INSTRUCTIONS. In civil actions, see “Trial,” § 5.

*1178 1378 61 NEW YORK SUPPLEMENT and 95 New York State-Reporter. INSURANCE. § 1. Insurance agents and brokers. Evidence held to estop an insurance company from insisting on a forfeiture because of a failure to comply with certain stipulations as to assignment of policy.—Xortham v. International Ins. Co. (Sup.) 45. § 2. Forfeiture of policy for breach of promissory warranty, covenant, or condition subsequent. There is no breach of warranty that statement in application for life insurance was true, where defendant stated his occupation as storekeeper,-where he kept a dry-goods store, though part of the time and afterwards he was a glass polisher.—Perrin v. Prudential Ins. Co. (City Ct. X. X.) 249. § 3. Actions on policies. One holding a lease as security for a debt is not a necessary party to an action on a policy on property covered by the lease.—Xortham v. International Ins. Co. (Sup.) 45. § 4. Reinsurance. It cannot be presumed that a risk cov.ered by reinsurance under a marine policy was the same as that of the original policy.—Insurance Co. of State of Pennsylvania v. Telfair (Sup.) 322. § 5. Mutual benefit insurance. Provision in beneficiary certificate that no length of absence or disappearance of member, without proof of actual death, shall entitle beneficiary to recover, held not invalid, as repugnant to law or public policy .—Kelly v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. Defense that beneficiary certificate required action to be brought within two years after member’s death, though inconsistent with provision against recovery, except on proof of actual death, held not demurrable.—Kelly v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. Cause of action on life policy held not to accrue until after proof of death given society.— ICellv v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. An application for life insurance in a mutual assessment association having provided that the constitution and by-laws of the company were a part of the policy, they are admissible in evidence in an action on a policy.—Willison v. Jewelers’ & Tradesmen’s Co. (City Ct. X. Y.) 1125. Under a provision in the by-laws of an insurance company that the policy does not take effect until 30 days after it is issued, there could be no recovery on a policy for a death occurring before that time.—Willison v. Jewelers’ & Tradesmen’s Co. (City Ct. X. Y.) 1125. INTENT. Fraudulent, see “Fraudulent Conveyances,” § 1. subdivision thereof.—Hassard v. United States of Mexico (Sup.) 939. INTERPLEADER. § I. Right to interpleader. Application to interplead held properly denied. —Kreiser v. City of New York (Sup.) 329. INTESTACY. See “Descent and Distribution.” INTOXICATING LIQUORS. § 1. Licenses and taxes. The holder of a liquor license is not entitled to a trial of the issues by jury in summary proceedings, under Laws 1896, c. 112, § 28. for revoking or canceling the same. — Lyman v. Erie County Athletic Club (Sup.) 884. Where the holder of a liquor tax certificate is not diligent and watchful in seeing that his orders not to sell liquors on Sunday 'are obeyed, his certificate will be revoked.—In re Lyman (Sup.) 946. Under Liquor Tax Law, § 28, a supreme court justice has no authority, on certiorari to review a comity treasurer’s refusal to grant a liquor tax certificate, to inquire into the legality of an election on the question.of local option.—People v. Hamilton (Sup.) 979. Under Laws 1806, c. 112, § 13, and Laws 1898, c. 125, the town of Plattsburg held entitled to only two-thirds of the revenue derived from liq nor tax certificates issued in that town.—Peo pie v. Williams (Sup.) 983. A liquor tax certificate is property.—Frank v Forgotston (City Ct. X. Y.) 1118. JOINDER. Of causes of action, see “Action,” § 3. Of parties in civil actions, see “Parties," § 1. JOINT ADVENTURES. Rescission of contract held to constitute su cient consideration for note.—McLeod v. Hunt (Sup.) 73. JUDGES. See “Courts.” 1. Rights, powers, duties, and liah’ ities. Where there is a fixed salary attached to office of judge of a court, the incumbent is titled to salary from the date of his appoi ment, whether he performed any duties or no Goetting v. City of New York (Sup.) 334. INTERNATIONAL LAW. State courts have no jurisdiction of an action against a foreign sovereign state or a political JUDGMENT. In replevin, see “Replevin,” § 2. On appeal, see “Appeal,!’ § 21. Review, see “Appeal.”

