der "navigable rivers,” held to apply only to a | I. ACTS OR OMISSIONS CONSTITUT.
tidal stream, and not to a nontidal stream,

ING NEGLIGENCE.
though in fact navigable.-Fulton Light, Heat
& Power Co. v. State (Ct. Cl.) 1000.

(A) PERSONAL CONDUCT IN GENERAL

$ 3. One undertaking gratuitously to dis-
III. RIPARIAN AND LITTORAL

charge a duty is accountable for the manner of
RIGHTS.

its discharge, though the fact that the service
Condemnation by city, see Eminent Domain, & is gratuitous may be considered on the questiva
126.

of the degree of care required.-Wallace . Joka
Right of state to take water for canal pur- A. Casey Co. (Sup.) 394.

poses without compensation, see Eminent § 4. The test of actionable negligence is, not
Domain, $ 84.

what might have prevented a particular aco.
§ 39. The rights of owners of land border- men' would have done in the discharge of their

dent, but what reasonably prudent and carefnl
ing on a navigable river must yield to the pow- duties under the circumstances as they exis:
ers of the government on improvements in nay-
igation, whether exercised by the federal or the Oceanic Amusement Co. (Sup.) 609.

at the time of the accident.-Davenport i.
state government.-Johnson v. State (Ct. Cl.)
253.

(C) CONDITION AND USE OF LAND,
§ 39. Riparian rights on a tide-water stream

BUILDINGS, AND OTHER
or nontidal stream, navigable in fact, held sub-

STRUCTURES.
ject to the paramount right of the state and

$ 32. One walking on the premises of an-
federal governments to improve navigation and other held not a mere licensee.-Schollhamer F.
regulate commerce.-Fulton Light, Heat & Pow- Hamburger (Sup.) 738.
er Co. v. State (Ct. Cl.) 1000.

$ 35. A child injured by a barrel throtro
8 44. Held, that any land which may have from a window into the street held not to be
been reclaimed from the bed of a nontidal, non- merely a passer-by.-Wallace v. John A. Casey
boundary stream may be occupied by riparian Co. (Sup.) 394.
owners so long as they do not interfere with
the paramount right to improve the river for III. CONTRIBUTORY NEGLIGENCE.
navigation.---Fulton Light, Heat & Power Co.
v. State (Ct. Cl.) 1000.

Of owner of automobile injured upon highway,

see Highways, $ 184.

Of person injured by operation of railroad,
NAVIGATION

see Railroads, $ 278.

Of person injured by operation of street rail-
See Navigable Waters, 88 1, 7.

road, see Street Railroads, $ 98.
Of servant, see Master and Servant, $$ 236,

289.
NE EXEAT.

Of tenant, see Landlord and Tepant, § 168
$ 3. Under Code Civ. Proc. $ 550, plaintiff (C) IMPUTED NEGLIGENCE
in an action to restrain a breach of contract
held to have the right to arrest defendant.-

8 95. The negligence of a boy twelve years of
General Explosive Co. v. Hough (Sup.) 1114. 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.) 314.
NEGLIGENCE.

$ 96. It is negligent for a mother to allow &

child to wander unattended in the street six
Causing death, see Death, $ 35.

blocks from home.-Wallace v. John A. Casey
Judgment for damages caused by negligence Co. (Sup.) 394.
as one for necessaries within exceptions to
exemption laws, see Exemptions, $ 68.

$ 96. The negligence of a mother in leaving

a three-year old child unattended in the stret
By particular classes of persons.

where he is injured held imputable to the child.

- Wallace v. John A. Casey Co. (Sup.) 31+
See Carriers, 8$ 108, 119, 280–321; Municipal
Corporations, 88 747-827; Railroads, 88 274

IV. ACTIONS.
400.
Bailee, see Bailment, $ 12.

(B) EVIDENCE
Employers, see Master and Servant, 88 90 $ 134. Where plaintiff's evidence in an action
29712.

for damages failed to show defendant's Degli.
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, 88 274-400; Street Railroads, NEGOTIABLE INSTRUMENTS.

