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ING NEGLIGENCE.

der "navigable rivers," held to apply only to a | I. ACTS OR OMISSIONS CONSTITUT-
tidal stream, and not to a nontidal stream,
though in fact navigable.-Fulton Light, Heat
& Power Co. v. State (Ct. Cl.) 1000.

III. RIPARIAN AND LITTORAL
RIGHTS.

126.

Condemnation by city, see Eminent Domain, §
Right of state to take water for canal pur-
poses without compensation, see Eminent
Domain, § 84.

$ 39.
The rights of owners of land border-
ing on a navigable river must yield to the pow-
ers of the government on improvements in nav-
igation, whether exercised by the federal or the
state government.-Johnson v. State (Ct. Cl.)
253.

§ 39. Riparian rights on a tide-water stream
or nontidal stream, navigable in fact, held sub-
ject to the paramount right of the state and
federal governments to improve navigation and
regulate commerce.-Fulton Light, Heat & Pow-
er Co. v. State (Ct. Cl.) 1000.

844. Held, that any land which may have
been reclaimed from the bed of a nontidal, non-
boundary stream may be occupied by riparian
owners so long as they do not interfere with
the paramount right to improve the river for
navigation. Fulton Light, Heat & Power Co.
v. State (Ct. Cl.) 1000.

NAVIGATION.

See Navigable Waters, §§ 1, 7.

NE EXEAT.

3. Under Code Civ. Proc. § 550, plaintiff
in an action to restrain a breach of contract
held to have the right to arrest defendant.-
General Explosive Co. v. Hough (Sup.) 1114.

NEGLIGENCE.

Causing death, see Death, § 35.
Judgment for damages caused by negligence
as one for necessaries within exceptions to
exemption laws, see Exemptions, § 68.

By particular classes of persons.
See Carriers, §§ 108, 119, 280-321; Municipal
Corporations, §§ 747-827; Railroads, §§ 274-

400.

Bailee, see Bailment, § 12.
Employers, see Master and Servant, §§ 90-
2972.

(A) PERSONAL CONDUCT IN GENERAL

§ 3. One undertaking gratuitously to dis-
charge a duty is accountable for the manner of
its discharge, though the fact that the service
is gratuitous may be considered on the question
of the degree of care required.-Wallace v. John
A. Casey Co. (Sup.) 394.

§ 4. The test of actionable negligence is, not
what might have prevented a particular acci-
men would have done in the discharge of their
dent, but what reasonably prudent and careful
duties under the circumstances as they existed
at the time of the accident.-Davenport v.
Oceanic Amusement Co. (Sup.) 609.

Demised premises, see Landlord and Tenant, §§
162-170.

(C) CONDITION AND USE OF LAND,
BUILDINGS, AND OTHER
STRUCTURES.

32. One walking on the premises of an-
other held not a mere licensee.-Schollhamer v.
Hamburger (Sup.) 738.

35. A child injured by a barrel thrown
from a window into the street held not to be
merely a passer-by.-Wallace v. John A. Casey
Co. (Šup.) 394.

III. CONTRIBUTORY NEGLIGENCE.
Of owner of automobile injured upon highway,
see Highways, § 184.

Of person injured by operation of railroad,
see Railroads, § 278.

Of person injured by operation of street rail-
road, see Street Railroads, § 98.

Of servant, see Master and Servant, §§ 236,
289.

Of tenant, see Landlord and Tenant, § 168.

(C) IMPUTED NEGLIGENCE

§ 95. The negligence of a boy twelve years of
age contributing to the injury of a three-year
old boy in his custody is imputable to the child.
-Wallace v. John A. Casey Co. (Sup.) 304

§ 96. It is negligent for a mother to allow a
child to wander unattended in the street six
blocks from home.-Wallace v. John A. Casey
Co. (Sup.) 394.

896. The negligence of a mother in leaving
a three-year old child unattended in the street
where he is injured held imputable to the child.
-Wallace v. John A. Casey Co. (Sup.) 394

IV. ACTIONS.

(B) EVIDENCE.

134. Where plaintiff's evidence in an action
for damages failed to show defendant's negli

Condition or use of particular species of prop-gence, a judgment for plaintiff will be reversed.
erty, works, machinery, or other instru-
-Kann v. Cooper (Sup.) 659.

mentalities.

See Railroads, §§ 274-400; Street Railroads,
§§ 98-118.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes.

Bill of lading, see Carriers, § 55.