*1179 INDEX. 1179 § 1. By confession. Withholding a judgment confession from record held not to create a preference, as against subsequent chattel mortgagees.—Robinson v. Hawley (Sup.) 138. 4- judgment debtor and subsequent chattel mortgagees held not entitled to impeach a judgment statement on the ground that the ownership of the debt was not truly stated.—Robinson v. Hawley (Sup.) 138. § 2. On consent, offer, or admission. Code Civ. Proc. § 974, providing for the trial of issues arising upon counterclaim, does not apply where the counterclaim is filed after' an offer of judgment, and within the 10 days allowed by Code Civ. Proc. § 738, for its acceptance; the offer "being accepted and judgment entered within the prescribed time.— United States Trust Co. v. Hodgson (Sup.) 868. § 3. By default. Default in failing to serve reply cannot he opened, a copy thereof not being annexed to the motion, and affidavit not showing the reply.— Allen v. Powler & Wells Co. (Sup.) 325. There is no presumption that a court of general jurisdiction had jurisdiction over the person of the defendant, when it affirmatively appears' that an essential step to the vesting of such jurisdiction was omitted.—Bowler v. Ennis (Sup.) 086. Under Code Civ. Proc. §§ 440, 442, a court as • no jurisdiction over a defendant who is ■erved by publication, only, of a summons which not contain his name.—Bowler v. Ennis Sup.) 686. Facts held to justify setting aside a default udgment and permitting defendant to answer.— lutual Life Ins. Co. v. ICroehle (Sup.) 944. Where the action was based on contract price, was error, on default, to render judgment on quantum meruit for a greater amount than istified by the complaint.—Reidy v. Bleistift ity Ct. N. Y.) 915. 4. Opening or vacating. A judgment will be vacated, if based on per-red testimony, inspired and manufactured by unsel.—Nugent v. Metropolitan St. Ry. Co, up.) .476. Collateral attack! 1 party to a proceeding, in which it was de■ed that certain judgments against him were id liens upon his interests in certain property, mot afterwards, when he fails to make such 'ense in such proceeding, claim that said liens invalid because, in the actions in which judges were obtained, he was not served with imons.—Treacy v. Ellis (Sup.) 600. Conclusiveness of adjudication. order of an English court approving a renization scheme of a corporation held not ing on a stockholder, in an action by the oration against him in this country to re-r for call.—Bank of China, Japan & The its v. Morse (Sup.) 268. , dgment against plaintiff in replevin is bindgainst his sureties.—Christiansen v. Mend-(Sup.) 326. Under Code. § 2240, subd. 3, a judgment in summary proceedings, rendered on service made by fixing a copy of the precept on a conspicuous part of the property in controversy, is equally as conclusive as if rendered on personal service.—McOotter v. Flinn (Sup.) 786. A judgment taken by default in summary proceedings for the nonpayment of rent is conclusive between the parties that the relation of landlord and tenant existed.—McCotter v. Flinn (Sup.) 786. The court held not bound hy a former direction of a surrogate concerning a point not before him for decision.—In re McCahill (Sur.) 1071. JUDICIAL NOTICE. In civil actions, see “Evidence,” § 1. JUDICIAL SALES. Of property of decedent, see “Executors and Administrators,” § 5. JURISDICTION. Jurisdiction of particular actions or proceedings. see “Mandamus,” § 3. ——^criminal prosecutions, see “Criminal Daw,” Particular courts, see “Courts.” JURY. Disqualification or misconduct ground for new trial, see “New Trial,” § 1. Instructions in civil actions, see “Trial,” § 5. Taking case or question from jury at trial, see “Trial,” § 4. § 1. Right to trial hy jury. Where the charter of a city gives the recorder’s court jurisdiction to try a person charged with being a disorderly person, a defendant has no constitutional right to trial hy jury.—People v. Iverson (Sup.) 220. In proceeding to enforce an attorney's lien, under Code Civ. Proc. § 66, no jury trial is allowable.—Sehriever v. Brooklyn Heights R„ Co. (Sup.) 890. JUSTICES OF THE PEACE. § 1. Appointment, qualification, and. tenure. Laws 1897, c. 439, abrogating in certain counties unexpired terms of justices, and providing for the election of their successors, held unconstitutional and void as to both propositions.— People v. Treacy (Sup.) 288. § 2. Review o£ proceedings. Under Oode Civ. Proc. §§ 2951-2954, 2957, the allegations of an answer, on removal of action from justice to court of record, held properly stricken out.—Jones v. Reilly (Sup.) 67.

*1180 1180 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. JUSTIFICATION. Of actionable words, see “Libel and Slander,” § 3. KNOWLEDGE By grantee of fraud in conveyance, see “Fraudulent Conveyances,” § 1. LANDLORD. AND TENANT. § 1. Creation and existence of tlie relation. An agreement for a lease, which the landlord subsequently refused to enter into, of property thereafter conveyed to a third party, to whom the tenant with whom such agreement was made paid the rent claimed to be due, does not show the relation of landlord and tenant.—McLaughlin v. Steurwald (Sup.) 872. § 2. Leases and agreements in general. A demise without restriction as to lessor’s interest or title embraces whatever interest he has or may afterwards acquire.—Geneva Mineral Springs Co. v. Coursey (Sup.) 9S. Payment by a prospective tenant of a certain sum in advance held not an acceptance of the lease.—Flommerfelt v. Englander (Sup.) 187. § 3. Terms for years. A bond for the performance of covenant to renew a lease must be construed in connection with the lease.—John Polhemus Printing Co. v. Hallenbeck (Sup.) 1056. § 4. Tenancies from year to year and month to month. A lease held to create a tenancy from month to month, and hence the landlord was entitled to terminate the same at the expiration of any monthly period.—Vernon v. Gilbert (Sup.) 89G. § 5. Premises, and enjoyment and use thereof. Where issue was whether lessors had waived a lessee’s liability to restore demised premises to their original state, held not error to exclude a new lease which contained no waiver of his liability.—Lazarus v. Ludwig (Sup.) 365. A lessee’s liability to restore premises to original state at end of term was not waived by lessor’s act in extending time of performance.