88 98-118.
Demised premises, see Landlord and Tenant, 88 See Bills and Notes.
162-170.

Bill of lading, see Carriers, $ 55.

NEWLY DISCOVERED EVIDENCE. $ 102. Testimony of a handwriting expert

held not newly discovered, so as to warrant a
Ground for new trial in civil actions, see New

new trial.-Heintze v. Graham (Sup.) 548.
Trial, 88 102, 107.

$ 102. That a party who had testified for

himself recollected something after a decision
NEW TRIAL.

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.
Costs, see Costs, $8 222–250.
Remand by appellate court for new trial, see

Newell (Sup.) 965.
Appeal, $8 1191-1201.

$ 107. A new trial on the ground of newly

discovered evidence held properly denied. -
1. NATURE AND SCOPE OF REMEDY. Brown v. Newell (Sup.) 965.
§ 1. The power of the Supreme Court over

III. PROCEEDINGS TO PROCURE
its judgments is inherent, and not derived from

NEW TRIAL.
or controlled by the statutory provisions.-Ellis
v. Hearn (Sup.) 977.

§ 114. Under Code Civ. Proc. $ 1002, con-
8 7. The court, on setting aside a verdict, sidered with section 998, a motion for new trial
should, if the case presents a question for the upon the ground of surprise must in the first
jury, grant a

instance be heard at Special Term.-Ellis v.
new trial.- People v. Dooling Hearn (Sup.) 977.
(Sup.) 371.

8 117. Where a motion for new trial was
II. GROUNDS.

made upon the grounds stated in Code Civ.
(A) ERRORS AND IRREGULARITIES IN Proc. & 999, and the motion was denied and the
GENERAL.

term expired, a new trial could not be there-

after granted under the statute upon reargu-
§ 26. Where, in an action for breach of a

ment of the motion.-Ellis v. Hearn (Sup.) 977.
contract of employment for one year, beginning
at a future time, the statute of frauds was not

$ 131. Under the express provisions of Code
pleaded, it is not before the court on motion to Civ. Proc. $ 398, it is not necessary to make a
set aside the verdict.-Spatz v. Singer (City Ct.) case upon a motion for new trial upon the
576.

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
§ 41. Exclusion of evidence, though error, is

(Sup.) 977.
not ground for new trial after a nonsuit, where
its admission would not have entitled plaintiff

NEXT OF KIN.
to go to the jury.-Braun v. New York Cent. See Descent and Distribution.
& É. R. R. Co. (Sup.) 668.
(F) VERDICT OR FINDINGS CONTRARY

NOISE.
TO LAW OR EVIDENCE.

As a nuisance, see Nuisance, $ 3.
& 66. A verdict that is against the evidence
and the instructions should be set aside.-Cavin
V. O'Rourke Engineering & Construction Co.

NONSUIT.
(Sup.) 652.

On trial, see Trial, &$ 159, 164.
8 68. Where the verdict is based on a find-
ing as to an issue not presented or tried, there

NOTES.
is a mistrial, and a new trial should be grant-
ed.-Fowler v. Anderson (Sup.) 1092.

Promissory notes, see Bills and Notes.
8 72. A verdict that is against the evidence
and the instructions should be set aside.-Cavin

NOTICE.
v. O'Rourke Engineering & Construction Co.
(Sup.) 652.

of particular facts, acts, or proceedings not

judicial.
(G) SURPRISE. ACCIDENT, INADVERT. Defective condition of street, see Municipal
ENCE, OR MISTAKE.

Corporations, 8 790.
$ 88. The nonappearance of an expected wit- Injuries to servant, see Master and Servant,
ness is ground for a new trial on the ground of Nonpayment or protest of bill or note, see
surprise.-Ellis v. Hearn (Sup.) 977.

Bills and Notes, § 422.
(H) NEWLY DISCOVERED EVIDENCE.