NEWLY DISCOVERED EVIDENCE.
Ground for new trial in civil actions, see New
Trial, 88 102, 107.

NEW TRIAL.

Costs, see Costs, §§ 222-250.
Remand by appellate court for new trial, see
Appeal, §§ 1194-1201.

I. NATURE AND SCOPE OF REMEDY.

§ 1. The power of the Supreme Court over
its judgments is inherent, and not derived from
or controlled by the statutory provisions.-Ellis
v. Hearn (Sup.) 977.

7. The court, on setting aside a verdict,
should, if the case presents a question for the
jury, grant a new trial.-People v. Dooling
(Sup.) 371.

GENERAL.

§ 26. Where, in an action for breach of a
contract of employment for one year, beginning
at a future time, the statute of frauds was not
pleaded, it is not before the court on motion to
set aside the verdict.-Spatz v. Singer (City Ct.)
576.

41. Exclusion of evidence, though error, is
not ground for new trial after a nonsuit, where
its admission would not have entitled plaintiff
to go to the jury.-Braun v. New York Cent.
& H. R. R. Co. (Sup.) 668.

(F) VERDICT OR FINDINGS CONTRARY
TO LAW OR EVIDENCE.

II. GROUNDS.

§ 117. Where a motion for new trial was
made upon the grounds stated in Code Civ.
(A) ERRORS AND IRREGULARITIES IN Proc. § 999, and the motion was denied and the
term expired, a new trial could not be there-
after granted under the statute upon reargu-
ment of the motion.-Ellis v. Hearn (Sup.) 977.

§ 66. A verdict that is against the evidence
and the instructions should be set aside.-Cavin
v. O'Rourke Engineering & Construction Co.
(Sup.) 652.

§ 102. Testimony of a handwriting expert
held not newly discovered, so as to warrant a
new trial.-Heintze v. Graham (Sup.) 548.

§ 68. Where the verdict is based on a find-
ing as to an issue not presented or tried, there
is a mistrial, and a new trial should be grant-
ed.-Fowler v. Anderson (Sup.) 1092.

$131. Under the express provisions of Code
Civ. Proc. § 998, it is not necessary to make a
case upon a motion for new trial upon the
ground of surprise, so that a case was not nec-
essary on reargument of a motion by defendant
(C) RULINGS AND INSTRUCTIONS AT for a new trial on that ground after the direc-
TRIAL.
tion of a verdict for plaintiff, because there was
no evidence to the contrary.-Ellis v. Hearn
(Sup.) 977.

§ 72. A verdict that is against the evidence
and the instructions should be set aside.-Cavin
v. O'Rourke Engineering & Construction Co.
(Sup.) 652.

(G) SURPRISE, ACCIDENT, INADVERT-
ENCE, OR MISTAKE.

$88. The nonappearance of an expected wit-
ness is ground for a new trial on the ground of
surprise.-Ellis v. Hearn (Sup.) 977.

$ 102. That a party who had testified for
himself recollected something after a decision
for the other party which he omitted to testify
to at trial is not such newly discovered evi-
dence as will authorize new trial.--Brown v.
Newell (Sup.) 965.

(H) NEWLY DISCOVERED EVIDENCE.

$102. Where plaintiff did not ask for a con-
tinuance, held that she was not entitled to a
new trial on the ground of newly discovered evi-
dence. Heintze v. Graham (Sup.) 548.

§ 107. A new trial on the ground of newly
discovered evidence held properly denied.-
Brown v. Newell (Sup.) 965.

III. PROCEEDINGS TO PROCURE
NEW TRIAL.

114. Under Code Civ. Proc. § 1002, con-
sidered with section 998, a motion for new trial
instance be heard at Special Term.-Ellis v.
upon the ground of surprise must in the first
Hearn (Sup.) 977.

NEXT OF KIN.

See Descent and Distribution.

NOISE.

As a nuisance, see Nuisance, § 3.

NONSUIT.

On trial, see Trial, §§ 159, 164.

NOTES.

Promissory notes, see Bills and Notes.

NOTICE.

Of particular facts, acts, or proceedings not
judicial.
Defective condition of street, see Municipal
Corporations, 790.
Injuries to servant, see Master and Servant,
Nonpayment or protest of bill or note, see
§ 252.
Bills and Notes, § 422.

Of particular judicial proceedings.
See Lis Pendens, §§ 13–22.

