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See “Discovery''; “Injunction"; "***;
1154

and 127 New York State Reporter
ACCRETION.

Breach of contract, see “Contracts, į 6:

"Sales," $ 6; "Vendor and Purchaser,"11
See “Navigable Waters," § 1.

Fire caused by operation of railroad, * 317?

roads," $ 3.
ACKNOWLEDGMENT.

Foreign judgment, see "Judgment," $ 19

Injuries to animals caused by operatia d
Operation and effect of admissions as evidence, Personal injuries, see “Carriers," *

street railroad, see “Street Railroads" $2.
see “Evidence," $ 5.
Operation and effect of admissions as ground

“Landlord and Tenant," $ 3; "Vava I
of estoppel, see "Estoppel," $ 1.

Servant," $ 9; "Municipal Corporat
Right to record deed as affected by sufficiency

4; "Railroads," $$ 3, 5; "Street Railroaia

$ 2.
of acknowledgment, see "Deeds," $ 2.

Price of goods, see "Sales," $ 6.
1. Pleading and evidence.

Recovery of bank deposit, see "Bants £
A certificate of acknowledgment cannot be

Banking," $ 1.
overthrown upon evidence of a doubtful char- Recovery of land sold by rendor, see "Te.?
acter, nor upon a bare preponderance of evi-

and Purchaser," $
dence, but only on proof so clear and convincing Recovery of payment, see “Payment."
as to amount to a moral certainty.–Bennett v. Recovery of price paid for land, see to
Edgar (Co. Ct.) 203.

and Purchaser," $ 5.
Services, see "Work and Labor."

Taking of or injury to property in error
ACTION.

power of eminent domain, see "Enicz**

main," $ 3.
Abatement, see “Abatement and Revival."
Bar by former adjudication, see "Judgment,"

Particular forms of action
8 6.

See "Replevin"; "Trover and Conversa
Counterclaim, see "Set-Off and Counterclaim."
Jurisdiction of courts, see "Courts."

Particular forms of special rellt,
Limitation by statute, see "Limitation of Ac- See “Account"; "Divorce"; "Injurnar
tions."

terpleader"; "Specific Performance."
Set-off, see "Set-Off and Counterclaim."

Abatement of nuisance, see "Naisance" 11
Actions between parties in particular relations. Alimony, see "Divorce, § 2.
See “Master and Servant," $ 9.

Cancellation of written instrument, sê 18*

cellation of Instruments."
Partners, see “Partnership," $ 5.

Enforcement or foreclosure of lien, ktor
Actions by or against particular classes of Establishment and enforcement of te

chanics' Liens," $ 6.
parties.
See “Attorney and Client,” & 2; “Brokers," $ Establishment of will, see “Wills," $

“Trusts," $ 4.
3, 5; "Carriers," 88 2, 3-5; "Corporations,
8 5; “Executors and Administrators," $ 3; Partnership accounting, see "Parto**

Foreclosure of mortgage, see **Mortgaan
"Insane Persons," § 4; “Landlord and Ten-Reformation of written instrument,
ant," $ 3; “Livery Stable Keepers"; "Master
and Servant," $10; Municipal Corpora, Setting aside tax assessment, see "TE.***

ormation of Instruments."
tions," § 4; "Partnership,” $ 2; "Principal

$ 1.
and Agent,” & 2; “Railroads," $ 3; "Receiv-
ers," $$ 3, 5; "Street Railroads," 8 2.

Particular proceedings in ac.
Banks, see “Banks and Banking," $ 2.

See "Appearance"; "Continuance":
Corporate officers, see "Corporations," $ 4.

“Depositions”;

""Evidence";
Foreign corporation, see "Corporations," 6.

"Judgment"; "Jury''; “Limitat
Foreign receiver, see “Receivers,, § 5.

tions"; "Motions"; "Parties"; "N
Stockholders, see "Corporations," $ 3.

“Process"; "Reference";
Taxpayers, see "Counties," $ 1; "Municipal "Trial"; "Venue."

Corporations," $ 5.
Telephone company, see “Telegraphs and Tele- Default, see "Judgment," $ 2.

Bill of particulars, see "Pleading," (1
phones," $ 1.
Trustees, see “Trusts," $$ 3, 4.

Nonsuit, see “Trial," $ 3.

Revival, see "Abatement and Berits":
Actions relating to particular species of property Verdict, see “Trial," $ 5.
or estates.

