der "navigable rivers," held to apply only to a
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.
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.
§ 44. 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.
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.
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-
Bailee, see Bailment, § 12.
Employers, see Master and Servant, §§ 90-
2972.
I. ACTS OR OMISSIONS CONSTITUT-
ING NEGLIGENCE.
(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 ace-
dent, but what reasonably prudent and careful
men would have done in the discharge of their
duties under the circumstances as they existed
at the time of the accident.-Davenport v.
Oceanic Amusement Co. (Sup.) 609.
(C) CONDITION AND USE OF LAND,
BUILDINGS, AND OTHER
STRUCTURES.
32. One walking on the premises of D-
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.) 394.
§ 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.
§ 96. 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.) 304
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.
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, §§ 102, 107.
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.
§ 102. Testimony of a handwriting expert
held not newly discovered, so as to warrant a
new trial.-Heintze v. Graham (Sup.) 548.
$ 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.
§ 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.
8 114. Under Code Civ. Proc. § 1002, con-
sidered with section 998, a motion for new trial
upon the ground of surprise must in the first
instance be heard at Special Term.-Ellis v.
Hearn (Sup.) 977.
(A) ERRORS AND IRREGULARITIES IN Proc. § 999, and the motion was denied and the
§ 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.
§ 117. Where a motion for new trial was
made upon the grounds stated in Code Civ.
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.
§ 131. Under the express provisions of Code
Civ. Proc. § 398, 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-
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.
§ 66. A verdict that is against the evidence
and the instructions should be set aside.-Cavin
v. O'Rourke Engineering & Construction Co.
(Sup.) 652.
§ 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.
§ 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.
(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.
tion of a verdict for plaintiff, because there was
no evidence to the contrary.-Ellis v. Hearn
(Sup.) 977.
NEXT OF KIN.
See Descent and Distribution.
As a nuisance, see Nuisance, § 3.
NONSUIT.
On trial, see Trial, §§ 159, 164.
Promissory notes, see Bills and Notes.
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 correction.-Peck v. Newburgh Light, Heat &
party knowingly has at his command means of Power Co. (Sup.) 433.
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.
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.
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.
OBLIGATION OF CONTRACT.
Laws impairing, see Constitutional Law,
154, 172.
Of streets, see Municipal Corporations, § 777.
OCCUPATION.
§ 3. Hospitals for insane persons are not Of real property, see Use and Occupation.
nuisances per se-Heaton v. Packer (Sup.) 46.
§ 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.
As constructive eviction of tenant, see Landlord
and Tenant, § 178.
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.
§ 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.
§ 3. Vibrations may constitute a nuisance.—
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.
(C) ABATEMENT AND INJUNCTION.
Admissions by demurrer, see Pleading, § 214.
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.
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.
§ 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.
§ 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
allowed a reasonable time in which to make the
ORDERS.
Orders of court.
See Discovery, § 612.
For arrest, see Arrest, § 33.
In supplementary proceedings, see Execution, | Judgment and relief as to parties, and parties
§8 417, 418.
Publication of process, see Process, § 98.
Review of appealable orders, see Appeal.
Municipal ordinances, see Municipal Corpora-
tions, §§ 603, 621.
PARENT AND CHILD.
affected by judgments or proceedings thereon.
See Judgment, § 235.
Persons concluded by judgment, see Judgment,
§ 707.
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.
To conveyances, contracts, or other transactions.
Amendment of indictment, see Indictment and See Assignments, § 109; Contracts, §§ 19, 28,
Information, § 159.
$ 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, § 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, §§ 419-442.
PARTICULARS.
Bill of, see Pleading, §§ 313-329.
Rights and liabilities as to costs, see Costs, §
90.
In particular actions or proceedings.
139; Fraudulent Conveyances, § 174.
V. DEFECTS, OBJECTIONS, AND
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.
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.
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.