Action or process, see Process, 88 96, 98.
Application to have cause placed on preferred
calendar for trial, see Trial, § 13.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER
116 N.Y.S.-77

§ 5. Ignorance in law cannot exist when a
party knowingly has at his command means of
information which will dispel the same.-Mc-
Callum v. Corn Products Co. (Sup.) 118.

§ 6. One having sufficient information to put
a prudent man on inquiry and neglects to make
inquiry is presumed to have actual notice.-Kil-
mer v. Hutton (Sup.) 127.

NUISANCE.

Maintenance of, by tenant as constructive evic-
tion of other tenant occupying part of same
premises, see Landlord and Tenant, § 173.
On demised premises, see Landlord and Ten-
ant, § 170.

I. PRIVATE NUISANCES.

(A) NATURE OF INJURY, AND LIA-
BILITY THEREFOR.

§ 3. Where a person selected his home ad-
joining an electric light and power plant which
had been in operation for a number of years,
the operation of the plant would not constitute
a private nuisance as to him, unless its use for
the business carried on was unreasonable.-
Peck v. Newburgh Light, Heat & Power Co.
(Sup.) 433.

§ 3. The unreasonable use that will consti-
tute a nuisance cannot be declared as by a hard
and fast rule, but depends upon the locality.-
Peck v. Newburgh Light, Heat & Power Co.
(Sup.) 433.

OCCUPATION.

§3. Hospitals for insane persons are not Of real property, see Use and Occupation.
nuisances per se-Heaton v. Packer (Sup.) 46.

§ 3. Vibrations may constitute a nuisance.-
Peck v. Newburgh Light, Heat & Power Co.
(Sup.) 433.

correction.-Peck v. Newburgh Light, Heat &
Power Co. (Sup.) 433.

4. The maxim, "Sic utere," etc., as applied
to nuisances, does not mean that one must not
annoy, but that one must not injure.-Peck v.

Newburgh Light, Heat & Power Co. (Sup.) 433.

NUNC PRO TUNC.

Entry of leave to institute other actions for re-
covery of debts secured by mechanic's lien dur-
ing pendency of action to foreclose, see Me
chanics' Liens, § 246.
Filing of deposition, see Depositions, § 79.

(C) ABATEMENT AND INJUNCTION.
Admissions by demurrer, see Pleading, § 214.

OBLIGATION OF CONTRACT.

Laws impairing, see Constitutional Law, #
154, 172.

OFFER.

Of proof, see Trial, § 55.

$.3. Noise from engines in a power plant, Proposals for contract, see Contracts, §§ 19, 28.

which was not a bar to conversation held even
in close vicinity to the engines, held not a nui-
sance.-Peck v. Newburgh Light, Heat & Power
Co. (Sup.) 433.

OBSTRUCTIONS.

Of streets, see Municipal Corporations, 777.

ODORS.

As constructive eviction of tenant, see Landlord
and Tenant, § 178.

OFFICERS.
Mandamus, see Mandamus, § 87.

Particular classes of officers.

See District and Prosecuting Attorneys; Judg
es; Justices of the Peace; Receivers.
Corporate officers, see Corporations, §§ 283-
353, 428.

Court officers, see Courts, $ 57.
Municipal officers, see Municipal Corporations,
§§ 133-220, 747.

OPENING.

Decree for distribution of property of dece
dent's estate, see Executors and Administra
tors, 315.
Judgment, see Judgment, §§ 138-169.

OPINION EVIDENCE.

§ 23. An injunction will not be granted to
restrain an apprehended nuisance from certain In civil actions, see Evidence, 536.
use of property, unless it is inevitable or ap-
parent that the proposed use would actually re-
sult in a nuisance.-Heaton v. Packer (Sup.) 46.

OPINIONS.

35. In an action for an injunction restrain- Of courts, see Courts, § 107.
ing defendant from injuring plaintiff's property
by the use of brickkilns, from which noxious
gases and smoke were emitted, plaintiff held
entitled to certain relief.-Roberts v. Dove (Sup.) To purchase, see Sales, § 24.
468.

OPTIONS.

ORDERS.

Orders of court.

$37. Where it appeared that the vibration of
engines in a power plant which constituted a
nuisance could be corrected by putting proper
foundations under them, the owner should be See Discovery, § 612.
allowed a reasonable time in which to make the For arrest, see Arrest, § 33.

In supplementary proceedings, see Execution, | Judgment and relief as to parties, and parties
§§ 417, 418.
affected by judgments or proceedings thereon.
See Judgment, § 235.
Persons concluded by judgment, see Judgment,
§ 707.