Particular remedies in or incident
See “Trusts," § 4.

Particular causes or grounds of action.
See **Account Stated"; Bills and Notes;" $ 5: Proceedings in exercise of speciai jis

“False Imprisonment,” $ 1;. "Fraud,
“Guaranty," $ 4; “Insurance," 8$ 6, 7; "Judg- Courts of limited jurisdiction is 2nd
ment," § 1o; "Libel and Slander," & 2; "Mon "Courts," 8 2.
ey Paid”; ' "Negligence," § 3;'“Work and Criminal prosecutions, see “Cricis

Labor."
Abuse of process, see “Process," $ 2.

Review of proceciu.
Aid of attachment, see “Attachment,” $ 1. See "Appeal"; "New Trial."

1. Joinder, splitting, consolidation,

ADMIRALTY.
and severance.
That all the defendants in an equity action See “Shipping."
e not affected to the same extent does not
prive the court of jurisdiction.-Woolf V.
arnes (Sup.) 219.

ADMISSIONS.
A complaint held not demurrable on the As evidence in civil actions, see "Evidence,"
ound that several causes of action were im-

$ 5.
operly united therein.- Woolf v. Barnes In pleading, see "Pleading," $ 2.
up.) 219.
An assignee of a part of a claim may sue

ADULTERY.
recover the portion assigned.—Chase v. Deer-
: (Sup.) 434

Ground for divorce, see "Divorce," $ 1.
I complaint in an action on a beneficial cer-
cate by the beneficiaries named therein to

ADVERSE POSSESSION.
over the amount due thereon, and also claim-
damages by reason of defendant's failure to see "Limitation of Actions."
ply with Laws 1892, p. 2014, c. 690: $ 210, of water rights, see "Waters and Water Cours-
! by reason, also, of its fraudulent repre-
tations as to its ability to pay death claims

es," $ 2.
full, held demurrable as joining an action on 8 1. Nature and requisites.
tract and causes of action in tort.-Conard
southern Tier Masonic Relief Ass'n (Sup.) of a property owner to sue for an invasion by

Limitations held not to run against the right

a railway company of certain incorporeal rights
se complaint in an action on a beneficial until legal determination that such rights had
ificate by the beneficiaries named therein been invaded.-Hiudley v. Manhattan Ry. Co.
recover the amount due thereon, and also (Sup.) 53.
ning damages by reason of defendant's fail-

Where a street railway company, which oco
to comply with Laws 1892. p. 2014, c. 690, cupied a street so as to interfere with the abut-
0, and by reason also of its fraudulent rep- ting owners' easements, made compensation
itations as to its ability to pay death therefor to certain persous, it admittel that its
is in full, held demurrable for misjoinder use was not adverse as to others.—Hindley v.
luses of action.—Conard v. Southern Tier Manhattan Ry. Co. (Sup.) 53.
inic Relief Ass'n (Sup.) 626.
mplaint by city for removal of construc-

ADVERTISEMENT.
eneroaching on its sidewalks held not ob-
nable as uniting, two causes of action in Official newspapers, see “Newspapers.”
ount. - City of New York y. Knickerbocker
: Co. (Sup.) 937.

AFFIDAVITS.
iparian proprietor may sue upper proprie-
o restrain them, acting independently of See “Depositions."
ther, from depositing refuse in the stream.
rren v. Parkhurt (Sup.) 1009.

In proceedings to contest election of officer of

association, see “Associations."
Commencement, prosecution, and
termination.

AGENCY.
y of proceedings in one action until de-
iation of similar cause in another court See “Principal and Agent."
for want of power, where the parties

the same.-Sammons 1. Pirkhurst
1063; Frederick v. Same, Id.; Sammons

AGREEMENT.
2e, Id.; Taylor v. Same, Id.

See “Contracts.”
EQUATE REMEDY AT LAW.

ALIENATION.
on jurisdiction of equity, see “Specific Suspension of power of alienation of property,
ormance," $ 1; "Trusts,” $ 3.

see "Perpetuities."
ADJUDICATION.

ALIMONY.
ion and effect of_former adjudication, see "Divorce,” $ 2.
si Judgment," $86, 7.
ADMINISTRATION.

ALTERATION OF INSTRUMENTS.
ity, see "Charities," $ 2.

See."Reformation of Instruments."
te of decedent, see "Executors and Ad-
rators."

