THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. ACCOUNT STATED. See Adoption; Courts, § 190; Landlord and See Limitation of Actions, § 148. ABATEMENT. See Nuisance, §§ 31, 72. ABATEMENT AND REVIVAL. II. ANOTHER ACTION PENDING. 550. ABUTTING OWNERS. See Eminent Domain, § 119. ACCEPTANCE. See Bills and Notes, § 66; Contracts, §§ 16, ACCORD AND SATISFACTION. § 11 (N.Y.Sup.) A landlord's receipt of a ACCOUNT. See Account Stated; Corporations, § 316; II. PROCEEDINGS AND RELIEF. § (N.Y.Sup.) Account stated defined.-Fox § 5 (N.Y.Sup.) Evidence held to show an ac- 86 (N.Y.Sup.) An account between an em- a § 19 (N.Y.Sup.) An administrator, suing § 19 (N.Y.Sup.) In an action upon an ac- ACCRETION. See Navigable Waters, § 44. ACKNOWLEDGMENT. See Bills and Notes, § 129; Chattel Mort- I. NATURE AND NECESSITY. A deed improperly acknowledged is not ad II. TAKING AND CERTIFICATE. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (1153) ment to a deed held insufficient.-Gross v. Rowley, 132 N. Y. S. 541. ACTION. See Abatement and Revival; Dismissal and Nonsuit. III. JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE. $50 (N.Y.Sup.) A complaint by the holders of bonds of a corporation against both the corporation and its directors held to improperly join causes of action.-Cass v. Realty Securities Co., 132 N. Y. S. 1074. $53 (N.Y.Sup.) Plaintiff damaged by defendant in connection with a moving picture exhibition could not recover in one action for libel and in another for violation of his civil rights under Civil Rights Law, $$ 50, 51.-Binns v. Vitagraph Co. of America, 132 N. Y. S. 237. $60 (N.Y.Sup.) Where plaintiff alleged an express contract as his first cause of action. and a claim for work and materials in the second and third causes of action, and defendant pleaded a failure to complete the contract as a complete defense, such pleading was no answer to the second and third causes of action, entitling plaintiff to judgment thereon and to a severance, under Code Civ. Proc. § 511.Vacuum Cleaner Co. v. Broadway-Cortlandt Co., 132 N. Y. S. 335. ADEQUATE REMEDY AT LAW. See Account; Trusts, § 151. ADJOINING LANDOWNERS. See Contracts, § 186. ADJUDICATION. See Judgment, §§ 627, 649, 720. ADMINISTRATION. See Executors and Administrators. See Shipping. ADMIRALTY. ADMISSIONS. See Evidence, §§ 244-251, 579. 'ADOPTION. $13 (N.Y.Co.Ct.) Under the domestic relations, law, question of abandonment of child by mother held one of fact to be determined in adoption proceedings by competent evidence on notice to the mother.-In re Moore, 132 N. Y. S. 249. § 16 (N.Y.Co.Ct.) In the absence of notice to a mother of proceedings to adopt her child, the question of her abandonment of the child may be raised by her on motion to vacate the order of adoption.-In re Moore, 132 N. Y. S. 249. § 43 (N.Y.Sup.) A claimant by adverse possession may not tack his possession to that of his grantor, where the land is expressly excluded in the deed of the grantor.-Staples v. Schnackenberg, 132 N. Y. S. 1092. III. PLEADING, EVIDENCE, TRIAL, AND REVIEW. 8114 (N.Y.Sup.) Evidence held insufficient to establish title by adverse possession of plaintiff in ejectment.-Jacob v. Town of Oyster Bay, 132 N. Y. S. 657. $114 (N.Y.Sup.) Evidence by one claiming title by adverse possession within Code Civ. Proc. $$ 371, 372, held not to overcome the legal title established by another.-Staples v. Schnackenberg, 132 N. Y. S. 1092. Topics & section (§) NUMBERS in this Index & Dec. & Am. Dig. Key No. Series, & Reporter Indexes agree ANIMALS. See Evidence, § 113. $2 (N.Y.Sup.) A dog is "property."-Rowan v. Sussdorff, 132 N. Y. S. 550. $44 (N.Y.Sup.) The destruction of a dog without justification entitles the owner to nominal damages at least.-Rowan v. Sussdorff, 132 N. Y. S. 550. defined by the pleadings.-O'Connell v. George Morrison Co., 132 N. Y. S. 358. $171 (N.Y.Sup.) The theory that a person who was the proximate cause of an accident causing the death of a servant was a vice principal cannot be raised for the first time on appeal.