Of particular judicinl proceedings.
§ 102. Where plaintiff did not ask for a con See Lis Pendens, 88 13–22.
tinuance, held that she was not entitled to a Action or process, see Process, $8 96, 98.
new trial on the ground of newly discovered evi- Application to bave cause placed on preferred
dence.-Heintze v. Graham (Sup.) 548.

calendar for trial, see Trial, g 13.
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

116 N.Y.S.-77

was

$ 5. Ignorance in law cannot exist when a correction.-Peck v. Newburgh Light, Hest &
party knowingly has at his command means of Power Co. (Sup.) 433.
information which will dispel the same.-Me
Callum v. Corn Products Co. (Sup.) 118.

NUNC PRO TUNC.
8 6. One having sufficient information to put
a prudent man on inquiry and neglects to make Entry of leave to institute other actions for te
inquiry is presumed to have actual notice.-Kil covery of debts secured by mechanic's lien dur-
mer v. Hutton (Sup.) 127.

ing pendency of action to foreclose, see ve

chanics' Liens, § 246.
NUISANCE.

Filing of deposition, see Depositions, s 19.
Maintenance of, by tenant as constructive evic OBLIGATION OF CONTRACT.
tion of other tenant occupying part of same

premises, see Landlord and Tenant, & 173. Laws impairing, see Constitutional Law,
On demised premises, see Landlord and Ten 154, 172.
ant, $ 170.

OBSTRUCTIONS.
I. PRIVATE NUISANCES.

Of streets, see Municipal Corporations, 1777.
(A) NATURE OF INJURY, AND LIA-
BILITY THEREFOR.

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-

ODORS.
joining an electric light and power plant which
had been in operation for a number of years, As constructive eviction of tenant, see Landlord
the operation of the plant would not constitute and Tenant, $ 178.
a private nuisance as to him, unless its use for
the business carried on unreasonable.-

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

Of proof, see Trial, $ 55.
8:3; Noise from engines in a power plant, Proposals for contract, see Contracts, $$ 19, 2
which was not a bar to conversation held even
in close vicinity to the engines, held not a nui-

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

Mandamus, see Mandamus, § 87.
§ 3. The unreasonable use that will consti-

Particular classes of officers.
tute a nuisance cannot be declared as by a hard See District and Prosecuting Attorneys; Juda-
and fast rule, but depends upon the locality. es; Justices of the Peace; Receivers.
Peck v. Newburgh Light, Heat & Power Co. Corporate officers, see Corporations, 283-
(Sup.) 433.

353, 428.
$ 3. Vibrations may constitute a nuisance.- Court officers, see Courts, $ 57.
Peck v. Newburgh Light, Heat & Power Co. Municipal officers, see Municipal Corporations,
(Sup.) 433.

88 133-220, 747.
§ 4. The maxim, “Sic utere," etc., as applied
to nuisances, does not mean that one must not

OPENING.
annoy, but that one must not injure.-Peck v.
Newburgh Light, Heat & Power Co. (Sup.) 433. Decree for distribution of property of derz

dent's estate, see Executors and Administra-
(C) ABATEMENT AND INJUNCTION. tors, $ 315.

Judgment, see Judgment, 88 138–169.
Admissions by demurrer, see Pleading, $ 214.
8 23. An injunction will not be granted to

OPINION EVIDENCE.
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

OPTIONS.
gases and smoke were emitted, plaintiff held
entitled to certain relief.-Roberts v. Dove (Sup.) To purchase, see Sales, $ 24
469.
$ 37. Where it appeared that the vibration of

ORDERS.
engines in a power plant which constituted a
puisance could be corrected by putting proper

Orders of court.
foundations under them, the owner should be See Discovery, $ 6142.
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
88 417, 418.

affected by judgments or proceedings thereon.
Publication of process, see Process, $ 98. See Judgment, § 235.
Review of appealable orders, see Appeal.

Persons concluded by judgment, see Judgment,

$ 707.
ORDINANCES.

Review as to parties, and parties to proceedings
Municipal ordinances, see Municipal Corpora-

in appellate courts.
tions, 88 603, 621.

