In re Yawger

61 N.Y.S. 1152

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1899
• Status: Published

Opinion

No opinion. Parts of the decree appealed from amrmed, with costs against the appellant personally.

INDEX ABATEMENT AND REVIVAL. ACCOUNT STATED. Right of action by or against personal representative, see “Executors and Administrators,” § 6. ABUTTING OWNERS. Assessments for expenses of public improvements, see “Municipal Corporations,” § 5. Compensation for taking of or injury to lands or easements for public use, see “Eminent Domain,” §§ 1, 3. ' ACCEPTANCE. Of goods sold in general, see “Sales,” 3. ACCIDENT. Admissibility of evidence determined.—Traitel v. Dwyer (City Ct. N. Y.) 1100. ACTION. Actions between parties in particular relations, see “Master and Servant,” § 8; “Partnership,” § 2. Election of remedy, see “Election of Remedies.”' Jurisdiction of courts, see “Courts.” Particular forms of action, see “Trespass,” § 2; “Traver and Conversion.” - remedies in or incident to actions, see-“Attachment” ; “Discovery.” Review of proceedings, see “Appeal”; “Certiorari” ; “Judgment,” § 4. Submission of controversy to court without action, see “Submission of Controversy.” Suits in equity, see “Equity.” . ause of personal injuries, see “Negligence,” § 1. ACCORD AND SATISFACTION. ee “Compromise and Settlement.” ACCOUNT. ee “Account Stated.” ccounting by executor or administrator, see “Executors and Administrators,” § 7. - by trustee, see “Trusts,” § 5. 1. Proceedings and relief. To make available a defense that a decree of e surrogate on defendant’s previous accounting an administrator was conclusive on plaintiff, fendant should allege the jurisdictional facts, ose v. Durant (Sup.) 15. sufficient answer to an objection that the irt, in ordering an accounting as to property an intestate, did not specifically state that intate had interest in the property, is that the e was whether plaintiff was entitled to the punting.—Rose v. Durant (Sup.) 15. ‘ at there were other persons interested held objection to an order for accounting, as for referee, in his report, if there were others insted, could make provision for their protec.—Rose v. Durant (Sup.) 15. finding that a fiduciary relationship existetween the parties, a judgment for an acting held proper.—Rose v. Durant (Sup.) 15. 61 N.Y.S.—73 (11 Actions by or against particular classes of pa/rties. See “Carriers,” § 1; “Master and Servant,” § 9; “Municipal Corporations,” § 8; “Partner- - ship,” § 3; “Receivers,” § 3. Assignees, see “Assignments,” § 2. Corporate officers, see “Corporations,” § 5. Stockholders, see “Corporations,”- § 4. Particular causes or grounds of action. See “Account Stated”; “Bills and Notes,” § 6; “Bonds,” § 2; “Conspiracy,” § 1; “Insurance,” ' §§ 3, 5; “Libel and Slander,” § 4: “Money Received”; “Negligence,” § 3; “Penalties,” § 1; “Traver and Conversion,” § 2; “Work . and Labor.” Breach of contract, see “Contracts,” § 6? . “Sales,” § 7. - of warranty, see “Sales,” § 7. Discharge from employment, see “Master and : Servant,” § 1. Particular causes or grounds of action, sea-“Trespass.” Personal injuries, see “Master and Servant,”" § 8. Price of goods, see “Sales,” § 6. Recovery of price paid for land, see “Vendor and Purchaser,” § 4. - of tax paid, see “Taxation,” § 2. Rent, see “Landlord and Tenant,” § 6. Taking of or injury to property in exercise of power of eminent domain, see “Eminent Domain,” § 3. Particular forms of special relief. See "Account”; “Creditors’ Suit”; “Divorce”; “Partition,” § 1; “Specific Performance.”

1154 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. Construction of will, see “Wills,” § 4. Dissolution of partnership, see “Partnership, § 4. Enforcement or foreclosure of lien, see Mechanics’ Liens,” § 6. Setting aside assignment for benefit of creditors, see “Assignments for Benefit of Creditors,” § 3. Particular proceedings in actions. See “Costs” ; “Damages” ; “Depositions” ; “Evidence” ; “Execution”; “Judgment”; “Limitation of Actions” ; “Parties” ; “Process” ; “Trial” ; “Venue.” Default, see “Judgment,” § 3. Offer of judgment, see “Judgment,” § 2. § 1. Grounds and conditions precedent. Where a suit in equity was brought by Indians to recover possession of wampum belts, held, that a demand on defendant for their delivery was a necessary prerequisite to the action.—Onondaga Nation v. Thatcher (Sup.) 1027. § 2. Nature and form. Action for 'damages for nondelivery of goods should not be changed to replevin.—Brookstone v. Wescott Exp. Go. (Sup.) 72. A complaint held such that the action did not ■sound in tort, so as to exclude a counterclaim, "but to declare on a contract.—Stoneman v. Van "Vechten (Sup.) 513. ADMISSIONS. As evidence, see “Evidence,” § 4. AFFIDAVITS. See “Depositions.” In attachment proceedings, see “Attachment,” § 2. AGENCY. See “Principal and Agent.” AGREED CASE. Submission of controversy to court, see “Submission of Controversy.” AGREEMENT. See “Contracts.” ALIENS. See “Indians.” ALIMONY. See “Divorce,” § 2; “Husband and Wife,” § 4. ■§ 3. Joinder, splitting, consolidation, and severance. An action uniting several causes of action in the same complaint held maintainable, in view of Code Civ. Proc. § 484.—Whiting v. Elmira Industrial Ass’n (Sup.) 27. A complaint, alleging for a cause of action ■damages resulting from a conspiracy on the part •of defendants in the libeling and slandering of plaintiff and the unlawful taking of certain of "its property, is not demurrable because of improp•erly uniting causes of action.—IColel America 'Vatiferes Jerusalem v. Eliach (Sup.) 935. ;§ 4. Commencement, prosecution, and termination. Decision of appeal in another action between same parties held not to settle pending controversy, and hence motion to stay pending such appeal was denied.—Lowenstein v. Schiffer (Sup.) ion • ADEQUATE REMEDY AT LAW. "Effect on jurisdiction of equity, see “Equity,” ADMINISTRATION. 'Of estate of decedent, see “Executors and Adenmistrators.” Of property by receiver, see “Receivers,” § 1. Of trust property, see “Trusts,” § 4. ADMIRALTY. See “Shipping”; “Towage.” ALTERATION OF INSTRUMENTS. See “Reformation of Instruments.” • AMENDMENT. On appeal, see "Appeal,” § 14; “Pleading,” § 4. ANIMALS. In action to recover damages for injuries to plaintiff’s horse, caused by'its being bitten by vicious dog belonging to defendant, notice of th dog’s vicious disposition to defendant’s forema' held notice to the owner.—Niland v. Geer (Sup., 696. Where plaintiff’s child was bitten by defend ant’s dog, in order to recover plaintiff mus show that the defendant had notice of the dog’ vicious disposition.—Strubing v. Mahar (Sup. 799. ANNEXATION. Of territory to municipal corporation, see “Mi nicipal Corporations,” § 1. APPEAL. Accounting by executor or administrator, s “Executors and Administrators,” § 7. Assessment of taxes, see “Taxation,” § 1. Costs, see “Costs,” § 4. Review of agreed statement of facts, see “S mission of Controversy.” - of proceedings of justices of the peace, “Justices of the Peace,” § 2.

INDEX. 1155 § 1. Nature and grounds of appellate jurisdiction. Leave will not be granted to appeal to the court of appeals, in order that a question oí law may he determined, where the decision of the appellate division was based on a question of fact.—Village of Bronxville v. New York, W. & C. Traction Co. (Sup.) 719. $ 2. DecisioEs reviewable. Code Civ. Proc. § 3056, providing for course to he pursued on appeal, whore justice is unable (o make a return, licit} to apply to appeals from the municipal court. — Walker v. Baermann (Sup.) 91. An appeal can he taken from an order directing a peremptory mandamus.—People v. Hertle (Sup.) 965. No appeal lies from a default judgment — Reidy v. Bieistift (City Ct. N. Y.) 915. Where demurrer to complaint is sustained, defendants may appeal from so much of the order as denies them costs.—ICellar v. Shrady (City Ct. N. Y.) 1123. § 3. Right of review. One who is not a party to the proceeding cannot bring an appeal.—People v. Sanborn (Sup.) 529. § 4. Presentation and reservation in lower court of grounds of review. Defendant, on appeal in a proceeding for an accounting, held precluded from urging an objection as to parties.—Rose v. Durant (Sup.) 15. Under Code Civ. Proc. § 992. a question of fact in a case tried by the court may be reviewed, without exceptions, if the record is certified to contain ail the evidence.—1-Iill v. White (Sup.) 515. Objections to a charge will not he considered where no exception was taken.—Naily v. Hitchcock (Sup.) 902. Exceptions to denial of motion for nonsuit ifld insufficient on appeal.—Gowing v. Warner (City Ct. N. Y.) 500. An objection to the appearance of a receiver f a party in a proceeding prior to the notice of ippp.nl cannot be first raised on appeal.—ICubin -. Miller (City Ct. N. Y.) 1121. 5. Requisites and proceedings for transfer of cause. Two successive holidays, followed by a Sunday, eld to extend the limit of appeal to the Monday Bowing.—Lucia v. Omei (Sup.) 659. Where an order required modification in a ma-.rial matter, the facts that more than 10 days ■as occupied in malting the correction, and that ic corrected order was made to take effect nunc •o tune, will not affect the right to appeal.— ubin v. Miller (City Ct. N. Y.) 1121. Service of a copy of an order for judgment, ithout notice of the entry of the original, is no't fficient to limit the time in which to appeal; id a notice of appeal served before service of e notice of entry is sufficient.—Kubin v. Miller ity Ct. N. Y.) 1121. § 6. Supersedeas or stay of proceedings. Order staying proceedings on a judgment, to allow parties to appeal after being notified of judgment against them disposing of all issues of the case, held an abuse of discretion.—Bauer v. Parker (Sup.) 1021. Under Code Civ. Proc. c. 12, tit. 1, § 1310, and-Id. tit. 2. § 1326, letters testamentary cannot issue to executors while the decree admitting the will to probate is pending on appeal.—In re Gibon’s Will (Sur.) 244. § 7. Record and proceedings not in record—Matters to be shown by record. In an action in the municipal court of New York City for a money judgment, the failure of the record to show defendant’s residence within the jurisdiction of the court is fatal.—De Sis-to v. Stimmel (Sup.) 57., Failure of the record on appeal from a judgment for plaintiff in the New York municipal court to show where defendant resides is fatal. —R. H. Wolf & Co. v. Ritt (Sup.) 61. A judgment of the municipal court for plaintiff will be reversed where the record fails to show that defendant resides within the jurisdiction of the court.—Bang v. McAvoy (Sup.) S3. Where the record fails to show that defendants resided within the jurisdiction of the court, judgment for plaintiff will be reversed.—White v. Holding (Sup.) 771. A judgment of the municipal court for plaintiff will be reversed where it does not appear that defendant resides within the territorial jurisdiction of the court.—Price v. Bisen (Sup.) 805. A judgment of the municipal court in favor of plaintiff will be reversed where the record does not show that defendant resides within the territorial jurisdiction of the trial court, and the defendant attacks the judgment on that ground. —Currier v. Roseff (Sup.) 83S. It must appear from the record that the defendant resides within the jurisdiction of the trial court.—Bristor v. Flaherty (Sup.) 872. § 8. - Scope and contents of record. A judgment will be affirmed, on appeal, where the record discloses a conflict of evidence on a disputed question of fact, and it does not appear that injustice has been done.—Pascareia v. Manello (Sup.) 838. § 9. —— Defects, objections, amendment, and correction. Code Civ. Proc. § 3056, held to provide proper course to be pursued on appeal, where the testimony taken at the trial has been lost, and, therefore, not included in the return.—Walker v. Baermann (Sup.) 91. A defense with relation to which no findings of fact were made by the trial court cannot be considered on appeal. — Goddard v. American Queen (Sup.) 133. Where evidence showing that chattel mortgagees did not take immediate possession was received without objection, defendant cannot object for the first time on appeal that such

1106 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. ground of invalidity was not alleged in the complaint.—Robinson v. Hawley (Sup.) 138. An objection to a question as incompetent, and an exception, does not give the excepting party any broader ground for argument on appeal than was fixed by the objection.—Marquis v. Wood (City Ct. N. Y.) 251. An objection to evidence which does not state grounds is not available on appeal.—Marquis v. Wood (City Ct. N. Y.) 251. §10. —— Questions presented for review. Where the evidence is not returned, it is presumed that it was sufficient to support the findings.—Drake v. Beil (Sup.) 657. Where the only exception taken was to the denial of a motion for new trial, the only question for review was whether the verdict was against the weight of evidence.—Trenkmann v. Schneider (City Ct. N. Y.) 920. §11. Dismissal, withdrawal, or abandonment. An appeal from a judgment and an order denying a new trial should he dismissed when the motion for a new trial was not made until after the taking of the appeal.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 12. Hearing and rehearing. The fact that the appellate court did not, in its opinion, detail the evidence and circumstances showing the process by which it reached its conclusion, is not ground for reargument.—Edgerley v. Long Island R. Co. (Sup.) 677. Under Sup. Ct. Rule 4, App. Div. Rule 8, and Code, § 323, a motion for a reargument of an appeal in the city court or appellate term must be made to the general term not later than at the next succeeding term after the decision.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. §13. Review—Scope and extent in general. On an appeal from the city court of New York, the weight of evidence cannot be considered.—Mahoney v. O’Neil (Sup.) 69. Under Code Civ. Proc. § 1002, evidence cannot be reviewed when the appeal was taken and notice thereof given before the motion for new trial was filed and overruled.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 14. — Amendments, additional proofs, and trial of cause anew. A letter of a justice of the municipal court as to conclusions drawn will not be considered on appeal from his judgment, where it is not submitted for consideration until after submission of the appeal.—Routenberg v. Schweitzer (Sup.) 84. §15. —— Presumptions. On appeal from dismissal of a complaint, plaintiff's testimony must he taken as true, and given the benefit of all inferences which the jury might properly have found in plaintiff’s favor, had the case been submitted.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. §16. - Discretion of lower court. The decision of the court in setting aside a verdict as against the weight of evidence will not be disturbed, unless the record shows an abuse of discretion.—Bauer v. Metropolitan St. Ry. Co. (Sup.) 164. Discretion of trial court in refusing to permit plaintiff to amend his complaint on ground of loches held not reviewable.—Dennison v. Mus-grave (Sup.) 188. Refusal of motion to dismiss is reviewable.— Jacot v. Marks (Sup.) 1040. The exercise of a referee’s discretion to open a case, after the evidence is closed, to permit a party to give new evidence, will not be reversed, unless abused.—De Witt v. Mon jo (Sup.) 1046. §17. - Questions of fact, verdicts, and findings. The jury’s finding on conflicting evidence will not be disturbed, where it does not appear that the defeated party’s testimony was entitled to greater credit than his opponent’s.—Barrett v. New York Cent. & H. R. R. Co. (Sup.) 9. Judgment based on conflicting evidence will not be disturbed.—Donnelly v. Vanbeuren (Sup.) 57. Scrutiny of evidence held necessary only so far as to enable the court to determine whether the conclusions of the city court were sufficiently supported by any evidence,—Poliak v. Metropolitan St. Ry. Co. (Sup.) 92. A verdict based on conflicting evidence will not be disturbed.—Banta v. Merchant (Sup.) 218. The finding of a referee on conflicting evidence will not be disturbed.—Darling v. Hunt (Sup.) 278. The decision of a question of fact by a referee on conflicting testimony should not be disturbed.—Nugent v. Metropolitan St. Ry. Co. (Sup.) 476. Questions of fact -litigated before a referee must be considered as conclusively disposed of by his finding, though not specifically referred to in his report.—Lennon v. Ingersoll (Sup.) 668. • A referee’s finding, in a proceeding for contempt in violating an injunction, made on an inspection by consent of the parties, as well as on the evidence, cannot he reviewed.—Braisted v. Brooklyn & R. B. R. Co. (Sup.) 674. ' A verdict will not be disturbed, as against th weight of the evidence, where it is not so clearlj preponderating as to warrant an interference.Driscoll v. Nelligan (Sup.) 692. The supreme court will not reverse a judgmen on the ground that the verdict was contrary t the weight of the evidence, where it was ren dered on conflicting testimony, and the tri judge has denied a motion for a new trial. Cushman v. De Mallie (Sup.) 878. Findings of the jury on questions of fact in mandamus case held conclusive on the supre court at special term.—People v. Hertle (Sup 965. A verdict on conflicting evidence will not disturbed.—Moissen v. Rooney (Sup.) 1004.

INDEX. 1157 The supreme court will not interfere with a verdict on conflicting evidence.—Aron Pelt v. Chapter General of American Knights of St. John and Malta (Snp.) 1010. A verdict based on conflicting evidence will hot he disturbed.—Franken v. McAIpin. (City Ct. N. Y.) 406. Verdict for plaintiff on conflicting evidence will not he disturbed where there is evidence to sustain it.—Stephens v. Cowen (City Ct. N. Y.) 025. §18. - Harmless error. It is not prejudicial error to sustain an objection to evidence, where witness had previously testified to the fact.—Northam v. International Ins. Co. (Sup.) 45. Where substantial justice does not require it, an appellate court will not grant a new trial on. errors in ruling of the lower court; such refusal being authorized by Code Civ. Proc. § 1003.— Smith v. Balcom (Sup.) 777. Error in charging that one injured in alighting from a car was conceded to be a passenger was harmless, though he was a trespasser; the charge imposing only ordinary care on the company.— Rosenberg v. Third Ave. R. Co. (Sup.) 1052. § 19. -Decisions of intermediate courts. Where the evidence is conflicting, it will not be weighed on appeal from a judgment on a referee’s report.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. § 20. —— Subsequent appeals. AA'here no exceptions are filed to the decision on a trial to the court, the only questions reviewable are those raised by exceptions to rulings.— Buell v. City of Johnstown (Sup.) 1060. } 21. Determination and disposition of cause. On appeal from order granting new trial on vidonco introduced after the trial and on minies of trial judge, the court is not bound by the act that they are in opposition to conclusions of rial judge.—Driscoll v. Nelligan (Sup.) 692. Where referee dismissed the complaint on the rroneous assumption that the case was submitted n limitations set up in answer, and the record lows submission on the question of the comlaint only, the plaintiffs were entitled to a rersal.—Field v. Pinkus (Sup.) 1038. On the reversal of a judgment for a defendlt, who has interposed a general denial and a untorclaim, the case must be sent back for w trial.—Block v. Garfield (City Ct. N. Y.) S. APPEARANCE. t was error, where defendant appeared special-to pass on a question beyond the subject sub-ted for determination by the special appear-e.—Stone v. Smith (City Ct. N. Y.) 1106. APPLIANCES. bility of employer for defects, see d Servant,” § 5. “Master APPOINTMENT. Of executor or administrator, see “Executors and Administrators,” § 2. Of guardian, see “Guardian and Ward,” § 1. ASSESSMENT. Of compensation for property taken for public use, see “Eminent Domain,” § 2. Of expenses of public improvements, see “Municipal Corporations,” § 5. Of tax, see “Taxation,” § 1. ASSIGNMENTS. For benefit of creditors, see “Assignments for Benefit of Creditors.” Transfers of particular species of property, rights, or instruments, see “Mortgages,” § 4. § 1. Requisites and validity. An assignment of a portion of a fund in the hands of a third person to the credit of assignee held an assignment pro tanto.—Danvers v. Lu-gar (Sup.) 778. § 2. Actions. In an action on an assignment of what might be dne assignor on a contract for work, legal set-offs which defendant had after the contract’s completion should be allowed.—McMann v. Meehan (Sup.) 58. Assignment of money may be enforced without making assignor party.—Danvers v. Lugar (Sup.) 77S. A complaint alleging the assignment of a claim to plaintiffs from a firm held sufficient.—Crinnian v. Knauth (Sup.) 976. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See “Bankruptcy,” § 1. § I. Requisites and validity. If, after property is delivered to the assignee under an assignment for creditors, he allows it to escape from his possession, the assignment is not invalidated.—Troescher v. Cosgrove (Sup.) 1036. § 2. Administration of assigned estate. Right to vend assigned property in existence passed to the assignee, though a trade-name thereon, which his assignor was . entitled to use exclusively, did not.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. An assignment by an insolvent corporation does not vest in the assignee the right to sell the corporation’s exclusive right to use a trade-name as against the original owner.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. Declarations of an agreement held to contemplate payment of rent by a tenant who was to be procured, and not an assignee to whom the lease passed under assignment.—Baehrach v. Leventritt (Sup.) 343.

1158 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 3. Rights and remedies of creditors. Facts held to show that certain moneys received by an assignor from his wife did not create a debt to her.—Patehen v. Waefelaer (Sup.) 949. The inclusion by an assignor in his schedule of liabilities of a pretended debt to his wife of $15-500, and the payment, three days before his assignment, of $1,500 interest thereon, is sufficient to invalidate his assignment.—Patehen v. Waefelaer (Sup.) 949. The omission from the inventory and schedules in an assignment for creditors of personal property in fact delivered to the assignee is not fraud sufficient in itself to warrant setting aside the assignment.—Troescher v. Cosgrove (Sup.) 1036. § 4. Accounting, settlement, and discharge of assignee. The question whether an action will lie to remove an assignee for misconduct, and to obtain an accounting, cannot be raised by demurrer to the complaint.—Morrell v. Ball (Sup.) 405. ASSOCIATIONS. See “Beneficial Associations” ; “Exchanges.” ATTACHMENT. § 1. Property subject to attachment. Where the owner of shares of corporate stock deposited same as security for a loan, his reversionary interest or right to the possession of the stock upon the payment of the loan is property, and subject to levy by attachment.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 2. Proceedings to procure. Affidavit held sufficient to justify warrant on the ground that defendant was about to dispose of her property with intent to defraud creditors. —Fox v. Mays (Sup.) 295. § 3. 'Writ or warrant. Warrant held sufficient.—Fox v. Mays (Sup.) 295. § 4. Levy, lien, and custody and disposition of property. The last clause of Code Civ. Proc. § 649,. subd. 3, applies only to domestic corporations.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. Where the question as to whether, or not, a certain levy under attachment is valid, is presented, the same is properly determinable upon proceedings to enforce the levy, and not upon a motion to set aside and vacate the levy.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 5. Quashing, vacating, dissolution, or abandonment. In deciding a motion to vacate, only the sufficiency of the papers before the court when the attachment was granted should be considered.— Fox v. Mays (Sup.) 295. That the cause of action alleged in the affidavit was incorrectly described in the warrant would not justify vacation, if a good cause was alleged in the affidavit.—Fox v. Mays (Sup.) 295. That the warrant contained superfluous averments would not justify vacation.—Fox v. Mays (Sup.) 295. Though Code Civ. Proc. § 682, does not provide that an attachment against a foreign state may be vacated on motion of a United States attorney, the court will vacate such an attachment on his motion, since the court has no jurisdiction of such an action.—Hassard v. United States of Mexico (Sup.) 939. ATTORNEY AND CLIENT. § 1. Retainer and authority. A client is not liable for work in printing briefs in his case, when the work was done for, and the credit extended to, the attorney, without instructions from or notice to the client.— Livingston Middleitch Co. v. New York College of Dentistry (City Ct. N. Y.) 918. § 2. Compensation and lien of attorney. A counterclaim, in an action by an attorney to recover for professional services, held not to state facts sufficient to constitute a cause of action against plaintiff.—Kissam v. Bremerman (Sup.) 75. Where the parties to an action for damages settle by plaintiff withdrawing his action, nothing being paid in settlement, his attorney is not entitled to prosecute the action in aid of his lien. —Burpee v. Townsend (Sup.) 467. AVhere the sum paid in settlement of an action without the knowledge of the plaintiff’s attorney will serve as a basis for fixing the amount of his lien for services, it is not necessary to continue the action of which settlement was made in order to enforce such lien.—Schriever v. Brooklyn-Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, a defendant who, without the knowledge of plaintiff’s attorney, settled with the plaintiff, who was irresponsible, becomes liable for the lien for services of such attorney.—Schriever v. Brooklyn Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, giving a lien t attorneys on a cause of action, an attorney can not be allowed or compelled to prosecute a com promised case to judgment, in order to enfore his lien, when the compromise is made withou his consent.—Schriever v. Brooklyn Heights R Co. (Sup.) 890. An attorney has a lien, irrespective of sta ute, upon a surrogate’s decree for his servie rendered in the proceedings resulting in such d cree.—In re Regan (Sur.) 1074. Code Civ. Proc. § 66, does not give an attorn a lien against a surrogate’s decree rendered b fore the amendment to such act was passed gi ing an attorney’s lien in special proceedings.In re Regan (Sur.) 1074. AUTHORITY. Of agent, see “Principal and Agent,” § 2. Of attorney, see “Attorney and Client,” § 1.

INDEX. 1158) BAILMENT. See “Innkeepers”; “Livery Stable Keepers”; “Pledges.” BALLOTS. See “Elections,” § 2. BANKRUPTCY. See “Assignments for Benefit of Creditors.” § 1. Assignment, administration, and distrilration of bankrupt’s estate. A complaint to set aside a transfer voidable under bankrupt act need not allege the evidence, nor show why a creditor had cause to believe the transfer was intended to give a preference.— Orooks v. People’s Nat. Bank (Sup.) 604. Allegations of a complaint to set aside a transfer by a bankrupt held sufficient to show that a creditor would receive by an assignment a greater percentage of his debt than other creditors.— Orooks v. People’s Nat. Bank (Sup.) 604. An allegation that the effect of a transfer will be to enable a creditor to obtain a greater percentage of his debt than other creditors, and to obtain a preference, is an allegation of a fact, and not a conclusion.—Crooks v. People’s Nat. Bank (Sup.) 604. Facts held to bring a case within the bankruptcy act, making voidable a transfer before bankruptcy giving a preference.—Crooks v. People’s Nat. Bank (Sup.) 604. In a complaint to set aside a transfer as voidable under the bankrupt act, the value of the debtor’s property and the extent of his indebtedness need not be set out.—Crooks v. People’s Nat. Bank (Sup.) 604. BANKS AND BANKING. A bank held not required to account for funds of an estate deposited by an executor in his own name.—Woodbridge v. First Nat. Bank (Sup.) 258. § 3. Savings banks. A savings bank held not entitled to make a person for whose benefit a deposit was made a party defendant to an action to recover it by the depositor’s administrator, who alleged that such person was fictitious.—Washington, v. Seaman’s Bank for Savings (Sup.) 971. BASTARDS. § 1. Property. The domestic relations law, legitimatizing illegitimate children whose parents afterwards marry, does not, because it protects against the devestment of ail estate or interest vested at the time of the marriage, devest all estate or interest which has vested since; and, if it did,- it would be void, under Const, art. 1, § 6.—In re Barringer’s Estate (Sur.) 1090. BENEFICIAL ASSOCIATIONS. . Records of a beneficial association, showing that amendments to by-laws had been favorably voted on by three-fourths of the members present at the meeting voting therefor, it will be presumed, in the absence of evidence to the contrary, that all members present participated in the vote.— Cowan v. New York Caledonian Club (Sup.) 714. A member of a beneficial association, in arrears for over a year, and liable to have his name stricken from the rolls, held not in good standing, so as to be entitled to benefits.—Cowan v. New York Caledonian Club (Sup.) 714. By-laws of a mutual benefit association held reasonable and valid.—Cowan v. New York Caledonian Club (Sup.) 714. § I. Banking corporations and associations. Const. 1846, art. 8, §§ 1-3, held to apply to ank corporations.—Barnes v. Trevor (Sup.) 85. The stock corporation law (Laws 1890, c. 564, 58) held not to relieve stockholders of an insolent bank from claims against it for depositsarnes v. Trevor (Sup.) 85. A stockholder, who is also a creditor of an inolvent bank, cannot set off its debt to him gainst his statutory liability.—Barnes v. Trevor up.) 85. 2. Functions and dealings. Where an executor deposited estate funds in a nk in his own name, there is no contractual lotion between the bank and the estate, renting the bank liable to account to the estate.— Woodbridge v. First Nat. Bank (Sup.) 258. A bank, in the absence of notice of an adverse im, has the right to assume that <a person desiting money to his own credit has a right to thdraw it.—Woodbridge v. First Nat. Bank up.) 258. A by-law, requiring notice within 24 hours after sickness and certificate of society’s physician as condition to benefits, held not unreasonable, and failure to comply therewith bars recovery of benefit.—Falcone v. Societa Sarti Italiani cli Mutuo Soccorso (Sup.) 873. Failure of a member to notify the secretary of his illness -was not excused by his incapacity, where, long before his recovery, he was able to give such notice, but failed to do so.—Falcone v. Societa Sarti Italiani di Mutuo Soccorso (Sup.) 873. ' • One who, as a charter member of an association, either participated in the adoption of a bylaw or assented to it when he joined the society, and who thereafter recognized it by acting thereon. is estopped to question its reasonableness.— Falcone v. Societa Sarti Italiani di Mutuo Soccorso (Sup.) 873. Member absent from home lodge, not having procured traveling card, as required by by-law, held not entitled to recover sick benefit.—Markowitz v. Joseph Eckert Lodge, No. 82, I. O. B. A. (Sup.) 874.

<1160 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. BEQUESTS. ■ See “Wills.” BILL OF PARTICULARS. •See “Pleading,” § 5. BILLS AND NOTES. § 1. Requisites and validity. Failure to recite therein that a note was given for value received does not affect its legal import.—McLeod v. Hunter (Sup.) 73. Denial that plaintiff was the owner of a note sued on held not frivolous.—Jones v. Brown (Sup.) 972. Where, in an action on notes, plaintiff pleaded as consideration a promise to discontinue an action, and proved an actual settlement thereof by means of the notes, it was sufficient to warrant recovery.—Wesselman v. Stuart (City Gt. N. Y.) 1110. It is a good defense, as going to lack of consideration, in an action upon a note given in accordance with a contract, to show that the plaintiff, to whom the note was given, failed to perform his part of the contract.—Richardson & Morgan Go. v. Gudewill (City Ct. N. Y.) 1120. § 2. Construction and operation. Under Laws 1897, c. 612, § 26, subd. 2, a note which promises to pay a certain sum, without fixing a time for payment, is due on demand,— McLeod v. Hunter (Sup.) 73. | 3. Rights and liabilities on indorsement or transfer. _ Without proof that the indorser of a note before delivery intended to become surety, he is presumed to he a subsequent indorser, and is not liable to the payee.—Howard v. Van Gieson (Sup.) 349. In an action against one who indorsed a note on agreement that he should not be held liable thereon, held, defendant could show that he received no benefit from the transaction.—Twelfth Ward Bank v. Rogers (City Ct. N. Y.) 496. Question of indorser’s liability on a note delivered under an agreement that indorser should be held harmless held a question for the jury.— Twelfth Ward Bank v. Rogers (City Ct. N. Y.) 496. BODY EXECUTION. See “Execution,” § 2.. BONA FIDE PURCHASERS. Of goods, see “Sales,” § 4. Of land, see “Vendor and Purchaser,” § 3. BONDS. Bonds for performance of duties of trust or office, see “Executors and Administrators,” § 8. - in legal proceedings, see “Costs,” § 2. Secured by mortgage, see “Mortgages,” § 3. Sureties on bonds, see “Principal and Surety.” § 1. Construction and operation. Provisions of a bond held sufficient to show an intent to protect obligee against loss through defect of title to property transferred by bill of sale.—Prank v. Porgotston (City Ct. N. Y.) 1118. § 4. Presentment, demand, notice, and protest. A notice of protest held insufficient to charge an indorser.—Howard v. Van Gieson (Sup.) 349. Where the holder of a note was requested by the indorsers to delay suit thereon after the note became due, such indorsers cannot take advantage of a failure to serve notice of protest within the regular time.—Bush v. Gilmore (Sup.) 682. | 5. Payment and discharge. The return of property by a purchaser, under a claim that it was not satisfactory, acts as an extinguishment of a note given therefor, when the vendor agreed that the same might be returned if. not satisfactory.—Cushman v. De Mallie (Sup.) 878. § 6. Actions. A complaint in an action on a note need not show presentment and demand.—Wells v. Simpson (Sup.) 56. Evidence held to support finding that makers of note signed as individuals, and not as corporate officers.—Bush v. Gilmore (Sup.) 682. An affidavit of defense held not to sustain defendant’s answer that a note was given without consideration and for accommodation of the payee.—Jones v. Brown (Sup.) 972. : 2. Actions. Under Code Civ. Proc. § 1915, in a suit on a bond for the performance of a covenant for renewal of a lease, held error to add interest to the amount of the bond in assessing damages.—Join Polhemus Printing Co. v. Hallenbeek (Sup. 1056. BREACH. Of contract, see “Contracts,” § 5. Of covenant, see “Covenants,” § 1. Of warranty, see “Insurance,” § 2; § 7. BRIDGES. “Sales, § 1. Regulation and use for travel. A pile of sweepings, including banana pe ings, left on the public stairway of a bridge, he to constitute a dangerous obstruction.—Cooley Trustees of New York & Brooklyn Brid (Sup.) 1. BROKERS. § 1. Compensation and lien. A vendor, who refuses to contract for sale realty to a club because the officer presented the broker had no authority to agree to the sa held not liable for the broker’s commissions Kirwan v. Barney (Sup.) 122.