Parties signing contract in counterparts held
erty by receiver, see "Receivers,'' $ 2. estopped from asserting the falsity of a repre-
property, see "Trusts," $ 3.

sentation that paper delivered was the form

ot

and 127 New York State Reporter
adopted by the parties in the counterparts to , and the decision of motion for norsuit neti,
be exchanged, and had not been altered.-Web-on appeal the court may direct such !
ster Realty Co. y. Thomas (Sup.) 1077.

on the special verdict as either parts 3

entitled to: -Sutherland v. St. Lawrence du
AMENDMENT.

ts (Sup.) 958.

§ 2. Right of review.
Or pleading after remand by appellate court, In an action of foreclosure, failure of certat.
see "Appeal,'' $ 7.

defendants to answer the complaint ir
Of particular legal proceedings.

to deprive them of the right to appeal frac !

judgment granting their codefendant's man
See "Judgment," $ ; “Pleading," $ 4.

for relief against them.-Clark v. Strong S
Verdict, see "Trial," $ 5.

514.

Action of defendant's counsel in taking p***
ANCILLARY ADMINISTRATION.

in the examination of a witness keine

constitute a wairer of the right to apon! ***
See "Executors and Administrators," $ 5.

an order refusing to vacate ihe orde
amination.-(shorn v. Barber (Sup.) 83,

§ 3. Presentation and reservatios is
ANCILLARY RECEIVERSHIP.

lower court of grounds of revies.

On appeal to the Appellate Diris.com
See "Receivers," $ 5.

judgment on a referee's report, vo edno!

the report or decision is a prerequisite "";
ANIMALS.

review of the facts.-In re Mosber's Es.

(Sup.) 123.
Stabling and hiring of horses, see “Livery A party cannot complain of evidence and
Stable Keepers."

without objection.-Lennox v. Interurbans

Ry. Co. (Sup.) 230, 1137.
ANNUITIES.

Admission of testimony as to which

cient objections were interposed hold Luto.
See "Perpetuities"; "Trusts," $ 1.

for reversal.—Beyer v. Isaacs (Sup. 312.
Presumptions as to law of other states relat Where no exception was taken to the

ing to, see "Evidence," & 2.
Rights and liabilities of devisees or legatees, for new trial, plaintiff could not, 02

missal of the complaint, and no notato Tos
see “Wills," $ 7.

complain of any error in dismissal on the

dence.-Muratore y. Pirkl (Sup.) 484.
ANSWER.

Where return disclosed only escenariat!?

defendant to exclusion of immaterial pe
In pleading, see "Pleading," $ 2.

no motion to dismiss. defendant Aid 13

conceded that case involved only Questo
APOTHECARIES.

fact.-Keller v. Schwartz (Sup.) 60

A motion for nonsuit, decided after the
See "Druggists."

and evidenced by an order entered the

was no opportunity to except, held resin
APPEAL.

Sutherland v. St. Lawrence County le
See “New Trial."

§ 4. Record and proceedings not is mere

ord.
Costs, see “Costs," $ 4.

An order substituting a plaintiff keid nt **
Review in particular civil actions.

in Code Civ. Proc. $ 1316.-Rogers r. L.

(Sup.) 140.
See “Replerin," 8 2.
Foreclosure suits, see “Mortgages," 4.

Where a colloquy sought to be in
In municipal court, see "Courts," $ 2.

in a case on appeal did not ap: *

stenographer's minutes, and, after air:
Review in special proceedings.

ticting aitidavits as to it, the court al .
Condemnation proceedings, see “Eminent Do- amendment, such allowance will not
main," $ 1.

fered with on appeal.--Burke v. Bale

215.
Review of criminal prosecutions.

Where, on appeal from denial of : 1.
See “Criminal Law," $ 2.

the case did not show that it cortail
For offenses against liquor laws, see “Intoxi- evidence, the appellate court was LT!
cating Liquors," 8 3.

consideration of the exceptions-laps

Bauer (Sup.) 388.
§ 1. Decisions reviewable.
An order denying a motion for reargument is action for rent, the court on apparte

In the absence of the judgmeat r I
not appealable.—Tucker v. Dudley (Sup.) 355.

termine whether the judgment or
Under the express provisions of Code Civ. bar to a second action for rent-san
Proc. $ 1187, where a special verdict is taken | Voigtman (Sup.) 523.

cause.