Parties entitled to allege error, see Appeal, 8

878.
PARENT AND CHILD.

Parties on appeal, see Appeal, $$ 140, 151.
See Infants.

T'o conveyances, contracts, or other transactions.
Amendment of indictment, see Indictment and See Assignments, $ 109; Contracts, $$ 19, 28,
Information, $ 159.

139; Fraudulent Conveyances, $ 174.
$ 17. Pen. Code, $ 287, held to apply to an V. DEFECTS, OBJECTIONS, AND
act of physical desertion by a parent of a child

AMENDMENT.
under circumstances rendering it probable that
the life or health of the child may be imperiled. Demurrer to answer as opening record to de-
-People v. Lewis (Sup.) 893.

fense of misjoinder, see Pleading, $ 217.
$ 17. The crime denounced by Pen. Code, $

§ 84. The objection to the nonjoinder of par-
288, making it a misdemeanor for a parent to ties defendant is not sufficiently raised by a
willfully, omit proper medical attendance for a general denial.- Peckham v. Wentworth (Čity
minor child, etc., contains no element of aban- Ct.) 781.
donment or desertion.-People v. Lewis (Sup.) § 84. Where the objection to the nonjoinder
893.

of parties defendant is not raised by demurrer
§ 17. Under Pen. Code, $ 287a (Pen. Law, or answer, it is deemed waived.-Peckham v.
§ 480), abandonment by a parent of a child in Wentworth (City. Ct.) 781.
destitute circumstances, and a failure to pro-
vide for the child, must exist, to constitute the
offense. People v. Lewis (Sup.) 893.

PARTITION.
8 17. Evidence held to show a violation of II. ACTIONS FOR PARTITION.
Pen. Code, & 287a (Pen. Law, § 480), punishing
a parent who abandons his child in destitute

(B) PROCEEDINGS AND RELIEF.
circumstances, and omits to furnish necessary Affidavits on application for order for publi-
food and shelter for the child.-People v. Lewis cation of process, see Process, 96.
(Sup.) 893.

$ 61. The complaint for partition of land on
§ 17. The refusal of the wife to live with her the ground of a devise being void, haying spe-
husband is no defense to a prosecution of the cified the nature of the claim, held a bill of par.
husband for abandoning his child in destitute ticulars could not be required.-Smidt v. Bailey
circumstances, and omitting to furnish neces- (Sup.) 805.
sary food and shelter for the child, in violation
of Pen. Code, $ 287a (Pen. Law, § 480).-Peo-

PARTNERSHIP.
ple v. Lewis (Sup.) 893.

See Associations.
PAROL EVIDENCE.

VI. DEATH OF PARTNER, AND SUR-
In civil actions, see Evidence, $8 419-442.

VIVING PARTNERS.

§ 258. Under Code Civ. Proc. $ 758, helà,
PARTICULARS.

that representatives of a deceased partner are
Bill of, see Pleading, $8 313–329.

not exempt from suit .for a partnership debt,
nor from being substituted for decedent in an

action already begun, until remedy against the
PARTIES.

surviving partner is exhausted.--Hentz v. Have-
Rights and liabilities as to costs, see Costs, 8

meyer (Sup.) 317.
90.

VII. DISSOLUTION, SETTLEMENT,
In particular actions or proceedings.

AND ACCOUNTING,
See Fraud, g 39.

(D) ACTIONS FOR DISSOLUTION AND
For conversion of pledged articles, see Pawn-

ACCOUNTING.
brokers, g 9.
For injuries caused by snow and ice on side § 327. A complaint for dissolution of part-

walk, see Municipal Corporations, § 814. nership and an accounting held to state a cause
For price of goods, see Sales, 8 355.

of action.-Candee v. Baker (Sup.) 55.
On insurance policy, see Insurance, $ 624.
To establish highway, see Highways, $ 28.

PASSENGERS.
To recover bank deposit, see Banks and Bank-
ing, 8 154.