INDEX. 1161 Facts held not to entitle plaintiff to recover commission for sale of real estate.—O. H. Diamond & Co. v. Hartley (Sup.) 1022> 1 Rev. St. p. 709, restricting brokers’ fees for negotiating loans, applies to a contract for a loan procured while such statute was in force, although such statute was subsequently changed.— Anderson v. Dwyer (City Ct. X. Y.) 1114. CALENDARS. Of causes for trial, see “Trial,” § 2. CARRIERS. § 1. Carriage of goods. Damages cannot be allowed, in an action for nondelivery of goods, -where there is no depreciation in value and the goods are tendered back to the consignor.—Brookstone v. Wescott Exp. Co. (Sup.) 72. A contract for transportation of goods, limiting the carrier’s liability, held not to relieve it from liability for a loss by its negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for loss of goods shipped under a contract limiting its liability, evidence as to the value of the goods held admissible, where the loss was due to carrier’s negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for a portion of goods lost in shipment, evidence as to the value of those delivered, as fixing relatively, the value of those not delivered, is admissible.—Marquis v. Wood (City Ct. N. Y.) 251. A provision in a bill of lading that the carrier shall not be liable for any loss or breakage does not exempt the carrier from its own negligence.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. Evidence held to raise a presumption that defendant was negligent in handling freight in its possession as a carrier.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. $ 2. Carriage of passengers — Relation between carrier and. passenger. Where a passenger notified the conductor where to let him off, but was carried by through fault of the conductor, and was permitted to remain on the car till its return trip, he remained a passenger, though he paid but one fare.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. 3. —— Personal injuries. Evidence held to justify a finding that a pasenger's fall from a street car was due to its egligent operation.—Brainard v. Nassau Elecric R, Co. (Sup.) 74. Evidence held not to warrant a finding that a epression in a flight of stairs at station was the roximate cause of accident to plaintiff.—Rusk . Manhattan Ry. Co. (Sup.) 3S4. Failure to put sand or ashes on light snow or in ice at platform near railway station held ot negligence.—Rusk v. Manhattan Ry. Co. up.)' 384. Presence of a light snow and thin ice at platform near railway station will be presumed due to the snow-storm prevailing, so that railway company was not negligent in not clearing it off. —Rusk v. Manhattan Ry. Co. (Sup.) 384. Street railroad’s failure to provide a safe place for passengers to alight held sufficient to require the submission of plaintiff’s negligence, in stepping on a parallel track in front of another car, to the jury.—Wise v. Brooklyn Heights R. Go. (Sup.) 530. An instruction that the burden was on defendant to show that the accident causing the injury to plaintiff did not occur by reason of defendant’s negligence held erroneous. — Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence held insufficient to support a finding of negligence in the operation of a street ear, which ivas suddenly stopped, throwing plaintiff from her seat in the car to the floor.—Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence that the conductor of an open street car did not stop it, though he knew plaintiff was on the side step, and that a passing truck was dangerously close, held sufficient to support a finding that defendant was negligent. — Faris v. Brooklyn City & N. R. Co. (Sup.) 670. Passenger held entitled to assume that an engine would approach a car on which she entered so as not to cause her injury, and not to be required to look for its approach.—Jones v. New York Cent. ■ & H. R. R. Co. (Sup.) 721. Evidence held, sufficient to go to the jury on question whether conductor of a street car knew plaintiff intended to alight, and was negligent in prematurely starting his car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. Negligence cannot be attributed to street-railway company, where passenger, after the car had stopped, and then started up, stepped off, without notice, from the front platform.—Steuer v. Metropolitan St. Ry. Co. (Sup.) 1059. § 4. - Contributory negligence of person injured. A man ivho surrenders his seat in a crowded street car to a w-oman, and stands on the running board of the ear is not, as matter of law, negligent.—Brainard v. Nassau Eledtrie R. Co. (Sup.) 74. Riding on the running board of a crowded street car is not, per se, negligence.—Brainard v. Nassau Electric R. Co. (Sup.) 74. Where a passenger was injured by being struck by a street car on a parallel track from the one from which he alighted, evidence held sufficient to require the submission of the question of his negligence to the jury. — Wise v. Brooklyn Heights R. Co. (Sup.) 530. A passenger on the side step of a street car, who was injured by a passing truck, held not guilty of contributory negligence, when he tried to enter the nearest cross aisle in the car upon seeing his peril.—Faris v. Brooklyn City & N. R. Co. (Sup.) 670. A passenger on a crowded ear, standing on the running board, injured by striking a van

1162 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. while looking for a seat, held not guilty of negligence, as a matter of law.—Henderson v. Nassau Electric ft. Co. (Sup.) 690. It is not negligence per se for a passenger to alight from a street car without taking hold of the railings to guard against sudden movement of the car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. § 5. - Palace cars and sleeping cars. Allowing a valise to. stand in the aisle of a dimly-lighted car, where passengers are likely to stumble over it, is negligence.—Levien v. Webb (City Ct. N. Y.) 1113. Contributory negligence of a passenger, who was injured by stumbling over a valise left in the aisle of the sleeping car, held for the jury. —Levien v. Webb (City Ct. N. Y.) 1113. CAUSE OF ACTION. See "Action.” CERTIORARI. CHATTEL MORTGAGES. § 1. Requisites and validity. Evidence held sufficient to show that chattel mortgages were fraudulent in fact as to judgment creditors.—Robinson v. Hawley (Sup.) 138. § 2. Rights and liabilities of parties. Mortgagee, purchasing at chattel-mortgage sale, held liable for conversion of property to pri- or lienholder, although a year had elapsed at time of sale from date of filing the lien, which had not been refiled.—American Box Mach. Co. v. Zentgraf (Sup.) 417. § 3. Rights and remedies of creditors. Chattel mortgages held invalid, as against a prior executed judgment confession, not filed until after the execution of the mortgages, where the mortgagees failed to show that they took possession within a reasonable time.—Robinson v. Hawley (Sup.) 138. •. Chattel mortgage on hay held not void because of an agreement that the mortgagor might feed certain of the hay before sale under the mortgage.—Spurr v. Hall (Sup.) 854. § 1. Nature and grounds. Where plaintiff alleges that the disallowing of a claim by him as constable, on ground that he-was not constable, was illegal, as involving collaterally a trial to the office, his remedy is by certiorari, and not by action.—Adams v. Town of Wheatfield (Sup.) 738. § 2. Proceedings and determination. Under Code Civ. Proc. §§ 2138, 2139, in proceedings to review dismissal of an officer, affidavits of third parties cannot he considered, where returns were made both by the officer dismissing him and such officer’s successor.—People v. York (Sup.) 400. A return denying knowledge as to whether witnesses in proceedings sought to be reviewed were sworn, and alleging a custom to receive unsworn testimony, held an admission of an allegation that unsworn' testimony was received.—People v. York (Sup.) 400. CHANCERY. See “Equity.” CHANGE OF VENUE. Of civil action, see “Venue,” § 2. CHOSE IN ACTION. Assignment, see “Assignments.” CITIES. See “Municipal Corporations.” CITIZENS. See “Indians.” CLAIM AND DELIVERY. See “Replevin.” CLAIMS. Against county, see “Counties,” § 1. - estate of decedent, see “Executors and Administrators,” I 4. - town', see “Towns,” § 2. CLASS LEGISLATION. See “Constitutional Law,” § 2. CLUBS. CHARITIES. § 1. Creation, existence, and validity. A bequest for charitable uses held intended for a branch organization attached to a particular church, and not for the chief society.—In re Fitzsimmons’ Will (Sur.) 485. A bequest for charitable uses held valid, under Acts 1893, c. 701, § 1, providing that a bequest should not fail for indefiniteness of beneficiaries. —In re Fitzsimmons’ Will (Sur.) 485. Where a club, at a meeting of its members directs its president to purchase realty for club site, an officer subsequently empowered b; the trustees has no authority to purchase tin site; the power conferred by the club bein. superior to that of the trustees.—Kirwan v. Bar ney (Sup.) 122. COLLATERAL ATTACK. On judgment, see “Judgment,” § 5.

INDEX. 1163 COLLECTION. CONDITIONS. Of estate of decedent, see “Executors and Ad•ministrators,” § 3. Precedent to action, see “Action,” § 1. COMBINATIONS. See “Conspiracy.” CONFESSION. Of judgment, see “Judgment,” § 1. COMMISSIONS. CONFIDENTIAL RELATIONS. Of broker, see “Brokers,” § 1. Of trustee, see “Trusts,” § 5. • COMMITTEE. Guardianship of insane persons, See “Insane Persons,” § 1. Disclosure of § 1. communications, see “Witnesses,”" CONSIDERATION. Of bill of exchange or promissory note, see “Bills and Notes,” § 1. Of contract, see “Contracts,” § 1. COMMON CARRIERS, CONSPIRACY. See “Carriers.” COMPARATIVE NEGLIGENCE. See “Negligence,” § 2. COMPENSATION. For property taken for public use, see “Eminent Domain,” § 1. For services, see “Master and Servant,” § 2. Of attornei', see “Attorney and Client,” § 2. Of executor or "administrator; see “Executors and Administrators,” § 7. f trustee, see “Trusts,” § 5. § 1. Civil liability. A complaint which, for a cause of action, alleged a conspiracy in the doing of certain acts which resulted in damage to plaintiff, is demurrable, since a conspiracy to do certain things, the doing of which caused damage, does not, of itself, constitute a cause of action upon which a recovery can he had.—Kolel America Vatiferes Jerusalem v. Eliach (Sup.) 935. CONSTABLES. See “Sheriffs and Constables.” CONSTITUTIONAL LAW. COMPETENCY. f experts as witnesses, see “Evidence,” § 7. f witnesses in general, see “Witnesses,” § 1. COMPLAINT. n civil actions, see “Pleading,” § 1. COMPROMISE AND SETTLEMENT. A fair settlement of an action for personal iniries will not be set aside because defendants died to employ plaintiff after he got well, ough they promised it as part consideration for e settlement.—Szymanski v. Chapman (Sup.) 0. See “Jury,” § 1. § 1. Distribution of governmental powers and functions. Laws 1899, c. 700, § 1 et seq., providing that municipal corporations shall pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official duties, is unconstitutional.—In re Straus (Sup.) 37. " § 2. Privileges or immunities, and class legislation. Laws 1895, c. 322, § 1, prohibiting use of soft coal in certain portions of city of Brooklyn, held not a grant of exclusive privilege by a local act, within Const, art. 3, § 18—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. CONCLUSION CONTEMPT. witness, see “Evidence,” § 7. CONDEMNATION. king property for public use, amain. see “Eminent CONDITIONAL SALES. “Sales,” § 8. § 1. Acts or conduct constituting contempt of court. A litigant’s false swearing will justify a finding that he is guilty of contempt of court.—Bernheimer v. ICelleber (City Ct. N. Y.) 1125. § 2. Punishment. Code Civ. Proc. § 111, which prohibits successive terms of imprisonment, does not apply where the earlier commitment is founded on mesne process, and a second commitment is ordered under

1164 i 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. final judgment in the samp action.—Reese v. Rees (Sup.) 760. Under Code Civ. Proe. § 2284, a person may he fined for an omission to perform an act, without any order requiring him to perform the act.—Hommel v. Buttling (Sup.) 811. A fine, imposed for contempt for false swearing, of the amount of plaintiff’s judgment, held not excessive.—Bernheimer v. Kelleher. (City Ct. N. Y.) 1125. CONTEST. Of will, see “Wills,” § 3. CONTINUANCE. Amendment of a complaint, averring that a car was “stopped” to permit plaintiff to alight, so as to conform to proof that it was moving “very slowly,” held not cause for suspension of the trial.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. CONTRACTS. Agreements within statute of frauds, see “Frauds, Statute of.” Contracts of municipalities, see “Municipal Corporations,” §§ 4, 5. Damages for breach, see “Damages,” § 2. Novation, see “Novation.” ■Operation and effect of customs or usages, see “Customs and Usages.” Particular classes of express contracts, see “Bills and Notes”; “Covenants”; “Insurance” ; “Joint Adventures”; “Landlord and Tenant” ; “Liens’”; “Principal and Agent” ; “Principal and Surety”; “Sales”; “Vendor and Purchaser.” - employment, see “Master and Servant.” - separation agreements, see “Husband and Wife,” § 4. Particular modes of discharging contracts, see “Compromise and Settlement” ; “Payment.” Reformation, see “Reformation of Instruments.” Specific performance, see “Specific Performance.” '§ 1. Requisites and validity. Failure of contractor to disclose information regarding the' character of the subject-matter of contract with the state held not to invalidate it. —People v. Roberts (Sup.) 148. A contract for a lower price, after delivery •and acceptance at a certain price, is without consideration.—O’Sullivan v. New York Lumber Corp. (Sup.) 493. Where defendant promised that, if windows placed in his house by mistake were left, he would pay for work done, leaving the windows is a consideration for the promise.—Drake v. Bell (Sup.) 657. Evidence held not to show contract by defendant to pay plaintiff for services rendered third .person— Balmford v. Peffer (Sup.) 787. , The fact that parties to a tripartite agreement attempted to obtain possession thereof after it had been delivered to plaintiff held not sufficient to show want of delivery.—Day v. Dow (Sup.) 793. Money paid by an employe’s wife, under an employer’s agreement to refrain from arresting his employs, in an action to recover money alleged to have been stolen by him, held paid under duress.—Jaeger v. ICoenig (City Ct. N; Y.) 505. A wife’s agreement to pay her husband’s employer money in consideration of the employer’s forbearance to arrest her husband, in an action to recover money which it was alleged he had stolen, held an agreement to refrain from a civil arrest merely, and not to- amount to the compounding of felony.—Jaeger v. Koenig (City Ct. N. Y.) 505. § 2. Construction and operation. A contract that may be discontinued “in” three months cannot be discontinued after the expiration of such time—Feree v. Moquin-Offerman-Hessenbuttel Coal Co. (Sup.) 120. . On a contract by defendants to pay plaintiff a certain price for all ice used by them for two years, he cannot recover for ice purchased by them from others.—Banker v. Willard (Sup.) 447. Contract authorizing owner to make “omissions” held to refer to things abandoned, and not those given to some other contractor to perform. —Gallagher v. Hirsh (Sup.) 609. § 3. Modification and merger. In an action to recover for ice sold under a contract, evidence held, to raise a question for the jury as to plaintiff’s intention to modify the original contract as to the price.—Taylor v. Citizens’ Ice Co. (Sup.) 213. In an action to recover for ice sold under contract, evidence held admissible to show a modification of the contract as to the price. Taylor v. Citizens’ Ice Co. (Sup.) 213. 4. Rescission and abandonment. The giving of a note as provided in a contrae does not, in the absence of evidence of furthei or different agreement, constitute a waiver o rights under the contract.—Richardson & Morga~ Co. v. Gudewill (City Ct. N. Y.) 1120. 5. Performance or breach. Where plaintiff contracted to phy all of de fendant’s obligations as shown on the latter’ books, held, in the absence of misrepresentation,, he was bound by the books.—State Bank Napier (Sup.) 779. Whether or not delay of third person in d livering building material justified a contrac or’s failure to complete contract in time spe ified held question for jury.—McLaren Fischer (Sup.) 808. Delay of contractor for 51 days to comple building contract held prima facie unreaso able, and places burden of excusing same o contractor.—McLaren v. Fischer (Sup.) 808. § 6. Actions for breach. Code, § 519, does not authorize introduction i evidence to prove an implied contract, where express one is pleaded.—Dennison v. Musgra (Sup.) 188.

INDEX. 1165 Complaint setting forth, contract and its breach held to state good cause of action, though theory of damages was erroneous.—Kraft v. Rice (Sup.) 3G8. Complaint alleging pledge of liquor to secure a note, and payment, and refusal to return liquor, does not state breach of contract without alleging demand for return.—Kraft v. Rice (Sup.) 308. A contract cannot be considered, on demurrer to a complaint for its breach, which did not refer to the contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Facts held insufficient to constitute a cause of action for breach of contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Nature of contract, as set out by the pleadings, held for the jury.—Gallagher v. Hirsh (Sup.) 609. CORONERS. Laws 1897, c. 378, §§ 1570, 1571, held to abolish the office of county coroner within the territory of Greater New York as it theretofore existed.—Tuthill v. City of New York (Sup.) 968. CORPORATIONS. Particular classes of corporations, see “Municipal Corporations”; “Street Railroads," § 1. - banks, see “Banks and Banking,” § 1. § 1. Incorporation and organization. In an action against a stockholder for an indebtedness of the company because the capital stock was not fully paid in, evidence held sufficient to support a finding of an overvaluation of the property when the company was organized. —White, Corbin & Co. v. Jones (Sup.) 21. An answer to an action on a written contract, which alleged an agreement outside the writing and did not seek to reform the contract, but to repudiate it, held insufficient.—International Food Co. v. Beckerd (Sup.) 1001. Where defendant’s answer to an action on a contract alleged a counterclaim, to which she would not be entitled if the contract was valid, and did not allege that it was void, the answer •as insufficient.—International Food Co. v. leckerd (Sup.) 1001. Action for a breach of a contract held mainainable, in the form brought, to recover a balnce of salary due under such contract.—Purdy . C. C. White Paper Mfg. Co. (City Ct. N. Y.) 54. Admission of evidence of a special contract held rroneous, where plaintiff had elected to proceed n a quantum meruit.—Morris v. Sire (City Ct. “. Y.) 1098. Where complaint alleges due performance of ritten contract, plaintiff cannot show omissions, nperforraance, and waiver.—Bloch v. Remelius Yty Ct. N. Y.) 1124. CONTRIBUTORY NEGLIGENCE. e “Negligence,” § 2. CONVERSION. rongful conversion of personal property, see ‘Traver and Conversion.” CONVEYANCES. veyances of particular species of property, e “Easements,” § 1. mortgaged property, see “Mortgages.” § 5. fraud of creditors, see “Fraudulent Conveyces.” trust, see “Trusts,” § 1. ticular classes of conveyances, see “Assignents for Benefit of Creditors”; “Chattel ortgages” ; “Deeds” ; “Mortgages.” § 2. Corporate existence and. franchise. One who had recognized a corporation de facto, and officially directed its affairs, held estopped to assert, when sued by it, that it lacked corporate existence.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. Refusal to find that one corporation carried on its projects through the agency of another corporation held proper.—In re Griffin’s Will (Sup.) § 3. Capital, stock, and dividends. Mere recording of a certificate reciting that a company’s stock was fully paid up held not to terminate stockholder’s liability for unpaid stock. —White, Corbin & Go. v. Jones (Sup.) 21. Payments for capital stock, represented by expenditures in developing property, held properly computable in determining stock actually paid in.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. • § 4. Members and stockholders. In an action to enforce a stockholder’s statutory liability for corporate debts, evidence of the value of property transferred for stock issued was admissible.—White, Corbin & Co. v. Jones (Sup.) 21. In an action by a minority stockholder of a corporation to restrain the payment of exorbitant salaries, it must be alleged and proved that a demand to sue was made on the corporation, and that the same was refused.—Fitchett v. Murphy (Sup.) 182. That a person claiming to have been defrauded of his interest in the corporate assets may maintain an action to restrain the payment of exorbitant salaries, he must be a stockholder at the time of the institution of the action.—Fitchett v. Murphy (Sup.) 182. § 5. Officers and agents. In an action to restrain the further payment of exorbitant salaries to officers of a corporation, the court has no power to fix a gross sum to be divided as salaries among the officers.— Fitchett v. Murphy (Sup.) 182. In an action to enforce the personal liability of directors for failure to file an annual report, as required by Laws 1892, c. 688, § 30, the var

1166 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. lidity of the corporation’s act in changing the location of its principal office could not be questioned. — Uptegrove v. Schwarzwaelder (Sup.) 623. Laws 1892, c. 688, § 30, held complied with where the annual report of a corporation was filed in the county where its principal business office was in fact located, though the certificate of incorporation located it in a different county, from which it was legally removed.—Uptegrove v. Schwarzwaelder (Sup.) 623. Complaint for penalties, under Gen. Laws, c. 36, § 29. for refusal to permit an inspection of corporate books, should aver specifically the facts relied on to constitute the offense.—Gunst v. Gcldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, is defective, if it ".does, not allege that the company is a stock corporation, and the circumstances connected with the demand for inspection.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, need not show that defendant was an officer of the corporation, if it shows that he was an agent.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection, of corporate books, need not make the corporation a party.—Gunst v. Goldstein (Sup.) 707. § 8. Dissolution and forfeiture of franchise. A corporation once legally created continues, in the absence of statute, until either its charter period has expired or its dissolution has been judicially declared.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. An order authorizing the assignment by the receiver of a bank of certain judgments held by it. duly made in the .dissolution proceedings of the bank, is prima facie binding upon all the stockholders of the bank, and the title of the assignee can only be assailed by a direct proceeding, to which he is made a party.—1Treacy v. Bilis (Sup.) 600. § 9. Foreign corporations. An arrangement begun under section 161 of the English companies act, providing for a voluntary winding-up, does not ceaso to be within the section because presented to the court for approval.—Bank oE China, Japan & the Straits v. Morse (Sup.) 268. A reorganization scheme under the English companies act held to violate the rule that calls on unpaid subscriptions should be equal.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. It is a defense to an action against a stockholder to recover a call on his shares that the call was made for unauthorized purpose.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. ^ 6. Corporate powers and liabilities. In an action against a corporation on an apparently ultra vires contract, proof of its execution by the secretary and treasurer was insufficient to authorize its admission in evidence.— Broadway Theater Co..v. Dessau Co. (Sup.) 335. Acts and declarations of the president, secretary, and treasurer of a corporation, without action by directors or stockholders, held not sufficient to show ratification of an ultra vires contract.—Broadway Theater Co. v. Dessau Co. <Sup.) 335. Where an electric light company received and used poles purchased by one of its trustees, before its organization, under representations as its agent, the company is liable.—Davis v. Valley Electric Light Co. (Sup.) 580. | 7. Insolvency and receivers. Where a corporation has become insolvent, and its stock valueless, the granting of a motion to make its receiver a party to an action against it and another by one of its stockholders, for the return of certain of its stock delivered to it by such stockholder, should he denied.— Marshall v. Wendell (Sup.) 13. Under Laws 1858, c. 314, § 2, and Laws 1892, c. 688, § 48, a general receiver of a corporation may maintain an action at law for the conversion of property received under a void bill of sale.—McQueen v. New (Sup.) 464. A bookkeeper is not a “mechanic, workingman, or laborer,” within Laws 1897, c. 415, § 8, preferring the wages of such employes of an insolvent corporation.—Cochran v. A. S. Baker Co. (Sup.) 724. A reorganization scheme under section 161 of the English companies act held to go beyond the statute.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. A liquidator of a corporation .being wound up under section 161 of the English companies act held to have no authority to make calls on unpaid subscriptions, in an amount more than neces sary to satisfy the debts of the company.—Ban! of China, Japan ■ & the Straits v. Morse (Sup. 268. “Business and property,” as used in EnglisI statute authorizing sale thereof by a corporatio being wound up, held not to include unpaid su’ scriptions for which a call has not been made-Bank of China, Japan & the Straits v. Mors (Sup.) 268. A contract made by a Pennsylvania corpor; tian, in Pennsylvania, by which certain goo' were to he delivered in New York City, is not violation of the provisions of sections 15 and of the general corporation law of New York. In re Simonds Burnace Co. (Sup.) 974. Where the owner of stock of a foreign cor ' ration had deposited same with a resident of ti state, who thereupon actually held same, or t indicia of title which would enable a transfer to acquire title thereto by virtue of such r dent’s title or right to possession, such stock came subject to the jurisdiction of the cou of this state.—Simpson v. Jersey City Goritr ing Co. (Sup.) 1033. Where no issue was raised that an officer the defendant, a foreign corporation, was the state, service upon one who was a

INDEX. 1167 aging agent, within the meaning of Code, § 432, was sufficient.—Evans v. American Steel Foundry Go. (City Ct. N. Y.l 922. CORRECTION. Of assessment of taxes, see “Taxation,” § 1. COSTS. In particular actions or proceedings, foreclosure, see “Mortgages,” § 6. - probate proceedings, see “Wills,” § 3. § 1. Nature, grounds, and extent of right in general. Under Code Civ. Proc. § 544, it was improper to require defendant, as condition to filing supplemental pleading, to pay costs accruing before the time when such pleading could have been filed.—Halley v. Lynch (Sup.) 736. Linder Code Civ. Proc. § 3228, subd. 4, and Id. § 3229, it was error, in an action for the recovery of money only, where a verdict was rendered in favor of defendant on a counterclaim, tor the clerk to refuse to tax his bill of costs.— Smith v. Bryant (Sup.) 943. Defendant, who had not filed a note of issue on service of notice of trial, hold not entitled to costs on having the action dismissed for want of prosecution.—Gilroy v. Stampfer (City Ct. N. Y.) 924. Defendants, where demurrer in common-law suit is sustained, held entitled to costs where only issue of law is presented.—Kellar v. Slirady (City Ct. N. Y.) 1123. 2. Security for payment. Under Code Civ. Proc. § 3272, a court has no uthority to require plaintiff, in an action by a "uardian ad litem, to give security for costs in sum greater than $2o0.—Turell v. Erie B. Co. Sup.) 308; Degraw v. Same, Id. Under Code Civ. Proc. § 3268, a defendant rho does not apply for security for costs until fter cause has been tried is guilty of loches, hich authorizes denial of application.—Turell . Erie B. Co. (Sup.) 308; Degraw v. Same, Id. An application to require a nonresident, apointed administratrix in New York, to give seirity for costs in an action for the intestate’s rongful death, held within the discretion of the urt.—Pursley v. Bodgers (Sup.) 1015. Facts held to require the favorable action of e court’s discretion on an application to re-ire a nonresident, appointed administratrix in action in New York, to give security for sts.—Pursley v. Bodgers (Sup.) 1015. L foreign corporation, plaintiff in an action, <Z not exempt from giving security for costs, der Code Civ. Proc. §§ 3160, 3268, because it s a place of business in New York City.— nry Huber Co. v. Warren (City Ct. N. Y.) 7. implication to sue as poor person held properly ied.—Mendello v. Bosati (City Ct. N. Y.) 1102. § 3. Amount, rate, and items. In an action for an accounting of trust funds, the amount claimed being greatly in excess of the sum proven that defendant received, the latter amount is the value of the subject as affecting an extra allowance of costs.—Woodbridge v. First Nat. Bank (Sup.) 258. § 4. On appeal or error. Where an issue tried between several defendants is wholly distinct, and bears no relation to the issue between the plaintiff and the defendants, a judgment, on an appeal between the .defendants, to which plaintiff was a necessary respondent, which awards costs to “respondents,” entitles both the plaintiff and the responding defendant to costs. — Beynolds v. iEtna Life Ins. Co. (Sup.) 901. COUNTERCLAIM. See “Set-Off and Counterclaim.” . COUNTIES. § 1. Claims against county. Including a claim against a county in the assessment roll among claims for which assessments are levied constitutes an audit of the claim.—Adams v. Town of Wheatfield (Sup.) 738. Where plaintiff appeared before a committee appointed to audit his claim against a county, he cannot thereafter object to a report disallowing the claim on the ground it was not regularly before the committee.—Adams v. Town of Wheat-field (Sup.) 738. Where a board of county supervisors audited a claim without investigation, the adoption without investigation of the report of a committee disallowing the claim is a valid reaudit.—Adams v. Town of Wheatfield (Sup.) 738. COURTS. Contempt of court, see “Contempt.” Judges, see “Judges.” Jurisdiction of and proceedings relating to criminal law, see “Criminal Law,” § 1. Province of court and jury, see “Trial,” § 5. Beview of decisions, see “Appeal.” § 1. Nature, extent, and exercise of jurisdiction in general. A record containing neither averment nor proof of defendant’s residence does not show jurisdiction, and will not sustain a judgment of the municipal court. — Parker v. Dennett Surpassing Coffee Co. (Sup.) 785. Evidence that the “home” of defendant was “Eighty-Sixth street” does not sufficiently establish residence within the jurisdiction of the court.—Wilson v. Hogan (Sup.) 854. § 2. Courts of limited or inferior jurisdiction. Under Const, art. 6, § 18, and Code Civ. Proc. § 340, subd. 3, a judgment rendered by the municipal court in the borough of Brooklyn against one whose residence does not appear is not void for lack of jurisdiction.—Dodge Mfg. Co. v. Nassau Showcase Co. (Sup.) 111.

1168 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. Under Code Civ. Proc. §§ 2244. 2954, municipal court of the city of New York is not ousted of jurisdiction of a summary proceeding to recover possession of real estate merely by reason of the fact that defendant denies plaintiff’s title and claims title in himself.—Quinn v. Quinn (Sup.) 684. The municipal court of the city of New York has jurisdiction of the person of a defendant residing in the city of New York, but in a county other than that of plaintiff, when the process in the action is served in the county of defendant.— Luban v. Simonds (Sup.) 697. The municipal court of the city of New York has jurisdiction of an action to replevin chattels, although they were unlawfully taken and detained by defendant in the city of New York, in a county other than that of plaintiff.—Luban v. Simonds (Sup.) 697. § 3. Courts of probate jurisdiction. Where the decree of a surrogate has been settled between the parties and satisfied of record without the attorney’s consent, the surrogate court has power to enforce his lien against the decree, when the value of his services has been fixed by judgment.—In re Regan (Sur.) 1074. COVENANTS. § 1. Performance or breach. Covenant for quiet enjoyment, in deed conveying lot 35 feet wide, held not broken by ouster from a strip off the west side of said lot, as the location of the east line did not appear, and the covenant .did not guaranty the width, and description did not cover such strip.—Gunn v. Moore (Sup.) 519. It was error to permit a recovery for breach of a covenant contained in a bill of sale which occurred before the execution of the bill of sale.— Droste v. Palmer (Sup.) 660. An answer to a complaint for breach of covenant against incumbrarices on account of nonpayment of taxes held insufficient.-—Brenen v. Kelly (Sup.) 695. A complaint for breach of covenant against incumbrances, alleging unpaid taxes at the delivery of the deed, presents a cause of action.—Brenen v. Kelly (Sup.) 695. Under Laws 1882, c. 410, §§ 990, 995, an assessment for benefits was not an incumbrance on land till final confirmation of report of commissioners; and hence, till then, there was no breach of covenant against incumbrances.—Hastings v. Twenty-Third Ward Land Improvement Co. (Sup.) 998. COVERTURE. See “Husband and Wife.” CREDITORS. See “Assignments for Benefit of Creditors”; “Bankruptcy”; “Creditors’ Suit”; “Fraudulent Conveyances.” Rights as to chattel mortgage by debtor, see “Chattel Mortgages,” § 3. CREDITORS’ SUIT. Held, that a creditor has priority, on fraudulent conveyance by the debtor, over other creditors who first acquire a lien by a suit in the nature of a creditors’ action.—Mandeville v. Campbell (Sup.) 443. CRIMINAL LAW. Particular offenses, see “Contempt”; “Disorderly House.” Penalties, see “Penalties.” § 1. Jurisdiction. Where defendant was within the court’s jurisdiction, the fact that he was arrested by an officer without a warrant does not invalidate his conviction.—People v. Iverson (Sup.) 220. CROSS-EXAMINATION. See “Witnesses,” § 2. CUSTOMS AND USAGES. A custom of giving two weeks’ notice of an intention to leave cannot affect a specific contract of employment for a specified period.—Mitchell v. Waite (City Ct. N. Y.) 1108. DAMAGES. Compensation for property taken for public use, see “Eminent Domain,” § 1. Damages for particular injuries, see “Fraud,” § 1; “Libel and Slander,” § 4; “Trespass,” § 2. - injuries caused by public improvements, see “Municipal Corporations,” § 5. § 1. Nature and grounds in general. Evidence, in an action for damages caused by collapse of a gas holder, held not to show defendant’s ownership or control of the gas holder. —Wodroczka v. Consolidated Gas Co. (Sup.) 186. § 2. Measure of damages. Measure of damages for preventing one iron completmg contract after part performanc when specific sum is to be paid on performanc is difference between contract price and cost o performance.—Birnhak v. Hollander (Sup.) 118. Measure for breach of contract to furnish ploc to store brick held cost of removing and. storin them.—Gallagher v. Hirsh (Sup.) 609. The measure of damages for being depriv of part of a contract is the profit the contract would have made in doing the work -at the ogre price.—Gallagher v. Hirsh (Sup.) 609. § 3. Inadequate and excessive damage A verdict for $8,537, in an action for the lo of a right arm, and injuries to a leg, which e dence indicated might he permanent, held, n excessive.—Barrett v. New York Cent. & H. R. Co. (Sup.) 9. § 4. Pleading, evidence, and assessme" Proof of the collapse of a gas holder alo held insufficient to raise the presumption of n

INDEX. 1169 Iigence—Wodroczka v. Consolidated Gas Co. (Sup.) 186. A complaint seeking to recover money expended to secure return of property pledged after payment of debt alleges special damages, and, in ■ absence of facts showing the same, is insufficient.—Kraft v. Rice (Sup.) 368. DEATH. § 1. Actions for causing death. The absence of contributory negligence on the part of the person killed may be inferred from the circumstances of the accident.—Boyle v. Deg-non-McLean Const. Co. (Sup.) 1043. tracks, including switches.—New York Cent. & H. R. R. Co. v. Needham (Sup.) 992. DEFAULT. Judgment by, see “Judgment,” § 3. DELIVERY. Of goods by carrier, see “Carriers,” § 1. DEMURRAGE. See “Shipping,” § 1. DEBTOR AND CREDITOR. DEMURRER. See “Assignments for Benefit of Creditors”; “Creditors’ Suit.” DECEDENTS. See “Executors and Administrators.” Testimony as to transactions with persons since deceased, see “Witnesses,” § 1. DEEDS. See “Easements,” § 1. Covenants in deeds, see “Covenants.” In fraud of creditors, see “Fraudulent Conveyances.” In trust, see “Trusts,” § 1. Of trust, see “Mortgages.” Tax deeds, see “Taxation,” § 4. § 1. Requisites and validity. A description reading, “1,128 acres of land, being the northwesterly corner of township No. 4 of T. & C.’s purchase, in H. county, be the same more or less,” is not void for uncertainty. —Wallace v. Curtis (Sup.) 994. § 2. Construction and operation. A second deed, conveying property to the granee and his wife, held not to affect grantee’s title nder a prior conveyance, but to create a lien in is wife’s favor only.—Washburn v. Benedict Sup.) 387. A deed, beneficial to the grantee, executed and ecorded without the grantee’s knowledge, pass-s title, as acceptance is presumed.—National ank v. Bonneli (Sup.) 521. Where a deed is delivered to a custodian, with straction to deliver to the grantee on the gran-r’s death, the title vests at time of delivery to le custodian.—Ranken v. Donovan (Sup.) 542. Deeds and mortgages by the grantor, after the nveyance of her property, though she remains possession, are not admissible to show her innt in making the conveyance.—Ranken v. Donon (Sup.) 342. n a deed conveying a house and lot, describing southern boundary as 25 feet from the cen- • line of the railroad, held, that the “center e” intended was the center line between main cks of railroad, and not center line of all 61 N.Y.S.—74 In pleading, see “Pleading,” § 3. DEPOSITARIES. See “Deposits in Court.” DEPOSITIONS. An order to examine a party before trial cannot be vacated because the affidavit showed more than was required by Code Civ. Proc. § 872, subds. 1-4.—Trotter v. Brevoort (Sup.) 181. Code Civ. Proc. § 872, subd. 5, will not he considered, in deciding whether a party is entitled to an order for his examination before trial.— Trotter v. Brevoort (Sup.) 181. Where plaintiff inadvertently failed to file a deposition de bene esse within 10 days, as required by Code Civ. Proc. § 880, he was entitled to an order granting permission to file the same nunc pro tune.—Israel v. Israel (Sup.) 328. The affidavit on an application to take the deposition of a party whose residence is unknown must show an attempt and failure to ascertain it.—Dennis v. Tebbitts (City Ct. N. Y.) 503. Under Code Civ. Proc. § 872, subd. 1, an affidavit for the examination of defendant to an action pending, and also another not a party, held' insufficient.—Dennis v. Tebbitts (City Ct. N. Y.) 503. DEPOSITS. In hank, see “Banks and Banking,” § 2, DEPOSITS IN COURT. Where loss resulted from an investment together of different funds deposited, held, that it should fall pro rata on all.—Elkin v. Elkin (Sup.) 947. DESCENT AND DISTRIBUTION. See “Executors and Administrators.” Inheritance by, from, or through bastards, see “Bastards,” § 1. Property and interests undisposed of by will, see “Wills,” § 5.