5. Review.

power to decide questions of fact that the
An instruction, in an action for injuries to a surrogate has.-In re Bradbury (Sup.) 418.
ervant, that the doctrine of res ipsa loquitur
tad no application, will be deemed correct on

Any error in permitting, claimant, on hear-
eiendant's appeal.-Dolan v. New York Saui- ing of claim against decedent's estate, to an-
ary Utilization Co. (Sup.) 217.

swer questions as to letters of decedent to

claimant, and use of letters as evidence, held
Appeal from order imposing the terms for harmless.-In re Bradbury (Sup.) 418.
ermitting the withdrawal of a juror held not
o bring up a ruling of the court on the plead-personal injuries sustained by plaintiff, admis,

In an action against a street railway for
1g8.-Rawson v. Silo (Sup.) 416.

sion of evidence of certain declarations held
Propositions considered and decided on a pri- reversible error.-Dorry v. Union Ry. Co. (Sup.)
r appeal are the law of the case, and will not 637.
e reconsidered on a subsequent appeal.-Skil-

Admission of incompetent evidence held preju-
on v. Coddington (Sup.) 460.

dicial error.-Davis v. Reflex Camera Co. (Sup.)
C'nder rule 31 of the general rules of prac- 814.
ce, it must be assumed on appeal that an On an issue whether a load of peas was
rder granting a new trial, without stating any delivered by plaintiff to defendant upon the
rounds, was granted upon exceptions taken 2d or 5th day of a certain month. the admis-
iring the trial.- Badanes v. Feder (Sup.) 478. sion of certain evidence held harmless.-Kiley
Where there is any evidence to sustain a find- v. Lee Canning Co. (Sup.) 986.
ig of fact, judgment will be affirmed.-Keller

In an action on a foreign judgment sufhi-
Schwartz (Sup.) 620.

ciently showing jurisdiction, defendant held
On appeal from a judgment of dismissal on not prejudiced by evidence unnecessarily offer-
le complaint and opening of counsel, facts al- ed by plaintiff dehors the record to sustain the
ged in the complaint and stated in the open- same. -Johnston v. Mutual Reserve Life Ins.
g must be assumed to be true.--Oakeshott v. Co. (Sup.) 1052.
nith (Sup.) 659.

In an action on a foreign judgment, the ad-
A question not raised upon the argument of mission of evidence dehors the record to es-
! appeal will not be considered.—Jones v. tablish jurisdiction held harmless to defendant.
rinsmade (Sup.) 674.

-Johnston v. Mutual Reserve Life Ins. Co.
Order sustaining motion for new trial, under

(Sup.) 1062.
ode Civ. Proc. s 999, held not reversible on $ 7. Determination and disposition of
peal, if moving party was entitled to have
rdict set aside on either of grounds mentioned On granting amendment of complaint, held
motion and statute.—Ross v. Metropolitan proper to impose as a condition the payment of
Ry. Co. (Sup.) 679.

costs of the motion and costs on previous ap-
On appeal, cases must be disposed of on the peal.—Diehl v. Dreyer (Sup.) 151.
pory and on the record on which they were Where it appears on appeal that no different
Pd.-Tyng v. Corporation Trust Co. (Sup.) state of facts could be shown on a new trial,
8; Same v. American Beet Sugar Co., Id. the court, on reversing a judgment for plaintiff,
An order changing the place of trial will not will order judgment absolute for defendant.

disturbed on appeal, unless an abuse of dis- Munch v. City of New York (Sup.) 309.
tion or palpable error appears.--Pattison v. Where it was evident that the testimony was
nes (Sup.) 1071.

fixed up to suit the case, the judgment would
in appeal from an order denying a new trial be reversed, and the cause remanded for a new
ngs up for review the judgment and all pro- trial.- McCarthy v. Interurban St. Ry. Co.
dings on trial.-Benton v. Moss (Sup.) 1113. (Sup.) 548.
3.
Harmless error.

Where plaintiff recovered less than the
nstruction ou the issue as to whether defend- amount he was entitled to, and the trial court
ts had received a certain letter held preju: judgment for the full amount, the appellate

found all of the facts necessary to sustain a
ial and misleading to them.- Netherlands court had jurisdictiou to increase the judgment
'e Ins. Co. v. Barry (Sup.) 164.

without granting a new trial.—Tolchiusky v.
Vhere a certain conversation had been given Schiff (Sup.) 1073.
evidence without objection, the subsequent
uission of a substantially similar conversa-
held harmless to defendant.-Beyer v.

APPEARANCE.
acs (Sup.) 312.