— Lazarus v. Ludwig (Sup.) 365. Neither landlord nor contractor is liable to a tenant for damages occasioned by the interruption of his business necessarily caused by the necessary repairing of the leased premises.—Campbell v. Porter (Sup.) 712. Contractor repairing leased premises must prosecute the work so as not to unnecessarily interfere with the business of the tenant, and, if he does not, will be answerable to the tenant in damages.—Campbell v. Porter (Sup.) 712. Evidence held insufficient to show a constructive eviction of a tenant.—Finck v. Rogers (Sup.) 866. Landlord, who lets store and basement, is not liable to third persons for the tenant’s management of the cellar .door.—Schroeck v. Reiss (Sup.) 1054. It was error to dismiss plaintiff’s complaint against the landlord to recover damages for leakage from the floor above into the premises occupied by plaintiff.—Levy v. Korn (City Ot. N. Y.) 1109. A boy, attempting to get his hat from a hole under a grating appurtenant to defendant’s premises, held not guilty of contributory negligence, precluding a recovery for injuries caused by the dangerous position of the grating.—Finnigan v. Biehl (City Ct. N. Y.) 1116. A landowner held liable for injuries caused by his negligently permitting a grating over a hole appurtenant to his premises to be tilted in a dangerous position.—Finnigan v. Biehl (City Ct. N. Y.) 1116. A landlord held liable to third persons for injuries caused by negligently permitting a grating used to cover a hole appurtenant to the .demised premises to be tilted.—Finnigan v. Biehl (City Ct. N. Y.) 1116. § 6. Rent and advances. ' A tenant held not entitled, under terms of lease, to damages by reason of failure of landlord to keep premises in repair.—Sonn v. Weissmann (Sup.) 78. Where any portion of rent payable in advance is due and unpaid, a summary proceeding’ for nonpayment of rent is not premature.—Bennet v. Nick (Sup.) 106. A magistrate has no power, in a summarj proceeding for nonpayment of rent, to render a judgment for the recovery of rent.—Bennett v Nick (Sup.) 106. Where a landlord makes a new lease with an other tenant, on,, the original tenant becomin security thereon, he cannot recover on the origin lease.—James v. Coe (City Ot. N. Y.) 1099. : 7. Re-entry and recovery of posses sion by landlord. In a summary proceeding to obtain possessio of land, an answer alleging that plaintiff on certain day “agreed” to let the land to defen ant is no defense.—Salomon v. Weisberg "(Sup 60. An implied agreement to relet. demised pren ises surrendered by the tenant for the latter’s a count is not sustained by the fact that, on r ceipt of the keys, the landlord indicated his tention to sue.—Gaffney v. Paul (Sup.) Í73. Without an agreement, a landlord cannot rel demised premises on surrender by the tenon and, if he does so, the tenant is not responsib for any loss of rent.—Gaffney v. Paul (Sup.) 17 A landlord cannot recover judgment for ire in arrear against tenant in a summary proce ing to dispossess.—Spiro v. Barkin (Sup.) 8 A landlord, having accepted his tenant’s n and given a receipt0in payment of rent to crue, held not entitled to maintain a sumnr proceeding to dispossess the tenant prior to maturity of the note.—Spiro v. Barkin (Sup.) 8

*1181 INDEX. 1181 LAW OF NATIONS, LIENS. See “International Law.” LEASES. See “Landlord and Tenant.” LEGACIES. See “Wills.” LEVY. Of attachment, see “Attachment,” § 4. LIBEL AND SLANDER. § 1. Words and acts actionable, and liability therefor. Where words are not libelous per se, it is for the jury to determine in what sense they were uttered and understood.—Payne v. Eouss (Sup.) 705. § 2. Privileged communications, and malice therein. Words in brief are not privileged, unless pertinent to the issue.—Sickles v. ICling (Sup.) 647. . Though a libelous letter may he held by the court to be prima facie privileged, the writer’s good faith and belief in statements made, and existence of actual malice, are for the jury.— Payne v. Eouss (Sup.) 705. A communication of the fact that plaintiff had “questionable connections” in the place where he 'as employed by defendant, made in a letter to ne who had recommended him, to show that he vas mistaken, and that plaintiff was unworthy of onfidence, held not privileged.—Payne v. Eouss Sup.) 705. 3. Justification and mitigation. Charge that if defendant, in a prosecution for bel, justifying on infringement of his trade-ark, had a trade-mark, that ended plaintiff’s ise, was error, since the question of infringeent and whether the words uttered were jusfiable was for the jury.—Stern v. Barrett emical Co. (Sup.) 221. 4. Actions. Plaintiff cannot be required to aver under what cumstances the words were published.—Sickles ICling (Sup.) 647. , libel recklessly or carelessly published, or raced by personal ill will, will support an award punitive damages.—Payne v. Eouss (Sup.) 5. 4l judgment for $5,000 for writing a letter irging plaintiff with dishonesty and moral dequency is not excessive.—Payne v. Eouss p.) 705. LICENSES. sale of intoxicating g Liquors,” § 1. liquors, see “IntoxicatParticular classes of liens, see “Attorney and Client,” § 2; “Mechanics’ Liens.” The right to an equitable lien held not affected by the fact that the lienor had already replevied the property, and sold it, and holds the proceeds.—National Bank of Deposit v. Eogers CSup.) 155. Where borrowers agreed to give as security property not owned by them, an equitable lien attached to it as soon as they acquired title.— National Bank of Deposit v. Eogers (Sup.) 155. The complaint in an action to establish an equitable lien to secure a debt need only show the existence of the debt. It need not be alleged to be due.—National Bank of Deposit v. Eogers (Sup.) 153. A defendant to an action of replevin, who had demurred and been discharged, held not a necessary party to a subsequent action to establish a lien on the same property.—National Bank of Deposit v. Eogers (Sup.) 155. The complaint in an action to establish an equitable lien to secure a debt need not distinctly allege that the property ever became the debt- or’s, where facts are alleged from which the debtor’s equitable obligation might be declared.