1170 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 1. Nature and course in general. A person leaving a will is not “an intestate,” within the statutes of descent (1 Rev. St. p. 754, § 23), though he does not dispose of all of his property because some parts of the will violate the statute against perpetuities.—Messmann v. Egenberger (Sup.) 556. DESCRIPTION. Of property conveyed, see “Deeds,” § 2. DEVISES. See “Wills.” DISORDERLY HOUSE. One cannot be convicted, under Pen. Code, § 388, of keeping a place where opium is smoked by others, when the evidence shows that opium was smoked at a place maintained by defendant,, but does not show who did the smoking.—People v. Reed (Sup.) 520. DISSOLUTION. Of corporation, see “Corporations,” § 8. Of partnership, see “Partnership,” § 4. DIVORCE. DILIGENCE. Of party asking relief, see “Specific Performance,” § 3. DIRECTING VERDICT. In civil actions, see “Trial,” § 4. DISCHARGE, From employment, see “Master and Servant,” I 1. From liability ns assignee, see „ “Assignments for Benefit of Creditors,” § 4. - as surety, see “Principal and Surety,” § 1. DISCOVERY. § 1. Under statutory provisions. Discovery and inspection of defendant’s books will not be allowed, no reason being shown why it is necessary for the reply, and inspection thereof to enable him to reply not being allowable until case is at issue.—Allen v. Fowler & Wells Go. (Sup.) 325. Code Civ. Proc. § 872, subd. 5, does-not apply to the examination of a party, hut only to witnesses.—Hay v.- Zeiger (Sup.) 647. Code Civ. Proc. §§ 870, 872. 873, held intended to secure the defendant’s testimony in a plaintiff’s behalf before trial, where the material information sought is wholly and solely known to the former.—Cahill v. Kurscheedt (City Ct. N. T.) 1100. § 1. Jurisdiction, proceedings, and relief. In an action against a wife for divorce, the uncorroborated testimony of a single witness that he had had sexual intercourse with the wife is insufficient evidence of adultery, though she makes no appearance.—Fawcett v. Fawcett (Sup.) 108. Evidence held insufficient corroboration of a husband’s confession of adultery to justify a decree of divorce.—Fowler v. Fowler (Sup.) 109. Court, in action for divorce, held not warranted in granting a decree, in absence of evidence that the action was brought by defendant’s procurement, and that plaintiff desired a divorce.— Ivison v. Ivison (Sup.) 118. Evidence held insufficient to show adultery as grounds of divorce.—Isaacs v. Isaacs (Sup.) 956. § 2. Alimony, allowances, and disposition of property. After judgment determining questions of alimony without reservation of power to modify it, a reservation cannot be inserted.—Livingston v. Livingston (Sup.) 299. DOCKETS. Of causes for trial, see “Trial,” § 2. DOCUMENTS. As evidence in civil actions, see “Evidence,” § 5. • Production and inspection of writings, see “Dis covery,” § 1. DISCRETION OF COURT. Review in civil actions, see “Appeal,” § 16. DISMISSAL AND NONSUIT. At trial, see “Trial,” § 4. Dismissal of appeal, see “Appeal,” § 11. $ I. Involuntary. Denial of defendant’s motion to dismiss held erroneous, although defendant had filed an answer and counterclaim in the case.—Jacot v. Marks (Sup.) 1040. DONATIONS. See “Gifts.” DUPLICITY. In indictment, see “Indictment and Inform tian,” - § 2. EASEMENTS. § 1. Creation, existence, and transfer. Where a railroad conveyed a house and pa of its land, and an outhouse on the conveyed lar extended over the company’s remaining land, tl

INDEX. 1171 grantee had an easement on the land remaining for the maintenance of the outhouse.—New York Cent. & H. R. R. Co. v. Needham (Sup.) 992. ELECTION OF REMEDIES. Rescission of sale and replevin of part of goods purchased under false pretenses held not to preclude action to recover difference between value of goods replevied and original contract price.—Shout v. Schauroth (Sup.) 767. ELECTIONS. § 1. Qualifications of voters. thider Const, art. 2, § 3, the evidence relied on by a student to show an intention to change liis legal residence must be of acts independent of his status as a student.—In re Barry (Sup.) 124. § 2. Ballots. Ballot marked by voter held void, under Election Law, § 110, subd. 2, rule 9.—In re Holmes (Sup.) 775. Action of inspectors in rejecting a ballot marked by a voter as being void held erroneous, under Election Law, $ 110, subd. 2, rules 6, 9.—In re Holmes (Sup.) 775. , ELECTRICITY. An electric light company held liable for acts of its employes, in wrongfully cutting branches from plaintiff’s trees to prevent contact with its wires, done under general direction of defendant’s managing agent.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. An electric light company is not authorized to cut branches from overhanging trees, to prevent their wires from touching them, if by' proper insulation of the wires the cutting could be avoided.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. nation of water rights.—City of Syracuse v. Stacey (Sup.) 163. In proceeding to take property, held, appraisal commissioners properly based valuation on the fact that part of the property had been declared a nuisance.—In re Daly (Sup.) 480. An award of $2,000 damages for property taken for public use held not inadequate.—In re Daly (Sup.) 480. Evidence at hearing to ascertain damage arising from taking property for public use held properly disregarded.—In re Daly (Sup.) 4S0. § 3. Remedies of owners of property. In an action for damages to real property by an elevated railroad, defendants signed n. stipulation that the property belonged to plaintiff’s father, and there was proof that plaintiff inherited it. Held sufficient to show plaintiff’s title—Douglas v. New York El. R. Go. (Sup.) 411. Customary use of neighboring property, and probable effect thereon of annoyance caused by elevated railroad, may he shown in action for damages therefor.—Douglas v. New York El. R. Co. (Sup.) 411. Value of neighboring property may be shown, in action for damages caused to real property by proximity of elevated railroad.—Douglas v. New York El. R. Go. (Sup.) 411. An assessment against an elevated railway company for damges to an abutting landowner will be sustained, ■ though he was entitled to damages on only a two-thirds interest, where record _ does not show that the remaining one-third interest was considered.—Bon v. Kings County El. Ry. Co. (Sup.) 675. . An assessment against an elevated railroad company for damages to an abutting landowner will be sustained, unless it is palpably erroneous. —Bon v. Kings County El. Ry. Co. (Sup.) 675. EMPLOYES. EMINENT DOMAIN. See “Master and Servant.” I. Compensation. Damages to riparian owners, where right to livert waters of lake is condemned, held to be he difference in the value of their lands with nd without the water rights.—City of Syramse v. Stacey (Sup.) 105. Where plaintiff leases lot to defendants, they o erect a building and leave it in repair on ex-iration of the lease, and part of the lot is conemned, held, plaintiff is not entitled to damges awarded to repairs.—Eargo v. Browning 'up.) 301. Measure of damages caused by the operation f elevated railroad is the difference between acal value of property and what would be the lue if there were no elevated railway.—Doug-s v. New York El. R. Co. (Sup.) 411. 2. Proceedings to take property and assess compensation. Evidence of profits in milling business held not missible on question of damages for condemEQUITY. Equitable estoppel, see “Estoppel,” § 2. - set-off, see “Set-Off and Counterclaim.” Particular subjects of equitable jurisdiction and equitable remedies, see “Partition,” § 1; “Specific Performance’’; “Trusts.” | 1. Jurisdiction, principles, and maxims. Where plaintiff was dismissed from a position he held in the comity clerk’s office, an action in equity 'for reinstatement will not lie.—McNiece v. Sohmer (Sup.) 193; O’Neill v. Same, Id. To avoid multiplicity of suits, equity will take jurisdiction, and afford relief by injunction, where, after judgment for plaintiff in ejectment, the latter is powerless to remove encroachment complained of, — Hahl v. Sugo (Sup.) 770.

1172 61 NEW YORK SUPPLEMENT ana 95 New York State Reporter, Articles of historical interest and value, for the loss of which money damages would not afford an adequate compensation, may be recovered by a suit in equity.—Onondaga Nation v. Thacher (Sup.) 1027. § 2. Pleading. If plaintiffs have an adequate remedy at law against another, and if, by virtue of any peculiar circumstances, that operates to discharge defendant in equity, his pleading should affirmatively show it.—Tripp v. Hunt (Sup.) 585. ESTABLISHMENT. Of railroads, see “Street Railroads,” § 1. In particular civil actions or proceedings, 'see “Account Stated”; “Negligence,” § 3; “Traver and Conversion,” § 2. - actions for causing death, see “Death,” § 1. - probate proceedings, see “Wills,” § 3. Reception at trial, see “Trial,” § 3. Review on appeal, see “Appeal,” § 17. § 1. Judicial notice. Judicial notice will not be taken of the'regulations of the civil service commissioners of the city of New York.—People v. Dalton (Sup.) 263. § 2. Presumptions. Presumption is in favor of the actions of public officials.—People v. Dalton (Sup.) 263. ESTATES. See “Life Estates.” Decedents’ estates, see “Executors and Administrators.” Estates for years, see “Landlord and Tenant.” Trusts, see “Trusts,” § 2. ESTOPPEL § 1. By record. Defendant, in his answer, having admitted receiving money alleged to have been paid him under duress, was estopped to deny his wife's agency to receive the money for him, she having in fact received it.—Jaeger v. Koenig (City Ct. N. Y.) 505. § 2. Equitable estoppel. An incorporator, who consented that the corporation might take the place of himself and co-lessees in developing a well, is estopped to assert that the assignment was invalid under the statute of frauds.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. The certificate of an incorporator held an admission that a lease which entitled him to bore for “minerals” included mineral waters, and es-topped to assert that it did not, when sued by the corporation to recover a well claimed by an assignment from him.—Geneva Mineral Springs Co. y. Coursey (Sup.) 98. Heirs, having sued an executor and an assignee to vacate an assignment of a mortgage taken for their benefit, and to recover payments to the executor, held estopped to deny the validity of the mortgage, and not entitled to question the executor’s powers to assign it.—Washburn v. Benedict (Sup.) 387. EVICTION. Of tenant of demised premises, see “Landlord and Tenant,” § 5. EVIDENCE. See “Witnesses.” As to particular facts or issues, see “Damages," § 4; “Fraudulent Conveyances," § 2; “Partnership,” § 1. In divorce, see “Divorce,” § 1. § 3. Relevancy, materiality, and competency in general. Witness for plaintiff, in action for collision with street car, cannot testify that a witness for defendant at the time said he would be willing to be a witness for plaintiff.—Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. Declaration of conductor of street car, after collision with wagon, held inadmissible as part of the res gestae.—Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. ■ Declaration of driver of street car to officer arresting him, after collision, held inadmissible. —Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. The letter of an agent to his principal, detailing the settlement of an account he was authorized to make, is inadmissible to prove such -settlement, as res gestae.—Ballard v. Beveridge (Sup.) 648. In an action for the value of a lost watch case, a design of a similar case is admissible to show value.—Ouebas v. Klein (City Ct. N. Y.) 923. § 4. Admissions. Admissions of a receiver of an insurance company as to liabilities on policy held not conclusive.—Insurance Co. of State of Pennsylvania v. Telfair (Sup.) 322. Where defendant’s answer admits certain allegations in the complaint, evidence on his part contradicting such admission was not admissible. —Traitel v. Dwyer (City Ct. N. Y.) 1100. § 5. Documentary evidence. Historical writings, based on hearsay and tra dition, relating to an Indian league, held campe tent evidence on an issue whether wampum belt, were historical emblems.—Onondaga Nation v Thacher (Sup.) 1027. Entries not shown or known to plaintiff made in defendant’s account books, held pro' erly excluded, in a suit to recover for leg services.—Stephens v. Cowen (City Ct. N. Y 925. § 6. Parol or extrinsic evidence afleo ing writings. Where a written lease required all signs to approved by the lessor, it was competent show paroi conditions attached to such approv —Imperial Bldg. Co. v. John H. Woodbury D matological Inst. (Sup.) 129.

INDEX. 1173 In an action for rent on a written lease, paroi evidence that the lease was executed on condition of the lessor’s making repairs held admissible.—Flommerfelt v. Englander (Sup.) 187. Parol evidence of an agreed compensation to be paid a trustee held inadmissible, as tending to contradict the trust deed.—Disbrow v. Disbrow (Sup.) 014. Evidence of the situation and relation of the parties at the time of the execution of a mortgage, and of the circumstances surrounding its execution, is admissible to determine the intention and meaning of the terms and conditions thereof.—State Bank v. Lighthall (Sup.) 794. A receipt “in full of all demands to date” may be contradicted or explained by paroi evidence. —Tower v. Blessing (Co. Ct.) 255. Parol evidence to vary the terms of a written instrument is inadmissible.—James v. Coe (City Ct. N. X.) 1099. § 7. Opinion evidence. Testimony of expert builder held sufficient to sustain verdict for damages because of lessee’s failure to restore demised premises to their original state.—Lazarus v. Ludwig (Sup.) 365. Evidence considered, and held, a statement of facts, and not an opinion.—Dean v. City of New York (Sup.) 374. A question as to when defendant had learned that he had been making overpayments on a mortgage held properly excluded, as calling for a conclusion.—Rowley v. Parsons (Sup.) 392. Expert testimony that injuries sustained were liable to result in a permanent loss of strength, and that danger existed that certain complications might arise, is conjectural and speculative, and inadmissible to prove the permanency of such injuries.—Bellemare v. Third Ave. R. Co. (Sup.) 981. Where the contestants of a will fail to introuce evidence of the existence, prior to the time he will was executed, of all the conditions upon vhich they propounded hypothetical questions o experts, such questions will be stricken out. -In re King’s Will (Sur.) 238. The testimony of experts as to the value of lost watch case, as determined from the vale of a case of a similar design, is admissible. -Cnebas v- Klein (City Ct. X X.) 923. Testimony of an expert as to the value of a st watch case, as determined from the val-of a case of similar design, held admissible, ithout hypothetical questions. — Cuebas v. lein (City Ct. N. X.) 923. 8. Weight and sufficiency. Whether testimony is to be credited, despite ■onsistent statements, is a matter resting with e trial justice.—Lazarus v. Spencer (Sup.) 78. EXAMINATION. adverse party before trial, see “Discovery,” 1. expert witnesses, see “Evidence,” § 7. witnesses in general, see “Witnesses,” § 2. EXCEPTIONS. To pleading, see “Pleading,” § 3. EXCEPTIONS, BILL OF. Necessity for purpose of review, see “Appeal,” § 4. Taking exceptions at trial, see “Trial,” § 3. EXCESSIVE DAMAGES. See “Damages,” § 3. EXCHANGES. Information as to transactions on a stock exchange, which is a private voluntary association, is not public property, so as to entitle a person not a member to compel the furnishing of such information.—In re Renville (Sup.) 549. EXCISE. Regulation of traffic in intoxicating liquors, see “Intoxicating Liquors.” EXECUTION. § I. Supplementary proceedings. Direction of a judgment debtor to her subtenant to pay rent to the debtor’s landlord held contempt of an injunction in supplementary proceedings restraining her from disposing of her property.—Browning v. Chadwick (City Ct; N. X.) 246. § 2. Execution against the person. Code Civ. Proc. § 1377, held not to require, as a condition for issuing a body execution after the lapse of five years, that a previous execution, of the same kind should have been issued and returned within that time.—Quigley v. Baumann (Sup.) 966. Though more than five years have elapsed since the recovery of a judgment before a body execution is issued, defendant is not entitled to a discharge, under Code Civ. Proc. § 572.—Quigley y. Baumann (Sup.) 966. EXECUTORS AND ADMINISTRATORS. See “Wills.” Testamentary trustees, see “Trusts.” § 1. Administration in general. While the probate of the will is pending on appeal in the court of appeals, special administrator may be appointed, under Code, § 2582.— In re Gihon’s Will (Sur.) 244. § 2. Appointment, qualification, and tenure. An executor will not be removed, as such, because the estate became liable to pay money lost by him as guardian of another estate.—In re Kasson’s Estate (Sup.) 569. Where it is to the interest of an estate to appoint an executor, charged with having unduly

1174 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. influenced the testator to make a will, as special administrator pending contest of the will, and most of the parties interested desire his appointment, he should be appointed.—In re Hilton’s Will (Sur.) -1073. § 3. Collection and management of estate. Clause in will hdd not to authorize executor to make investments outside the state, and in Western lands.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Where property oí deceased is sold nominally to another, but really to the administrator, the latter is accountable for its real value.—In re Tetter (Sup.) 175. Assignment of a mortgage, taken by an executor in trust for heirs, as executor, It eld to convey the entire interest, though he did not execute it also as a trustee.—Washburn v. Benedict (Sup.) 387. An executor is not relieved from misapplication of funds by an agreement of distributees to indemnify him for loss by any action against the estate.—Reilly v. Porcher (Sup.) 662. Legatees held not entitled to have legacy paid by residuary legatee, where latter’s co-executor embezzled funds set aside for purpose of paying legacies.—In re Smith (Sup.) 716. Temporary administrator must deposit moneys in a trust company, and. on failure to do so, is chargeable with interest.—In re Philp’s Estate (Sur.) 241. Temporary administrator hdd not justified in paying a creditor in full, where decedent’s personalty was insufficient to pay all his debts.— In re Philp’s Estate (Sur.) 241. Where a temporary administrator paid creditor more than his share of decedent’s assets, he was chargeable with the excess and interest. —In re Philp’s Estate (Sur.) 241. § 4. Allowance and payment of claims. Plaintiff held to waive right to costs, in prosecuting claim against decedent, by commencing action less .than 5 months and 20 days after rejection of claim.—Hart v. Hart (Sup.) 131. Where claimant presented his claim, verified in conformity to Oode Civ. Proc. § 27Í8, certifying that it was not paid, payment must be shown affirmatively by'the executor.—In re Row-ell (Sup.) 382. Plaintiff cannot enjoin the enforcement of a decree, where he had an adequate remedy by appeal.—Reilly v. Porcher (Sup.) 662. § 5. Sales and conveyances under order of court. Where an administrator received personal assets in excess of the debts and funeral expenses of the deceased, the estate cannot be sold to pay administration expenses of any debts incurred by the administrator after, the death of the intestate.—In re Quatlander’s Estate (Sur.) 1064. § 6. Actions. A complaint against administrators with will annexed to recover a legacy held to state a cause of action.—Weatherwax v. Shields (Sup.) 594. On reference by surrogate, held error to insert in order that petitioner had unbarred claim; that being a question to be determined on report of referee.—In re Hale’s Estate (Sup.) 596. On application to remove executor, surrogate can order a reference to obtain needed-informatian on questions of fact.—In re Hale’s Estate (Sup.) 596. Where limited letters of administration were granted to plaintiff, under Code Oiv. Proc. § 2664, plaintiff cannot maintain an action unauthorized by his letters.—Kirwin v. Malone (Sup.) 844. § 7. Accounting and settlement. Amount of judgment, in action against administrator personally by one claiming an interest in decedent’s business, hdd not evidence against administrator on accounting for value of such interest.—In re Tetter (Sup.) 175. Administrator, taking property of estate,, and being sued therefor, hdd not entitled to credit for the judgment against him.-—In re Tetter(Sup.) 175. Allowance of commissions to administrator, when, by misconduct, they might have been denied him, gives him no right to costs.—In re Tetter (Sup.) 175. A decree on accounting-by a surrogate, without filing facts found and conclusions of law, as required by Code Civ. Proc. § 2545, will be reversed.—In re Daymon (Sup.) 997. A stenographer’s fees for services rendered an estate, before a stipulation was entered into tq pay such fees, cannot be charged against the estate.—In re Maritch’s Estate (Sur.)' 237. Where the widow was not a party to a stipulation to pay stenographer’s fees out of the estate, such fees will lie charged against the estate, exclusive of the share therein of the widow.— In re Maritch’s Estate (Sur.) 237. The provisions of Code, §' 2743, do not apply to an accounting by a temporary administrator. —In re Philp’s Estate (Sur.) 24l. § 8. Liabilities on administration bonds. Administrator held not released, as such, by direction to retain funds till further order, and until appointment of committee of the heir.—Betts v. Avery (Sup.) 525. Limitations against an action to' recover money from an administrator and his bondsmen hdd to run from the date of the order discharging him on payment of balance due to the heir.—-Betts v. Avery (Sup.) 525. Settlement of an administrator’s accounts, anc a direction that he pay over to the person enti tied to receive the balance found due, does no release the sureties on his bond till he has o'*""1 ly paid over the money.—Betts v. Avery (Sup. 525. Sureties of an insolvent administrator musí though a co-administrator is sole distributee make good a loss on his failure to pay over a sm in his exclusive control, deposited by him in lv private hank, knowing its insolvency.—In re Ad ams (Sur.) 751.

INDEX. 1175 EXPERT TESTIMONY. In civil actions, see “Evidence,” § 7. FEES. Foreclosure, see “Mortgages,” § 6. Of attorney, see “Attorney and Client,” § 2. Probate proceedings, see “Wills,” § 3. FELLOW SERVANTS. See “Master and Servant,” § 6. FINDINGS. FRAUDS, STATUTE OF. § 1. Promises to answer for debt, default, or miscarriage of another. A paroi agreement by owners of a building to pay laborers, if they would continue work thereon, was not within the statute of frauds, although they were employed by a contractor. —Almond v. Hart (Sup.) 849. § 2. Agreements not to be performed within one year. An oral contract for a lease for one year in futuro, the time intermediate the making of the lease and the taking possession being no part of the term, is not within the statute.—Nerter v. Muser (Sup.) 61. On reference, see “Reference,” § 2. Review on appeal, see “Appeal,” § 17. FOLLOWING TRUST PROPERTY. See “Trusts,” § 6. FORECLOSURE. Of lien, see “Mechanics’ Liens,” § 6. Of mortgage, see “Mortgages,” § 6. F0RÉIGN CORPORATIONS. See “Corporations,” § 9. FORFEITURES. Of franchise, see “Corporations,” § 8. FORMER ADJUDICATION. See “Judgment,” § 6. FORMS OF ACTION. See “Action,” § 2. FRANCHISES. Corporate franchises, see “Corporations,” § 2. § 3. Pleading and evidence. The statute of frauds must be pleaded to be available as defense.'—Geneva Mineral Springs Go. v. Coursey (Sup.) 98. In actions in justices' courts, the statute of frauds may be taken advantage of without being pleaded.—Campbell v. Porter (Sup.) 712. FRAUDULENT CONVEYANCES. By bankrupt, see “Bankruptcy,” § 1. § 1. Transfers and transactions invalid. In an action to set aside a deed from a mother to her daughter, where the consideration was money, converted by the mother, which belonged to the daughter, held, judgment for defendant should he affirmed.—National Bank v. Bonnell (Sup.) 521. A mortgagee’s failure to record a mortgage, or to mention it in answer to inquiries as to the mortgagor’s financial standing, furnishes no ground for declaring it invalid.—Hardin v. Dolge (Sup.) 753. A conveyance from husband to wife held not made with intent to hinder and defraud creditors. —Guy v. Craighead (Sup.) 988. Fraud must exist in the minds of both parties to invalidate a conveyance.—Ravin v. Subin (City Ct. N. Y.) 1104. That the seller intended to defraud his creditors by the sale would not make it fraudulent, unless the buyer had notice of the intention and was a party to the fraud.—Ravin v. Subin (City Ct. N. Y.) 1104. FRAUD. See “Fraudulent Conveyances.” 1. Actions. In an action to recover for fraudulent representations in a sale of corporate stock, the measure of damages is the difference in its real value at the time of the sale and the price paid.—Maoney v. O’Neil (Sup.) 69. § 2. Criminal responsibility. Resulting damages are essential to render one uiity of the crime of fraud.—People v. Kane Sup.) 632. § 2. Remedies of creditors. Evideitee held to justify a finding that a transfer was intended to hinder and delay creditors.— Gennerieh v. Voigt (Sup.) 620. Fraud, to invalidate a conveyance, may be deduced from indirect testimony.—Ravin v. Subin (City Ct. N. Y.) 1104. GIFTS. Charitable gifts, see “Charities.” § 1. , Cansa mortis. Deed held an absolute gift, and not a testamentary disposition.—Ranken v. Donovan (Sup.) 542.

1176 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. wife’s action for rent.—Aarons v. Klein (Sup.) 119. GRAND JURY. See- “Indictment and Information.” GUARDIAN AND WARD. | 1. Appointment, qualification, and tenure of guardian. A general guardian, who has given bond, as required by Code Civ. Proe. § 2830, upon his appointment, must, nevertheless, before receiving a legacy or distributive share coming to the minor, execute a new bond, under section 2746. —In re Mills (Sur.) 243. HABEAS CORPUS. § 1. Jurisdiction, proceedings, and relief. A sheriff held not justified in releasing an executrix committed to custody for default, and in making no effort to retake her.—In re Leggat (Sur.) 1093. HARMLESS ERROR. In civil actions, see “Appeal,” § 18. HIGHWAYS. Accidents at railroad crossings, see “Railroads,” § 1. § 1. Highway districts and officers. Conceding that highways may be taken as county roads in counties of less than 200,000 square miles-, the power of local authorities over a county road must be found in the statute under which it is taken.—Gaedeke v. Staten Island M. R. Co. (Sup.) 290. § 2. Regulation and use for travel. In a suit for injuries caused by a known defect, held error to dismiss complaint, where there was evidence that plaintiff exercised due care.—Rysdyke v. Town of Mt. Hope (Sup.) 645. HUSBAND AND WIFE. See “Divorce”; “Marriage.” § 1. Mutual rights, duties, and liabilities. A wife purchasing groceries for the family is presumed to act as her husband’s agent.—Bradt v. Shull (Sup.) 484. 0 § 2. Disabilities and privileges of coverture. A husband is not liable for the act of his wife in causing a dog to bite a child, when there is no evidence that the act was done by his coercion or instigation.—Strubing v. Mahar (Sup.) 799. § 3. Wife’s separate estate. Evidence held not sufficient to show that a lessor’s husband was authorized to contract for Improvements, so as to entitle the lessee 'to set up a bill for the same as a counterclaim to the The title acquired by a married woman at foreclosure of premises on which her husband holds a second mortgage as trustee held not voidable.—Potter v. Sachs (Sup.) 426. A husband is liable for groceries purchased for the family by his wife; but, without an agreement to become personally responsible, she is not liable for groceries purchased either by herself or her husband.—Bradt v. Shull (Sup.) 484. § 4. Separation and separate maintenance. A wife is not entitled to alimony and counsel fees when her grounds for divorce previously gave rise to an agreement of voluntary separation, under which the husband paid money to her.—Curtis v. Curtis (Sup.) 59. A contract between husband and wife, based upon an agreement that they shall thereafter live separate and apart, is void, as against public policy.—Paillon v. Poillon (Sup.) 582. Under Laws 1896, c. 272, a contract between a husband and wife, made after they have separated, and while they are living separate and apart, will not be-enforced, unless the agreement is made with a trustee for the wife.—Paillon v. Poillon (Sup.) 582. ILLEGITIMATE CHILDREN. See “Bastards.” IMPLIED CONTRACTS. See “Money Received.” IMPRISONMENT. Habeas corpus, see “Habeas Corpus.” IMPUTED NEGLIGENCE. See “Negligence,” § 2. INCOMPETENT PERSONS. See “Insane Persons.” INCORPORATION. See “Corporations,” § 1. INDEMNITY. Against mechanic’s lien, see “Mechanics’ Liens,” § 7. Obligors on an indemnity bond held not liable.—Beere v. Mayer (City Ct. N. Y.) 926. INDIANS. Under Act Cong. Feb. 19, 1875, as amende by Act Cong. Sept. 30, 1890. a lease of reserve

INDEX. 1177 lands of the Seneca Nation for 99 years, in renewal of prior leases to assignors of the lessee, Held valid.—Shongo v. Miller (Sup.) 281. Where wampum belts belonging to an Indian league were left in the “wampum keeper’s” possession as individual owner on dissolution of the league, and he sold them, held, that individual Indians belonging to one of the tribes composing the league could not recover them from the purchaser.—Onondaga Nation v. Thacher (Sup.) 1027. Under Indian Laws 1892, c. 679, individual Indians have capacity to sue in the state courts, except as limited in said act.—Onondaga Nation v. Thacher (Sup.) 1027. An Indian tribe has no capacity to sue in relation to tribal rights without statutory authority. —Onondaga Nation v. Thacher (Sup.) 1027. INDICTMENT AND INFORMATION. § 1. Requisites and sufficiency of accusation. The rule that it is sufficient for an indictment to charge in the words of the statute does not apply, where the statute does not define the offense. —People v. Kane (Sup.) 632. § 2. Joinder of parties, offenses, and counts, duplicity, and election. Under Code Cr. Proc. §§ 278, 279, an indictment consisting of one count, one paragraph of which charges facts inconsistent with the facts charged in another paragraph, is bad.—People v. Kane (Sup.) 195. An indictment charging several offenses is not duplicitous, where the facts alleged are insufficient to show defendant guilty of more than one Sense.—People v. Kane (Sup.) 632. An indictment may not be duplicitous, though t sets forth different acts committed necessarily different times.—People v. Kane (Sup.) 632. An indictment is not duplicitous, though it alges all of several breaches of a statute in a ingle count, employing “and,” when the statute ads “or.”—People v. Kane (Sup.) 632. INDORSEMENT. f bill of exchange or promissory note, s< “Bills and Notes,” § 3. INFANTS. “Guardian and Ward.” INFERIOR COURTS. “Courts,” § 2. INFORMATION. ’nal accusation, see “Indictment and Inrmation.” INFRINGEMENT. Of trade-mark, see “Trade-Marks and Trade-Names,” § 2. INJUNCTION. § 1. Subjects of protection and relief. Allegations of a complaint Held not to show sufficient facts upon which to base an injunction.— Castle v. Bell Tel. Co. (Sup.) 743. Injunction granted to restrain operation of pumping station—Forbell v. City of New York (Sup.) 1005. INNKEEPERS. Misconduct or immorality of a guest in a hotel held not to bar his right to recover for loss subsequent thereto.—Lucia v. Omel (Sup.) 659. An innkeeper is liable for the loss of goods of his guest, not caused by the act of God, the common enemy, or the guest’s neglect.—Lucia v. Omel (Sup.) 659. Evidence Held not to show want of ordinary care by a restaurant keeper, entitling a customer to recover for an overcoat lost in restaurant.—Montgomery v. Ladjing (Sup.) 840. Action of a customer in a restaurant hanging his overcoat on a hook Held not to constitute a bailment. — Montgomery v. Ladjing (Sup.) INSANE PERSONS. § I. Guardianship. A court exercising equity jurisdiction may. without statutory authority, on the application of a committee of an incompetent person, discharge him from his trust after the incompetent’s death.—Downing v. Whitney (Sup.) 540. Under Code Civ. Proc. § 2344, it is the duty of a committee of an incompetent person to render an accounting of his trust after the incompetent’s death.—Downing v. Whitney (Sup.) 540. § 2. Contracts. An assignee of property transferred in consideration of the support of an insane person Held entitled to compensation therefor as condition of its return.—Gilgallon v. Bishop (Sup.) 467. INSOLVENCY. See “Assignments for Benefit of Creditors.” Of corporation, see “Corporations,” § 7. INSPECTION. Of writings, see "Discovery,” § 1. INSTRUCTIONS. In civil actions, see “Trial,” § 5.