Where counsel for defendant authorized a
n an action for injuries, the admission of person not admitted to practice to appear on
dence that a railway company's employés the return day, defendant's counsel could not
k the names of witnesses at the time of the afterwards contend that there was no appear-
ident held not error.-Iaquinto V. Bauer ance.-Kerr v. Walter (Sup.) 311.
uny error in permitting deposition to be read

APPLIANCES.
support of claim against decedent's estate
d not cause for reversal, under Code Civ. Liability of employer for defects, see “Master
>C. $ 2586, giving appellate court the same and Servant," 8 .

p.) 388.

recover

and 127 New York State Reporter
APPOINTMENT.

ASSUMPSIT, ACTION OF.
Of executor or administrator, see "Executors See Account Stated"; "Money Paid"; "Mark
and Administrators," 8 1.

and Labor."
Of referee, see "Reference," 8 1.

ASSUMPTION.
APPRAISAL.

Of risk by employé, see "Master and Server:"

$$ 7, 9.
Of rentals, see "Landlord and Tenant," 2.

ATTACHMENT.
ARBITRATION AND AWARD. See "Execution."

Collateral attack on judgment, see "Judgaer;"
See "Reference."

$ 5.
ARREST.

Oi partnership property, see "Partnership." 2

$ 1. Proceedings to support or enforte.
See "Searches and Seizures."

In an action under Code Civ. Proc. & 677. A
Illegal arrest, see "False Imprisonment."

an attached demand, held, that the
On execution, see "Execution," $ 3.

necessary "leave of court” refers to the c.
in which the action is brought, and not to the

court of which the officer who issued the "
ASSESSMENT.

rant of attachment is a member. Section ti

-Rogers v. Ingersoll (Sup.) 140.
Of compensation for property taken for public
use, see “Eminent Domain," $ 2.

ATTENDANCE.
Of expenses of public improvements, see “Mu-
nicipal Corporations," $ 212.

Of juror, see "Jury," § 2.
Of tax, see "Taxation," § 1.

ATTESTATION.
ASSIGNMENTS.

Of conveyances, necessity as to subsequent
Fraud as to creditors, see "Fraudulent Convey-

chasers, see "Vendor and Purchaser," \ &
ances.
In bankruptcy, see "Bankruptcy," $ 1.
Of attorney's fees, see "Attorney and Client,"

ATTORNEY AND CLIENT.
$ 3.
of mechanic's lien, see "Mechanics' Liens," $ 4. Allowance for attorney of receiver, see “Beces-
Real party in interest in action on assigned

ers," $ 3.
claim, see “Parties," $ 1.

§ 1. Retainer and authority.
Splitting causes of action by assignment, see Where a client retains a member of a free
"Action," 8 1.

in the absence of any stipulation that some

torney only shall attend to the client's
§ 1. Rights and liabilities of parties.
Assignee of a subcontract held not liable for wood v. Dillenbeck (Sup.) 321.

ness, there is a retainer of the firm.-Lud.
tort of assignor.--Lockwood v. Naugbton Co.
(Sup.) 614.

§ 2. Duties and liabilities of attorney

to client.

Action for constructive fraud growing
ASSIGNMENTS FOR BENEFIT OF confidential relations cannot be sustained
CREDITORS.

proof of actual fraud only.-Sinclair 1. H*

gins (Sup.) 195.
See “Bankruptcy," $ 1.

In an action against an attorney for ***
Abatement of action for accounting by death tion of his client's funds, held error to di

of assignee, see "Abatement and Revival," the complaint for want of proof.-- Pusti i
$ 1.

Wallace (Sup.) 608.
ASSOCIATIONS.

§ 3. Compensation and lien of atter

ney.

Under Code Civ. Proc. $ 66, held, that
See “Building and Loan Associations."

court bad power to determine the amount *
to determine contest of the election of a trus- Syracuse Rapid Transit Ry. Co. (Sup./

Where affidavits submitted in a proceeding tiff's attorney was entitled to, and enforced
tee of an association, under General Corpora-
tion Law, Laws 1892, p. 1810, c. 687, $ 27, Under Code Civ. Proc. $ 55, ked, that the
consisted largely of conclusions, the matter court bad no authority to discontinue the
should not be determined thereon, but should on a stipulation entered into between deft
be sent to a referee.-In re Pleasant Valley ant and plaintiff.-Kuehn v. Syracuse les
Soc. (Sup.) 1106.

Transit Ry. Co. (Sup.) 883.

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