— National Bank of Deposit v. Eogers (Sup.) 155. LIFE ESTATES. Mortgagee of life tenant, under Sup. Ct. Eule 70, may take a gross sum as life tenant’s interest in money from a surplus arising from sale of land under a prior mortgage.—Jermain v. Sharpe (Sup.) 700. Eight of life tenant to take a sum in gross, in lieu of annual income, where money is the subject of the life estate, is not affected by the fact that the remainder estate is to go to unborn children.—Jermain v. Sharpe (Sup.) 700. LIMITATION OF ACTIONS. § 1. Statutes of limitation. Payment, by grantee of one of several tracts included in a mortgage, of interest on the debts secured thereby, held not to prevent the statute from running in favor of the mortgagor and his grantee on the other tracts.—Broughton v. Van Valkenburgh (Sup.) 574. LIMITATION OF LIABILITY. Of carrier, see “Carriers,” § 1. LIQUOR SELLING. 'See “Intoxicating Liquors.” LIVERY STABLE KEEPERS. Where a livery stable keeper accepted cash and a secured note in settlement of a debt due him for keeping a horse, and consented that

*1182 1182 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. plaintiff should have possession, his lien on the property is lost.—Darling v. Hunt (Sup.) 278. LOCAL ACTIONS. See “Venue,” § 1. LOST INSTRUMENTS. Probate or establishment of lost wills, see “Wills,” § 3. LUNATICS. See “Insane Persons.” MACHINERY. Liability of employer for defects, see “Master and Servant,” § 5. Production and use of electricity, see “Electricity.” MALICE. See “Libel and Slander,” § 2. MANDAMUS. § 1. Nature and grounds in general. A remedy by presentation of a claim against the state to the court of claims held not so complete and adequate as to preclude plaintiff’s right to mandamus, under Laws 1895, e. 79, § 5, and Code Civ. Proc. § 264.—People v. Roberts (Sup.) 148. Mandamus will not lie to command a board of canvassers to declare relator elected to an office, where it involves a question of which the board has no jurisdiction.—People v. Board of Canvassers of Town of Courtlandt (Sup.) 727. 5 2. Subjects and purposes of relief. An inspector of electrical appliances of the city of New5 *7 York, wrongfully removed- by the commissioner of public buildings, lighting, and supplies, held entitled to compel his reinstatement by mandamus against such commissioner.—People v. ICearncy (Sup.) 41. . Under Laws 1895, c. 79, I 5, mandamus will lie to compel the state comptroller to issue a warrant on the treasurer for an amount certified by the superintendent of public works.— People v. Roberts (Sup.) 148. Since officers not appointed under Laws 1899, e. 370, are not required to present civil service certificates in order to be entitled to their salaries, such officers are not entitled to mandamus to compel the issuance of certificates.—People v. Knox (Sup.) 472. A writ of mandamus may he issued to determine whether ballots rejected by the inspector as' void shall he counted.—In re Larkin (Sup.) 597. An officeholder under civil service of New York City, wrongfully removed without notice or hearing required by the rules of civil service commission, held entitled to reinstatement on mandamus—People v. Cram (Sup.) 858. § 3. Jurisdiction, proceedings, and relief. Under Code Civ. Proc. § 970, a jury’s finding in mandamus that relator had been a member of a volunteer fire department of a city of the state for five years was conclusive.—People v. Kearney (Sup.) 41. Under Code Civ. Proc. §§ 2077, 2082, a defense not alleged in return cannot be urged on trial of issues in application for mandamus.— People v. Roberts (Sup.) 148. On a motion for a- peremptory writ, statements of opposing affidavits on a disputed question of fact will be taken to be true.—People v. v. Dalton (Sup.) 263. Where a statement in the affidavit for mandamus is controverted by an affidavit in defense, the latter must he assumed to be true.—People v. Dillon (Sup.) 537. Under Election Law, § 110, subd. 3, statements in alternative writ of mandamus to compel a recount of ballots held sufficient to warrant its issuance.—In re Larkin (Sup.) 597. Under Code Civ. Proc. § 2082, questions of error in. mandamus proceedings will not be considered on appeal, unless properly presented by a bill of exceptions.—People ex rel. Ging v. Lyman (Sup.) 655. Members of a city conncil held entitled to employ tkeir own private counsel to defend them on appeal from an order in mandamus against the council, affecting them personally as to costs.— People v. Guggenheimer (Sup.) 9G1. Members of a city council held entitled to appeal as individuals from a mandatory order in mandamus against the council.—People v. Guggenheimer (Sup.) 961. An extra allowance of costs cannot be granted in mandamus proceedings.—People v. Hertl (Sup.) 965. MANDATE. See “Mandamus.” MARRIAGE. See “Husband and Wife.” Evidence held not sufficient to show the perfom anee of a ceremonial marriage before the birt of a child.—In re Rawson’s Estate (Sur.) 107< MARRIED WOMEN. See “Husband and Wife.” MARSHALS. Of United States, see “United States Marshal MASTER AND SERVANT. See “Work and Labor.” § 1. The relation. A traveling salesman may be discharged wh he deliberately disobeys instructions, and se

*1183 INDEX. 1183 to deceive his employer. — Sabin v. Kendrick (Sup.) 336. § 2. Services and compensation. Counterclaim, in.an action by a servant for services, held not sufficient to constitute a cause of action for advances claimed by defendant.— Browne v. Empire Type-Setting Mach. Co. (Sup.) 126. §§ 3, 4. Master’s liability for injuries to servant—Nature and extent in general. Evidence held not to show that the death of a laborer employed to clean switches in a railroad yard was caused by the company’s negligence, but by liis failure to use ordinary care in the performance of his work.—Moccia v. New York Cent. & ll. R. R. Co. (Sup.) 338. It was not within the reasonable expectation of a master that a child should attempt to adjust material in a swiftly-moving machine, which was in no way connected with the child’s work in another part of the factory.—Byrne v. Nye & Wait Carpet Co. (Sup.) 741. The statute (Laws 1886, c. 409, § 8) does not require every machine to be fenced, but only those which, in reasonable anticipation, may be a source of danger.