1378 61 NEW YORK SUPPLEMENT and 95 New York State-Reporter. INSURANCE. § 1. Insurance agents and brokers. Evidence held to estop an insurance company from insisting on a forfeiture because of a failure to comply with certain stipulations as to assignment of policy.—Xortham v. International Ins. Co. (Sup.) 45. § 2. Forfeiture of policy for breach of promissory warranty, covenant, or condition subsequent. There is no breach of warranty that statement in application for life insurance was true, where defendant stated his occupation as storekeeper,-where he kept a dry-goods store, though part of the time and afterwards he was a glass polisher.—Perrin v. Prudential Ins. Co. (City Ct. X. X.) 249. § 3. Actions on policies. One holding a lease as security for a debt is not a necessary party to an action on a policy on property covered by the lease.—Xortham v. International Ins. Co. (Sup.) 45. § 4. Reinsurance. It cannot be presumed that a risk cov.ered by reinsurance under a marine policy was the same as that of the original policy.—Insurance Co. of State of Pennsylvania v. Telfair (Sup.) 322. § 5. Mutual benefit insurance. Provision in beneficiary certificate that no length of absence or disappearance of member, without proof of actual death, shall entitle beneficiary to recover, held not invalid, as repugnant to law or public policy .—Kelly v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. Defense that beneficiary certificate required action to be brought within two years after member’s death, though inconsistent with provision against recovery, except on proof of actual death, held not demurrable.—Kelly v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. Cause of action on life policy held not to accrue until after proof of death given society.— ICellv v. Supreme Council of Mut. Ben. Ass’n (Sup.) 394. An application for life insurance in a mutual assessment association having provided that the constitution and by-laws of the company were a part of the policy, they are admissible in evidence in an action on a policy.—Willison v. Jewelers’ & Tradesmen’s Co. (City Ct. X. Y.) 1125. Under a provision in the by-laws of an insurance company that the policy does not take effect until 30 days after it is issued, there could be no recovery on a policy for a death occurring before that time.—Willison v. Jewelers’ & Tradesmen’s Co. (City Ct. X. Y.) 1125. INTENT. Fraudulent, see “Fraudulent Conveyances,” § 1. subdivision thereof.—Hassard v. United States of Mexico (Sup.) 939. INTERPLEADER. § I. Right to interpleader. Application to interplead held properly denied. —Kreiser v. City of New York (Sup.) 329. INTESTACY. See “Descent and Distribution.” INTOXICATING LIQUORS. § 1. Licenses and taxes. The holder of a liquor license is not entitled to a trial of the issues by jury in summary proceedings, under Laws 1896, c. 112, § 28. for revoking or canceling the same. — Lyman v. Erie County Athletic Club (Sup.) 884. Where the holder of a liquor tax certificate is not diligent and watchful in seeing that his orders not to sell liquors on Sunday 'are obeyed, his certificate will be revoked.—In re Lyman (Sup.) 946. Under Liquor Tax Law, § 28, a supreme court justice has no authority, on certiorari to review a comity treasurer’s refusal to grant a liquor tax certificate, to inquire into the legality of an election on the question.of local option.—People v. Hamilton (Sup.) 979. Under Laws 1806, c. 112, § 13, and Laws 1898, c. 125, the town of Plattsburg held entitled to only two-thirds of the revenue derived from liq nor tax certificates issued in that town.—Peo pie v. Williams (Sup.) 983. A liquor tax certificate is property.—Frank v Forgotston (City Ct. X. Y.) 1118. JOINDER. Of causes of action, see “Action,” § 3. Of parties in civil actions, see “Parties," § 1. JOINT ADVENTURES. Rescission of contract held to constitute su cient consideration for note.—McLeod v. Hunt (Sup.) 73. JUDGES. See “Courts.” 1. Rights, powers, duties, and liah’ ities. Where there is a fixed salary attached to office of judge of a court, the incumbent is titled to salary from the date of his appoi ment, whether he performed any duties or no Goetting v. City of New York (Sup.) 334. INTERNATIONAL LAW. State courts have no jurisdiction of an action against a foreign sovereign state or a political JUDGMENT. In replevin, see “Replevin,” § 2. On appeal, see “Appeal,!’ § 21. Review, see “Appeal.”

INDEX. 1179 § 1. By confession. Withholding a judgment confession from record held not to create a preference, as against subsequent chattel mortgagees.—Robinson v. Hawley (Sup.) 138. 4- judgment debtor and subsequent chattel mortgagees held not entitled to impeach a judgment statement on the ground that the ownership of the debt was not truly stated.—Robinson v. Hawley (Sup.) 138. § 2. On consent, offer, or admission. Code Civ. Proc. § 974, providing for the trial of issues arising upon counterclaim, does not apply where the counterclaim is filed after' an offer of judgment, and within the 10 days allowed by Code Civ. Proc. § 738, for its acceptance; the offer "being accepted and judgment entered within the prescribed time.— United States Trust Co. v. Hodgson (Sup.) 868. § 3. By default. Default in failing to serve reply cannot he opened, a copy thereof not being annexed to the motion, and affidavit not showing the reply.— Allen v. Powler & Wells Co. (Sup.) 325. There is no presumption that a court of general jurisdiction had jurisdiction over the person of the defendant, when it affirmatively appears' that an essential step to the vesting of such jurisdiction was omitted.—Bowler v. Ennis (Sup.) 086. Under Code Civ. Proc. §§ 440, 442, a court as • no jurisdiction over a defendant who is ■erved by publication, only, of a summons which not contain his name.—Bowler v. Ennis Sup.) 686. Facts held to justify setting aside a default udgment and permitting defendant to answer.— lutual Life Ins. Co. v. ICroehle (Sup.) 944. Where the action was based on contract price, was error, on default, to render judgment on quantum meruit for a greater amount than istified by the complaint.—Reidy v. Bleistift ity Ct. N. Y.) 915. 4. Opening or vacating. A judgment will be vacated, if based on per-red testimony, inspired and manufactured by unsel.—Nugent v. Metropolitan St. Ry. Co, up.) .476. Collateral attack! 1 party to a proceeding, in which it was de■ed that certain judgments against him were id liens upon his interests in certain property, mot afterwards, when he fails to make such 'ense in such proceeding, claim that said liens invalid because, in the actions in which judges were obtained, he was not served with imons.—Treacy v. Ellis (Sup.) 600. Conclusiveness of adjudication. order of an English court approving a renization scheme of a corporation held not ing on a stockholder, in an action by the oration against him in this country to re-r for call.—Bank of China, Japan & The its v. Morse (Sup.) 268. , dgment against plaintiff in replevin is bindgainst his sureties.—Christiansen v. Mend-(Sup.) 326. Under Code. § 2240, subd. 3, a judgment in summary proceedings, rendered on service made by fixing a copy of the precept on a conspicuous part of the property in controversy, is equally as conclusive as if rendered on personal service.—McOotter v. Flinn (Sup.) 786. A judgment taken by default in summary proceedings for the nonpayment of rent is conclusive between the parties that the relation of landlord and tenant existed.—McCotter v. Flinn (Sup.) 786. The court held not bound hy a former direction of a surrogate concerning a point not before him for decision.—In re McCahill (Sur.) 1071. JUDICIAL NOTICE. In civil actions, see “Evidence,” § 1. JUDICIAL SALES. Of property of decedent, see “Executors and Administrators,” § 5. JURISDICTION. Jurisdiction of particular actions or proceedings. see “Mandamus,” § 3. ——^criminal prosecutions, see “Criminal Daw,” Particular courts, see “Courts.” JURY. Disqualification or misconduct ground for new trial, see “New Trial,” § 1. Instructions in civil actions, see “Trial,” § 5. Taking case or question from jury at trial, see “Trial,” § 4. § 1. Right to trial hy jury. Where the charter of a city gives the recorder’s court jurisdiction to try a person charged with being a disorderly person, a defendant has no constitutional right to trial hy jury.—People v. Iverson (Sup.) 220. In proceeding to enforce an attorney's lien, under Code Civ. Proc. § 66, no jury trial is allowable.—Sehriever v. Brooklyn Heights R„ Co. (Sup.) 890. JUSTICES OF THE PEACE. § 1. Appointment, qualification, and. tenure. Laws 1897, c. 439, abrogating in certain counties unexpired terms of justices, and providing for the election of their successors, held unconstitutional and void as to both propositions.— People v. Treacy (Sup.) 288. § 2. Review o£ proceedings. Under Oode Civ. Proc. §§ 2951-2954, 2957, the allegations of an answer, on removal of action from justice to court of record, held properly stricken out.—Jones v. Reilly (Sup.) 67.

1180 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. JUSTIFICATION. Of actionable words, see “Libel and Slander,” § 3. KNOWLEDGE By grantee of fraud in conveyance, see “Fraudulent Conveyances,” § 1. LANDLORD. AND TENANT. § 1. Creation and existence of tlie relation. An agreement for a lease, which the landlord subsequently refused to enter into, of property thereafter conveyed to a third party, to whom the tenant with whom such agreement was made paid the rent claimed to be due, does not show the relation of landlord and tenant.—McLaughlin v. Steurwald (Sup.) 872. § 2. Leases and agreements in general. A demise without restriction as to lessor’s interest or title embraces whatever interest he has or may afterwards acquire.—Geneva Mineral Springs Co. v. Coursey (Sup.) 9S. Payment by a prospective tenant of a certain sum in advance held not an acceptance of the lease.—Flommerfelt v. Englander (Sup.) 187. § 3. Terms for years. A bond for the performance of covenant to renew a lease must be construed in connection with the lease.—John Polhemus Printing Co. v. Hallenbeck (Sup.) 1056. § 4. Tenancies from year to year and month to month. A lease held to create a tenancy from month to month, and hence the landlord was entitled to terminate the same at the expiration of any monthly period.—Vernon v. Gilbert (Sup.) 89G. § 5. Premises, and enjoyment and use thereof. Where issue was whether lessors had waived a lessee’s liability to restore demised premises to their original state, held not error to exclude a new lease which contained no waiver of his liability.—Lazarus v. Ludwig (Sup.) 365. A lessee’s liability to restore premises to original state at end of term was not waived by lessor’s act in extending time of performance.— Lazarus v. Ludwig (Sup.) 365. Neither landlord nor contractor is liable to a tenant for damages occasioned by the interruption of his business necessarily caused by the necessary repairing of the leased premises.—Campbell v. Porter (Sup.) 712. Contractor repairing leased premises must prosecute the work so as not to unnecessarily interfere with the business of the tenant, and, if he does not, will be answerable to the tenant in damages.—Campbell v. Porter (Sup.) 712. Evidence held insufficient to show a constructive eviction of a tenant.—Finck v. Rogers (Sup.) 866. Landlord, who lets store and basement, is not liable to third persons for the tenant’s management of the cellar .door.—Schroeck v. Reiss (Sup.) 1054. It was error to dismiss plaintiff’s complaint against the landlord to recover damages for leakage from the floor above into the premises occupied by plaintiff.—Levy v. Korn (City Ot. N. Y.) 1109. A boy, attempting to get his hat from a hole under a grating appurtenant to defendant’s premises, held not guilty of contributory negligence, precluding a recovery for injuries caused by the dangerous position of the grating.—Finnigan v. Biehl (City Ct. N. Y.) 1116. A landowner held liable for injuries caused by his negligently permitting a grating over a hole appurtenant to his premises to be tilted in a dangerous position.—Finnigan v. Biehl (City Ct. N. Y.) 1116. A landlord held liable to third persons for injuries caused by negligently permitting a grating used to cover a hole appurtenant to the .demised premises to be tilted.—Finnigan v. Biehl (City Ct. N. Y.) 1116. § 6. Rent and advances. ' A tenant held not entitled, under terms of lease, to damages by reason of failure of landlord to keep premises in repair.—Sonn v. Weissmann (Sup.) 78. Where any portion of rent payable in advance is due and unpaid, a summary proceeding’ for nonpayment of rent is not premature.—Bennet v. Nick (Sup.) 106. A magistrate has no power, in a summarj proceeding for nonpayment of rent, to render a judgment for the recovery of rent.—Bennett v Nick (Sup.) 106. Where a landlord makes a new lease with an other tenant, on,, the original tenant becomin security thereon, he cannot recover on the origin lease.—James v. Coe (City Ot. N. Y.) 1099. : 7. Re-entry and recovery of posses sion by landlord. In a summary proceeding to obtain possessio of land, an answer alleging that plaintiff on certain day “agreed” to let the land to defen ant is no defense.—Salomon v. Weisberg "(Sup 60. An implied agreement to relet. demised pren ises surrendered by the tenant for the latter’s a count is not sustained by the fact that, on r ceipt of the keys, the landlord indicated his tention to sue.—Gaffney v. Paul (Sup.) Í73. Without an agreement, a landlord cannot rel demised premises on surrender by the tenon and, if he does so, the tenant is not responsib for any loss of rent.—Gaffney v. Paul (Sup.) 17 A landlord cannot recover judgment for ire in arrear against tenant in a summary proce ing to dispossess.—Spiro v. Barkin (Sup.) 8 A landlord, having accepted his tenant’s n and given a receipt0in payment of rent to crue, held not entitled to maintain a sumnr proceeding to dispossess the tenant prior to maturity of the note.—Spiro v. Barkin (Sup.) 8

INDEX. 1181 LAW OF NATIONS, LIENS. See “International Law.” LEASES. See “Landlord and Tenant.” LEGACIES. See “Wills.” LEVY. Of attachment, see “Attachment,” § 4. LIBEL AND SLANDER. § 1. Words and acts actionable, and liability therefor. Where words are not libelous per se, it is for the jury to determine in what sense they were uttered and understood.—Payne v. Eouss (Sup.) 705. § 2. Privileged communications, and malice therein. Words in brief are not privileged, unless pertinent to the issue.—Sickles v. ICling (Sup.) 647. . Though a libelous letter may he held by the court to be prima facie privileged, the writer’s good faith and belief in statements made, and existence of actual malice, are for the jury.— Payne v. Eouss (Sup.) 705. A communication of the fact that plaintiff had “questionable connections” in the place where he 'as employed by defendant, made in a letter to ne who had recommended him, to show that he vas mistaken, and that plaintiff was unworthy of onfidence, held not privileged.—Payne v. Eouss Sup.) 705. 3. Justification and mitigation. Charge that if defendant, in a prosecution for bel, justifying on infringement of his trade-ark, had a trade-mark, that ended plaintiff’s ise, was error, since the question of infringeent and whether the words uttered were jusfiable was for the jury.—Stern v. Barrett emical Co. (Sup.) 221. 4. Actions. Plaintiff cannot be required to aver under what cumstances the words were published.—Sickles ICling (Sup.) 647. , libel recklessly or carelessly published, or raced by personal ill will, will support an award punitive damages.—Payne v. Eouss (Sup.) 5. 4l judgment for $5,000 for writing a letter irging plaintiff with dishonesty and moral dequency is not excessive.—Payne v. Eouss p.) 705. LICENSES. sale of intoxicating g Liquors,” § 1. liquors, see “IntoxicatParticular classes of liens, see “Attorney and Client,” § 2; “Mechanics’ Liens.” The right to an equitable lien held not affected by the fact that the lienor had already replevied the property, and sold it, and holds the proceeds.—National Bank of Deposit v. Eogers CSup.) 155. Where borrowers agreed to give as security property not owned by them, an equitable lien attached to it as soon as they acquired title.— National Bank of Deposit v. Eogers (Sup.) 155. The complaint in an action to establish an equitable lien to secure a debt need only show the existence of the debt. It need not be alleged to be due.—National Bank of Deposit v. Eogers (Sup.) 153. A defendant to an action of replevin, who had demurred and been discharged, held not a necessary party to a subsequent action to establish a lien on the same property.—National Bank of Deposit v. Eogers (Sup.) 155. The complaint in an action to establish an equitable lien to secure a debt need not distinctly allege that the property ever became the debt- or’s, where facts are alleged from which the debtor’s equitable obligation might be declared.— National Bank of Deposit v. Eogers (Sup.) 155. LIFE ESTATES. Mortgagee of life tenant, under Sup. Ct. Eule 70, may take a gross sum as life tenant’s interest in money from a surplus arising from sale of land under a prior mortgage.—Jermain v. Sharpe (Sup.) 700. Eight of life tenant to take a sum in gross, in lieu of annual income, where money is the subject of the life estate, is not affected by the fact that the remainder estate is to go to unborn children.—Jermain v. Sharpe (Sup.) 700. LIMITATION OF ACTIONS. § 1. Statutes of limitation. Payment, by grantee of one of several tracts included in a mortgage, of interest on the debts secured thereby, held not to prevent the statute from running in favor of the mortgagor and his grantee on the other tracts.—Broughton v. Van Valkenburgh (Sup.) 574. LIMITATION OF LIABILITY. Of carrier, see “Carriers,” § 1. LIQUOR SELLING. 'See “Intoxicating Liquors.” LIVERY STABLE KEEPERS. Where a livery stable keeper accepted cash and a secured note in settlement of a debt due him for keeping a horse, and consented that

1182 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. plaintiff should have possession, his lien on the property is lost.—Darling v. Hunt (Sup.) 278. LOCAL ACTIONS. See “Venue,” § 1. LOST INSTRUMENTS. Probate or establishment of lost wills, see “Wills,” § 3. LUNATICS. See “Insane Persons.” MACHINERY. Liability of employer for defects, see “Master and Servant,” § 5. Production and use of electricity, see “Electricity.” MALICE. See “Libel and Slander,” § 2. MANDAMUS. § 1. Nature and grounds in general. A remedy by presentation of a claim against the state to the court of claims held not so complete and adequate as to preclude plaintiff’s right to mandamus, under Laws 1895, e. 79, § 5, and Code Civ. Proc. § 264.—People v. Roberts (Sup.) 148. Mandamus will not lie to command a board of canvassers to declare relator elected to an office, where it involves a question of which the board has no jurisdiction.—People v. Board of Canvassers of Town of Courtlandt (Sup.) 727. 5 2. Subjects and purposes of relief. An inspector of electrical appliances of the city of New5 *7 York, wrongfully removed- by the commissioner of public buildings, lighting, and supplies, held entitled to compel his reinstatement by mandamus against such commissioner.—People v. ICearncy (Sup.) 41. . Under Laws 1895, c. 79, I 5, mandamus will lie to compel the state comptroller to issue a warrant on the treasurer for an amount certified by the superintendent of public works.— People v. Roberts (Sup.) 148. Since officers not appointed under Laws 1899, e. 370, are not required to present civil service certificates in order to be entitled to their salaries, such officers are not entitled to mandamus to compel the issuance of certificates.—People v. Knox (Sup.) 472. A writ of mandamus may he issued to determine whether ballots rejected by the inspector as' void shall he counted.—In re Larkin (Sup.) 597. An officeholder under civil service of New York City, wrongfully removed without notice or hearing required by the rules of civil service commission, held entitled to reinstatement on mandamus—People v. Cram (Sup.) 858. § 3. Jurisdiction, proceedings, and relief. Under Code Civ. Proc. § 970, a jury’s finding in mandamus that relator had been a member of a volunteer fire department of a city of the state for five years was conclusive.—People v. Kearney (Sup.) 41. Under Code Civ. Proc. §§ 2077, 2082, a defense not alleged in return cannot be urged on trial of issues in application for mandamus.— People v. Roberts (Sup.) 148. On a motion for a- peremptory writ, statements of opposing affidavits on a disputed question of fact will be taken to be true.—People v. v. Dalton (Sup.) 263. Where a statement in the affidavit for mandamus is controverted by an affidavit in defense, the latter must he assumed to be true.—People v. Dillon (Sup.) 537. Under Election Law, § 110, subd. 3, statements in alternative writ of mandamus to compel a recount of ballots held sufficient to warrant its issuance.—In re Larkin (Sup.) 597. Under Code Civ. Proc. § 2082, questions of error in. mandamus proceedings will not be considered on appeal, unless properly presented by a bill of exceptions.—People ex rel. Ging v. Lyman (Sup.) 655. Members of a city conncil held entitled to employ tkeir own private counsel to defend them on appeal from an order in mandamus against the council, affecting them personally as to costs.— People v. Guggenheimer (Sup.) 9G1. Members of a city council held entitled to appeal as individuals from a mandatory order in mandamus against the council.—People v. Guggenheimer (Sup.) 961. An extra allowance of costs cannot be granted in mandamus proceedings.—People v. Hertl (Sup.) 965. MANDATE. See “Mandamus.” MARRIAGE. See “Husband and Wife.” Evidence held not sufficient to show the perfom anee of a ceremonial marriage before the birt of a child.—In re Rawson’s Estate (Sur.) 107< MARRIED WOMEN. See “Husband and Wife.” MARSHALS. Of United States, see “United States Marshal MASTER AND SERVANT. See “Work and Labor.” § 1. The relation. A traveling salesman may be discharged wh he deliberately disobeys instructions, and se

INDEX. 1183 to deceive his employer. — Sabin v. Kendrick (Sup.) 336. § 2. Services and compensation. Counterclaim, in.an action by a servant for services, held not sufficient to constitute a cause of action for advances claimed by defendant.— Browne v. Empire Type-Setting Mach. Co. (Sup.) 126. §§ 3, 4. Master’s liability for injuries to servant—Nature and extent in general. Evidence held not to show that the death of a laborer employed to clean switches in a railroad yard was caused by the company’s negligence, but by liis failure to use ordinary care in the performance of his work.—Moccia v. New York Cent. & ll. R. R. Co. (Sup.) 338. It was not within the reasonable expectation of a master that a child should attempt to adjust material in a swiftly-moving machine, which was in no way connected with the child’s work in another part of the factory.—Byrne v. Nye & Wait Carpet Co. (Sup.) 741. The statute (Laws 1886, c. 409, § 8) does not require every machine to be fenced, but only those which, in reasonable anticipation, may be a source of danger.—Byrne v. Nye & Wait Carpet Co. (Sup.) 741. Building having fallen by reason of a defective foundation, injuring a workman therein, the owner is liable, unless he show that his architect was competent, and that he relied on him, and Id not interfere in the discharge of Ms dnty.<’ox v. Ireland (Sup.) 1061. 5. — Tools, machinery, appliances, and places for work. A master held not relieved from liability for n accident to Ms servant from a defective eleator because a proximate cause was the act of third person, if it would not have occurred ut for failure to repair.—Larkin v. Washing-n Mills Co. (Sup.) 93. That a servant knew'' that an appliance was it of order three weeks before using it did not lieve Ms master from using reasonable care keep it safe.—Larkin v. Washington Mills o. (Sup.) 93. Notice to a clerk of a defect in elevator which jured a porter held notice to their employer.— rkin v. Washington Mills Co. (Sup.) 93. Defendant’s negligence in leaving out of reír an appliance, resulting in injury to plain-f, his employe, held for the jury.—Larkin v. ashington Mills Co. (Sup.) 93. Circumstances held such that plaintiff, employ-as a porter for defendant, might reasonably •ume that the gate to an elevator used by him been repaired.—Larkin v. Washington Mills . (Sup.) 93. uestion as to negligence of defendant in plag switch beyond a water tank held a question the jury.—Young v. Syracuse, B. & N. Y. R. (Sup.) 202. hether a railroad was negligent in unnecesly. placing a switch just beyond a water tank held a question for the jury.—Young v. Syracuse, B. & N. Y. R. Co. (Sup.) 202. A derrick held a permanent structure, within the rule that a master must use reasonable care to provide his servant with suitable appliances. —Yaw v. Whitmore (Sup.) 731. Master held negligent in failing to furnish his servant with a safe place to work.—Brown v. Todd (Sup.) 9G3. The existence on an elevated trestle of an uncovered coal-bunker hole held a peril to which defendant could not properly expose its servants at night, in the absence of sufficient light.—Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 6,. —— Fellow servants. A yard man and an engineer and brakeman are fellow servants, so that the former cannot recover of the railroad company for injuries caused by the latter’s negligence.—Corcoran v. New York, N. H. & H. R. Co. (Sup.) 672. § 7. — Contributory negligence of servant. The burden of proof is on a servant, in an action for injuries, to prove want of contributory negligence.—Vincent v. Alden (Sup.) 62. Evidence held not to show that a servant, in an action for injuries, was free from contributory negligence.—Vincent v. Alden (Sup.) 62. Whether engineer of train running into an open switch -was guilty of contributory negligence, or had assumed the risk, held a question for the jury.—Young v. Syracuse, B. & N. Y. R. Co. (Sup.) 202. Where plaintiff was injured by the fall of an elevator, occasioned by a defect of which he had knowledge, he cannot recover.—Watson v. Duncan (Sup.) 667. It may be fairly presumed that if plaintiff, during the day, saw the uncovered coal-hunker hole through which he fell at night, he inferred that it v'ould be covered at night, when not in use.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 8. —— Actions. Evidence held sufficient for the jury on the question whether a master used reasonable care in providing a servant with suitable appliances.— Yaw v. Whitmore (Sup.) 731. Evidence held insufficient to support a finding that a brakeman, killed by striking a covered bridge, was free from contributory negligence, and that his injury was caused by defendant’s ' negligence.—Albring v. New York Cent. & H. R. R. Co. (Sup.) 763. ■ The question as to whether plaintiff was chargeable with contributory negligence in not avoiding a known danger was properly left to the jury.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. The question of whether plaintiff had assumed a certain risk held properly left to the jury.— Boyle v. Degnon-McLean Const. Co. (Sup.) 1043. § 9. Liabilities for injuries to third persons. The driver of a coal wagon, generally employed and paid by the owner of the wagon, held the servant of defendant, who hired them from the

1184 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. owner.—Singer v. McDermott (City Ct. N. Y.) 1111. In a personal injury case, based on negligent driving by alleged servant of defendant, it was error to exclude evidence that the,driver was not in defendant’s employ, though plaintiff owned the wagon.—Moore v. Bernstein (City Ct. N. Y.) 1127. 'measure of damages. See “Damages,” § 2. MECHANICS’ LIENS. § 1. Mature, grounds, and subject-matter in general. A provision in an order appointing a receiver held not to prohibit the filing of a certain mechanic’s lien.—In re Simonds Furnace Co. (Sup.) 974. § 2. Right to lien. A nonresident has a right, under the mechanic’s lien law, to file a lien, when the material furnished was actually used in the construction of a building in New York.—In re Simonds Furnace Co. (Sup.) 974. § 3. Proceedings to perfect. Under Laws 1897, c. 418, §§ 16, 40, the court has no jurisdiction to grant leave to file a lien on a monument after the year, as prescribed in the statute, has passed.—Adler v. Lumley (Sup.) 688. § 4. Operation and effect. The assignment of a mortgage given to secure a contract price, which does not assign the principal debt, but is simply given to secure an advance equal to one-fourth of the principal debt, does not prevent mechanics’ liens, duly filed before payment of the principal debt, from attaching to such debt.—Gass v. Souther (Sup.) 305. When a mortgage is given as security for the payment of the contract price, the giving of the mortgage in the first instance does not constitute a payment, but it is to be treated as a sum due upon the contract price, to which a lien for materials furnished, filed against the property before the mortgage is paid, will attach.—Gass v. Souther (Sup.) 305. § 5. Waiver, discharge, release, and satisfaction. Finding that a mortgage was given as security for, and not as part of, the contract price, held supported by the evidence. — Gass v. Souther (Sup.) 305. § 6. Enforcement. A complaint'is not required to state the filing of a notice, where the facts to be stated in the notice do not exist until the complaint has been filed.—Gass v. Souther (Sup.) 305. Under Code Civ. Proc. § 3402, and Laws 1897, c. 418, jj 9, subd. 7, the failure by a lienholder foreclosing his lien, to make another lienor a party to the action, when discovered, is fatal.— Gass v. Souther (Sup.) 305. § 7. Indemnity against liens. Owner of property held a necessary party to action on bond to discharge mechanic’s lien.— Von Den Driesch v. Rohrig (Sup.) 341. MISREPRESENTATION. See “Fraud.” MODIFICATION. Of contract, see “Contracts,” § 3. MONEY RECEIVED. Recovery of price paid for land, see “Vendor and Purchaser,” f 4. - of tax paid, see “Taxation,” § 2. That a receiver told an outside party that I there was no indebtedness due him as receiver | does not prevent him recovering money wrong-1 fully paid.—Stokes v. Hoffman House (Sup.) 821. | MONOPOLIES. Grants of privileges or immunities) see “Consti-| tutional Law,” § 2. Tenancy from month to month, see “Landlord and Tenant,” § 4. MORTGAGES. Personal property, see “Chattel Mortgages.” § 1. Requisites and validity. Although a deed is absolute in it^ termd paroi evidence is admissible to show that I was given as security for an indebtedness, anl that there was a paroi agreement that the bal anee should be returned to the grantor.—Spei| cer v. Richmond (Sup.) 397. § 2. Recording and registration. 1 Rev. St. pt. 2, c. 3, § 1, declaring unrecordd conveyances of real property void as to subsl quent bona fide purchasers, applies to assigl ments of real-estate mortgages which are of rq ord.—Davies v. Jones (Sup.) 291. Though a failure to file a mortgage coverij both real and personal property may invalidar it as a chattel mortgage, it does not affect it I a lien on realty.—Hardin v. Dolge (Sup.) 753| § 3. Construction and operation. The language of a certain mortgage, in light of the situation and relation of the parti at the time it was executed, held to justifif finding that it was to secure certain debt! State Bank v. Lighthall (Sup.) 794. Certain recitals held equivalent to a stipulatl that defendants should pay a certain sumj plaintiff bank, and that, when said bank! received it, credit therefor should be given tl certain company, and that, until such paymf the mortgage should stand as a security to plj tiff therefor.—State Bank v. Lighthall (Sup.-)

INDEX, 118S § 4.( Assignment of! mortgage or debt. Under 1 Rev. St. pt. 2, c. 3, § 1, payment by the mortgagor to a holder oí an unrecorded assignment of the mortgage does not operate to defeat the rights of a subsequent bona fide assignee under a recorded assignment.—Davies v. Jones (Sup.) 291. Facts luid to excuse the assignee of a mortgage from making further inquiry to ascertain its whereabouts, in order to entitle him to claim as a bona fide purchaser.—Davies v. Jones (Sup.) 291. Failure of an assignee of a mortgage to give the mortgagor notice of the assignment held not evidence of knowledge on the part of the assignee of the existence of a prior unrecorded assignment.—Davids v. Jones (Sup.) 291. § 5. Transfer of property mortgaged or of equity of redemption. Where the owner of six-sevenths of the property covered by a mortgage takes an assignment of the same, a merger does not result, in the absence of evidence of intent.—-Ewell v. Hubbard (Sup.) 790. required, the order was- iriegularly entered a-ftezr notice.—Brady v. Lovell (City Ct. N. Y.), 50A MULTIPLICITY OF SUITS. Jurisdiction of § 1.- ■ equity to'avoid, see “Equity/' MUNICIPAL CORPORATIONS. See “Counties”; “Schools and School Districts/* § 1; “Tqwns.” Mandamus, see “Mandamus,” § 2. Ordinances relating to intoxicating liquors, ss® “Intoxicating Liquors.” Street railroads, see “Street Railroads.” § 1. Creation, alteration, existence;» and dissolution.. A school-district librarian of the town of East Chester held not a public officer, but an employe, the burden of whose unexpired contract with the board of education the city of New York assumed under the annexation act.—Bell v. City-of New York (Sup.) 709. § 8. Foreclosure "by action. An allowance of 10 days to the defendant in foreclosure- proceedings in which to pay the judgment and costs is reasonable.—Ewell v. Hubbard (Sup.) 790. An allowance of $40 to a guardian ad litem held reasonable, and within the discretion of the court.—Ewell v. Hubbard (Sup.) 790. Holder .of first and second mortgages, directed o assign her judgment of foreclosure on the first o the holder of a third mortgage, on the latter iving .appropriate sefcurity.—Mayer v. Moore Sup.) 940. - t. , Redemption. Under Code Civ. Proc. § 2232, and Id. tit. 9, c. 7, summary proceedings for possession of real roperty sold" under a judgment foreclosing a ortgage cannot be maintained by a purchaser t foreclosure' sale against the mortgagor connuing in possession.—Greene v. Geiger (Sup.) MOTIONS. ^ange of venue in civil actions, see “Venue,” rection of .verdict in civil actions, see “Trial,” 4. ■ " smissal or nonsuit on trial, see “Trial,” § 4. w trial in civil actions, see “New Trial,” § 2. ening or. setting aside default judgment, see ‘Judgment,” § 3. mentation of objections for review, .see “Apeal,” § 4. iating to pleadings, see “Pleading,” § 6. iking out evidence, see “Trial,” § 3. nder Gen. Rules Prac. No. 3, a plaintiff held "tied to have an order set aside, where it entered without notice to his attorney.dy v. Lovell (Oity Ct. N. Y.) 504. here an order is entered without notice to ntiff's attorney, as required by Gen. Rules . No. 3, plaintiff’s remedy is by motion to side, though a motion to- resettle would be 61 N.Y.8.—75 § 2. Proceedings of council or otfi.es> governing "body. : Ordinance providing that steps descending mice • a cellar, where same are covered, shall be inclosed with rails, does not apply where steps are covered with a set of doors.—Schroeck v. Reiss -(Sup.) 1054. § 3. Officers, agents, and employés. ' Dismissal of a policeman, based on the um-sworn testimony of a single witness, materially contradictory to the policeman’s statements, is--, -erroneous.—People v. York (Sup.) 400. Laws 1899, c. 370, and the civil service rules-‘passed in pursuance thereof, in so far as they .compel the appointment in the civil service of .cities of the person graded highest on the propt.er eligible list, held to conflict with Const, ara,.10, § 2, and to nullify the power of appointment conferred thereby.—People v. MosBey.,(Sup.) 452. i The office of police clerk’s assistant of the evSyof New York is a competitive office within civil? "service law (Laws 1899, c. 370).—People-Knox (Sup.) 469. 1 Appointment of police clerk’s assistant, maefeafter civil service law (La.ws 1899,°c. 370) wezsi into effect, but before regulations and rules for its operation had been prescribed, was invalid’.. People v. Knox (Sup.) 469. , Laws 1899, c. 370, requiring officers to tain certificates of civil service employment ira prder to recover their salaries, held not to apply to an officer not appointed thereunder.—People v. Knox (Sup.) 472. A village patrolman, who has succeeded to Ms, position as city patrolman under New RoskeiB® 3rty Charter, could not be removed, except for mcompetency or misconduct, though he previously . applied for such position under the city government.—People v. Dillon (Sup.) 537. Under Greater New York Charter, § 299) to> entitle a patrolman to the first grade he mash have served for five years immediately preceding

1186 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. the reorganization of the force.—People v. York ¡(Sup.) 547. A Civil War veteran, discharged on completion of his work -in a city department, cannot compel his reinstatement in the public service.—People v. Claussen (Sup.) 579. The position of morgue keeper is within the rule requiring appointment to public office to he evidenced by a writing.—People v. Keller (Sup.) 746. Where a resolution was passed appointing plaintiff morgue keeper, but no record thereof was made, nor any written authority given plaintiff, there was no appointment.—People v. ICeiier (Sup.) 746. § 4. Contracts in general. In absence of fraud on part of city officials, the courts cannot determine whether gravel furnished under a contract with city park commis-" sioners is in accordance with the contract.—Paul v. City of New York (Sup.) 570. Under New York Charter, §§ 419, 607, a contract to furnish gravel, awarded by the park "board and executed by one member of the board, under its authority, is valid.—Paul v. City of -New York (Sup.) 570. Evidence held insufficient to show that comp'troller had not attached his certificate to a contract, as required by New York Charter, § 419. —Paul v. City of New York (Sup.) 570. S 5. Public improvements. Offer by city to deduct from cost of repaving street two-thirds of penalty of bond given to it to secure performance of obligation that pavement laid previously would last for 10 years held reasonable.—People v. City of Utica (Sup.) •31. Greater New York Charter, § 413, does not •restrict the action of the commissioner of public ■buildings, lighting, and supplies in making contracts before receiving express authorization from the municipal assembly.—Blank v. Kearny <Sup.) 79. Under Greater New York Charter, §§ 416, 417, 419, it is not required that the commissioner of public buildings, lighting, and supplies should receive express authorization from the municipal assembly before entering into a contract for the lighting of streets or other public places of the city.—Blank v. Kearny (Sup.), 79. An assessment of damages for a street im,-provement will not he disturbed, because qf defects in the notice requiring claimants to appear before the assessors, where he was not misled "thereby and appeared pursuant to the notice.— JPeople v. Coler (Sup.) 345. Assessors of damages for a street improvement. who have considered" all the evidence ¡presented by an objector before making their award, are not obliged to reopen the case and hear further evidence.—People v. Coler (Sup.) 345. An award of damages for a street improvement by a previous assessment board, which was superseded by a new hoard before the award had ripened into a judgment, held not binding on the new hoard.—People v. Coler (Sup.) 345. Contract for draining street construed, and held, that it was for work only as shown by the plan annexed to the contract.—Dean v. City of New York (Sup.) 374. A city held not estopped by certificate of completion of public improvement to show the incorrectness thereof.—Dean v. City of New York (Sup.) 374. Basis for assessing benefits, under Consolidation Act. § 981, for municipal improvements, determined.—In re City of New York (Sup.) 437; In re Whittier St., Id. The court may dismiss an application for the appointment of commissioners " to assess damages, as provided by Laws 1888, c. 345, § 12, where it appears that there is no property injured for which compensation may be lawfully made.— In re Grade-Crossing Com’rs (Sup.) 748. Owners of nonabutting property, injured by a change of grade of a street, are not entitled to compensation therefor, under Laws 1888, c. 345, § 12.—In re Grade-Crossing Com’rs (Sup.) 748. § 6. Police power and. regulations. Laws 1895, c. 322, § 1, prohibiting use of soft coal within certain portions of a city, held a proper exercise of the police power.—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. § 7. Torts. One injured while rightfully riding bicycle on sidewalk cannot recover if the walk was in a reasonably safe condition for pedestrians.—Morrison v. City of Syracuse (Sup.) 313. Erroneous instruction, given in action against city for personal injuries received by one riding bicycle on sidewalk, held not so clearly corrected by a subsequent instruction as to make it clear that the jury were not misled thereby.— Morrison v. City of Syracuse (Sup.) 313. A motion for nonsuit properly granted, under the pleadings and proof, in an action against a city for personal injuries caused by the sudde caving in of a flagstone sidewalk over whici plaintiff was walking.—Hargreaves v. City o Yonkers (Sup.) 1003. 8. Actions. Greater New York Charter, § 261, requirin' petition. to state the presentation of a elar against the city was made to the city comptro ler before filing writ, held not to apply to pel sonal injury cases based on the city’s negligenc —Pulitzer v. City of New York (Sup.) 803. MUTUAL BENEFIT INSURANCE. See “Insurance,” § 5. MUTUAL BENEFIT SOCIETIES. See “Beneficial Associations.” NAMES. See “Trade-Marks and Trade-Names.”