-Croghan v. Hedden Const. Co., 132 Ñ. Y. S. 548. § 172 (N.Y.Sup.) Judgment for plaintiff held not sustainable on account of an amendable defect in the answer not pointed out at the trial.-Equitable Trust Co. of New York v. Halpert, 132 N. Y. S. 776. $70 (N.Y.Sup.) Knowledge of vicious tendencies in an animal, which will charge an owner with negligence in an action for injuries resulting therefrom, may be imputed from proof of prior acts of which the owner had § 173 (N.Y.Sup.) A carrier held not entitled notice or from its known dangerous character. to raise, for the first time on appeal, an ob-Goldschneider v. J. Rheinfrank Co., 132 N.jection that the claim for the loss of goods Y. S. 401. was not filed within the time prescribed in the contract of shipment.-Easter v. New York & Boston Despatch Express Co., 132 N. Y. S. 402. ANSWER. See Pleading, §§ 127, 142. APPEAL. See Clerks of Courts; Costs, § 228; Courts, $$ 189, 190; Criminal Law, §§ 1073-1187; Divorce, §§ 183, 262; Eminent Domain, § 263; Justices of the Peace, § 190; Mandamus, 4; New Trial, § 71; Sales, § 358; Street Railroads, § 118; Trial, § 89. III. DECISIONS REVIEWABLE. (D) Finality of Determination. (B) Objections and Motions, and Rulings Thereon. § 193 (N.Y.Sup.) The point that the contract for breach of which an action was brought was not sufficiently pleaded held raised too late on appeal.--Francis C. Neale, Inc., v. New York Steam Co., 132 N. Y. S. 71. (C) Exceptions. $262 (N.Y.Sup.) Under Code Civ. Proc. § 3375, the right of petitioner to maintain con§ 76 (N.Y.Sup.) The inclusion of interlocu- demnation proceedings held reviewable on aptory matters in a judgment upon a remand, peal from the order confirming the appraisal.with directions, held not to make the judg-queens Terminal Co. v. Schmuck, 132 N. Y. S. ment interlocutory, so that an appeal would not lie therefrom.-Rudiger v. Coleman, 132 N. Y. S. 990. (E) Nature, Scope, and Effect of Decision. § 117 (N.Y.Sup.) No appeal will lie from an order resettling the record on appeal made by the judge who tried the case after he had ceased to hold office.-Hein v. Hein, 132 N. Y. S. 112. (F) Mode of Rendition, Form, and Entry of Judgment or Order. $127 (N.Y.Sup.) An appeal does not lie, ordinarily, from a default judgment.-Sutton v. Bayles, 132 N. Y. S. 327. IV. RIGHT OF REVIEW. (B) Estoppel, Waiver, or Agreements Affecting Right. §161 (N.Y.Sup.) A party, accepting the benefits of an order and consenting to its entry, held not entitled to appeal therefrom.-Sutton v. Bayles, 132 N. Y. S. 327. V. PRESENTATION AND RESERVA- (A) Issues and Questions in Lower Court. 159. § 262 (N.Y.Sup.) Error in submitting the question of the employer's failure to furnish a safe place of work, when that question was not in the case, may be reviewed in absence of exceptions.-Caciatore v. Transit Const. Co., 132 N. Y. S. 572. $ 262 (N.Y.Sup.) The court on appeal will reverse on an erroneous theory in the charge, though no exceptions were taken thereto.Lackawanna Steel Co. v. Pioneer S. S. Co., 132 N. Y. S. 980. X. RECORD AND PROCEEDINGS NOT (D) Contents, Making, and Settlement of $570 (N.Y.Sup.) Order made by a justice of the Supreme Court after he had ceased to be a justice held a nullity.-Hein v. Hein, 132 N. Y. S. 112. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (J) Conclusiveness and Effect, Impeaching and Contradicting. § 662 (N.Y.Sup.) The form of a charge objected to as stated in the record, and not the form stated in appellant's brief, is conclusive on the Appellate Court.-Chadwick v. Press Pub. Co., 132 N. Y. S. 825. (K) Questions Presented for Review. § 709 (N.Y.Sup.) Because of the failure of the record to contain the bill of costs and the briefs to mention the point, held, that an appeal from an order denying a motion to review the taxation of costs would not be reviewed.Matthews v. Victor Hotel Co., 132 N. Y. S. 375. (L) Matters Not Apparent of Record. $715 (N.Y.Sup.) An appellate court held authorized to deal only with the record presented, and evidence which has been omitted may not be supplied by an affidavit submitted on motion for reargument.