—Byrne v. Nye & Wait Carpet Co. (Sup.) 741. Building having fallen by reason of a defective foundation, injuring a workman therein, the owner is liable, unless he show that his architect was competent, and that he relied on him, and Id not interfere in the discharge of Ms dnty.<’ox v. Ireland (Sup.) 1061. 5. — Tools, machinery, appliances, and places for work. A master held not relieved from liability for n accident to Ms servant from a defective eleator because a proximate cause was the act of third person, if it would not have occurred ut for failure to repair.—Larkin v. Washing-n Mills Co. (Sup.) 93. That a servant knew'' that an appliance was it of order three weeks before using it did not lieve Ms master from using reasonable care keep it safe.—Larkin v. Washington Mills o. (Sup.) 93. Notice to a clerk of a defect in elevator which jured a porter held notice to their employer.— rkin v. Washington Mills Co. (Sup.) 93. Defendant’s negligence in leaving out of reír an appliance, resulting in injury to plain-f, his employe, held for the jury.—Larkin v. ashington Mills Co. (Sup.) 93. Circumstances held such that plaintiff, employ-as a porter for defendant, might reasonably •ume that the gate to an elevator used by him been repaired.—Larkin v. Washington Mills . (Sup.) 93. uestion as to negligence of defendant in plag switch beyond a water tank held a question the jury.—Young v. Syracuse, B. & N. Y. R. (Sup.) 202. hether a railroad was negligent in unnecesly. placing a switch just beyond a water tank held a question for the jury.—Young v. Syracuse, B. & N. Y. R. Co. (Sup.) 202. A derrick held a permanent structure, within the rule that a master must use reasonable care to provide his servant with suitable appliances. —Yaw v. Whitmore (Sup.) 731. Master held negligent in failing to furnish his servant with a safe place to work.—Brown v. Todd (Sup.) 9G3. The existence on an elevated trestle of an uncovered coal-bunker hole held a peril to which defendant could not properly expose its servants at night, in the absence of sufficient light.—Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 6,. —— Fellow servants. A yard man and an engineer and brakeman are fellow servants, so that the former cannot recover of the railroad company for injuries caused by the latter’s negligence.—Corcoran v. New York, N. H. & H. R. Co. (Sup.) 672. § 7. — Contributory negligence of servant. The burden of proof is on a servant, in an action for injuries, to prove want of contributory negligence.—Vincent v. Alden (Sup.) 62. Evidence held not to show that a servant, in an action for injuries, was free from contributory negligence.—Vincent v. Alden (Sup.) 62. Whether engineer of train running into an open switch -was guilty of contributory negligence, or had assumed the risk, held a question for the jury.—Young v. Syracuse, B. & N. Y. R. Co. (Sup.) 202. Where plaintiff was injured by the fall of an elevator, occasioned by a defect of which he had knowledge, he cannot recover.—Watson v. Duncan (Sup.) 667. It may be fairly presumed that if plaintiff, during the day, saw the uncovered coal-hunker hole through which he fell at night, he inferred that it v'ould be covered at night, when not in use.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 8. —— Actions. Evidence held sufficient for the jury on the question whether a master used reasonable care in providing a servant with suitable appliances.— Yaw v. Whitmore (Sup.) 731. Evidence held insufficient to support a finding that a brakeman, killed by striking a covered bridge, was free from contributory negligence, and that his injury was caused by defendant’s ' negligence.—Albring v. New York Cent. & H. R. R. Co. (Sup.) 763. ■ The question as to whether plaintiff was chargeable with contributory negligence in not avoiding a known danger was properly left to the jury.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. The question of whether plaintiff had assumed a certain risk held properly left to the jury.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 9. Liabilities for injuries to third persons. The driver of a coal wagon, generally employed and paid by the owner of the wagon, held the servant of defendant, who hired them from the

*1184 1184 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. owner.—Singer v. McDermott (City Ct. N. Y.) 1111. In a personal injury case, based on negligent driving by alleged servant of defendant, it was error to exclude evidence that the,driver was not in defendant’s employ, though plaintiff owned the wagon.—Moore v. Bernstein (City Ct. N. Y.) 1127. 'measure of damages. See “Damages,” § 2. MECHANICS’ LIENS. § 1. Mature, grounds, and subject-matter in general. A provision in an order appointing a receiver held not to prohibit the filing of a certain mechanic’s lien.—In re Simonds Furnace Co. (Sup.) 974. § 2. Right to lien. A nonresident has a right, under the mechanic’s lien law, to file a lien, when the material furnished was actually used in the construction of a building in New York.—In re Simonds Furnace Co. (Sup.) 974. § 3. Proceedings to perfect. Under Laws 1897, c. 418, §§ 16, 40, the court has no jurisdiction to grant leave to file a lien on a monument after the year, as prescribed in the statute, has passed.—Adler v. Lumley (Sup.) 688. § 4. Operation and effect. The assignment of a mortgage given to secure a contract price, which does not assign the principal debt, but is simply given to secure an advance equal to one-fourth of the principal debt, does not prevent mechanics’ liens, duly filed before payment of the principal debt, from attaching to such debt.—Gass v. Souther (Sup.) 305. When a mortgage is given as security for the payment of the contract price, the giving of the mortgage in the first instance does not constitute a payment, but it is to be treated as a sum due upon the contract price, to which a lien for materials furnished, filed against the property before the mortgage is paid, will attach.—Gass v. Souther (Sup.) 305. § 5. Waiver, discharge, release, and satisfaction. Finding that a mortgage was given as security for, and not as part of, the contract price, held supported by the evidence. — Gass v. Souther (Sup.) 305. § 6. Enforcement. A complaint'is not required to state the filing of a notice, where the facts to be stated in the notice do not exist until the complaint has been filed.