INDEX. 1187 NAVIGABLE WATERS. See “Waters and Water Courses.” NEGLIGENCE. Causing death, see “Death,” § 1. Condition or use of particular species of property, works, or machinery, see “Bridges,” § 1; “Electricity” ; “Street Railroads,” § 2. - demised premises, see “Landlord and Tenant,” § 5. Of particular classes of parties, see “Carriers," §§ 1, 3; “Municipal Corporations,” § 7. - employers, see “Master and Servant,” §§ 3—8. Of passenger, see “Carriers,” § 4. Of servant, see “Master and Servant,” § 7. § 1. Acts or omissions constituting negligence. Under the facts, held, defendant was not guilty of negligence in leading along a street a horse which became frightened and injured plaintiff.—Haines v. ICeahon (Sup.) 757. An overflow from a bath tub in defendant’s apartments, the outlet of which was stopped or made smaller by a piece of cloth, held to show sufficient negligence on defendant’s part to support a judgment against him for damages resulting to an occupant of the apartment beneath.—Olin P. Ely Co. v. Rhoads (Sup.) 817. § 2. Contributory negligence. Where one places himself in a position of peril to rescue another, who is in serious danger of injury, in order to make applicable the rule that such action is not contributory negligence, it must appear that the party against whom recovery is sought was guilty of negligence, by reason, of which the person was in peril.—Hirschman v. Dry Dock, E. B. & B. R. Co. (Sup.) 304. Negligence on the part of driver of a wagon is not to be imputed to plaintiff, a fellow servant, where it does not appear he had in any wise control or management of the wagon.— Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. The law will not undertake an apportionment of fault between plaintiff and defendant, in an action based on negligence.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. Temporary forgetfulness of a known danger would not, as a matter of law, constitute contributory negligence on the part of the injured person.—Boyle v. Degnon-MeLean Const. Co. (Sup.) 1043. 3. Actions. Evidence held not to support a verdict for plainiff for damages caused by his truck becoming 'astened in a ferry-house gate. — Maloney v. Tnion Perry Co. (Sup.) 586. Refusal of instruction that, where both plain-'ff and defendant are negligent, plaintiff is not ntitled to recover, held error.—Anderson v. etropolitan St. Ry. Co. (Sup.) 899. Evidence held sufficient to go to the jury on estion of the company’s negligence in fastening boat to the wharf and passenger’s contributory negligence:—Mueller v. Tenth & Twenty-Third St. Perry Co. (Sup.) 986. NEGOTIABLE INSTRUMENTS. See “Bills and Notes.” NEW TRIAL § 1. Grounds. Evidence held not to warrant setting aside a verdict for improper conduct of the jury in arriving at the verdict—Driscoll v. Nelligan (Sup.) 692. § 2. Proceedings to procure new trial. where, after appeal to the court of appeals, a defeated party moved for a new trial because judgment was obtained by perjury inspired by counsel, the motion should not be denied on the ground of loches.—Nugent v. Metropolitan St. Ry, Co. (Sup.) 476. NONSUIT. Before trial, see “Dismissal and Nonsuit.” On trial, see “Trial,” § 4. NOTES. Promissory notes, see “Bills and Notes.” NOTICE. See “Trial,” § 1. Appeal, see “Appeal,” § 5. NOVATION. Evidence held to show acceptance by C. of B.’s promise to pay him A.’s debt before revocation of the promise.—Parraga v. Ribon (Sup.) 1024. Facts held sufficient to establish a novation, whereby a buyer was released from liability for the price of goods.—De Witt v. Monjo (Sup.) OFFER. Of judgment, see “Judgment,” § 2. OFFICERS. Mandamus, see “Mandamus,” § 2. Particular classes of officers. See “Coroners”; “Judges”; “Justices of the Peace” ; “Sheriffs and Constables.” Corporate officers, see “Corporations,” §§ 5, 6. Highway officers, see “Highways,” § 1. Municipal officers, see “Municipal Corporations,” § 3. § 1. Appointment, qualification, and tenure. Whether officers under civil service law (Laws 1899, c. 370) belong “to the competitive class,” as prescribed thereby, is a question of law for the court.—People v. Knox (Sup.) 469.

1188 61 NEW YORK SUPPLEMENT and 35 New York State Reporter. § 2. Title to and possession of office. In proceedings by plaintiff seeking reinstatement in a position in a public office, Ms right being doubtful, a mandatory injunction to restore plaintiff pendente lite will not issue.—McNieee v. Sohmer (Sup.) 193; O’Neill v. Same, Id. § 3. Rights, powers, duties, and liabilities. Under Greater New York Charter, §§ 419, 1551, an indictment held not to charge an offense or an attempt to commit the offense.— People y. ICane (Sup.) 195. Under Greater New York Charter, § 1551, an indictment which charged that defendant approved bills with intent to commit a fraud on the city of New York held not to charge an offense, nor to charge an attempt to commit the offense.—People v. ICane (Sup.) 195. Greater New York Charter, § 419, may not be violated by letting out work for public improvements without sealed bids, though the work might be continued long enough to cost $1,000.— People v. ICane (Sup.) 632. Greater New York Charter, § 419, is not shown to be violated by an allegation that an officer of a department of public improvements did “incur” an expenditure for cleaning sewer basins, without being authorized by the board of public improvements or the municipal assembly.—People v. ICane (Sup.) 632. An indictment, under Greater New York Charter, § 419, for letting the work of cleaning sewer basins without sealed bids, held insufficient, where it failed to show that the cost would exceed $1,000.—People v. Kane (Sup.) 632. PARTIES. On appeal, see “Appeal,” § 3. Persons concluded by judgment, see “Judgment,” § 6. Probate proceedings, 'see “Wills,” § 3. To particular classes of conveyances, contracts, or transactions, see “Contracts,” § 1; “Mortgages,” § 3. § 1, Plaintiffs. An action was properly brought in behalf of plaintiff and ell others similarly situated, who were very numerous.—Whiting v. Elmira Industrial Ass’n (Sup.) 27. Under'Code Civ. Proc. § 448, nonjoinder of member of a firm, in action to recover for injury to partnership property, warrants dismissal of action, where the defendant sets up defect of parties.—Freeman v. Abramson (Sup.) 839. § 2. New parties and change of parties. To make a joint wrongdoer a party defendant to a pending action, it is necessary to serve on both the existing defendant and such joint wrongdoer a copy of the summons and complaint, so amended as to contain the proper and necessary allegations charging both with the commission of the tort in question, with leave to them to answer or demur.—Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097.. Where plaintiff was justified in believing that only defendant wronged and injured her, the discovery upon the trial that another party and defendant were jointly interested in the subject-matter which caused plaintiff’s injury entitles plaintiff to bring such party in as a defendant. —Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097. A mere inference deducible from an allegation in an indictment against a municipal officer held insufficient to supply an allegation essential to establish the purview of the statute.—People v. Kane (Sup.) 632. OPENING. Judgment, see “Judgment,” § 3. OPINION EVIDENCE. In civil actions', see “Evidence,” § 7. ORDINANCES. Municipal ordinances, see “Municipal Corporations,” §§ 2, 6. PAROL EVIDENCE. In civil actions, see “Evidence,” § 6. PARTICULARS. PARTITION. § 1. Actions for partition. Where at partition sale the interest of a lessee in a growing crop is reserved, the deed subsequently made, which contains no reservation, does not deprive the lessee of his rights.—Banta v. Merchant (Sup.) 218. When the referee announced at sale that the interest of a lessee of one of the owners in the crop was reserved, and no objection was made, it will be assumed that ail parties assented.— Banta v. Merchant (Sup.) 218. . Under Code Civ. Proc. §§ 1561-1565, the right of a judgment creditor, whose lien had not expired at the time of the partition and sale of the property affected, to the money ordered paid int court in the partition proceedings for distributio among the lien holders, of which he had been as certained as one, did not cease at the time the lien on the property would have ceased.—Treacj v. Ellis (Sup.) 600. A purchaser at partition sale cannot be compel led to complete the same, when the summon served by publication was not directed to one o the defendants, and the published summons wa not a copy of the original-.—Bowler v. Enni (Sup.) 686. The court has no power to award costs and a extra allowance to defendant, where he succeedí Bill of. see “Pleading,” § 5.

INDEX. 1189 on the question of whether there should be a sale or an actual partition.—Sprague v. Engelbrecht (Sup.) 952. An action for partition of property can be maintained by a party claiming an interest therein against others who claim adverse interests, being authorized by Code, § 1543.—Wallace v. Curtis (Sup.) 994. PARTNERSHIP. § 1. The relation. Members of a syndicate organized to speculate in real estate held partners, in so far as to render them liable as such to one who aided them in their undertaking.—Palliser v. Brhardt (Sup.) 191. Evidence held to show partnership existing as to third parties, as to contract for materials furnished, ordered before the agreement was signed, but delivered thereafter.—Johnson v. Alexander (Sup.) 351. Dismissing a suit against a firm, on the ground that no evidence of its existence was presented, held error.—Schroth v. Gedney (City Ct. N. Y.j 923. § 2. Mutual rights, duties, and liabilities of partners. It is a legal presumption that a firm’s possession of realty is subordinate to and consistent with the record title in an individual member.— Hardin v. Dolge (Sup.) 753. Though complaint alleges that parties to suit were partners in transaction in which defendant received commission, action at law will lie for half thereof; it being alleged to be a certain sum.—Travis v. Stewart (City Ct. N. Y.) 492. § 3. Rights and liabilities as to third persons. A partnership organized to speculate in suburban real estate, which it proposed to sell off in lots, held not hound to pay for the services of an architect employed by two of the members. —Palliser v. Brhardt (Sup.) 191. A firm held not entitled to complain oí the enforcement of a mortgage against its property, when executed by a single member.—Hardin v. Dolge (Snp.) 753. The sale of all partnership property by one member of firm, iu the firm name, without the knowledge or consent of the other members, held invalid.—Freeman v. Abramson (Sup.) 839. Where service is had on but one of two partners, in an action for a partnership liability, it is error to halve the amount sued for, and render judgment for that sum against the defendant served.—Teller v. Gerry (Sup.) 864. 4. Dissolution, settlement, and accounting. Facts held not sufficient to entitle plaintiff to an injunction and the appointment of a receiver ending suit to dissolve a partnership.—Day v. ow (Sup.) 793. PASSENGERS. “Carriers,” 2-5. PAUPERS. § I. Support, services, and expenses. Laws 1896, c. 225, § 56, forbidding children under 16 to be sent to almshouses for support, held not a defense to an action against a town by a county for temporary support at an almshouse.—Herkimer County v. Town of Sanger-field (Sup.) 114. PAYMENT. See “Mechanics’ Liens,” § 5; “Tender.” By receiver, see “Receivers,” g 2. Compensation for property taken for public use, see “Eminent Domain,” § 1. Taxes, see “Taxation,” § 2. § 1. Requisites and sufficiency. Delivery of vendee’s check did not operate as payment for goods sold, where it was returned to the vendee, and in his possession When suit was brought.—Block v. Garfield ((Sty Ct. N. Y.) 918. PENALTIES. § I. Actions and other proceedings. Action to recover fine for violation of Laws 1895, c. 322, § 1, prohibiting burning of soft coal in factory furnaces in city of Brooklyn, is properly brought by the city—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. PERCOLATING WATERS. See “Waters and Water Courses,” § 1. PERPETUITIES. A bequest, in trust to one corporation for the benefit of another, held void, as a perpetuity, under 1 Rev. St. p. 723, § 15.—In re Griffin’s Will (Sup.) 639. A will held void, as a suspension of the power of alienation beyond two lives in being.—Almstaedt v. Bendick (Sup.) Í019. A bequest for charitable uses held not within the statute of perpetuities.—Fitsimmons’ Will (Sur.) 485. PERSONAL INJURIES. To employs, see “Master and Servant,” §§ 3-8. To passenger, see “Carriers,” § 3. To traveler on highway, see “Highways,” § 2; “Municipal Corporations,” § 7. To trespasser, see “Railroads,” § 1. PLEADING. Allegations as to damages, see “Damages,” § 4. Indictment or criminal information or complaint, see “Indictment and Information.” In particular actions or proceedings, see “Equity," § 2; “Libel and Slander,” § 4. Statute of frauds, see “Frauds, Statute of,” § 3.

1190 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 1. Declaration, complaint, petition, or statement. Complaint to recover personalty wrongfully obtained in part from plaintiff, and in part from others who had assigned to plaintiff, held within Code Civ. Proc. § 483, providing that such causes of action must be separately stated.— Westheimer v. Musliner (Sup.) 348. A complaint will be sufficient, if the requisite allegations may be gathered from its averments, though their statement may be argumentative.— Frank v. Forgotston (City Ct. N. Y.) 1118. § 2. Replication or reply and subsequent pleadings. Reply authorized by order hel'd not filed in time. —Silo v. Linde (Sup.) 1103. § 3. Demurrer or exception. An objection that two causes of action are improperly united in the same complaint can only be taken advantage of by demurrer.—Wells y. Betts (Sup.) 231. A demurrer to a complaint on a policy failing to show compliance, or excuse for failure to comply, with conditions imposed therein, held not frivolous.—Schaffer v. Holwill (Sup.) 399. Complaint held not to be construed strictly against the pleader, but averments which sufficiently point out the pleader’s claim are sufficient.—Boez v. Cleveland School-Furniture Co. (Sup.) 407. On demurrer, each cause of action separately stated in the complaint must be sufficient, without reference to the others.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Court’s refusal to allow defendant to amend answer, and plead statute of limitations as to taxes paid by plaintiff as tenant in common with defendant, held proper.—Wiegel v. Mogk (Sup.) 528. On demurrer to the answer, the complaint may be considered, and, if insufficient, the demurrer should be overruled, and the complaint dismissed, without leave to amend, where an amendment would be useless.—Tuthill v. City of New York (Sup.) 968. § 4. Amended and supplemental pleadings and repleader. Where the complaint is fatally defective, and is properly excepted to by motion to dismiss, it is error to permit proof to be taken thereafter and allow the complaint to be amended to conform to the proof.—National Bank of Deposit v. Rogers (Sup.) 155. Plaintiff’s loches in moving for amendment held not excused- by fact that it did not surprise defendant when made.—Dennison v. Mnsgrave (Sup.) 188. ' The city of New York' will be given leave to amend its answer, by introducing matter which would cause the plaintiff to renotice the case for trial, provided if will stipulate to apply for a preference of the trial, under Code Civ. Proc. § 791, subd. 2.—Stemmier v. City of New York (Sup.) 403. Where specific negligence alleged was a defective switch, held an abuse of discretion to allow an amendment, on the trial, alleging negligence in operation of car as the cause of the accident.—Hoffman v. Third Ave. R. Co. (Sup.) 590. An immaterial variance may be corrected by an amendment to the complaint, either before or after an objection.—Jones v. New York Cent. & H. R. R. Co. (Sup.) 721. It is not error to permit plaintiff to amend her complaint at the time of trial, where it does not materially change the cause of action nor surprise defendant.—Van Pelt v. Chapter General of American ICnights of St. John and Malta (Sup.) 1010. § 5. Bill of particulars and copy of account. A motion to vacate an order for a bill of particulars, made 2% years after the service of the order, should be denied.—Brown v. Thorley (City Ct. N. Y.) 921. § 6. Motions. An answer to a widow’s action for dower in the premises conveyed by her husband by a conveyance in which she did not join held not frivolous.—Bedlow v. Stillwell (Sup.) 371. Motion for judgment on answer as frivolous denied, the answer containing matter in justification and mitigation, in addition to denials of allegations of the complaint. — Laurie v. Duer (Sup.) 930. It is error to strike out as a sham any answer which pleads payment of services sued for, and denies the quantity of services rendered and the reasonable value thereof as alleged in the complaint.—Fromme v. Schworer (City Ct. N. Y.) 1108. PLEDGES. A pledgee of bonds held required to pay their value to a purchaser, on accepting from the latter a sum which the former knew that the latter supposed was sufficient to redeem the bonds. —August v. O’Brien (Sup.) 720. Plaintiff, having sued for the proceeds of bonds wrongfully pledged by' defendants, and not for their conversion, was entitled to recover therefor, though she failed to tender the amount for which the bonds were pledged.—Kaminski v. Schefer (Sup.) 771. POLICE POWER. Of municipality, see “Municipal Corporations,” § 6. POLICY. Of insurance, see “Insurance.” POOR LAWS. See “Paupers.” POSSESSION. Of demised premises, see “Landlord and Tenant,” § 5. Of office, see “Officers,” § 2.

INDEX. 1191 PRACTICE. In equity, see “Equity.” Particular remedies in or incident to actions, see “Attachment” ; “Injunction”; “Receivers^ Procedure in criminal prosecutions, see “Criminal Law.” - of particular courts, see “Courts. - on review, see “Appeal” ; “Certiorari,” § 2; “Justices of the Peace,” § 2; “New Trial.” In particular civil actions or proceedings. See “Account,” § 1; “Interpleader” ; “Mandamus," | 3; “Replevin” ; “Traver and Conversion,” § 2. Condemnation proceedings, see “Eminent Domain,” § 2. Particular proceedings in actions. See “Continuance” ; “Costs” ; “Depositions” ; “Dismissal and Nonsuit”; “Evidence”; “Judgment”; “Jury”; “Limitation of Actions” ; “Motions” ; “Parties”; “Reference”; “Trial”; “Venue.” Nonsuit, see “Trial,” § 4. PREFERENCES. Effect of proceedings in bankruptcy, see “Bankruptcy,” § 1. PREJUDICE. Ground for reversal in civil actions, see “Appeal,” § 18. PRESUMPTIONS. In civil actions, see “Evidence,” § 2. On appeal, see “Appeal,” § 15. PRINCIPAL AND AGENT. See “Brokers.” Agency of partner for firm, see “Partnership,” § 3. Corporate agents, see “Corporations,” § 6. Insurance agents, see “Insurance,” § 1. § 1. The relation. Statements that goods being purchased were for the use o£ a corporation are admissible, in connection with evidence of their subsequent use by the corporation, as showing purchaser’s agency.—Davis v. Valley Electric Light Co. (Sup.) 580. Statements of a party that he was acting as he agent of another are inadmissible to prove he agency.—Booth v. Newton (Sup.) 727. Where the seller of goods seeks to show that he purchaser acted as the agent of another,, it s not enough to show that such an agency exist-d at some other time, but it must be shown that he agency existed at the time of the sale.— oath v. Newton (Sup.) 727. 2. Rights and liabilities as to third persons. Evidence held to justify assumption that an ent was a general agent for the purposes of the contract entered into.—Graves v. Miami S. S. Co. (Sup.) 115. A contract, signed by one who adds, after his name, the word “Agent,” is on its face the contract of such person individually, as the word “Agent” is mere descriptio'persons.—Campbell v. Porter (Sup.) 712. Agent will be held personally responsible, where he has no authority to act for principal.—Campbell v. Porter (Sup.) 712. Plaintiff’s testimony, in an action to charge an agent as principal, held to show that the defendant was not liable.—Forrest v. McCarthy (Sup.) 853. An agent is liable as principal, unless the person dealing with him is aware that he acted merely as an agent.—Forrest v. McCarthy (.Sup.) 853. In action on contract of employment, defendant cannot show that he was agent; plaintiff not having been so advised.—McDonald v. Wesendonck (City Ct. N. T.) 491. PRINCIPAL AND SURETY. See “Indemnity.” Liabilities of sureties ctii bonds for performance of duties of trust or office, see “Executors and Administrators,” § 8. § 1. Discharge of surety. The insertion of the words “for a further term of five years,” in a bond for the performance of a covenant for renewal of a lease for five years, held immaterial, since it did not change the liability of the bond.—John Polhemus Printing Co. v. Hallenbeck (Sup.) 1056. PRIVILEGED COMMUNICATIONS. Defamatory communications, see “Libel an<$ Slander,” § 2. Disclosure by witness, see “Witnesses,” § 1. PROBATE. Of will, see “Wills,” § 3. PROBATE COURTS. See “Courts,” § 3. PROCESS. Particular forms of writs or other process, see “Attachment,” § 3; “Injunction”; “Mandamus.” § 1. Service. In an action for divorce, an affidavit by plaintiff’s brother, stating that he served the summons and complaint on defendant, is insufficient proof of service.—Fawcett v. Fawcett (Sup.> 108.

3192 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. PROPERTY. 'See “Trade-Marks and Trade-Names.” ' .Protection of rights of property by injunction, ■ see “Injunction,” § 1. 'Taking for public use, see “Eminent Domain.” PROTEST. <@f bill or note, see “Bills -and Notes.” PROVINCE OF COURT AND JURY. 'in civil actions, see “Trial,” § 5. PUBLIC BUILDINGS. See “Municipal Corporations,” § 7. PUBLIC IMPROVEMENTS. By municipalities, see “Municipal Corporations,” § 5. PUBLIC SCHOOLS. «3ee “Schools and School Districts,” § 1. PUBLIC USE. Taking property for public use, see “Eminent Domain.” PUNISHMENT. ‘Contempt of court, see “Contempt,” § 2. RAILROADS. See “Street Railroads.” 'Carriage of goods and passengers, see “Carriers.” ■| 1. Operation. An instruction allowing recovery, in an action for injuries caused by defendant’s conductor in removing trespasser from a train, held proper, as being based on vhe latter’s version "of the transaction.—Barrett v. New York Cent. & H. .B. B. Co. (Sup.) 9. Instructions relative to operation of gates at ■crossings held not error.—Bdgerley v. Long Island B. Co. (Sup.) 677. Instructions relative to sounding whistle and tinging bell at crossings having gates held not error.—Edgeriey v. Long Island R. Co. (Sup.) 677. property occupied by him.—Stokes v. Hoffman House (Sup.) 821: ' " A receiver of the property. óf a corporation does not," by remaining in possession of -premisos leased by the corporation,' render the funds in his hands as receiver liable for rent.—Stokes v. Hoffman House (Sup.) 821. A receiver of the property of á corporation held entitled to- "recover back money Wrokgfully paid by him for rents.—Stokes v. Hoffman. House (Sup.) 821. ■ . § 2. Allowance and payment of claims. Costs of motion to dii'ect payment of a fund in hands of a receiver to the trustee of the corporation entitled thereto held chargeable to the fund.—In re Hulbert Bros. & Co. (Sup.) .959. § 3. Actions. ■ An action may be brought against the receiver of a railroad company, for coal sold, to and used by the receiver in the operation of the road, without suing the company, Or any other, party.— Cobb v. Sweet (Sup.) 545. • • 1. ■ The fact that the property of a railroad company in the possession of its receiver, and properly at his command, cannot be charged with the payment of claims, if such company exists, without bringing it in as a party, defendant, only goes to the extent of the "relief sought.'—Cpbb v. Sweet (Sup.) 545. Complaint against receiver of railroad held to state a cause of action—Cobb v. Sweet (Sup.) 545. • ■ ■ '.1 ; An allegation that a receiver wás '“.duly” appointed suffices to admit proof of the regularity of his appointment.—Morgan v. Bucki (Sup.) 929. A complaint of a receiver appointed in sequestration proceedings which fails \to allege that leave of court had been obtained to bring the suit is demurrable.—Morgan v. Bucki" (Sup.) 929. The right of a receiver appointed in sequestration proceedings to bring suit does not fall within the scope of an allegation that the plaintiff was “duly” appointed receiver', since the -right is not .incidental to his appointment.—Morgan v. Bucki (Sup.) 929. ' RECORDS. See “Mortgages,” § 2. - Transcript on appeal, see “Appeal,” § 7. REDEMPTION. From mortgage, see “Mortgages,” § 7. REFERENCE. . . RECEIVERS. Of corporations in general, see “Corporations,” ,§ 7. •:§ 1. Management and disposition of property. ' ('A receiver'of the ■ property of a corporation /pendente lite held not authorized to pay rent- for § 1. Nature, grounds,, and order of ref ‘ erenee. ■ ■ ' An order of reference to take an" accountin' held not one tó decide ,the whole issue, wher made on judge’s own’motion at close of trial. Brennan -v. Gale (Sup.) 6. An order directing a reference .for the purpo, of taking' an accounting held not authorized. Brennan v. Gale (Sup.) 6. ' •

INDEX. 1193 An order of reference to take an accounting cannot be sustained, in the absence of evidence that it would require the examination of a long account.—Brennan v. Gale (Sup.) 6. An action to recover for 2,364 hours of labor rendered by a brakeman to a railroad company in excess of working days of 10 hours during a period of 7 years should he referred, under Code Civ. Proe. § 1013.—Smith v. New York Cent. & H. R. B. Co. (Sup.) 934. § 2. Report and findings. Where reference is made by a surrogate to take and report the evidence, the surrogate must make a decision, to which exceptions must be filed; but, where there is a reference to hear and determine, the surrogate is to merely confirm, reverse, or modify, and exceptions to referee’s findings are all that are necessary for appellate review.—In re Yetter (Sup.) 175. A reference cannot be terminated under Code Civ. Proe. § 1019, when there is an oral agreement to allow the referee all the time he requires to make his report.—Sproull v. Star Co. (Sup.) 404. Under Code Civ. Proe. §§ 1835, 1836, 2718, 3248, a referee appointed for the determination of a disputed claim against an estate may, after filing his report, later make a certificate entitling claimant to costs.—Brainerd v. De Graef (Sup.) 953. REFORMATION OF INSTRUMENTS. § 1. Right of action and. defenses. Evidence held not sufficient to justify reformation of a lease because of shortgage in the quantity of land, nor recovery of a pro rata amount of the rent paid.—Coast v. McCafEery (Sup.) 881. REHEARING. On appeal, see “Appeal,” § 12. REINSURANCE. See “Insurance,” § 4. RELEASE. See “Compromise and Settlement.” RELEVANCY. Of evidence in civil actions, see “Evidence,” § 3. REMAINDERS. See “Life Estates.” RENEWAL. f lease, see “Landlord and Tenant,” § 3. RENT. • ee “Landlord and Tenant,” § 6. REPAIRS. Of premises demised, see “Landlord and Tenant,” § 5. REPEAL Of statute, see “Statutes,” § 1. REPLEVIN. § 1. Jurisdiction, ventie, and parties. Under Code Civ. Proe. § 2862, subd. 7, and Id. § 2920, held, in an action for the recovery of a chattel, where the chattel is not sought to be replevied before judgment, an affidavit of the value of the chattel is not required.—Young v. Carey (Co. Ct.) 508. § 2. Trial, judgment, enforcement of judgment, and review. Though no notice was filed for return of property replevied, judgment for return cannot be attacked for want of jurisdiction; this being an error to be corrected on appeal.—Christian-sen v. Mendham (Sup.) 326. REPLY. See “Pleading,” § 2. REPORT. On reference, see “Reference,” § 2. REQUESTS. For instructions to jury in civil actions, see “Trial,” § 5. RESCISSION. Of contract for sale of goods, see “Sales,” § 2. - of land, see “Vendor and Purchaser,” § 1. RES GEST/E. In civil actions, see “Evidence,” § 3. RES JUDICATA. See “Judgment,” § 6. REVENUE. See “Taxation.” REVIEW. See “Appeal”; “Certiorari.” REVOCATION. Of will, see “Wills,” § 2. ROADS. See “Highways.”