-Archer v. Archer, 132 N. Y. S. 150. XV. HEARING AND REHEARING. $ 832 (N.Y.Sup.) The court on appeal held authorized to order a reargument before final decision, to enable appellant's counsel to argue the case on the merits.-Equitable Trust Co. of New York v. Madsen, 132 N. Y. S. 316. XVI. REVIEW. (A) Scope and Extent in General. § 849 (N.Y.Sup.) On appeal from a judgment on the motion for a directed verdict, where the trial court reserved and decided one of the counterclaims, held, that such decision could only be reviewed as a decision of a court_upon a question of law and fact.-Russell v. Crowley, 132 N. Y. S. 185. (C) Parties Entitled to Allege Error. § 882 (N.Y.Sup.) Defendant held estopped on appeal to claim that allegations of the complaint were not proved.-Victor A. Harder Realty & Construction Co. v. Sam Ping Lee, 132 N. Y. S. 447. (D) Amendments, Additional Proofs, and Trial of Cause Anew. § 888 (N.Y.Sup.) An appellate court has power, in the exercise of a sound discretion, to amend the pleadings to conform to the proof.-O'Connell v. George Morrison Co., 132 N. Y. S. 358. (E) Presumptions. 8927 (N.Y.Sup.) On appeal from a nonsuit, plaintiff is entitled to the most favorable inferences which a jury might properly have drawn from his evidence. Tooker v. Fowler & Sellars Co., 132 N. Y. S. 213. 8927 (N.Y.Sup.) Where a complaint is dismissed at the close of the plaintiff's case, the plaintiff is intitled to the most favorable inferences deducible from the evidence.-Columbia Metal Box Co. v. Cohn, 132 N. Y. S. 763. (G) Questions of Fact, Verdicts, and Find ings. § 994 (N.Y.Sup.) The determination of the credibility of witnesses is a matter for the trial court sitting as a jury, and not for the appellate court.-Rosenfeld v. Werner, 132 N. Y. S. 389. $ 1002 (N.Y.Sup.) A verdict of a jury on conflicting evidence held sufficient on appeal.Malara v. Prudential Ins. Co. of America, 132 N. Y. S. 528. § 1022 (N.Y.Sup.) Findings of a referee accepted by a justice in Special Term held conclusive on an appellate court.-Westervelt v. Shapiro, 132 N. Y. S. 338. (H) Harmless Error. nographer's minutes in passing upon a motion, § 1043 (N.Y.Sup.) Error in considering ste when they were not served as a part of the motion papers, held harmless.-Crowley v. La Brake, 132 N. Y. S. 155. $1047 (N.Y.Sup.) It was error to permit hearsay evidence to remain in the case after objection and motion to strike out.-Flugrath v. Village of Patchogue, 132 N. Y. S. 520. $1052 (N.Y.Sup.) Where plaintiff was entitled to judgment on the undisputed facts, the error in admitting evidence was harmless.-De Bevoise v. Adler, 132 N. Y. S. 554. $1056 (N.Y.Sup.) Defendant held not prej udiced by exclusion from evidence of a statute. -Storrs v. Northern Pac. Ry. Co., 132 N. Y. S. 954. $ 1062 (N.Y.Sup.) Judgment for one sued on a note held not to be affirmed, if one of two issues was improperly submitted, unless the other defense was conclusively established.Makepeace v. Ferris, 132 N. Y. S. 780. § 1068 (N.Y.Sup.) Where the jury found against a wife, suing for the alienation of her husband's affections, refusal to charge as to mitigating circumstances was immaterial.Strock v. Russell, 132 N. Y. S. 968. $1068 (N.Y.Sup.) Error in an action for Plaintiff held not entitled to amend the plead-libel held not material, and not to necessitate ings on appeal so as to sustain a judgment for the reversal of the judgment.-Cohalan v. New him, where defendant directed his proof to the York Press Co., 132 N. Y. S. 1101. issues raised and conclusively established his XVII. DETERMINATION AND DISPOdefense.-Id. SITION OF CAUSE. $ 890 (N.Y.Sup.) In an action on a fire policy, held, that the complaint might be amended (C) Modification. on appeal to conform to the proof, if essen- $1153 (N.Y.Sup.) Where all of the facts are tial to support the judgment.-Kline Bros. & found, the Appellate Division may modify the Co. v. German Union Fire Ins. Co. of Balti-judgment by deducting therefrom a sum which more, 132 N. Y. S. 181. plaintiff was not entitled to recover and render Topics & section (§) NUMBERS in this Index & Dec. & Am. Dig. Key No. Series, & Reporter Indexes agree |