—Gass v. Souther (Sup.) 305. Under Code Civ. Proc. § 3402, and Laws 1897, c. 418, jj 9, subd. 7, the failure by a lienholder foreclosing his lien, to make another lienor a party to the action, when discovered, is fatal.— Gass v. Souther (Sup.) 305. § 7. Indemnity against liens. Owner of property held a necessary party to action on bond to discharge mechanic’s lien.— Von Den Driesch v. Rohrig (Sup.) 341. MISREPRESENTATION. See “Fraud.” MODIFICATION. Of contract, see “Contracts,” § 3. MONEY RECEIVED. Recovery of price paid for land, see “Vendor and Purchaser,” f 4. - of tax paid, see “Taxation,” § 2. That a receiver told an outside party that I there was no indebtedness due him as receiver | does not prevent him recovering money wrong-1 fully paid.—Stokes v. Hoffman House (Sup.) 821. | MONOPOLIES. Grants of privileges or immunities) see “Consti-| tutional Law,” § 2. Tenancy from month to month, see “Landlord and Tenant,” § 4. MORTGAGES. Personal property, see “Chattel Mortgages.” § 1. Requisites and validity. Although a deed is absolute in it^ termd paroi evidence is admissible to show that I was given as security for an indebtedness, anl that there was a paroi agreement that the bal anee should be returned to the grantor.—Spei| cer v. Richmond (Sup.) 397. § 2. Recording and registration. 1 Rev. St. pt. 2, c. 3, § 1, declaring unrecordd conveyances of real property void as to subsl quent bona fide purchasers, applies to assigl ments of real-estate mortgages which are of rq ord.—Davies v. Jones (Sup.) 291. Though a failure to file a mortgage coverij both real and personal property may invalidar it as a chattel mortgage, it does not affect it I a lien on realty.—Hardin v. Dolge (Sup.) 753| § 3. Construction and operation. The language of a certain mortgage, in light of the situation and relation of the parti at the time it was executed, held to justifif finding that it was to secure certain debt! State Bank v. Lighthall (Sup.) 794. Certain recitals held equivalent to a stipulatl that defendants should pay a certain sumj plaintiff bank, and that, when said bank! received it, credit therefor should be given tl certain company, and that, until such paymf the mortgage should stand as a security to plj tiff therefor.—State Bank v. Lighthall (Sup.-)

*1185 INDEX, 118S § 4.( Assignment of! mortgage or debt. Under 1 Rev. St. pt. 2, c. 3, § 1, payment by the mortgagor to a holder oí an unrecorded assignment of the mortgage does not operate to defeat the rights of a subsequent bona fide assignee under a recorded assignment.—Davies v. Jones (Sup.) 291. Facts luid to excuse the assignee of a mortgage from making further inquiry to ascertain its whereabouts, in order to entitle him to claim as a bona fide purchaser.—Davies v. Jones (Sup.) 291. Failure of an assignee of a mortgage to give the mortgagor notice of the assignment held not evidence of knowledge on the part of the assignee of the existence of a prior unrecorded assignment.—Davids v. Jones (Sup.) 291. § 5. Transfer of property mortgaged or of equity of redemption. Where the owner of six-sevenths of the property covered by a mortgage takes an assignment of the same, a merger does not result, in the absence of evidence of intent.—-Ewell v. Hubbard (Sup.) 790. required, the order was- iriegularly entered a-ftezr notice.—Brady v. Lovell (City Ct. N. Y.), 50A MULTIPLICITY OF SUITS. Jurisdiction of § 1.- ■ equity to'avoid, see “Equity/' MUNICIPAL CORPORATIONS. See “Counties”; “Schools and School Districts/* § 1; “Tqwns.” Mandamus, see “Mandamus,” § 2. Ordinances relating to intoxicating liquors, ss® “Intoxicating Liquors.” Street railroads, see “Street Railroads.” § 1. Creation, alteration, existence;» and dissolution.. A school-district librarian of the town of East Chester held not a public officer, but an employe, the burden of whose unexpired contract with the board of education the city of New York assumed under the annexation act.—Bell v. City-of New York (Sup.) 709. § 8. Foreclosure "by action. An allowance of 10 days to the defendant in foreclosure- proceedings in which to pay the judgment and costs is reasonable.—Ewell v. Hubbard (Sup.) 790. An allowance of $40 to a guardian ad litem held reasonable, and within the discretion of the court.—Ewell v. Hubbard (Sup.) 790. Holder .of first and second mortgages, directed o assign her judgment of foreclosure on the first o the holder of a third mortgage, on the latter iving .appropriate sefcurity.—Mayer v. Moore Sup.) 940. - t. , Redemption. Under Code Civ. Proc. § 2232, and Id. tit. 9, c. 7, summary proceedings for possession of real roperty sold" under a judgment foreclosing a ortgage cannot be maintained by a purchaser t foreclosure' sale against the mortgagor connuing in possession.—Greene v. Geiger (Sup.) MOTIONS. ^ange of venue in civil actions, see “Venue,” rection of .verdict in civil actions, see “Trial,” 4. ■ " smissal or nonsuit on trial, see “Trial,” § 4. w trial in civil actions, see “New Trial,” § 2. ening or. setting aside default judgment, see ‘Judgment,” § 3. mentation of objections for review, .see “Apeal,” § 4. iating to pleadings, see “Pleading,” § 6. iking out evidence, see “Trial,” § 3. nder Gen. Rules Prac. No. 3, a plaintiff held "tied to have an order set aside, where it entered without notice to his attorney.dy v. Lovell (Oity Ct. N. Y.) 504. here an order is entered without notice to ntiff's attorney, as required by Gen. Rules . No. 3, plaintiff’s remedy is by motion to side, though a motion to- resettle would be 61 N.Y.8.—75 § 2. Proceedings of council or otfi.es> governing "body. : Ordinance providing that steps descending mice • a cellar, where same are covered, shall be inclosed with rails, does not apply where steps are covered with a set of doors.—Schroeck v. Reiss -(Sup.) 1054. § 3. Officers, agents, and employés. ' Dismissal of a policeman, based on the um-sworn testimony of a single witness, materially contradictory to the policeman’s statements, is--, -erroneous.—People v. York (Sup.) 400. Laws 1899, c. 370, and the civil service rules-‘passed in pursuance thereof, in so far as they .compel the appointment in the civil service of .cities of the person graded highest on the propt.er eligible list, held to conflict with Const, ara,.10, § 2, and to nullify the power of appointment conferred thereby.