1194 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. . RULES OF COURT. Orders, see “Motions.” SALES. See “Vendor and Purchaser.” Of intoxicating liquors, see “Intoxicating Liquors.” Tax sales, see “Taxation,” § 3. § 1. Requisites and validity of contract. A wife, orally agreeing to pay for coal to be delivered to her insolvent husband for use in his business, held liable therefor as for goods purchased by her.—Franklin. Coal Co. v. Hicks (Sup.) 875. § 2. Modification or rescission of contract. Where the claim of rescission of a sale is based on an instruction from the husband of the buyer, his authority to give such instruction must be shown.—Hornberger v. Feder (Sup.) 865. Title to the property sold cannot be revested in the seller by rescission of the sale, where the contract of sale is fully executed; there being a valid delivery, and no fraud.—Hornberger v. Feder (Sup.) 86o. Where one who has been induced to purchase property by false representations as to its quality returns it to the vendor, the jury are authorized to find that the purchaser rescinded the sale.—Cushman v.' De Mallie (Sup.) 878. § 3. Performance of contract. Evidence held sufficient to show acceptance of goods sold.—O’Sullivan v. New York Lumber Corp. (Sup.) 493.' § 4. Operation and effect. A vendor held entitled, on rescission of sale for fraud, to recover goods from one to whom the purchaser had transfered, when the latter had notice of the fraudulent intention of the purchaser.—Gowing v. Warner (City Ct. N. Y.) 500. § 5. Warranties. An implied warranty in an executory contract of sale survives the acceptance where the defects were not discoverable on ordinary inspection.—Osborn v. American Ink Co. (Sup.) 70. Where a bill of sale conveys all right, title, and interest in a liquor tax certificate, the seller expressly warrants the sale, although not in possession of the certificate at the time.—Frank v. Forgotston (City Ct. N. Y.) 1118. If the language used at the time of a sale, on a fair construction, is equivalent to an undertaking on the part of the owner that the property is what it is represented to be, it is sufficient to create a warranty, without the use of the word “warrant” or “warranty.”—Petty v. Fish (City Ct. N. Y.) 1127. " § 6. Remedies of seller. In an action to recover for hay sold, where defendant refused to receive for defect in quality, what the agreement was as to quality, and whether hay delivered corresponded therewith, is for jury.—Carey v. Baldwin (Sup.) 581. In an action to recover for hay sold, where the defendant refused to receive it, as not up to the quality agreed on, and the railroad company sold it for transportation charges, the price for which the company sold it is immaterial.—Carey v. Baldwin (Sup.) 581. One claiming a breach of warranty as a defense to a check given in payment for goods sold has the burden of'proving the breach.—Sharpies y. Angelí (Sup.) 643. Where plaintiff sued for goods sold to a third party as the agent of defendant, and the sale was made to third party while acting for himself, and defendant guarantied payment, it was error to refuse to instruct that, if there was a sale to the third party, and an agreement by defendant to guaranty payment, the verdict should be for defendant.—Booth v. Newton (Sup.) 727. Where, in action for goods sold to defendant’s decedent, the evidence showed that the goods were sold to another, and that defendant’s decedent guarantied the payment, the complaint should be dismissed.—Booth v. Newton (Sup.) 727. § 7. Remedies of 'buyer. A breach of an express warranty survives the acceptance, and the buyer need not return or offer to return the defective goods to entitle him to damages.—Osborn v. American Ink Co. (Sup.) 70. Where a contract required delivery of Rio coffee of a certain grade and standard, and coffee tendered was of such grade, an instruction that the seller was required to deliver natural coffee was erroneous.—Crossman v. Lurman (Sup.) 560. Evidence that coffee was covered by an opaque substance, without proof that the covering concealed damage, was not sufficient to justify the buyer’s refusal to accept under Public Health Laws, § 41.—Crossman v. Lurman (Sup.) 560. Where coffee tendered was covered by an opaque substance, evidence that such substance did not conceal any defects was competent, to show that the sale was not prohibited by Public Health Laws, § 41.—Crossman v. Lurman (Sup.) 560. Error in. charging that plaintiff could not recover without proof of express warranty held prejudicial.—Rogers v. Beckrich (Sup.) 725. A complaint for breach of warranty, failing to state whether the warranty was express or implied, is supported by proof of either.—Rogers v. Beckrich (Sup.) 725. Evidence of the market value of goods befor and after the breach of contract is not admissibl to fix damages in an action for failure to de liver goods contracted for.—Freedman v. Dobso* (City Ct. N. Y.) 1115. 8. Conditional sales. Seller held not to waive his right to reclai goods under conditional sale by an unsuccessfu attempt to collect notes given therefor by sui —American Box Mach. Co. v. Zentgraf (Sup. 417.

INDEX. 1195 SATISFACTION. See “Compromise and Settlement.” SAVINGS BANKS. See “Banks and Banking,” § 3. SCHOOLS AND SCHOOL DISTRICTS. § 1. Public schools. Consolidated school law, authorizing the city to establish certain schools for colored children, held not in violation of Const, art. 9, § 1, providing that the legislature shall establish a system of free common schools. — People v. School Board of Borough of Queens, New York City (Sup.) 330. Under Laws 1899, c. 417, an unexpended balance of the salary fund of the borough of Brook lyn need not be applied to the payment of the increase in salaries of teachers affected by the act, but may be applied to the payment of an increase in salaries of other teachers provided for by the board.—McCabe v. Cook (Sup.) 588. Laws 1895, c. 7G7, authorizes a town to pension only such school teachers as had taught in the town 25 years prior to the passage of the act.—People v. Town Board of Plattsburg (Sup.) 932. SEPARATE ESTATE. f married women, see “Husband and Wife,” § 3. SERVICE. f process, see “Process,” § 1. SERVICES. ee “Work and Labor.” SERVITUDES. e “Easements.” SET-OFF AND COUNTERCLAIM. 1. Mature and grounds o£ remedy. Ader Code Civ. Proc. § 501, held, two of three endants sued jointly cannot set up a counterim in favor of themselves.—Carey v. Baldwin p.) 581. efendant, having admitted plaintiff’s claim, set up a counterclaim for services, board, and ing furnished plaintiff at his request, on fail-to prove the request, cannot recover.—Oils v. Kelly (City Ct. N. Y.) 1107. . Subject-matter. use of action for costs accruing on an adstratrix’s bond held an action on contract, in Code Civ. Proc. § 501, and hence a proper ect of set-off against plaintiffs’ canse of ac-for costs accruing on an appeal bond in an-suit.—Foley v. Scharmann (Sup.) 969. Counterclaim held to allege facts sufficient to constitute a cause of action on which such counterclaim was based.—Foley v. Scharmann (Sup.) 909. SETTLEMENT. See “Compromise and Settlement” ; “Payment.” SHERIFFS AND CONSTABLES. § 1. Powers, duties, and liabilities. An officer is entitled, in an action against him for an attachment levy, to the benefit of the short statute (Code Civ. Proc. § 385). though, as to the plaintiff, he may have trespassed.—Hill v. White (Sup.) 515. Evidence held to show that an attachment levy was made before November o, 1S89, so that limitations had begun to run before that date against the officer for making the levy.—Hill v. White (Sup.) 515. Money deposited with the sheriff as bail in supplementary proceedings could not be recovered from the sheriff without showing the termination of the attachment proceedings.—Alexander v. Creamer (Sup.) 539. Verdict should not he directed, in a suit against the sheriff for money deposited as bail in attachment, when the complaint fails to show that the attachment proceedings are terminated, but the complaint should be dismissed.—Alexander v. Creamer (Sup.) 539. SHIPPING. See “Towage.” § 1. Demurrage. Compensation may be recovered by owner of vessel for unreasonable detention, though bill of lading contains no demurrage clause.—Jame-son v. Sweeney (City Ct. N. Y.) 498. Freighter is liable to owner of vessel for unreasonable delay in discharging cargo on failure of consignee to pay therefor, though there was an agreement that consignee should unload. —Jameson v. Sweeney (City Ct. N. Y.) 498, SLANDER. See “Libel and Slander.” SLEEPING CARS. See “Carriers,” § 5. SOCIETIES. See “Clubs.” SPECIFIC PERFORMANCE. § 1. Mature and grounds of remedy in general. It is the court’s duty to grant specific performance of a contract, where no sufficient excuse for nonperformance was proved, and plaintiff cannot be adequately compensated in damages.— Goddard v. American Queen (Sup.) 133.

1196 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 2. Contracts enforceable. A decree requiring specific performance of a contract for an exclusive advertising right in a monthly magazine for 18 months held not so difficult of execution as to preclude the granting of the decree.—Goddard v. American Queen (Sup.) 133. STATEMENT. Of facts agreed on for submission to court, see “Submission of Controversy.” STATES. § 3. Good faith and diligence. ^Specific performance of land contract executed 25 years prior to action denied, where vendee practically abandoned his rights under it until after land became valuable because of oil therein.—Darrow v. Bush (Sup.) 2. Where party seeking specific performance is guilts' of unreasonable delay, relief will be denied, though lapse of time may be insufficient to bring case within statute of limitations.— Darrow v. Bush (Sup.) 2. Plaintiff was not entitled to decree for specific performance, where she had done nothing towards performing her part of the agreement.— Lennon v. Farrell (Sup.) 370. § 1. Property, contracts, and liabilities. Under Laws 1895, § 5, as amended, Laws 1896, § 794, and Laws 1892, c. 683, § 61, the superintendent of public works is authorized to pay funds to canal contractors on certificates signed by the deputy state surveyor and engineer.—People v. Roberts (Sup.) 148. STATUTES. Provisions relating to particular subjects, see “Descent and Distribution”; “Discovery,” § 1; “Limitation of Actions,” § 1; “Mechanics’ Liens.” - statute of frauds, see “Frauds, Statute of.” § 4. Proceedings and relief. That a third party’s rights might be injuriously affected by decreeing specific performance of a contract held not to preclude the granting of the decree.—Goddard v. American Queen (Sup.) 133. The specific performance of a written agreement cannot be enforced in an action for the specific performance of a paroi agreement.—Lennon v. Farrell (Sup.) 370. 1. Repeal, suspension, expiration, and revival. Greater New York Charter Act held not to repeal Laws 1897, c. 434, since the former is general, and the latter a special, act.—People v O’Grady (Sup.) 577. § 2. Construction and operation. Greater New York Charter is only one statute| though it is divided into chapters and seetions.People v. Kane (Sup.) 632. STATUTES CONSTRUED. SEW YORK. CONSTITUTION 1846. Art. S, §§ 1—4, 7......... 85 CONSTITUTION 1895. Art. 1, § 6..............1090 Art. 2, § 3.............. 124 Art. 3, § 18............. 33 Art. 5, § 9.............. 452 Art. 6, § 18.............Ill Art. 8, § 10............. 37 Art. 9, § 1.............. 330 Art. 10, § 2............. 452 OQDE OF CIVIL PROCEDURE. Ch. 12, tit. 1, § 1310......244 Ch. 12, tit. 2, § 1326...... 244 Ch. 17, tit. 9............. 524 § 66..........:644, 890, 1074 § 111 .................. 760 § 264 .................. 149 § 340, subd. 3............ Ill § 385 .................. 515 § 432 ........-........... 922 §§ 440, 442.............. 686 § 448 .................. 839 § 483 .................. 348 § 484 .................. 27 501......... 519........ 544 ........ 572 ........ 641 ........ 649, subd. 3. 682 ........ 738 .581, 969 .... 188 ____736 _____ 966 _____ 295 .....1033 939 868 798 829 834 835 836 870 872 873 880 791, subd. 2........... 403 793 ..........257, 300, 942 ... 942 ................. 144 ................. 917 ................. 64 ................. 917 .................1100 ....181, 503, 047, 1100 ...........”......1100 328 § 968, 970",".".".",".".".".". 41 974 .................. 868 977 ..............924, 942 982 ............... 97, 680 992 .................. 515 999 ..............693, 1129 1002 .................1129 1003 ................. 777 1013 ................. 934 1019 ................. 404 1187.................817 1377 .......... 966 1543 ................. 99| § 1561-1565 '...........60 § 1607, 1668............ 2]| 1725 ................. 3f 1822 ................. 1 j 1835 ................. 9£ 1836 ..............131, 91 1865 ................. 41 1866 ................ 1893 ................ 1915 .................101 1925 ................. 51 1995 ................. 91 § 2017, 2019, 2026, 2038. 101 2077 ................. l| 2082 ..............149, 61 2083 ......-.......... § 2138, 2139........... 2232, subd. 2......... 2240, subd. 3..........71 2244 ................ § 2284, 2285.......... 2344 ................ 2545 ..............175, (1 2546 ..............175, 2561 ................. 4 2582 ................. 0653a ................ 2664 .................. 2718 ............. 382, 2743 .................

INDEX. 1197 §§ 2746, 2830............ 243 §§ 2862, 2920........... 508 S 2940 ................. 712 S§ 2951-2953 ........... 67 § 2954 ..............67, 684 § 2957 ................. 67 8 3056 ...............".. 91 5 3160 ................. 247 8 3162 .................1102 88 3228, 3229............ 943 8 3248 ................. 953 8 3251 .................1123 8 3268 ........ 247, 308, 1015 8 3271 .................1015 8 3272 ................. 308 § 3402 ............ 306 CODE OF CRIMINAL PROCEDURE. 88 278, 279............. 195 8 899 .................. 220 PENAL CODE. § 388 .................. 520 EDMOND’S REVISED STATUTES. Second Edition, Volume 1. Page 677, §§ 51, 52...... 443 REVISED STATUTES. First Edition. Volume 1. art 2, ch. 3, § 1----291, 292 art 2, ch. 3, § 41....... 292 Part 2, ch. 6, tit. 1, art. 3, 13 42, 47, 48...........1070 age 709 ...............1114 age 733, § 15.......... 639 age 754, § 23.......... 556 age 756, § 1...........362 Volume 2. age 63, § 40 ........... 430 age 66, § 52........... 565 TSmth Edition. Volume 2. age 1606, tit. 15, § 28... 330 ge 1818, § 1..........896 ge 1886, ch. 7, tit. 2, § 5 138 CITY CHARTERS. eater New York. Laws 897, ch. 378, § 149.... 570 ■eater New York. Laws 807, ch. 378, 8 261.... 803 eater New York. Laws 897, ch. 378, § 299____547 Greater New York. Laws 1897, ch. 378, § 413.... 80 Greater New York. Laws 1897, ch. 378, § 416.. .79, 80 Greater New York. Laws 1897, ch. 378, § 417.... 80 Greater New York. Laws 1897, ch. 378, § 419.. 80, 195, 633 Greater New York. Laws 1897, ch. 378, § 607.... 570 Greater New York. Laws 1897, ch. 378, § 895.... 432 Greater New York. Laws 1897, ch. 378, § 1551. .. 195 Greater New York. Laws 1897, ch. 378, §§ 1570, 1571 ................. 968 Greater New York. Laws 1897, ch. 378, § 1611. ... 577 New Rochelle. Laws 1899, ch. 128, §§ 114, 119, 256 537 . LAWS. 1848, ch. 265 ............ 549 1850, ch. 340'............ 550 1855, ch. 569............ 549 1838, ch. 314, § 2.......464 1882, ch. 410, § 981...... 437 1882, ch. 410, §§ 990, 995 998 1886, ch. 409, § 8. Amended by Laws 1892, ch. 673 741 1886, ch. 572 ............ 803 1888, ch. 119, § 1. Amended by Laws 1892, ch. [ XXX XX XXXX ], ch. 345, § 12.......748 1888, ch.. 583, tit. 8, § 2.. 665 1890, ch. 555............ 290 1890, ch. 564, § 58....... 85 1890, ch. 566, 1 103...... 549 1892, ch. 399............1067 1892, ch. 565, §§ 93, 99... 420 1892, ch. 577. Repealed by Laws 1899, ch. 370, § 29 41 1892, ch. 673 ............ 741 1892, ch. 679, §§ 2, 5.... 1028 1892, ch. 683, § 61...... 149 1892, ch. 686, § 16.......315 1892, ch. 687, §§ 15, 16.. 9-74 1892, ch. 688, § 29....... 707 1892, ch. 688, § 30 ....... 623 1892, ch. 688, § 48 ...... 464 1892, ch. 689 ............ 971 1893, ch. 333............ 290 1893, ch. 661, § 41....... 560 1893, ch. 701, § 1........485 1894, ch. 556, tit. 7, art. 6, § 47 ................. 709 1895, ch. 79. § 4. Amended by Laws 1896, ch. 794. . 148 1895, ch. 79, § 5. Amended by Laws 1896, ch. 794.. 148, 149 1895, ch. 275, § 44....... 41 1895, ch. 322, § 1........ 33 1895, ch. 375 ............ 290 1895, ch. 767 ............ 932 1895, ch. 933............ 31 1895, ch. 934............ 709 1895, ch. 954, § 1........ 33 1896, ch. 112, § 13....... 983 1896, ch. 112, § 28....... 884 1896, ch. 225, § 56.......114 1896, ch. 272............ 582 1896, ch. 272, § 18.......1090 1896, ch. 272, § 27....... 799 1896, ch. 794.........148, 149 1896, ch. 908, § 35....... 978 1896, ch. 908, § 232 ...... 956 1896, ch. 90S, § 253...... 432 1896, ch. 909, § 110...... 597 1897, ch. 312, § 28...... 979 1897, ch. 378, § 149. Greater New York Charter. .. 570 1897, ch. 378, § 261. Greater New York Charter. .. 803 1897, ch. 378, § 299. Greater New York Charter... 547 1897, ch. 378, § 413. Greater New York Charter. .. 80 1897, ch. 378, § 416. Greater New York Charter. .79, 80> 1897, ch. 378, § 417. Greater New York Charter. .. 80 1897, ch. 378, § 419. Greater New York Charter.. . 80, 195, 633 1897, ch. 378, § 607. Greater New York Charter... 570 1897, ch. 378, § 895. Greater New York Charter. .. 432 1897, ch. 378, § 1551. Greater New York Charter ................... 195 1897, ch. 378, §§ 1570, 1571. Greater New York Charter............... 968 1897, ch. 378, § 1611. Greater New York Char- ................... 1897, ch. 415, § 8........ 1897, ch. 418, § 9, subd. 7 1897, ch. 418, §| 16, 40.. 1897, ch. 434............ 1897, ch. 439............ 1897, ch. 612, § 26, subd. 2 1898, ch. 101............ 1898, ch. 125............ 1898, ch. 184............ 1898, ch. 335, § 110, subd. 2, rules 6, 9........... 1899, ch. 128, §§ 114, 119, 256. New Rochelle City Charter............... 1899, ch. 370........452, 1899, ch. 370, § 6, subd. 1 1899, ch. 370, § 7........ 1899, ch. 370, § 29...... 1899, ch. 417............ 1899, ch. 700, § 1 et seq.'.. 577 724 306 688 577 288 73 894 983 579 775 537 472 858 469 41 588 37

1198 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. STAY. ’ Pending appeal, see “Appeal,” § 6. STOCK. Corporate stock, see “Corporations,” § 3. STOCKHOLDERS. Of banks, see “Banks and Banking,” § 1. Of corporations, see “Corporations,” § 4. STREET RAILROADS. See “Railroads.” § 1, Establishment, construction, and maintenance. Under Laws 1895, c. 933, where street occupied by street railroad is repaved by city, entire cost of repaving strip two feet wide outside of rails must be collected from the railroad company, and no part of it is assessable upon abutting property.—People' v. City of Utica (Sup.) 31. Where the consent of highway commissioners is necessary to lay tracks on highways, a condition requiring transfer of passengers for a given fare within its own territory is not void, as conflicting with the right in other towns to prescribe conditions for the construction of the road within their limits.—Gaedeke v. Staten Island M. R. Co. (Sup.) 290. Where a street railroad’s franchise, was forfeited if the road was not constructed within a specified time, further construction would be enjoined, pending action to permanently enjoin, on nonperformance of such condition.—Dusenberry v. New York, W. & C. Traction Co. (Sup.) 420. In an action to enjoin construction of a street raihoad on account of lack of required consent by property owners, the burden was on defendant to positively establish such consent.—Dusenberry v. New York, W. & 0. Traction Co. (Sup.) 420. Under Railroad Law, §§ 93, 99, a street railroad can be enjoined from constructing or operating its road when it has failed to carry out the conditions of its franchise requiring completion within less than three years.—Dusenberry v. New York, W. & C. Traction Co. (Sup.) 420. § 2. Regulation and operation. A city ordinance giving ambulances the right of way held admissible to prove negligence of a street railway in allowing its car to collide with an ambulance.—Buys v. Third Ave. R. Co. (Sup.) 113. Where child ran upon a street-car track unexpectedly, and so close to the rapidly approaching car that the driver could take no steps to stop the car, or to save the child from injury, the company is not liable.—Hirschman v. Dry Dock, E. B. & B. R. Co. (Sup.) 304. Evidence that driver of street car was arrested after the accident held prejudicial error.— Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. Street-railway company, running a car so close to a van that plaintiff, while standing on the running board, was injured by striking the van, held guilty of negligence.—Henderson v. Nassau Electric R. Co. (Sup.) 690. Facts, in an action for damages from a collision with a street car, held not to justify recovery by plaintiff.—Reilly v. Metropolitan St. Ry. Co. (Sup.) 785. Evidence held not to entitle plaintiff, cutting in in front of a street car, to recover for damages occasioned by a collision.—Mason v. Metropolitan St. Ry. Co. (Sup.) 789; Cornell v. Same, Id. Negligence cannot be predicated on defendant’s failure to ring a gong, where plaintiff testifies that he saw the car approaching by which he was struck.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. Facts held to establish negligence on part of plaintiff, in an action for damages from being struck by a street car.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. In an action for injuries from a collision with defendant’s car, the dismissal of the complaint at the close of plaintiff’s testimony held error.— Warren v. Union Ry. Co. (Sup.) 1009. STREETS. See “Municipal Corporations,” § 7. SUBMISSION OF CONTROVERSY. On submission of controversy on agreed facts, the court, on appeal, cannot draw inferences as to the intended legal effect of a contract, but must construe it according to its terms.—American Box Mach. Co. v. Zentgraf (Sup.) 417. SUBSCRIPTIONS. To corporate stock, see “Corporations,” § 3. SUBSTITUTION. Of devisees or legatees, see “Wills,” § 4. SUIT. See “Action.” SUMMARY PROCEEDINGS. Recovery of possession by landlord, see “Lon lord and Tenant,” § 7. SUMMONS. See “Process.” SUPPLEMENTARY PROCEEDINGS See “Execution,” § 1.

INDEX. 1199 SURVIVORSHIP. Of devisees or legatees, see “Wills,” § 4. TAXATION. See “Intoxicating Liquors,” § 1. Assessments for municipal improvements, see “Municipal Corporations,” § 5. § 1. Levy and assessment. Where no more is disclosed on review of an assessment on certiorari than relator’s mere claim of inequality and overvaluation in the appraisement, sworn by the assessor to be fair, and the facts on which the claim is based do not appear, the assessment will not be disturbed.—People v. Feitner (Sup.) 432. Where a taxpayer applies to correct an assessment under Greater New York Charter, § 895, his complaint must state the facts constituting inequality charged; for the court, on certiorari, is not required to enter on a new and original inquiry, under Laws 1896, c. 908, § 253.—People v. Feitner (Sup.) 432. The expression, “until the third Tuesday of August,” in Tax Law, § 35, held not to include the third Tuesday in August.—People v. Horn-beck (Sup.) 978. § 2. Payment and refunding or recova cry of tax paid. Where plaintiff resided and voluntarily paid the taxes for several years on premises he -alleged belonged to his mother, knowing that such taxes were improperly assessed, he cannot, under Laws 1892, c. 686, § 16, recover back the taxes so paid.—McCue v. Board of Sup’rs of Monroe County (Sup.) 315. § 3. Sale of land for nonpayment of tax. Mandamus held not to lie to set aside a sale for taxes, because of an irregularity in a pamphlet advertisement, where no one was misled.—People v. Coler (Sup.) 665. A sale of land for a single assessment may be made when there are other assessments in arrears.—People v. Coler (Sup.) 665. Where plaintiff’s lands were included in a parel with others advertised for sale for .delinquent axes, but the parcel was knocked down to the tote without opportunity for bids, the proceeding lid not amount to a sale, and was void.—Andrus . Wheeler (Sup.) 983. 4. Tax titles. When plaintiff’s lands were to be sold for tax-s, but were knocked down to the state without ale, a deed based on such proceeding is not alidated by the act to quiet tax titles after two ears.—Andrus v. Wheeler (Sup.) 9S3. When the owner of part of a tract of land pays e exact proportion of a tax laid on the whole act which her acreage bears to the whole reage, a sale of her portion for the remaining xes is without jurisdiction and absolutely void. Wallace v. Curtis (Sup.) 994. Evidence held to show that a certain portion a tract of land upon which the taxes had been paid did not pass by a sale of the remainder for its portion of the tax laid on the whole tract.— Wallace v. Curtis (Sup.) 994. § 5. Legacy, inheritance, and transfer taxes. Failure to tax a bequest, under mistaken theory that it was not subject to transfer tax, held not an “erroneous determination,” within Laws 1896, c. 908, § 232, permitting a reappraisement in such cases.—In re Niven (Sup.) 956. Surrogate’s order, on report of appraiser under transfer tax act, held conclusive as to allowance for debts and expenses of administration. —In re Rice’s Estate (Sur.) 911. Surrogate’s order, on report of appraiser under transfer tax act, held conclusive as to appraisement.—In re Rice’s Estate (Sur.) 911. Under transfer tax act, authorizing appraisals “as often as occasion may require,” reappraisements are contemplated to reach property omitted in former appraisals, and not property previously appraised which has increased in value.—In re Rice’s Estate (Sur.) 911. Where decedent was a nonresident, and his life insurance policies, issued by New York corporations, were in another state at the time of his death, the proceeds of such policies are not taxable, under the transfer tax law (Laws 1892, c. 399).—In re Abbett’s Estate (Sur.) 1067. TEACHERS. See “Schools and School Districts,” 1 1. TELEGRAPHS AND TELEPHONES. § 1. Regulation and operation. IJnder Laws 1848, c. 265. as amended by Laws 1855, c. 569, and Laws 1850, e. 340, a telegraph company cannot be compelled to furnish stock exchange news to persons whom the exchange orders shall not receive the same.—In re Renville (Sup.) 549. TENDER. A check is not a legal tender.—Block v. Garfield (Oity Ot. N. Y.) 918. TESTAMENT. See “Wills.” TESTAMENTARY CAPACITY. See “Wills,” § 1. TIME. For taking appeal, see “Appeal,” § 5. TITLE. Sufficiency of title of vendor of land, see “Vendor and Purchaser,” § 2. Tax titles, see “Taxation,” § 4. To office, see “Officers,” § 2.

1200 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. TOOLS. Liability of employer for defects, see “Master and Servant,” § 5. TORTS. § 2. Infringement and unfair competition. A spool-silk manufacturer, who had merged his business into a corporation, giving it his name, held not entitled to enjoin the use of the corporate name by others—Cutter v. Gudebrod Bros. Co. (Sup.) 225. Of employes, see “Master and Servant,” § 9. Of married women, see “Husband and Wife,” » § 2. Particular torts, see “Conspiracy,” § 1; “Negligence” ; “Trespass”; “Traver and Conversion.” - causing death, see “Death,” § 1. TOWAGE. A vessel which undertakes to tow other boats must see that the tow is properly made up, and that the lines are strong and securely fastened. —Tilley v. Beverwyck Towing Co. (City Ct. N. Y.) 495. Though a steam tug employed to tow a vessel into port is not a common carrier, nor an insurer, it is bound to exercise reasonable skill and care, in everything relating to the work, until it is done.—Tilley v. Beverwyck Towing Co. (City Ct. N. Y.) 495. TOWNS. See “Municipal Corporations.” § 1. Fiscal management, public debt, securities, and taxation. Under Laws 1895, c. 767, a notice of a submission to town electors of a question as to whether a school teacher is to be pensioned must be published in a newspaper, if any is printed in the town. — People v. Town Board of Plattsburg (Sup.) 932. A vote by a town, under Laws 1895, c. 767, to provide a teachers’ pension fund, on a petition to pension a particular teacher, held invalid. —People v. Town Board of Plattsburg (Sup.) 932. § 2.' Claims against towns. A town board has no authority to revive a claim against the town after it has been barred by limitations.—McGrory v. City of New York (Sup.) 689. TRADE-MARKS AND TRADE-NAMES. § 1. Title, conveyances, and contracts. Evidence held to establish a trade-mark, so as to entitle the owner to a charge to that effect; and hence submission of its existence was error.—Stern v. Barrett Chemical Co. (Sup.) 221. Assignee of a "corporation held entitled to use and sell spool cabinets which a manufacturer of spool silk had transferred to the corporation without removing his trade-name therefrom, and a purchaser from him entitled to be protected in their use.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. TRANSFER TAX. See “Taxation,” § 5. TRESPASS. Injuries to trespassers, see “Railroads,” § 1. § 1. Acts constituting trespass, and liability therefor. An owner of shore land, who contracts for dredging in front of it, without providing means of preventing deposits from spreading on the land of an adjacent owner, held as much a trespasser as the contractor, where such deposits so spread. —Braisted v. Brooklyn & R. B. R. Co. (Sup.) 674. § 2. Actions. In action to recover treble damages for despoiling trees, under Code Civ. Proc. §§ 1667, 1668. refusal to submit to jury issue as to whether cutting was casual or involuntary held not erroneous.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. Where defendant had an undivided half interest in cattle on plaintiff’s farm, on entering and taking one-half of the cattle by force, an instruction that the minimum amount of damages for the trespass was the value of the cattle taken was error.—Eelts v. Collins (Sup.) 482. A defense to trespass, that complainant granted permission to enter the premises, then refused admission, and defendant entered despite the refusal, held demurrable.—Silberman v. New Amsterdam Gas Co. (Sup.) 699. A defense insufficient in bar is not sustainable as a partial defense, where it is not pleaded as a partial defense.—Silberman v. New Amsterdam Gas Co. (Sup.) 699. TRIAL, See “Continuance”; “New Trial”; “Refer ence”; “Witnesses.” Of particular civil actions or proceedings, se “Negligence,” § 3; “Replevin,” § 2. — disputed claims against estate of decedent see “Executors and Administrators, ” § 4. Right to trial by jury, see “Jury,” § 1. § 1. Notice of trial and preliminar proceedings. Under Gode Civ. Proc. § 798, a notice of tri served by mail does not require double the 1 days specified in section 977, since section 79 also provides that such notices may be served ’ mail at least 16 days before the term.—German' Life Ins. Co. v. Powell (Sup.) 942. An objection that a notice of trial was serv by mail without sufficient postage is waived 1

INDEX. 12.01' accepting it.—Germania Life Ins. Co. T. Powell (Sup.) 942. When the trial of a case has been entered into, and is discontinued to permit the bringing in of another party as defendant, it is necessary to serve new notice of trial.—Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097. A note of issue of fact or law held not filed in compliance with Code Civ. Proc. § 3162.—Miner v. Galvanotype Engraving Co. (City Ct. N. Y.) § 2. Dockets, lists, and calendars. Under Code Civ. Proc. § 793, right to preference of a cause held lost by failure to serve notice of application with notice of trial.—Eckhard v. Jones (Sup.) 257. Under Code Civ. Proc. § 793, notice of preference may he served after notice of trial, if within time in which notice of trial can be given.—Gilbert v. Pinch (Sup.) 300. The right of preference upon the calendar given by Code, § 791, subd. 5, to executors, when they are the sole plaintiffs or sole defendants, does not extend to a case where the same person is joined as a party in his individual capacity, as well as in the prescribed capacity.—Ahern v. Ahern (Sup.) 931. The fact that there is no opposition to a motion to place a case on the preferred calendar is not sufficient reason for granting the preference, unless some right or reason is shown therefor.— Ahern v. Ahern (Sup.) 931. _ Code Civ. Proc. § 793, requiring notice of a motion for preference to he served with the notice of trial, does not apply to motions for preference, under special term rule 10, in actions to foreclose mortgages.—Germania Life Ins. Go. v. Powell (Sup.) 942. Failure of plaintiff to notice his cause for the first term after issue is not loches, defeating his right to move to place the cause on the preferred calendar.—Bailey v. Miles (Sup.) 977. A motion to strike a case from the calendar, because not regularly thereon, made before it is reached, is in time.—Poindexter v. Carleton (City Ct. N. Y.) 1116. § 3. Reception of evidence. A motion to strike a witness’ answer, because it was incompetent, held properly denied.—Jones v. New York Cent. & H. R. R. Co. (Sup.) 721. That a witness’ answer is not responsive is an objection that lies only with the examining counsel.—Jones v. New York Cent. & H. R. R. Co. (Sup.) 721. 4. Taking case or question from jury. Where, at the close of the evidence, counsel or both parties request a verdict, the court can ass on any question of fact presented by the vidence. — Northam v. International Ins. Co. Sup.) 45. Request for direction of a verdict, without subequent request to go to the jury, i's a waiver of e right to go to the jury.—Ranken v. Donovan up.) 542. 01 N.Y.S.—76 Evidence held to authorize direction of verdict for defendants, plaintiffs having waived right to-go to jury.—Ranken v. Donovan (Sup.) 542. Error cannot be predicated on the refusal of the trial court to grant a nonsuit, where there was evidence tending to establish plaintiff’s cause of action—Niland v. Geer (Sup.) 696. Though the evidence in the first trial of an action for injuries tended to show plaintiff’s- eon-tributary negligence, yet, she having testified to diligence on the second trial, it was error for the court to dismiss the complaint.—Hickman v. Nassau Electric R. Co. (Sup.) 698. The trial court is not bound, by Code Civ. Proc. § 1187, to receive the general verdict where, after a motion to direct a verdict has been made, and special fact questions submitted to the jury, they report that they cannot agree upon the questions, but have reached a¡ general verdict.—McDonald v. Metropolitan St-Ry. Co. (Sup.) 817. If, on the evidence, a verdict in favor of the' person against whom judgment has been rendered could not be sustained, a verdict against .him may properly be directed.—McDonald v~ Metropolitan St. Ry. Co. (Sup.) 817. Where both parties, at close of case, moved for direction of verdict, the court, if the evidence-so warrants, can direct judgment for defendant.—Schreyer v. Jordan (Sup.) 889. A motion for nonsuit on the ground that proof fails to sustain the complaint must specify omissions relied on.—Boldt v. Epstein (City Ct. NY.) 248. A motion for nonsuit or to dismiss a complaint is properly denied where the motion does not point out the defects in plaintiff’s case relied! on.—Gowing v. Warner (Oity Gt. N. Y.) 500.. § 5. Instructions to jury. Construction of a foreign statute, in connection:', with expert testimony, presents a question foB-the court.—Bank of China, Japan & the Straits-v. Morse (Sup.) 268. A refusal to charge on the effect of testimony,-. if found to be true, was proper.—Ravin v. Suhin- • (City Ct. N. Y.) 1104. Instructions having no bearing on issues held ' properly refused.—Rishel v. Weil (City Ct. N. Y.), - § 6. Waiver and. correction of irregu— - larities and errors. Failure to move to strike out evidence of an - attorney, after it appeared that the same was-privileged, is a waiver of any objection thereto,-. —Kitz v. Buckmaster (Sup.) 64. TROVER AND CONVERSION. § I. Acts constituting conversion, and liability therefor. Evidence held to show a consignment of merchandise, to be -paid for by the consignees at a price fixed in advance if disposed of, and, if not, to be returned, and not a fiduciary relation, which would make them liable for a wrongful

1202 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. conversion of the proceeds of sales thereof.— Stoneman v. Van Veehten (Sup.) 513. Defendant’s attachment affidavit showing that property seized was claimed by a third person, defendant will be presumed to know that the proceeds of a sale thereof included such property: and hence he is liable in conversion therefor.— Hill v. White (Sup.) 515. § 2. Actions. Whether charge of complaint is fraudulent conversion of money of plaintiff’s intestate, and the proof shows that defendant drew the_ money from the banks at the request of plaintiff’s intestate, there can be no recovery on the ground that defendant did not exercise reasonable care in turning the same over to her.—ICirwin v. Malone (Sup.) 844. Where a complaint charges fraudulent conversion of money, defendant cannot be held liable, on the ground that he was negligent in turning the money over to plaintiff’s intestate while she was insane.—ICirwin v. Malone (Sup.) 844. In an action against a marshal to recover damages for the seizure and conversion of plaintiff’s goods under a writ directed- against another, testimony of plaintiff as to whose possession the goods were in when seized is competent.—Leibman v. Abramson (Sup.) 897. TRUSTS. Conveyances in trust for creditors, see “Assignments for Benefit of Creditors.” § 1. Creation, existence, and validity. An agreement between a grantor and a grantee held to constitute a valid trust in favor of the grantor as to a surplus mentioned in the agreement.—Spencer v. Richmond (Sup.) 397. Deposit of money in bank in name of another, with provision that depositor may withdraw, without knowledge of former, held to create trust for benefit of person in whose name deposit was made.—Martin v. Martin (Sup.) 813. § 2. Construction and operation. Evidence held sufficient to sustain a finding of a fiduciary relationship between the parties.-— Rose v. Durant (Sup.) 15. A trust deed conveying all of decedent’s property affects only such property as was owned by him at the time of its execution.—In re Backus’ Will (Sur.) 1070. $ 3. Appointment, qualification, and tenure of trustee. A trustee may be removed, merely because of 311 feeling between himself and the cestui que trust, though he is. guilty of no mismanagement or misconduct.—Disbrow v. Disbrow (Sup.) 614. $ 4E. Management and disposal of trust property. Ratification by cestui que trust of investment made by trustee must not only be clearly proved, hut it must appear that it was made with full knowledge of cestui que trust 'of all material facts, and that he was fully apprised of their effect and of his rights.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Trustee has no authority to make voluntary investments, of a speculative nature, of trust funds 'in lands outside the -state.—In. re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Taking of a mortgage for the benefit of cestui que trust, and a subsequent assignment, held proper exercise of the trustee’s powers.—Wash-burn v. Benedict (Sup.) 387. Surcharging of the accounts of a trustee with the cost of repairs in excess of the cost of similar repairs by other persons held error.—Disbrow v. Disbrow (Sup.) 614. Evidence held sufficient to show that a trustee should be credited by the cost of repairs made by him, without detailed evidence of the nature of the repairs.—Disbrow v. Disbrow (Sup.) 614. That a cestui que trust objected to repairs held not to entitle him to have the trustee’s account surcharged with the amount paid therefor.—Dis-brow v. Disbrow (Sup.) 614. Surcharging of the accounts of a trustee with penalties incurred by failure to pay taxes promptly held error, where the cestui que trust had used the funds available for prompt payment.—Dis-brow v. Disbrow (Sup.) 614. Trusts under a will held not entitled to share in the increase in value of the principal before they are set apart.—In re Irwin’s Estate (Sur.) 239. § 5. Accounting and compensation of trustee. Where executor, acting also as trustee, sells railroad bonds belonging to estate at a premium, and mingles proceeds of sale with his individual funds, he is chargeable with entire proceeds of sale, and with interest thereon from date of sale. —In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Executor, acting as trustee, who had encroached on principal in making payments to- cestui que trust, his daughter, held not entitled to credit for amount overpaid.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Refusal to compel an accounting of trust funds, where plaintiff did not show that all or any certain part of fund in regard to which accounting was sought was trust funds, was not error. — Woodbridge v. First Ñat. Bank (Sup.) 258. A trustee under a deed to take care of real estate is entitled to only such compensation as is allowed to executors, in the absence of any provisions in the deed regulating the compensation.—■ Disbrow v. Disbrow (Sup.) 614. Surcharging of the accounts of a trustee with the amount of premiums paid for insurance on the property in excess of its salable value held error.—Disbrow v. Disbrow (Sup.) 614. Where beneficiary died before trust was form ed, commissions ought not to be allowed th trustees.—In re Irwin’s Estate (Sur.) 239. Trusts under a will should not bear their pr rata expenses of the principal estate, incurrei before they were set apart.—In re Irwin’s Es ■tate (Sur.) 239.