For conversion of pledged articles, see Pawn- (D) ACTIONS FOR DISSOLUTION AND
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.
§ 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
Duties and liabilities of street railroad com- In bankruptcy, see Bankruptcy, § 20.
panies, see Street Railroads, § 37.
In pleading, see Pleading, § 52.
§ 9. In an action for conversion of pledged
articles, certain defendants who claimed an
interest therein held properly made defendants,
under Code Civ. Proc. § 447.-Buchanan v.
Provident Loan Society of New York (Sup.)
653.
§ 9. Where a pledgee refused to redeliver
the pledged articles on the ground that an-
other claimed some interest therein, the pledgor
was not bound to tender the loan and interest,
in order to maintain conversion therefor against
the pledgee.-Buchanan v. Provident Loan So-
ciety of New York (Sup.) 653.
Of particular classes of obligations or liabilities.
See Mortgages, § 314.
Bill of exchange or promissory note, see Bills
and Notes, § 437.
Compensation for property taken for public use,
see Eminent Domain, § 153.
Compensation of broker, see Brokers, § 75.
V. RECOVERY OF PAYMENTS.
§ 82. Treasurer of society, paying interest
on funds, held not entitled to recover the same,
in the absence of duress, mistake, or fraud.-
Torretto v. Mutual Aid Society of Campofiorito
(Sup.) 740.
For failure to furnish electrical supply, see
Electricity, 8 11.
PENDENCY OF ACTION.
Effect as to property involved, see Lis Pendens,
§§ 13-22.
PERFORMANCE.
Of contract, see Contracts, §§ 280, 300.
Of contract for sale of realty, see Vendor and
Purchaser, §§ 130, 133.
Of covenant, see Covenants, § 103.
Requirements of statute of frauds, part per-
formance of contract, see Frauds, Statute of,
§ 129.
PERSONAL INJURIES.
Particular causes or means of injury.
See Assault and Battery, §§ 38-43; Negligence.
Operation of railroads, see Railroads, §§ 274-
282, 359, 400.
Particular classes of persons injured.
Employé, see Master and Servant, $$ 90-2972.
Passenger, see Carriers, §§ 280-321.
Person at theater or show, see Theaters and
Shows, 6.
Traveler on highway, see Municipal Corpora-
tions, §§ 777-818.
PHYSICIANS AND SURGEONS.
Criminal responsibility of parent for failure to
furnish medical attendance for minor child,
see Parent and Child, § 17.
§ 24. Evidence in an action by a physician
to show a contract to pay for the services after
to recover for treating injured employé held not
the employé was taken home from a sanitarium.
Mills (Sup.) 776.
-Van Gaasbeek v. United States Lace Curtain
Liability of trade unions and their members
for illegal acts, see Trade Unions, § 8.
Restraining unlawful acts, see Injunction,
101.
Rights of strikers, see Torts, § 10.
PICTURE SHOWS.
See Theaters and Shows, § 3.
Of examination of persons before trial, see
Discovery, 612.
In civil actions, see Pleading, §§ 80-132.
Applicability of instructions to pleadings, see
Trial, § 253.
Conformity of judgment to pleadings, see Judg-
ment, $8 251, 253.
Allegations as to particular facts, acts, or trans-
actions.
In actions by or against particular classes of
persons.
See Corporations, § 513.
Trustee, see Trusts, § 371.
In particular actions or proceedings.
See Account, § 17; Cancellation of Instru-
ments, $37; Ejectment, § 81; Fraud, s§ 44,
47; Injunction, § 109; Libel and Slander. §
100; Mandamus, § 154; Money Lent, § 6;
Money Received, § 17; Partition, § 61; Spe-
cific Performance, § 114; Trover and Con-
version, § 32.
For breach of marriage promise, see Breach of
Marriage Promise, § 18.
For compensation of broker, see Brokers. § 82.
For dissolution of partnership, see Partnership,
§ 327.
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