—People v. MosBey.,(Sup.) 452. i The office of police clerk’s assistant of the evSyof New York is a competitive office within civil? "service law (Laws 1899, c. 370).—People-Knox (Sup.) 469. 1 Appointment of police clerk’s assistant, maefeafter civil service law (La.ws 1899,°c. 370) wezsi into effect, but before regulations and rules for its operation had been prescribed, was invalid’.. People v. Knox (Sup.) 469. , Laws 1899, c. 370, requiring officers to tain certificates of civil service employment ira prder to recover their salaries, held not to apply to an officer not appointed thereunder.—People v. Knox (Sup.) 472. A village patrolman, who has succeeded to Ms, position as city patrolman under New RoskeiB® 3rty Charter, could not be removed, except for mcompetency or misconduct, though he previously . applied for such position under the city government.—People v. Dillon (Sup.) 537. Under Greater New York Charter, § 299) to> entitle a patrolman to the first grade he mash have served for five years immediately preceding

*1186 1186 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. the reorganization of the force.—People v. York ¡(Sup.) 547. A Civil War veteran, discharged on completion of his work -in a city department, cannot compel his reinstatement in the public service.—People v. Claussen (Sup.) 579. The position of morgue keeper is within the rule requiring appointment to public office to he evidenced by a writing.—People v. Keller (Sup.) 746. Where a resolution was passed appointing plaintiff morgue keeper, but no record thereof was made, nor any written authority given plaintiff, there was no appointment.—People v. ICeiier (Sup.) 746. § 4. Contracts in general. In absence of fraud on part of city officials, the courts cannot determine whether gravel furnished under a contract with city park commis-" sioners is in accordance with the contract.—Paul v. City of New York (Sup.) 570. Under New York Charter, §§ 419, 607, a contract to furnish gravel, awarded by the park "board and executed by one member of the board, under its authority, is valid.—Paul v. City of -New York (Sup.) 570. Evidence held insufficient to show that comp'troller had not attached his certificate to a contract, as required by New York Charter, § 419. —Paul v. City of New York (Sup.) 570. S 5. Public improvements. Offer by city to deduct from cost of repaving street two-thirds of penalty of bond given to it to secure performance of obligation that pavement laid previously would last for 10 years held reasonable.—People v. City of Utica (Sup.) •31. Greater New York Charter, § 413, does not •restrict the action of the commissioner of public ■buildings, lighting, and supplies in making contracts before receiving express authorization from the municipal assembly.—Blank v. Kearny <Sup.) 79. Under Greater New York Charter, §§ 416, 417, 419, it is not required that the commissioner of public buildings, lighting, and supplies should receive express authorization from the municipal assembly before entering into a contract for the lighting of streets or other public places of the city.—Blank v. Kearny (Sup.), 79. An assessment of damages for a street im,-provement will not he disturbed, because qf defects in the notice requiring claimants to appear before the assessors, where he was not misled "thereby and appeared pursuant to the notice.— JPeople v. Coler (Sup.) 345. Assessors of damages for a street improvement. who have considered" all the evidence ¡presented by an objector before making their award, are not obliged to reopen the case and hear further evidence.—People v. Coler (Sup.) 345. An award of damages for a street improvement by a previous assessment board, which was superseded by a new hoard before the award had ripened into a judgment, held not binding on the new hoard.—People v. Coler (Sup.) 345. Contract for draining street construed, and held, that it was for work only as shown by the plan annexed to the contract.—Dean v. City of New York (Sup.) 374. A city held not estopped by certificate of completion of public improvement to show the incorrectness thereof.—Dean v. City of New York (Sup.) 374. Basis for assessing benefits, under Consolidation Act. § 981, for municipal improvements, determined.—In re City of New York (Sup.) 437; In re Whittier St., Id. The court may dismiss an application for the appointment of commissioners " to assess damages, as provided by Laws 1888, c. 345, § 12, where it appears that there is no property injured for which compensation may be lawfully made.— In re Grade-Crossing Com’rs (Sup.) 748. Owners of nonabutting property, injured by a change of grade of a street, are not entitled to compensation therefor, under Laws 1888, c. 345, § 12.—In re Grade-Crossing Com’rs (Sup.) 748. § 6. Police power and. regulations. Laws 1895, c. 322, § 1, prohibiting use of soft coal within certain portions of a city, held a proper exercise of the police power.—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. § 7. Torts. One injured while rightfully riding bicycle on sidewalk cannot recover if the walk was in a reasonably safe condition for pedestrians.—Morrison v. City of Syracuse (Sup.) 313. Erroneous instruction, given in action against city for personal injuries received by one riding bicycle on sidewalk, held not so clearly corrected by a subsequent instruction as to make it clear that the jury were not misled thereby.— Morrison v. City of Syracuse (Sup.) 313. A motion for nonsuit properly granted, under the pleadings and proof, in an action against a city for personal injuries caused by the sudde caving in of a flagstone sidewalk over whici plaintiff was walking.—Hargreaves v. City o Yonkers (Sup.) 1003. 8. Actions. Greater New York Charter, § 261, requirin' petition. to state the presentation of a elar against the city was made to the city comptro ler before filing writ, held not to apply to pel sonal injury cases based on the city’s negligenc —Pulitzer v. City of New York (Sup.) 803. MUTUAL BENEFIT INSURANCE. See “Insurance,” § 5. MUTUAL BENEFIT SOCIETIES. See “Beneficial Associations.” NAMES. See “Trade-Marks and Trade-Names.”