INDEX. 1203 § 6. Establishment and enforcement of trust. Where an agreement as to a surplus constitutes a valid trust as to such, surplus, the payment of such surplus to the husband of the cestui que trust, having knowledge of such trust, does not deprive judgment debtors of the cestui que trust of their right to reach same.—Spencer v. Richmond (Sup.) 397. UNDISCLOSED AGENCY. See “Principal and Agent,” § 2. UNDUE INFLUENCE. Procuring making of will, see “Wills,” § 2. UNITED STATES. See “United States Marshals.” Indians, see “Indians.” UNITED STATES MARSHALS. A United States marshal held liable for depreciation in value of property in his hands under attachment, where due to his negligence.—Park v. Hayden (Sup.) 264. A complaint in an action against a United States marshal to recover for depreciation of property in his hands under attachment, due to his negligence, held not defective.—Park v. Hayden (Sup.) 264. USAGES. See “Customs and Usages.” covenants of which are not binding on the land. —Kahn v. Mount (Sup.) 358. § 3. Rights and liabilities of parties. Where by lapse of time the lien of a judgment upon a judgment debtor’s land has ceased, and no conveyance or deed, upon execution sale thereof, executed by the sheriff, has been recorded as required by statute, and the judgment debtor executes a valid conveyance to a third person, who received it for a valuable consideration and without notice of any other conveyance, and duly recorded his deed as required by law, such third person would acquire a good title thereto.—Davidson v. Crooks (Sup.) 362. The record of a sheriff’s certificate of sale is no notice to a subsequent grantee of the sale by the sheriff, and is therefore no cloud upon the title of the property.—Davidson v. Crooks (Sup.) 362. A purchaser of realty is chargeable with the constructive notice which the law imputes to the records, and not with everything he might learn from an examination of all papers connected with the title.—Potter v. Sachs (Sup.) 426. Agreement to maintain fences along a railroad, in consideration of an agreement to convey the land occupied by the road, held a covenant running with the land, authorizing conveyance on performance by railroad company.—Davenport v. New Jersey & N. Y. R. Co. (Sup.) 1040. § 4. Remedies of purchaser. A vendor may show title by adverse possession on the trial of vendee’s action to recover money paid after rescission for defective title, though he had not previously acquainted the vendee with the facts constituting his adverse claim.—Kahn v. Mount (Sup.) 358. VACATION VENUE. Of attachment, see “Attachment,” § 5. Of judgment, see “Judgment,” § 4. VENDOR AND PURCHASER. See “Sales.” Purchasers at tax sale, see “Taxation,” § 4. Specific performance of contract, see “Specific Performance.” 1. Modification or rescission of contract. Unintentional error in a chain of title, referring 0 and intending to convey the same premises, 1 eld to furnish no grounds for defendant’s refus1 to perform the contract to purchase the premses.—McAdam v. Farrell (Sup.) 234. 2. Performance of contract. A purchaser of real estate cannot refuse to erform his contract on the ground that the invest of an heir of a former owner who died instate is still outstanding, where the vendor’s tie is good by adverse possession.—Kahn v. ount (Sup.) 358. A purchaser of real estate cannot refuse to rform his contract on the ground that the •emises are incumbered by an agreement the § I. Nature or subject of action. An action against a landlord for entering the demised property and making alterations is within Code Civ. Proc. § 982, requiring actions affecting a “right” in realty to be tried where the realty is situated.—Rothlein v. Hewitt (Sup.) 97. § 2. Change of venue or place of trial. Under Code Civ. Proc. § 982, where an action is brought to set aside a fraudulent assignment and conveyance of land situated in another county, a change of venue will be awarded to the county where the land lies.—Iron Nat. Bank v. Dolge (Sup.) 680. Affidavit of merits held unnecessary to change the place of trial of an action as to interest in land to county where land was situated.—Iron Nat. Bank v. Dolge (Sup.) 680. All parties to an action are concluded by the decision of a motion for change of venue, where they have notice thereof.—Iron Nat. Bank v. Dolge (Sup.) 680. VERDICT. Directing verdict in civil actions, see “Trial,” § 4. Review on appeal, see “Appeal,” § 17.

1204 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. VESTED REMAINDERS. Creation, see “Wills,” § 4. VICE PRINCIPALS. See “Master and Servant,” § 6. VILLAGES. See “Municipal Corporations.” VOTERS. See “Elections.” WAGES. See “Master and Servant,” § 2. WAIVER. See “Estoppel.” Of objections, see “Trial,” § 6. WAR. Declaration of war does not dissolve a shipping contract between domestic ports.—Graves v. Miami S. S. Co. (Sup.) 115. Voluntary disposition of vessels to the government in time of war does not dissolve a shipping contract of the owner.—Graves v. Miami S. S. Co. (Sup.) 115. WARRANT. For attachment, see “Attachment,” § 3. WARRANTY. On sale of goods, see “Sales,” §§ 5, 7. WATERS AND WATER COURSES. § 1. Subterranean and percolating waters. The city of New York enjoined from operating its pumps, which caused the diversion of percolating waters under plaintiff’s land, and held liable for the damage plaintiff had sustained by reason of such diversion.—Forbell v. City of New York (Sup.) 1005. WAYS. Private rights of way, see “Easements.” WILLS. See “Descent and Distribution”; “Executors and Administrators.” Charitable bequests and devises, see “Charities.” Construction and execution of trusts, see “Trusts.” Restrictions on perpetuities, see “Perpetuities.” I 1. Testamentary capacity. The fact that testatrix was of unsound mind at the time of her death, and for some months prior thereto, will not affect the validity of her will made two years before, when there is no evidence that such a condition existed when the will was made.—In re King’s Will (Sur.) 238. Evidence of conduct of testatrix held, insufficient to rebut presumption of sanity.—In re Dwyer’s Will (Sur.) 903. Evidence held, to show that testatrix was of sound mind at the time she executed a will.— In re Dwyer’s Will (Sur.) 903. A will will not be set aside on the sole testimony of an expert that he would not regard one under certain conditions mentally incapable of making a will, when the deceased was not subject to such conditions.—In re Connor’s Will (Sur.) 910. § 2. Requisites and validity. A lost will was sought to be proved by the witnesses, who testified that an unsigned paper was signed by them and then signed by decedent in presence of one of them. Held, that it was executed, so as to be entitled to probate, under 2 Rev. St. p. 63, § 40.—In re Purdy’s Will (Sup.) 430. Evidence held insufficient to show that a beneficiary exercised undue influence over testatrix. —In re Dwyer's Will (Sur.) 903. Facts held not to show undue influence sufficient to warrant denial of probate of a will.—In re Westerman’s Will (Sur.) 1065. Under Rev. St. pt. 2, c. 6, tit. 1, art. 3, § 42, a will is not revoked by a trust deed providing for its revocation, where the deed is not executed with the same formalities with which the will itself was required by law to be executed.—In re Backus’ Will (Sur.) 1070. Rev. St. pt. 2, c. 6, tit. 1, art. 3, §§ 47, 48, do not refer to the revocation of wills, but only to the revocation of devises and bequests contained in wills.—In re Backus’ Will (Sur.) 1070. § 3. Probate, establishment, and annulment. A husband under no legal disability may sue, under Code Civ. Proc. § 2653a, to set aside his wife’s will for undue influence, etc.—Wells v Betts (Sup.) 231. Code Civ. Proc. § 2653a, providing for suit, to contest wills probated within two years pria to the passage of the section, held to apply t wills probated after the section was passed. Wells v. Betts (Sup.) 231. The probate of a lost will refused, under Cod Civ. Proc. § 1865, where one of witnesses swor that decedent devised all his estate to his mot" er and to her heirs, and one that devise was her heirs.—In re Purdy’s Will (Sup.) 430. Where a contest over the probate of a will timately turned on its correct construction, t surrogate had power to allow costs to the unsu cessful party, under Code Civ. Proc. § 2561.— re Bogart’s Will (Sup.) 671. Where a party to a contest of a will did n oppose the awarding of costs to contestants

INDEX. 120» the surrogate’s court, his motion for resettlement of costs should be denied.—In re Bogart’s Will (Sup.) 671. Will contested on grounds of undue influence held not so unnatural as to throw burden of proof upon proponent.—In re King’s Will (Sur.) 23S. Material alterations in will, made by erasing with chemical and writing in words, where no statement is contained in will that they were made before execution, throws burden of showing they were made before execution on proponent.—In re Dwyer’s Will (Sur.) 903. § 4. Construction. The language of a devise in a will held to show an intention by the testator that if, at his death, any of the devisees were dead, the issue of such devisee or devisees should become substituted therefor.—Lyons v. Weeks (Sup.) 441. Where property is given to trustees for the benefit of a person during life, and upon the death of such beneficiary to others, the remainder-men take a vested remainder in fee, which is not defeated by the death of such remainder-men during the life of the beneficiary.—Lyons v. Weeks (Sup.) 441. A son, admitting the validity of his father’s will as to his mother’s life estate, and not interested in a trust created therein, held not entitled, as heir at law, to sue in equity to have the will construed, and the trust declared void, and an intestacy after the death of his mother adjudged.—Kalish v. Kalish (Sup.) 448. A son cannot maintain an action in equity to have his father’s will construed, and a trust therein created declared invalid, where he has no present interest, either as next of kin or as legatee.—Kalish v. Kalish (Sup.) 448. Code Civ. Proc. § 1866, held not to authorize a son to maintain, as heir at law, an action in equity to have his father’s will construed, and a trust therein created declared void.—Kalish v. Kalish (Sup.) 448. Provisions of a will construed, and held to provide that surviving sisters of deceased legatee should take her share, independent of children of other brothers and sisters previously deceased. —In re McCahill (Sur.) 1071. '§ 5. Rights and liabilities of devisees and legatees. A legacy, failing to vest in the legatee because of her death, held to pass to the legatee’s issue, under 2 Rev. St. p. 66, § 52.—In re Hafner (Sup.) 565. WITNESSES. See “Evidence.” Code Civ. Proc. § 835, prohibiting the disclosure of confidential communications between attorney and client, does not prevent an attorney from testifying to conversations and advice given to a person not his client.—Kitz v. Buckmaster (Sup.) 64. Defendant, in an action for wrongfully causing decedent’s death, held prohibited from testifying concerning the transaction, including conversations with deceased at the time, by Code Civ. Proc. § 829.—Abeiein v. Porter (Sup.) 144. Refusal to permit defendant to testify when he had discovered that a deceased holder of a mortgage had failed to indorse a payment was proper, as calling for evidence concerning a transaction with a deceased person. — Rowley v. Parsons (Sup.) 392. Under Code, § 836, providing for a waiver of the privileges of a professional witness, a waiver by plaintiff was sufficient where the action was for injuries to his minor son.—Corey v. Bolton (City Ct. N. Y.) 917. § 2. Examination. The form of a question on the cross-examinatian of a witness in an action for personal injuries held, not erroneous.—Barrett v. New York Cent. & H. R. R. Co. (Sup.) 9. A question, on cross-examination, as to the witness’ pecuniary interest in the action, is admissible.—Sissinch v. Bernhardt (Sup.) 107. It is within the discretion of the court whether defendant should be permitted to cross-examine plaintiff’s witness upon the whole case before the plaintiff has rested. — Nally v. Hitchcock (Sup.) 962. § 3. Credibility, impeachment, contradiction, and corroboration. Testimony of adverse witness on cross-examinatian held not to conclude party calling him.— Mueller v. Tenth & Twenty-Third St. Perry Co. (Sup.) 986. WORK AND LABOR. Liens for work and materials, see “Mechanics’ Liens.” A servant held entitled to an ordinary judgment for wages, though he brought action under Buffalo City Charter, as amended by Laws 1898, c. 101, but failed to state a cause of action entitling him to the special relief provided thereby.—Wah Kee v. Young (Sup.) 894. WRITS. Particular writs, see “Execution”; “Mandamus.” § 1. Competency. Whether relation of attorney and client exists, so as to prevent the attorney from testifying to conversations, is a question for the court.— ICitz.v. Buckmaster (Sup.) 64. YEAR. Agreements not to be performed within one year, see “Frauds, Statute of,” § 2. Estates for years, see “Landlord and Tenant.”

1

TABLES OF NEW YORK SUPPLEMENT CASES APPEARING IN OTHER REPORTS. VOL. 41, APPELLATE DIVISION REPORTS. Page Adams v. Nassau Electric B. Co. (58 N. Y. S. 543).............................. 334 Ahrens v. Moadinger (58 N. Y. S. 497).... 355 American Lucol Co. v. Lowe (58 N. Y. S. 687) ............ 500 Arena Athletic Club v. McPartland (58 N. Y. 8. 477)........................... 352 Asbestos Pulp Co. v. Gardner (58 N. Y. 8. 1136) ...........;...................624 Badger v. Ceiler (58 N. Y. 8. 653)........ 599 Balfoort v. New York Cent. & H. R. R. Co. (58 N. Y. S. 1136).......... 617 anedetto v. Banker (58 N. Y. 8. 1136)... 625 ateman v. Austin (58 N. Y. 8. 1136)..... 623 each v. McGovern (58 N. Y. 8. 493)...... 381 ecker v. Syracuse Rapid Transit Ry. Co. (58 N. Y. 8. 1136).................... 625 eebe v. Nassau Show Case Co. (58 N. Y. S. 769).............................. 456 ell v. Miller (58 N. Y. 8. 1136)......... 616 ibbey v. Collins (58 N. Y. 8. 1336)...... 616 iel v. Rochester Carting Co. (58 N. Y. 8. 1136) ............................... 624 igelow v. Niagara River Brewing Co. (In re Busch Brewing Co., 58 N. Y. 8. 812).. 204 ini v. Smith (59 N. Y. 8. 1098).......... 631 irrell v. New York & H. R. Co. (58 N. Y. 8. 650).............\................ 506 lanek v. Nelson (59 N. Y. 8. 1098)...... 632 oland v. Cook (58 N. Y. 8. 1137)........ 624 own v. Britton (58 N. Y. 8. 353)....... 57 own v. Harmon (58 N. Y. 8. 1137)....: 623 own v. Persons (58 N. Y. 8. 1137)...... 625 ffalo Creek R. Co. v. Collins (58 N. Y. .65)................ 8 II v. Case (58 N. Y. 8. 774)............ 391 rleigh v. Shepard & Morse Lumber Co. 58 N. Y. 8. 1137).................. 617 rlew v. Hunter (58 N. Y. 8. 453)....... 148 rnham v. Raymond (58 N. Y. 8. 1137).. 625 sch Brewing Co., Matter of (58 N. Y. 8. 12) ..................... 204 tier v. Butler (58 N. Y. 8. 1094)....... 477 ladine v. City of Niagara Palls (58 N. . 8. 1137)....'.......?............... eron v. Nash (58 N. Y. 8. 643)....... pbeil v. Joseph H. Bauland Co. (58 N. 8. 984)............................ I v. Doty (58 N. Y. 8. 1137).......... 61 N.Y.S. Page; Carney, Matter of (58 N. Y. 8. 1137).....617 Carrie v. Davis (58 N. Y. 8. 820)......... 520. Carson v. Crawford (58 N. Y. 8. 1137)____617-Chapman v. New York Cent. & H. R. R. Co. (58 N. Y. 8. 728).................. 61@ Chicago Lumbering Co. of Michigan v. Hartman (58 N. Y. 8. 1137)............ 626 Chicago & E. I. R. Co. v. Central Trust Co. of New York (58 N. Y. 8. 809)......... 495-City of New York, Matter of (58 N. Y. S. 736) ................................"58® City of New York v. East Bay Land & Improvement Co. (58 N. Y. 8. 724)____.... 567 City of Niagara Palls v. New York Cent. & H. R. R. Co. (58 N. Y. 8. 619)....... 9S. Clark v. Village of Batavia (58 N. Y. 8. 1138) ...............................624" Coheleach v. Gaily (59 N. Y. 8. 1100)..... 632: Colebrook, Matter of (58 N. Y. 8. 1138)... 625". Comesky v. Postal Tel. Cable Co. (58 N. Y. S. 467)................. 24R Conklin v. McCauley (58 N. Y. 8. 879).... 452 : Cook v. Gordon (58 N. Y. 8.1138)........ 624 ■ Coon v. Coon (58 N. Y. 8. 1138)......... 617 Corbett v. Ciason (59 N. Y. 8. 1101)..'____631 Cornell v. Village of Baidwinsville (58 N. Y. 8. 1138)......................... 626" Comell Steamboat Co., People ex rel., v. Dederick (58 N. Y. 8. 1146),............. 611, Crane, People ex rel., v. Chandler (58 N. Y. 8. 794).......................... 178; Davis v. Marvine (61 N. Y. 8. 1135>...... 617 Dayton, Matter of (59 N. Y. 8. 1101)......632 Delafield v. Village of Westfield (58 N. Y. 8. 277).............................. 24"; Denike v. Towns (58 N. Y. 8. 931)-......... 62®. Deutermann v. Pollock (59 N. Y. 8. LL01);.. 631; Deverell v. Bauer (58 N. Y. 8. 413)......... 53 : De Vito v. Press Pub. Co. (59 N. Y. Si. 1102) 632 Devlin v. Hinman (59 N. Y. 8. 1102)..... 632 Doigeville Electric Light & Power Co., Matter of (58 N. Y. 8. 1139)............... 624i Dougherty v. King (58 N. Y. 8. 67)....... Í Douglass v. Northern Cent. Ry. Co. (58 N. Y. 8. 73)....... 615 Downes v. Elmira Bridge Co. (58 N. Y. 8. 628) ................................ 838) Du Bois v. City of New York (59 N. Y. S» 1102) .............................. <832. 623 532 474 617 (1207)

1208 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 41 AFP. DIV—Continued. Page Duer v. Hunt (58 N. X. S. 742)........... 581 Dygert v. Porschet (58 N. Y. S. 1140)..... 623 East Side Sav. Bank oí Rochester v. McPherson (58 N. Y. S. 1140)............. 624 Ellison v. Sun Printing & Publishing Ass’n (59 N. Y. S. 970)..................... 594 Emigrant Industrial Sav. Bank v. Regan (58 N. Y. S. 693)..................... 523 England v. Morning Journal Ass’n (59 N. Y. S. 1102)........................... 631 E. Seidenberg, Stiefel & Co., People ex rel., x. Feitner (58 N. Y. S. 713)............ 571 Ferris’ Estate, Matter of (59 N. Y. S. 1102) 631 Fisher v. City of Mount Vernon (58 'N. Y. S. 499).............................. 293 Fisk v. Harris (58 N. Y. S. 1140)........ 623 Flack v. Nassau Electric R. Co. (58 N. Y. S. 839).............................. 399 Flack v. Nassau Electric R. Co. (59 N. Y. S. 1104)............................. 032 Fletcher v. Jacob Dolcl Packing Co. (58 N. X. S. 612)............................ 30 Flour Cltv Nat. Bank of Rochester y. Pfaffi (58 N. Y. S. 1140).................... 625' Foggan v. Colgan (58 N. Y. S. 1140)...... 625 Fowler y. Buffalo Furnace Co. (58 Ñ. Y. S. 223) ............................ 84 Fowler v. Marcus (58 N. Y. S. 867)....... 425 Fox v. International Hotel Co. (58 N. Y. S. 441) ................................ 140 Friendly v. Eisner (58 N. Y. S. 1141)..... 625. Frohle v. Brooklyn Heights R. Co. (58 N. Y. S. 561)............................ 344 Fuller v. Cole (58 N. Y. S. 741).......... 620 Gans v. McGowan (58 N. Y. S. 951)...... 461 Garby v. Bennett (59 N. X. S. 1104)...... 631 Gardner v. Dutcher (39 N. Y. S. 1104)..... 031 Gates v.- Bowers (58 N. Y. S. 287)........ 612 German American Bank of Rochester v. Rich (58 N. Y. S. 1141)............... 623 Gibbons,.People ex rel, v. Coler (58 N. Y. S. 988).............................. 463 ■Gillespie v. Lidgerwood Mfg. Co. (61 N. Y. S. 1137) .............................. 630 Goulden v. Gillen (58 N. Y. S. 458)....... 302 Covers v. Hofstatter (58 N. X. S. 550)..".. 384 Graves v. Freeman (58 N. Y. S. 1141)..... 624 Green v. Pratt (58 N. Y. S. 1141)........ 625 Griffin v. Brown (58 N. Y. S. 1141)......‘ 623 Gnilfoyle v. Seeman (58 N. Y. S. 668).... 516 Guntzer v. Yonkers R. Co. (59 N. Y. S. 1105) ....................... 632 Haag v. City of Mt. Vernon (58 N. Y. S. 581) ................................ 366 ■Haggart v. Myers (58 N. Y. S. 1141)...... 617 Hagmayer v. Alten (58 N. Y. S. 684)...... 487 Hannon v. Hartford Fire Ins. Co. (58 N. Y. S. 549).............................. 226 Harney v. Provident Sav. Life Assur. Soc. (58 N. Y. S. 822)...................... 410 Harney v. Provident Sav. Life Assur. Soc. (59 N. Y. S. 1106).................... 631 Harnev v. Provident Sav. Life Assur. Soc. (59 N. Y. S. 1100).................... 632 Harrigan v. Golden (58 N. Y. S. 726)..... 423 Harrison v. Sperber (58 N. Y. S. 1142).... 623 Healey v. Carlson (59 N. Y, S. 1106)...... 631 Page Heller, Matter of (58 N. Y. S. 695)....... 595 Hemmert, People ex reí., v. York (58 N. Y. S. 401).............................. 305 Hemmert, People ex rel., v. York (59 N. Y. S. 1113)............................. 631 Hennessy v. Muhl (58 N. Y. S. 1142)..... 630 Hermann-Graeff v. Worinser (59 N. Y. S. 1105) ..............................632 Hess v. Johnson (58 N. Y. S. 983)........ 465 Hewett v. Town of Thurman (58 N. X. S. 83) ................................. 6 Hickman v. Nassau Electric R. Co. (58 N. Y. S. 858)............................ 629 Hinman v. Devlin (58 N. Y. S. 1142)..... 630 I-Iitchcock v. City of Syracuse (58 N. Y. S. 1142) ...............:............... 623 Holcomb v. Harris (58 N. Y. S. 1142).....617 Holmes v. Borst (58 N. Y. S. 1142).......617 ] Hooker v. Hooker (58 N. Y. S. 536)....... 235 Horton, People ex rel., v. Fuller (58 N. Y. S. 835).............................. 4041 Howe v. Village of Owego (58 N. Y. S. 1142) ............................... 6171 Hudson v. Rome, W. & O. R. Go. (58 N. Y. S. 1142)............... 6251 Israel v. Levy (59 N. Y. S. 1107)......... 632| Jenkins v. Phillips (58 N. Y. S. 788)...... 389| Jerome Park Villa Site & Improvement Co., People ex rel., v. Roberts (58 N. Y. S. 254) .......... 211 ICearney v. Gorman (58 N. Y. S. 1143).... 6211 Keefe v. Buckley (58 N. Y. S. 1143).......61(1 Keefe v. Buckley (58 N. Y. S. 1143)....... 61T Kenny, People ex rel., v. Reilly (58 N. X. I S. 558)............................... 37,1 Iiernochan v. Marshall (58 N. Y. S. 877).. 42» ICeuka College v. Ray (58 N. Y. S. 745)... 20l King v. Clark (In re Murphy’s Will, 58 N. I Y. S. 450)............................ 15| Kipp v. Metropolitan Life Ins. Co. (58 N. Y. S. 494)............................ 29 Klein v. Board of Sup’rs of Oneida County I (58 N. Y. S. 1143).................... 69 Kornder v. Kings County El. Ry. Co. (58 N. Y. S. 518)........■.................. 311 Koster v. Pain (58 N. Y. S. 865)......... 44 Krumbeck v. Clancy (38 N. Y. S. 727).... Si| La Gier v. Delaware, L. & W. R. Co. (58 N. Y. S. 1143)........................ 61 La Rue v. McNeil (58 N. Y. S. 1143)......6| Lamb v. Lamb (58 N. Y. S. 1143)........ 03T Lang v. Williams (50 N. Y. SellOS)......6Í Langley v. East River Gas Co. (58 N. Y. S. f 992) ................................ 41 Lawatsch v. Cooney (58 N. Y. S. 1143)...' i Lawlor v. Bucklin (58 N. Y. S. 1143)...... (| Lehman v. Haggart (58 N. Y. S. 1141).... Lehon v. Sayer (58 N. Y. S. 1144)........ (| Leonard v. City of Hornellsville (58 N. Y. S. 266).............................. Leverich v. Leverieh (59 N. Y. S. 1108).... Lewin v. Lehigh Valley R. Co.. (58 N. Y. S. 113) ................................ Leyh v. Newburgh Electric R. Co. (58 N. t. S. 479)........................'----Link v. Drury (58 N. Y. S. 1144).........

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1209 41 APP. DIV.—Continued. Page Litchfield v. International Paper Co. (58 N. Y. S. 856)............................ 446 Lodi Chemical Co. v. National Lead Co. (58 N. Y. S. 717)..................... 535 Lonsdale v. Lonsdale (58 N. Y. S. 532).... 224 Lyman v. Swartz (58 N. Y. S. 1144)...... 624 Lynde v. Lynde (58 N. Y. S. 567)......... 280 McCarthy v. Brooklyn Wharf & Warehouse Co. (58 N. Y. S. 1144)................. 630 McClure v. Supreme Lodge, Knights of Honor (50 N. Y. S. 764)............... 131 McConihe v. Connecticut Mut. Life Ins. Co. (58 N. Y. S. 1144).................... 617 McCormick, Matter of (58 N. Y. S. 1144).. 630 McCredy v. Woodcock (58 N. Y. S. 056)... 526 McIntyre v. New York Cent. & II. R. R. Co. (58 N. Y. S. 610).................. 93 McKee v. Lavery (58 N. Y. S. 990)....... 629 McKenna v. Brooklyn Heights R. Co. (58 X. Y. S. 462)......................... 255 McLoughlin v. Bieber (58 N. Y. S. 790)... 561 McLouglilin v. Prescott (58 N. Y. S. 1144) 617 Magnus v. McCarthy (58 N. Y. S. 1144)... 630 Maires, Matter of (59 N. Y. S. 1109)...... 631 Malay v. Mt. Morris Electric Light Co. (58 N. Y. S. 059)......................... 574 Mallery, Matter of (58 N. Y. S. 1144)..... 617 Manhart v. Peters (58 N. Y. S. 1144)...... 623 Biarks v. Rochester Ry. Co. (58 N. Y. S. 210) ................................ 66 Blasón v. Corbin (58 N. Y. S. 1145)....... 617 Blathews, Blatter of (59 N. Y. S. 1Í10)____631 Blayer v. Blayer (58 N. Y. S. 1145)....... 624 Blayer v. Raymond (58 N. Y. S. 1145)..... 624 Blayor, etc., of City of New York, Blatter of (58 N. Y. S. 736)..................... 586 Mayor, etc., of City of New York v. East Bay Land & Improvement Co. (58 N. Y. S. 724).............................. 567 laxweil v. Conklin (58 N. Y. S. 474)..... 211 lerrick v. "Waters (58 N. Y. S. 1145).....617 lerrill v. Blerrill (58 N. Y. S. 503). B.....347 'erritt v. Shale Brick Exchange (58 N. Y. S. 231).............................. 620 lichell, Blatter of (58 N. Y. S. 632)...... 271 liddleton v. Ames (58 N. Y. S. (545)...... 498 Iohn v. King (58 N. Y. S. 97)........... 611 'ontague v. Jewelers’ & Tradesmen’s Co. (58 N. Y. S. 715)..................... 530 lontague v. Lustig (59 N. Y. S. 1110).... 631 asher v. Davis (58 N. Y. S. 529)........ 622 t. Vernon Consumers’ Brewing Co., People ex rel., v. Feitner (58 N. Y. S. 670)... 496 ulvey, People ex reí., v. York (59 N. Y. S. 735).............................. 419 urphy v. City of Niagara Falls (58 N. Y. 1 1145)............................. 623 urphy’s Will, Blatter of (58 N. Y. S. 50) ................................ 153 gel v. Lutz (58 N. Y. S. 816).......... 193 pier v. City of Brooklyn (58 N. Y. S. 06) ...............................: 274 sh v. Weidenfeld (58 N. Y. S. 609)..... 511 timer v. Gray (58 N. Y. S. 476)....... 361 son v. Nassau Electric R. Go-. (59 N. Y. . 1110)............................ 632 York, City of, Blatter of (58 N. Y. S. 6) ................................ 586 York, City of, v. East Bay Land & - provement Co. (58 N. Y. S'. 724)...... 567 Page New York, L. & W. R. Co-, v. Erie R. Co. (58 N. Y. S. 1145).................... 623 Niagara Falls, City of, v. New York Cent. & H. R: R. Co. (58 N. Y. S. 619)....... 93 Niemoller v. Duncombe (58 N. Y. S. 1145) 630 Obergiock v. Nassau Electric R. Co. (59 N. Y. S. 1111)........................... 631 O’Connell v. Clark (59 N. Y. S. 1111)..... 631 O’Donnell v. American Sugar Refining Co'. (58 N. Y. S. 64-0)..................... 307 O’Dwyer v. O’Brien (58 N. Y. S. 1146)____ 623 Oneida Tel. Co., People ex rel., v. Central New York Telephone & Telegraph Co. (58 N. Y. S. 221)......................... 17 Opitz v. Hammen (58 N. Y. S. 987)....... 468 Oster v. Johnson (58 N. Y. S. 1146)...... 624 Park Hill Co. v. Herriot (58 N. Y. S. 552) 324 Passage v. Dansville & Bit. Bíorris R. Co. (58 N. Y. S. 770)..................... 182 People v. Chase (58 N. Y. S. 202)____..... 12 People v. Drayton (58 N. Y. S. 439)....... 40 People v. Granite State Provident Ass’n (58 N. Y. S. 510)..................... 257 People v. Hockenberry (58 N. Y. S. 1146). . 625 People v. Reed (58 X. Y. S. 1146)......... 624 People v. Schneider (58 N. Y. S. 1146)..... 624 People v. Stack (58 N. Y. S. 601)........... 548 People ex rel. Cornell Steamboat Co. v, Dederick (58 N. Y. S. 1146)........... 617 People ex rel. Crane v. Chandler (58 N. Y. S. 794).............................. 178 People ex rel. E. Seidenberg, Stiefel & Co. v. Feitner (58 N. Y. S. 713)............. 571 People ex rel. Gibbons v. Coler (58 N. Y. S. 988) ................................ 463 People ex rel. Hemmert v. York (58 N. Y. S. 401).............................. 305 People ex rel. Hemmert v. York (59 N. Y. S. 1113)..................... 631 People ex rel. Horton v. Fuller (58 N. Y. S. 835).............................. 404 People ex rel. Jerome Park Villa Site & Improvement Co. v. Roberts (58 N. Y. S. 254) .............. 21 People ex rel. Kenny v. Reilly (58 N. Y. S. 558) ................................ 37S People ex rel. Bit. Vernon Consumers’ Brewing Co. v. Feitner (58 N. Y. S. 670) 496 People ex rel. Blulvey v. lork (59 N. Y. S. 735) ................................ 419 People ex rel. Oneida Tel. Co. v. Central New York Telephone & Telegraph Co. (58 N. Y. S. 221)......................... 17 People ex rel. Rendrock Powder Co. v. Feitner (58 N. Y. S. 648).................. 544 People ex rel. Tate v. Dalton (58 N. Y. S. 929) ................................ 458 People ex rel. Wheelwright v. York (59 N. Y. S. 1113)........................... 631 People ex rel. Wood v. Denton (58 N. Y. S. 722) ..................,............. 386 People’s State Bank of East Randolph v. National Bank of Corry (58 N. Y. S. 1147) ............................... 625 Perry v. Blutual Reserve Fund Life Ass’n (58 N. Y. S. 844)..................... 626 Persons v. Hawkins (58 N. Y. S. 831).....171 Pierce v. Chautauqua County Nat. Bank (58 N. Y. S. 1147).................... 624 ■ Pierce v. Porter (58 N. Y. S. 1147)........ 624