See Carriers, 88 280 408.
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (8) NUMBER

PAVING.

PETITION.
Duties and liabilities of street railroad com- In bankruptcy, see Bankruptcy, $ 20.
panies, see Street Railroads, 8 37.

In pleading, see Pleading, $ 52.
PAWNBROKERS.

PHYSICIANS AND SURGEONS.
§ 9. In an action for conversion of pledged
articles, certain defendants who claimed an Criminal responsibility of parent for failure to
interest therein held properly made defendants,

furnish medical attendance for minor child,
under Code Civ. Proc. § 447.-Buchanan v.

see Parent and Child, g 17.
Provident Loan Society of New York (Sup.)
653.

$ 24. Evidence in an action by a pbysician
§ 9. Where a pledgee refused to redeliver to recover for treating injured employé hiid not
the pledged articles on the ground that an-

to show a contract to pay for the services after
other claimed some interest therein, the pledgor the employé was taken home from a sanitarium.
was not bound to tender the loan and interest: Mills (Sup.) 776.

- Van Gaasbeek v. United States Lace Curtain
in order to maintain conversion therefor against
the pledgee.-Buchanan v. Provident Loan So-
ciety of New York (Sup.) 653.

PICKETING.
PAYMENT.

Liability of trade unions and their members

for illegal acts, see Trade Unions, §
of particular classes of obligations or liabilities. Restraining unlawful acts, see Injunction,
See Mortgages, $ 314.

101.
Bill of exchange or promissory note, see Bills Rights of strikers, see Torts, $ 10.

and Notes, § 437.
Compensation for property taken for public use,

PICTURE SHOWS.
see Eminent Domain, $ 153.
Compensation of broker, see Brokers, 8 75. See Theaters and Shows, $ 3.
V. RECOVERY OF PAYMENTS.

PLACE.
8 82. Treasurer of society, paying interest
on funds, held not entitled to recover the same, of examination of persons before trial, see
in the absence of du ress, mistake, or fraud. - Discovery, $ 6112.
Torretto v. Mutual Aid Society of Campofiorito
(Sup.) 740.

PLEA.
PENALTIES.
For failure to furnish electrical supply, see

In civil actions, see Pleading, 88 80–132.
Electricity, 8 11.

PLEADING.
PENDENCY OF ACTION.

Applicability of instructions to pleadings, see
Effect as to property involved, see Lis Pendens, Trial, $ 253.
88 13-22.

Conformity of judgment to pleadings, see Judg.
PERFORMANCE.

ment, $8 251, 253.

Allegations as to particular facts, acts, or trans-
Of contract, see Contracts, $8280, 300.

actions.
Of contract for sale of realty, see Vendor and
Purchaser, $$ 130, 133.

See Statutes, $ 280.
Of covenant, see Covenants, f 103.

In actions by or against particular classes of
Requirements of statute of frauds, part per-
formance of contract, see Frauds, Statute of, See Corporations, $ 513.

persons.
$ 129.

Trustee, see Trusts, $ 371.
PERSONAL INJURIES.

In particular actions or proceedings.
Particular causes or means of injury.

See Account, § 17; Cancellation of Instru-
See Assault and Battery, 88 38–43; Negligence. ments, $ 37; Ejectment, $ 81; Fraud, $$ 44,
Operation of railroads, see Railroads, 88 274-

47; Injunction, $ 109; Libel and Slander, $
282, 359, 100.

100; Mandamus, $ 154; Money Lent, $ 6;

Money Received,' 8 17; Partition, $ 61; Spei

injured. citic Performance, § 114; Trover and Con
Employe, see Master and Servant

. sg 90-29742

. version, $ 32.
Passenger, see Carriers, $8 280-321.

For breach of marriage promise, see Breach of
Person at theater or show, see Theaters and Marriage Promise, g 18.
Shows, $ 6.

For compensation of broker, see Brokers, $ $2.
Traveler on highway, see Municipal Corpora- For dissolution of partnership, see Partnership,
tions, 88 777-818.

8 327.