Publication of process, see Process, § 98.
Review of appealable orders, see Appeal.

ORDINANCES.

Municipal ordinances, see Municipal Corpora-
tions, 603, 621.

PARENT AND CHILD.

See Infants.

To conveyances, contracts, or other transactions.
Amendment of indictment, see Indictment and See Assignments, § 109; Contracts, §§ 19, 28,
Information, § 159.
139; Fraudulent Conveyances, § 174.

V. DEFECTS, OBJECTIONS, AND

§ 17. Pen. Code, § 287, held to apply to an
act of physical desertion by a parent of a child
under circumstances rendering it probable that
the life or health of the child may be imperiled.
-People v. Lewis (Sup.) 893.

17. The crime denounced by Pen. Code, §
288, making it a misdemeanor for a parent to
willfully omit proper medical attendance for a
minor child, etc., contains no element of aban-
donment or desertion.-People v. Lewis (Sup.)
893.

17. Under Pen. Code, § 287a (Pen. Law,
$480), abandonment by a parent of a child in
destitute circumstances, and a failure to pro-
vide for the child, must exist, to constitute the
offense. People v. Lewis (Sup.) 893.

§ 17. Evidence held to show a violation of
Pen. Code, § 287a (Pen. Law, 8 480), punishing
a parent who abandons his child in destitute
circumstances, and omits to furnish necessary
food and shelter for the child.--People v. Lewis
(Sup.) 893.

§ 17. The refusal of the wife to live with her
husband is no defense to a prosecution of the
husband for abandoning his child in destitute
circumstances, and omitting to furnish neces-
sary food and shelter for the child, in violation
of Pen. Code, § 287a (Pen. Law, § 480).—Peo-
ple v. Lewis (Sup.) 893.

PAROL EVIDENCE.

In civil actions, see Evidence, §8 419 442.

PARTICULARS.

Bill of, see Pleading, §§ 313–329.

PARTIES.

Rights and liabilities as to costs, see Costs, 8
90.

In particular actions or proceedings.
See Fraud, § 39.

For conversion of pledged articles, see Pawn-
brokers, § 9.

Review as to parties, and parties to proceedings
in appellate courts.
Parties entitled to allege error, see Appeal, §
878.

Parties on appeal, see Appeal, §§ 140, 151.

For injuries caused by snow and ice on side-
walk, see Municipal Corporations, § 814.
For price of goods, see Sales, § 355.
On insurance policy, see Insurance, § 624.
To establish highway, see Highways, § 28.
To recover bank deposit, see Banks and Bank-
ing, § 154.

AMENDMENT.

Demurrer to answer as opening record to de-
fense of misjoinder, see Pleading, § 217.

§ 84. The objection to the nonjoinder of par-
ties defendant is not sufficiently raised by a
general denial.-Peckham v. Wentworth (City
Ct.) 781.

$84. Where the objection to the nonjoinder
of parties defendant is not raised by demurrer
or answer, it is deemed waived.-Peckham v.
Wentworth (City. Ct.) 781.

PARTITION.

II. ACTIONS FOR PARTITION.
(B) PROCEEDINGS AND RELIEF.
Affidavits on application for order for publi-
cation of process, see Process, § 96.

§ 61. The complaint for partition of land on
the ground of a devise being void, having spe-
cified the nature of the claim, held a bill of par-
ticulars could not be required.-Smidt v. Bailey
(Sup.) 805.

PARTNERSHIP.

See Associations.

VI. DEATH OF PARTNER, AND SUR-
VIVING PARTNERS.

§ 258. Under Code Civ. Proc. § 758, held,
that representatives of a deceased partner are
not exempt from suit for a partnership debt,
nor from being substituted for decedent in an
action already begun, until remedy against the
surviving partner is exhausted.-Hentz v. Have-
meyer (Sup.) 317.

VII. DISSOLUTION, SETTLEMENT,
AND ACCOUNTING.

(D) ACTIONS FOR DISSOLUTION AND
ACCOUNTING.

§ 327. A complaint for dissolution of part-
nership and an accounting held to state a cause
of action.-Candee v. Baker (Sup.) 55.

PASSENGERS.

See Carriers, §§ 280-408.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER

PAVING.

PETITION.

Duties and liabilities of street railroad com- In bankruptcy, see Bankruptcy, 20.
panies, see Street Railroads, § 37.
In pleading, see Pleading, § 52.

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