*1187 INDEX. 1187 NAVIGABLE WATERS. See “Waters and Water Courses.” NEGLIGENCE. Causing death, see “Death,” § 1. Condition or use of particular species of property, works, or machinery, see “Bridges,” § 1; “Electricity” ; “Street Railroads,” § 2. - demised premises, see “Landlord and Tenant,” § 5. Of particular classes of parties, see “Carriers," §§ 1, 3; “Municipal Corporations,” § 7. - employers, see “Master and Servant,” §§ 3—8. Of passenger, see “Carriers,” § 4. Of servant, see “Master and Servant,” § 7. § 1. Acts or omissions constituting negligence. Under the facts, held, defendant was not guilty of negligence in leading along a street a horse which became frightened and injured plaintiff.—Haines v. ICeahon (Sup.) 757. An overflow from a bath tub in defendant’s apartments, the outlet of which was stopped or made smaller by a piece of cloth, held to show sufficient negligence on defendant’s part to support a judgment against him for damages resulting to an occupant of the apartment beneath.—Olin P. Ely Co. v. Rhoads (Sup.) 817. § 2. Contributory negligence. Where one places himself in a position of peril to rescue another, who is in serious danger of injury, in order to make applicable the rule that such action is not contributory negligence, it must appear that the party against whom recovery is sought was guilty of negligence, by reason, of which the person was in peril.—Hirschman v. Dry Dock, E. B. & B. R. Co. (Sup.) 304. Negligence on the part of driver of a wagon is not to be imputed to plaintiff, a fellow servant, where it does not appear he had in any wise control or management of the wagon.— Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. The law will not undertake an apportionment of fault between plaintiff and defendant, in an action based on negligence.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. Temporary forgetfulness of a known danger would not, as a matter of law, constitute contributory negligence on the part of the injured person.—Boyle v. Degnon-MeLean Const. Co. (Sup.) 1043. 3. Actions. Evidence held not to support a verdict for plainiff for damages caused by his truck becoming 'astened in a ferry-house gate. — Maloney v. Tnion Perry Co. (Sup.) 586. Refusal of instruction that, where both plain-'ff and defendant are negligent, plaintiff is not ntitled to recover, held error.—Anderson v. etropolitan St. Ry. Co. (Sup.) 899. Evidence held sufficient to go to the jury on estion of the company’s negligence in fastening boat to the wharf and passenger’s contributory negligence:—Mueller v. Tenth & Twenty-Third St. Perry Co. (Sup.) 986. NEGOTIABLE INSTRUMENTS. See “Bills and Notes.” NEW TRIAL § 1. Grounds. Evidence held not to warrant setting aside a verdict for improper conduct of the jury in arriving at the verdict—Driscoll v. Nelligan (Sup.) 692. § 2. Proceedings to procure new trial. where, after appeal to the court of appeals, a defeated party moved for a new trial because judgment was obtained by perjury inspired by counsel, the motion should not be denied on the ground of loches.—Nugent v. Metropolitan St. Ry, Co. (Sup.) 476. NONSUIT. Before trial, see “Dismissal and Nonsuit.” On trial, see “Trial,” § 4. NOTES. Promissory notes, see “Bills and Notes.” NOTICE. See “Trial,” § 1. Appeal, see “Appeal,” § 5. NOVATION. Evidence held to show acceptance by C. of B.’s promise to pay him A.’s debt before revocation of the promise.—Parraga v. Ribon (Sup.) 1024. Facts held sufficient to establish a novation, whereby a buyer was released from liability for the price of goods.—De Witt v. Monjo (Sup.) OFFER. Of judgment, see “Judgment,” § 2. OFFICERS. Mandamus, see “Mandamus,” § 2. Particular classes of officers. See “Coroners”; “Judges”; “Justices of the Peace” ; “Sheriffs and Constables.” Corporate officers, see “Corporations,” §§ 5, 6. Highway officers, see “Highways,” § 1. Municipal officers, see “Municipal Corporations,” § 3. § 1. Appointment, qualification, and tenure. Whether officers under civil service law (Laws 1899, c. 370) belong “to the competitive class,” as prescribed thereby, is a question of law for the court.—People v. Knox (Sup.) 469.

*1188 1188 61 NEW YORK SUPPLEMENT and 35 New York State Reporter. § 2. Title to and possession of office. In proceedings by plaintiff seeking reinstatement in a position in a public office, Ms right being doubtful, a mandatory injunction to restore plaintiff pendente lite will not issue.—McNieee v. Sohmer (Sup.) 193; O’Neill v. Same, Id. § 3. Rights, powers, duties, and liabilities. Under Greater New York Charter, §§ 419, 1551, an indictment held not to charge an offense or an attempt to commit the offense.— People y. ICane (Sup.) 195. Under Greater New York Charter, § 1551, an indictment which charged that defendant approved bills with intent to commit a fraud on the city of New York held not to charge an offense, nor to charge an attempt to commit the offense.—People v. ICane (Sup.) 195. Greater New York Charter, § 419, may not be violated by letting out work for public improvements without sealed bids, though the work might be continued long enough to cost $1,000.— People v. ICane (Sup.) 632. Greater New York Charter, § 419, is not shown to be violated by an allegation that an officer of a department of public improvements did “incur” an expenditure for cleaning sewer basins, without being authorized by the board of public improvements or the municipal assembly.—People v. ICane (Sup.) 632. An indictment, under Greater New York Charter, § 419, for letting the work of cleaning sewer basins without sealed bids, held insufficient, where it failed to show that the cost would exceed $1,000.—People v. Kane (Sup.) 632. PARTIES. On appeal, see “Appeal,” § 3. Persons concluded by judgment, see “Judgment,” § 6. Probate proceedings, 'see “Wills,” § 3. To particular classes of conveyances, contracts, or transactions, see “Contracts,” § 1; “Mortgages,” § 3. § 1, Plaintiffs. An action was properly brought in behalf of plaintiff and ell others similarly situated, who were very numerous.—Whiting v. Elmira Industrial Ass’n (Sup.) 27. Under'Code Civ. Proc. § 448, nonjoinder of member of a firm, in action to recover for injury to partnership property, warrants dismissal of action, where the defendant sets up defect of parties.—Freeman v. Abramson (Sup.) 839. § 2. New parties and change of parties. To make a joint wrongdoer a party defendant to a pending action, it is necessary to serve on both the existing defendant and such joint wrongdoer a copy of the summons and complaint, so amended as to contain the proper and necessary allegations charging both with the commission of the tort in question, with leave to them to answer or demur.—Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097.. Where plaintiff was justified in believing that only defendant wronged and injured her, the discovery upon the trial that another party and defendant were jointly interested in the subject-matter which caused plaintiff’s injury entitles plaintiff to bring such party in as a defendant. —Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097. A mere inference deducible from an allegation in an indictment against a municipal officer held insufficient to supply an allegation essential to estab

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