1210 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 41 APP. DIV.—Continued. Page Pitkin v. Clayton (58 N. Y. S. 488)....... 363 Place v. Dudley (58 N. Y. S. 671)......... 540 Powers v. New York Cent. & H. R. R. Co. (58 N. Y. S. 1147).................... 617 Press Pub. Co. v. Associated Press (58 N. Y. S. 708)............................ 493 Prospect Park & O. I. R. Co. v. Coney Island & B. R. Co. (59 N. Y. S. 1113)..... 631 Pruey v. New York Cent. & II, B. R. Co. (58 N. Y. S. 797)...................... 158 Remington, Matter of (61 N. Y. S. 1146)... 625 Rendrock Powder Co., People ex rel., v. Feitner (58 N. Y. S. 648).............. 544 Reynolds v. Leyden (58 N. Y. S. 1147).... 624 Reynolds v. Village of New Rochelle (58 N. Y. S. 1147)........................... 630 Rhodes v. Caswell (58 N. Y. S. 470)...... 229 Richardson v. City of Syracuse (58 N. Y. S. 487).............................. 118 Riegler v. Tribune Ass’n (58 N. Y. S. 807) 490 Robinson v. Summerville & C. Ferry Co. (58 N. Y. S. 1148).................... 624 Rochester & C. Turnpike Road Co. v. Joel (58 N. Y. S. 346)..................... 43 Ross v. Caywood (58 N. Y. S. 1148)...... 625 Rossman v. Seaver (58 N. Y. S. 677)..... 603 Ryder, Mattel' of (58 N. Y. S. 635)....... 247 Saranac & L. P. R. Co. v. Arnold (58 N. Y. S. 710) .............................. 482 Savage v. Gerstner (58 N. Y. S. 1148)..... 631 Sehmit v. Gillen (58 N. Y. S. 458)........ 302 Schneider v. Nassau Electric R. Co. (59 N. Y. S. 1114)........................... 632 Sec-kel v. Abrahams (59 N. Y. S. 1114).... 631 Seidenberg, Stiefel & Co., People ex rel., v. Feitner (58 N. Y. S. 713):............. 571 Selleck v. Selleck (58 N. Y. S. 1148)...... 617 Shay v. McKenna (59 N. Y. S. 1114)..... 632 Sheffield v. Andrews (59 N. Y. S. 1114). .. 632 Shields v. Board of Sup’rs of Oneida County (58 N. Y. S. 1148).................. 624 Sias v. Rochester Ry. Co. (58 N. Y. S. 1148) ................................ 624 Simpson v. Simpson (58 N. Y. S. 882)..... 449 Smith v. New York Cent. & H. R. R. Co. (58 N. Y. S. 63)....................... 614 Smith v. Wetmore (58 N. Y. S. 402)...... 290 Snedeker v. Congdon (58 N. Y. S. 885).... 433 Snediker v. Nassau Electric R. Co. (68 N. Y. S. 457)............................. 628 Sparling v. Wells (58 N. Y. S. 1149)...... 617 Spaulding v. Millard (58 N. Y. S. 1149)... 617 Stark Machine & Tool Co., Matter of (58 N. Y. S. 1149)........................ 625 Staten Island Cricket & Baseball Club v. Farmers’ Loan & Trust Co. (58 N. Y. S. 460) ................................ 321 Stebbins, Matter of (58 N. Y. ¡3. 468)..... 269 Stevens v. Central Nat. Bank (58 N. Y. S. 1149) ............................... 617 Stilwell, Matter of-(58 N. Y. S. 1149).....617 Street v. Gordon (58 N. Y. S. 860)........ 439 Stuart v. Potter (58 N. Y. S. 1149)....... 623 Stuyvesant v. Weil (58 N. Y. S. 697)...... 551 Sullivan, Matter of (58 N. Y. S. 1149).... 623 Sutter v. Brooklyn, Q. C. & S. It. Co. (59 N. Y. S. 1115)........................ 632 Sweeney v. Brooklyn Heights R. Co. (59 N. Y. S. 1115)................... 632 Page Tarba v. City of Rochester (58 N. Y. S. 755) .................... 188 Tate, People ex rel., v. Dalton (58 N. Y. S. 929) ........... 458 Teachers’ Building & Loan Ass’n v. Severance (58 N. Y. S. 464)................ 311 Tetherton v. United States Tale Co. (58 N. Y. S. 55)............................. 618 Thompson, Matter of (59 N. Y. S. 1116)... 631 Thompson v. New York Cent. & H. R. R. Co. (58 N. Y. S. 193).................. 78 Thornton v. Moore (58 N. Y. S. 1150)..... 017 Town of Clay v. Hart (58 N. Y. S. 1150).. 625 Trowbridge’s Estate, Matter of (59 N. Y. S. 1116) ................. 632 Turner v. Nassau Electric R. Co. (58 N. Y. S. 490)................ 213 Uppington- v. City of New York (58 N. Y. S. 533).............................. 370 Van Alstine v. Belden„(58 N. Y. S. 521)... 123 , Van Camp v. Searle (58 N. Y. S. 1150).... 024 Van Etten v. Marion (58 N. Y. S. 1150)... 617 [ Van Inwegen v. Port Jervis, M. & N. Y. R. Co. (58 N. Y. S. 405).................. 628 Vieary v. James (58 N. Y. S. 1150)....... 6231 Yiele v. Rochester Sav. Bank (58 N. Y. S. I 1150) ...........-..................... G23| Village of Haverstraw v. Eckerson (59 N. Y. S. 1116)........................... 6311 Vogt v. Fasola (58 N. Y. S. 982).......... 4071 Vulcan Furnace Co. v. Millard (58 N. Y. S. 1150) ................................ 617 Wagner v. Mallory (58 N. Y. S. 526)..... 12(j Washington Lighting Co. v. Dimmick (58 N. Y. S. 682)........................ 59(| Weigand v. Board of Sup’rs of Oneida County (58 N. Y. S. 1151).............. 62-1 Weissman v. Dry Dock, E. B. & B. R. Co. (59 N. Y. S. 1117).................... Weitzman v. Nassau Electric R. Co. (59 N. Y. S. 1117)....................... West Canada Water Works Co., Matter of (58 N. Y. S. 1151)................ Wetherow v. Lord (58 N. Y. S. 778).. Wheelwright, People ex rel., v. York (59 N. Y. S. 1113).................... White v. Sheppard (58 N. Y. S. 503)...... 1Í Whitehead v. Lee (59 N. Y. S. 1117)...... 61 Whitlatch v. Fidelity & Casualty Co. (58 N. Y. S. 789)............................ _ Wightman v. Phelps (58 N. Y. S. 1151).... 6| Wilcox v. Murtha (58 N. Y. S. 783)....... 4| Williams v. Koehler (58 N. Y. S. 863)..... Williamsburgh Trust Co., Matter of (59 N. Y. S. 1119)........................... Willson v. Eveline (58 N. Y. S. 1151)..... Wilson, Matter of (59 N. Y. S. 1119)...... Wilson v. New York Cent. & H. R. R. Co. (58 N. Y. S.. 617)..................... Wissner v. Moore (58 N. Y. S. 1151)...... Wood, People ex rel., v. Denton (58 N. Y. S. 722).............................. Wysong v. Pollock (58 N. Y. S. 877).. Yenoski v. Seawanhaka Corinthian Yacht I Club (59 N. Y. S. 1119)............ Zabriskie v. Coates (58 N. Y. S. 523).. Zeeches v. Smith (58 N. Y. S. 1151)... 63l 6s| ed

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1211 VOL. 42, APPELLATE DIVISION REPORTS. Page Albany Brewing Co. v. Barckley (59 N. X. 8. 65) ............................... 335 Allen v. Corn Exch. Bank (59 Ñ. X. S. 1008) ............................... 021 Allen v. Home Bank (59 N. Y. S. 1098).... 621 Amsel v. gteinway (59 N. Y. 8. 1098).... 022 Anthony & Go., Matter of (58 N. X. 8. 907) 66 Arwine v. Wells (61 N. Y. S. 1131)....... 624 Austin v. Hickok (61 N. Y. 8. 1131)...... 625 Badger v. Celler (59 N. Y. g. 1098)____... 622 Baker, Matter of (59 N. Y. g. 121)........ 370 Balch v. City of Utica (59 N. Y. 8. 513)... 562 Balch v. City of Utica (59 N. Y. g. 516)... 567 Bank of North Collins v. Cary gafe Co. (59 N. Y. 8. 643)......................... 233 Barkley v. New York Cent. & H. R. R. Co. (59 N. Y. 8. 742)...............*...... 597 Barr v. Village of Bainbridge (59 Ñ. Y. g. 132) ................................ 628 Bartlett v. Ñew York Cent. & H. R. R. Co. (61 N. Y. 8. 1132)...................... 625 Battersby v. Collier (61 N. Y. 8. 1132).... 621 Beekman v. Jones (59 Ñ. Y. 8. 138)....... 328 Beil v. gupreme Council (58 Ñ. Y. 8. 1049) 168 Bennett v. Robinson (59 N. Y. g. 197).... 412 Bernheimer y. Blumenthal (58 N. Y. 8. 1003) ............................... 193 Bernstein v. golomon (61 Ñ. Y. 8. 1132).. 621 Board of Education, Union Free gchool Dist. No. 1, v. Henderson (59 N. Y. g. 1098) ......................."........ 237 Boyd. People ex rel., v. Roosevelt (59 N. Y. 8. 1111)........................... 622 Bracken v. Atlantic Trust Go. (59 Ñ. Y. g. 1099) .................... 621 Brady v. ghepard (58 Ñ. Y. 8. 674)....... 24 Brewster v. J. & J. Rogers Co. (59 Ñ. Y. 8. 321 ................................. 343 rinkerhoff v. Mooney (59 N. Y. g. 158). . 42Ó ronner v. Rouss (08 N. Y. g. 1137)...... 624 rooklyn Gas Fixture Co. v. Bates (59 N. Y. 8. 1099)................... 622 rown v. New York Cent. & H. R. R. Co. (59 N. Y. 8. 672)..................... 548 ull v. Case (59 N. Y. 8. 1100)........... 627 urch v. Garlic (58 N. Y. 8. 1137)........ 624 urke v. Metropolitan El. Ry. Co. (59 N. Y. g. 1100)........................... 622 urns v. Mullin (58 N. Y. g. 933)........ 116 utcher v. Consolidated Trust (59 N. Y. 8. 1100) ............................... 621 utcher v. Consolidated Trust (59 N. Y. 8. 1100) ............................... 622 utler v. New York & Q. C. R. Co. (58 Ñ. Y. 8. 1061)........................... 280 rd v. Pudney (59 N. Y. 8. 278)......... 405 rroll v. Demarest (58 Ñ. Y. 8. 1028).... 155 rson v. Eisner (58 Ñ. Y. S. 826)........ 614 ry Mfg. Co. v. British American Assur. o. (59 N. Y. 8. 7)...............:____201 ry Mfg. Co. v. Merchants’ Ins. Co. (59 Y. 8. 7)........................ 20.1 •y Mfg. Co. v. Western Assur. Co. (59 ", X. 8. 7)........................... 201 Page Cattus, Matter of (59 N. Y. 8. 55)........ 134 . Central Fireworks Co. x. Charlton (58 N. Y. g. 900)............................ 104 C. Graham & gons Co. v. Little (59 Ñ. Y. 8. 1100)............................. 622 City of New York v. Bannan (58 N. Y. 8. 1031) ............................ 191 Cohen v. Holyoke Envelope Co. (59 N. Y. 8. 1100)............................. 622 Cohen v. Morgan Envelope Co. (59 N. Y. S. 1100) ............................... 622 Commercial Pub. Co. v. Beckwith (59 N. Y. S. 1101)........................... 621 Conolly v. Hyams (58 N. Y. 8. 932)...... 63 Corporation Counsel of City of New York, Matter of (In re Riverside Park, 58 N. Y. 8. 1029)........................... 198 Corwin v. Hawkins (59 Ñ. Y. 8. 603)...... 571 Cosgrove v. New York Cent. & H. R. R. Co. (58 N. Y. 8. 1138).................... 624 Costello y. Costello (59 N. Y. 8. 1101).....624 Crandall v. Moston (59 N. Y. 8. 146)...... 629 Crown Cotton Mills v. Turner (59 N. Y. 8. 1)............................. 270 Cuming v. Roderick (58 N. Y. 8. 1093).... 620 Davis v. Smith (59 N. Y. S. 120)......... 333 Deane v. City of Buffalo (58 N. Y. 8. 810) 205 De Bower, Matter of (59 N. Y. 8. 1101)... 626 Defendorf v. Defendorf (59 N. Y. 8. 163).. 166 Deinhart v. Electric Light & Power Co. (61 N. Y. 8. 1135)........................ 625 Deitz v. Thornton (In re Lawson, 59 N. Y. 8. 152).............................. 377 Desbecker v. McFarline (59 Ñ. Y. S. 439).. 455 Dey v. Manhattan Real Estate & Loan Co. (59 N. Y. 8. 1102).................... 627 Dixon’s Will, Matter of (59 N. Y. 8. 421).. 481 Doheny v. Lacy (59 N. Y. 8. 724)......... 218 Donnelly v. City of Rochester (58 N. Y. 8. 1140) ............................... 624 Donovan v. City of Oswego (59 N. Y. S. 759) 539 Drifiill v." Cowies (61 Ñ." Y.8." 1135).'.'.'.".’." 624 Dudley v. Adams (59 N. Y. 8. 668)........ 555 Dudley v. Broadway Ins. Co. (59 N. Y. S. 668) ................................ 555 Dudley v. Globe Fire Ins. Co. (59 N. Y. S. 668) ....................... 555 Dudley v. Hatie (59 N. Y. 8. 668)........ 555 Dudley v. Hendricks (59 Ñ. Y. 8. 668)..... 555 Dudley v. Insurance Co. of gtate of New York (59 N. Y. 8. 668)................ 555 Dudley v. Mutual Fire Ins. Go. (59 Ñ. Y. 8. 668).............................. 555 Dudley v. National gtandard Ins. Co. (59 N. Y. 8.668)........................ 555 Duer v. Hunt (58 N. Y. 8. 1140).......... 614 Dygert v. Porschet (58 Ñ. Y. 8. 1140)..... 624 Eau Claire Nat. Bank v. Germain (61 N. Y. 8. 1136)........................... 624 » Ebert v. Loewenstein (58 N. Y. 8. 889).... 109 Eckert v. Gallien (59 N. Y. 8. 1102)...... 622 Ellis v. Manhattan Ry. Co. (59 N. Y. S. 1102) ............................... 622

1212 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 42 APP. DIV.—Continued. Page Empire Coal Co. v. Burns (61 N. X. S. 1136) ............................... 624 Engelbrecht, Matter of (59 N. X. S. 1102). . 621 Ernst-Marx-Nathan Co. v. Berwin (59 N. X. S. 1102)........................... 621 E. & H. T. Anthony & Co., Matter of (58 N. X. S. 907)......................... 66 Farley v. Emigrant Industrial Sav. Bank (59 N. X. S. 1102)..................... 621 Ferrigan’s Estate, Matter of (58 N. X. S. 920) ................................ 1 Finn v. Delaware, D. & W. K. Co. (59 N. ■X. S. 771)............................ 524 Fitch v. Central New Xork Telephone & Telegraph Co. (59 N. X. S. 140)......... 321 Flaherty, People ex rel., v. Roosevelt (59 N. X. S. 1111)........................ 621 Flynn, People ex rel., v. Xork (58 N. X. S. 1104) ............................... 622 Foehner v. Huber. (59 N. X. S. 447)....... 439 Fortunato v. City of New Xork (58 N. X. S. 683).............................. 14 Fouquet v. Baird (58 N. X. S. 1141)....... 624 Fowler v. Buffalo Furnace Co. (61 N. X. S. 1136) ............................... 625 Fox v. New Xork El. R. Co. (58 N. X. S. 707) ................................ 613 Frank v. Bradley & Currier Co. (58 N. X. S. 1032)............................. 178 Friendly v. Pierce (59 N. X. S. 1104)...... 629 Fults’ Will, Matter of (59 N. X. S. 756)... 593 Gall’s Estate, Matter of (59 N. X. S. 254).. 255 Gear, People ex rel., v. Dalton (59 N. X. S. 1111) ............................... 622 Goldsborough v. Metropolitan St. Ry. Co. (59 N. X. S. 1103).................... 621 Graham & Sons Co. v. Little (59 N. X. S. 1100) ............................... 622 Grand Central Bank, Matter of (58 N. X. S. 1022).................:........... 157 Grant v. Herald Go. (59 N. X. S. 84)...... 354 Gray v. Haviland (58- N. X. S. 1060)...... 626 Green v. Metropolitan St. Ry. Co. (58 N. X. S. 1039)........................... 160 Greenwich & Sehuylerville Electric R. Co., Matter of (59 N. X. S. 1105)........... 630 Gregg v. Tamsen (58 N. X. S. 1026)....... 138 Gushee v. City of New Xork (58 N. X. S. 967) ................................ 37 Haebler v. John Eichler Brewing Co. (58 N. X. S. 894)......................... 95 Haight v. City of Elmira (59 N. X. S. 193) 391 Hall, People ex rel., v. Board of Town Auditors (59 N. X. S. 10)................ 250 Hallett v. New Xork Cent. & H. R. R. Co. (58 N. X. S. 943)..................... 123 Halsted, Matter of (58 N. X. S. 898)......'101 Hamilton v. Village of Owego (59 N. X. S. 103).............................. 312 Hammerschmitt v. Second Ave. R. Co. (59 N. X. S. 1105)........................ 621 Hammond v. Snow, Church & Co. (59 N. X. S. 1106)............................. 021 - Hancock v. Woolworth (In re Dixon’s Will, 59 N. X. S. 421)...................... 481 Harper v. Delaware, L. & W. R. Co. (59 N. X. S. 1106)........................ 630 Hartfield v. De Biase (59 N. X. S. 1106)... 622 Page Hatch v. New Xork El. R. Co. (59 N. X. S. 1106) ............................... 621 Hattersley v. Hattersley (59 N. X. S. HOG) 630 Hatton v. Hilton Bridge Const. Co. (59 N. X. S. 272)............................ 398 Healey v. Ehret (58 N. X. S. 917)........ 27 Heller v. Biangels (59 N. X. S. HOG)......‘621 Hendricks v. New Xork Cent. & H. R. R. Co. (59 N. X. S. 1100)................. 630 Herrick, People ex reí., v. Feitner (59 N. X. S. 1111)............................. 622 Herrmann v. Sarles (58 N. X. S. 1017)____268 Hiller v. Embury (61 N. X. S. 1138)...... 624 Hilton Bridge Const. Co. v. Foster (59 N. X. S. 1106)........................... 630 Ilofferberth v. Myers (59 N. X. S. 88).....183 Hogan v. City of Waterviiet (59 N. X. S. 103) ................'................ 325 Holcomb v. Harris (59 N. X. S. 160)..... 363 Hollister, Matter of (59 N. X. S. 1106).... 622 Homan, People ex rel., v. Board of Town Auditors (59 N. X. S. 10).............. 250 Horner v. State of New Xork (59 N. X. S. 96) ................................. 430 HorsfieM v. Black (59 N. X. S. 1106)..... 621 Howard, People ex rel., v. Board of Sup’rs of Erie County (59 N. X. S. 476)........ 510 Howenstine v. New Xork El. It. Co. (59 N. X. S. 1106)........................... 622 I-Ioyle v. McCrea (69 N. X. S. 200)........ 313 Hoyle v. Blurray (59 N. X. S. 202)....... 629 Hudson Plasterboard Co. v. Gill (59 N. X. S. 1107)............................. 022 Imperial Shale Brick Co. v. Jewett (60 N. X. S. 35).............................. 588 Ingersoll v. New Xork Gent. & H. R. R. Co. (59 N. X. S. 1107)................. 630 Isaacs v. Calder (59 N. X. S. 21).........152 Isaacs v. Calder (59 N. X. S. 1107)........ 622 Jackson v. ICoehler (59 N. X. S. 1107)..... Jaycox v. Trembly (59 N. X. S. 245)...... Jenner v. Beers (58 N. X. S. 1142)........ Johnson v. Long Island R. Co. (61 Ñ. X. S. 1139) .............................. Johnson, People ex rel., v. Kearney (59 N. X. S. 1112)........................... Jones v. Nichols (59 N. X. S. 564)........ Joslin, People ex rel., v. Hills (59 N. X. S. 1112) ............................... ICellman v. Harris (58 N. X. S. 1143)..... Kelly, Blatter of (59 N. X. S. 30)...,..... ICetcham v. ICetcham (59 N. X. S. 1108)... ICetcham v. Newman (59 N. X. S. 1108)... Komp v. Raymond (58 Ñ. X. S. 909)...... ICuhn v. Lyons (59 N. X. S. 1108)........ Kullmann v. Cox (59 N. X. S. 12)........ Lanier v. Hoadley (58 N. X. S. 665)...... Lawler v. New Xork Cent. & H. R. R. Co. (61 N. X. S. 1140).................... Lawson, Matter of (59 N. X. S. 152)..... Lendowski v. Syracuse Rapid Transit Ry. Co. (61 N. X. S. 1140)................. Leonard, People ex reí., v. Hamilton (59 N. X. S. 943)........................... . Levinson, Matter of (59 Ñ. X. S. 1108).... Levy v. Dunn (59 N. X. S. 1108).......... Lewis v. Mason (59 N. X. S. 123)........ 621 416 624 626 621 515 63 624 28," 62f 62. 3' 62. 621 62 37 62 21 6 6 4‘

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1213 42 APP. DIV.—Continued. Page Littlejohn v. Leffingwell (59 N. Y. S. 1108) 627 Long Island R. Co., People ex rel., v. Board of Railroad Com’rs (59 N. Y. S. 144).... 366 Lund v. Spencer (59 N. Y. S. 752)._______543 Lyman v. Brucker (61 N. Y. S. 1141)......624 McCarthy v. Washburn (58 N. Y. S. 1125) 252 MacDonald y. City of New York (59 N. Y. S. 16)............................... 263 McGahey v. Nassau El'éctric R. Co. (59 N. Y. S. 1109)..............•............. 626 McKesson v. Russian Go. (59 N. Y. S. 1109) ............................... 622 McMillan v. Richardson (58 N. Y. S. 1144) 624 Manhattan Sav. Inst. v. New York Nat. Exoh. Bank (59 N. Y. S. 51)...........147 Martin v. New York El. R. Co. (58 N. Y. S. 646).............................. 614 Martin v. New York El. R. Co. (59 N. Y. S. 1109).............................. 621 May v. Carleton (59 N. Y. S. 1110)....... 621 May, People ex rel., v. Maynard (59 N. Y. S. 419).............................. 579 Mayor, etc., of City of New York v. Ban-nan (58 N. Y. S. 1031)............ 191 leigs v. Roberts (59 N. Y. S. 215)....... 290 lever v. Straus (58 N. Y. S. 904)........ 613 filler y. Warner (59 N. Y. S. 936)........ 208 filler, People ex rel., v. Elmendorf (59 N. Y. S. 115)................ 306 filler. People ex rel., v. Feitner (59 N. Y. S. 1112)..............................622 loore v. Moore (58 N. Y. S. 905)......... 92 lorgan y. Village of Penn Yan (59 N. Y. S. 504)............. 582 lurphy’s Will, Matter of (58 N. Y. S. 1145) ............................... 624 urphy’s Will, Matter of (61 N. Y. S. 1142) ............................... 625 ussinan v. New York Steam Co. (58 N. Y. S. 1009)............................. 625 ational Trading Co. v. New York Brick v Paving Co. (59 N. Y. S. 1110)........ 622 w Paltz & Wallkill Val. R. Co., Matter f (59 N. Y. S. 1111).................. 622 w York, City of, v. Bannan (58 N. Y. S. 031) .................... 191 shvizer Vereinigte Bruder & Nishvizer "nterstuetzungs Verein, Matter of (59 . Y. S. 1111)...................... .. 622 rien v. City of Syracuse (58 N. Y. S. 146) ............................... 624 rien v. Jackson (58 N. Y. S. 1044)..... 171 ~nnor v. Francis (59 N. Y. S. 28)..... 375 utt v. Rickenbrodt (59 N. Y. S. 1008).. 238 ourke v. Feist (59 N. Y. S. 157)....... 136 et v. Melcher (58 N. Y. S. 913)........ 76 tersen v. McGovern (59 N. Y. S. 1111) 621 body v. Chandler (59 N. Y. S. 240).... 384 le v. Connolly (59 N. Y. S. 1111)..... 627 le v. Flanigan (59 N. Y. S. 101).......318 le v. Hannigan (58 N. Y. S. 703)...... 617 le v. Ives (59 N. Y. S. 1111)..........630 le ex rel. Boyd v. Roosevelt (59 N. Y. 1111)............................. 622 le ex rel. Flaherty v. Roosevelt (59 N. S. 1111).....................;.....621 Pag» People ex rel. Flynn v. York (59 N. Y. S. 1104) ....................\.......... 622 People ex rel. Gear v. Dalton (59 N. Y. S. 1111) ............................... 022 People ex rel. Hall v. Board of Town Au- , ditors (59 N. Y. S. 10)................. 250 People ex rel. Herrick v. Feitner (59 N. Y. S. nil).........:................... 622 People ex rel. Homan v. Board of Town Auditors (59 N. Y. S. 10).............. 250 People ex rel. Howard v. Board of Sup’rs of Erie County (59 N. Y. S. 476)........ 510 People ex rel. Johnson v. Kearney (59 N. Y. S. 1112)..................... 021 People ex rel. Joslin v. Hills (59 N. Y. S. 1112) .............. 630 People ex rel. Leonard v. Hamilton (59 N. Y. S. 943)............................ 212 People ex rel. Long Island R. Co. v. Board of Railroad Com’rs (59 N. Y. S. 144)____366 People ex rel. May v. Maynard (59 N. Y. S. 419) ........ 579 People ex rel. Miller v. Elmendorf (59 N. Y. S. 115)........... 306 People ex rel. Miller v. Feitner (59 N. Y. S. 1112)........ 622 People ex rel. Quinn v. York (59 N. Y. S. 1113) .............................. 622 People ex rel. Redfield v. Walker (58 N. Y. S. 1147)..................... 624 People ex rel. Reitman v. Roosevelt (59 N. Y. S. 1112)...................... 621 People ex rel. Rice v. Moss (58 N. Y. S. 1051) ..... 196 People ex rel. Rothschild v. Roosevelt (59 N. Y. S. 1112)........................ 622 People ex rel. State Board of Charities v. New York Soe. for Prevention of Cruelty to Children (58 N. Y.'S. 953)........... 83 People ex rel. Sternberger v. Sternberger (59 N. Y. S. 1112).................... 622 People ex rel. Thompson v. Fallon (59 N. Y. S. 1112)........................... 627 Persons v. Clarke (56 N. Y. S. 822 ; 59 N. Y. S. 463)............................ 490 Persons v. Ford (56 N. Y. S. 822; -59 N. Y. S. 463)........................ 490 Persons v. Gardner (56 N. Y. S. 822 ; 59 N. Y. S. 463)......................... 490 Persons v. Hollister (56 N. Y. S. 822 ; 59 N. Y. S. 463)......................... 490 Persons v. Saxton (56 N. Y. S. 822 ; 59 N. Y. S. 463)...................... 490 Pitkin v. Clayton (59 N. Y. S. 1113)...... 627 Poole v. Long Island Electric Ry. Go. (59 N. Y. S. 1113)........................ 627 Powers v. .Winter (58 N. Y. S. 1147)...... 624 Purqua v. Eggleston (59 N. Y. S. 1113)____ 630 Quinn, People ex rel., v. York (59 N. Y. S. 1113) ....................... 622 Raab’s Will, Matter of (58 N. Y. S. 1043).. 141 Rambaut v. Irving Nat. Bank (58 N. Y. S. 1056) ............................... 143 Redfield, People ex rel., v. Walker (58 N. . Y. S. 1147)........................... 624 Reitman, People ex rel., v. Roosevelt (59 N. Y. S. 1112)........:.................. 621 Rice v. Miller (61 N. Y. S. 1146)......... 624

:i2i4 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 42 APP. DIV.—Continued. Page Rice, People ex rel., v. Moss (58 N. Y. S. íoái) .............................iso Richardson v. Rhines (58 N. Y. S. 1147)... 624 Robinson v. Chinese Charitable & Benevolent Ass’n (58 N. Y. S. 885)............ 65 Robinson v. President, etc., Delaware & H. Canal Co. (59 N. Y. S. 1114)........... 630 Rochester Bill Posting Co. v. City of Rochester (61 N. Y. S. 1146)................ 625 Rockwell v. Dye (59 N. Y. S. 776)........ 520 ■ Rome, W. & O. R. Co. v. Gleason (59 N. Y. S. 647).............................. 530 Rosselle v. Klein (59 N. Y. S. 94).........316 Rossi v. Canevari (59 N. Y. S. 1114)...... 621 .Roth v. Brooks (59 N. Y. S. 1114)........ 630 ¡Rothschild, People ex rel., v. Roosevelt (59 N. Y. S. 1112)........................ 622 Rupert v. Mott (58 N. Y. S. 1148)........ 624 Sage v. Stafford (59 N. Y. S. 545)........ 449 Sander v. New York & II. R. Co. (59 N. Y. S. 127).............................. 618 ‘Sanderson v. Sanderson (58 N. Y. S. 1148) 624 Santway v. Brightweazer (In re Fults’ Will, 59 N. Y. S. 756)...................... 593 'Sargent, Matter of (59 N. Y. S. 105)...... 301 •Savage v. Joseph H. Bauland Co. (58 N. Y. S. 1014) ............................. 285 ^Savage v. Nassau Electric R. Co. (59 N. Y. S. 225).......................... 241 'Sheehy v. Clausen (59 N. Y. S. 1114)...... 622 Shepard v. Davis (59 N. Y. S. 456)....... 462 Shrady v. Shrady (58 N. Y. S. 546)....... 9 Shrady v. Shrady (61 N. Y. S. 1147)..... 621 Shulz v. City of Albany (59 N. Y. S. 235).. 437 Silliman v. Sampson (59 N. Y. S. 923)..... 623 Silverman v. Baruth (58 N. Y. S. 663)... 21 Smith, Matter of (59 N. Y. S. 1115)......622 "Smith v. Montgomery (58 N. Y. S. 1149). .. 624 Smith v. New York El. R. Co. (59 N. Y. S. 1115)............................. 621 Smith v. Owego Bridge Co. (58 N. Y. S. 1149) ............................... 624 Smith v. Smith (59 N. Y. S. 1115)........ 622 Smith v. Wetmore (59 N. Y. S. 1115). ..'.. 627 Snyder v. Ferguson Contracting Co. (58 N. Y. S. 1149)........................... 624 Spencer v. Town of Sardinia (59 N. Y. S. 412)' ................................ 472 Spero v. West Side Bank (59 N. Y. S. 57) 619 ■Stacey v. City of Syracuse (58 N. Y. S. 1149) ............................... 624 Stair v. Baldwin (59 N. Y. S. 1115)....... 621 '■Stark Machine & Tool Co., Matter of (61 N. Y. S. 1149)........................ 625 State Board of Charities, People ex rel., v. New York Soc. for Prevention of Cruelty to Children (58 N. Y. S. 953)........... 83 Steinheimer v. ICreusler (59 N. Y. S. 1115) 621 iSternberger, People ex rel., v. Sternberger (59 N. Y. S. 1112).................... 622 Page Stevenson v. Second Ave. R. Co. (59 N. Y. S. 1115)............................. 621 Strahan v. Feitner (59 N. Y. S. 1115)..... 621 Sussman v. Corey (59 N. Y. S. 1115)...... 627 Sweet v. Smith (59 N. Y. S. 404)......... 502 Swift v. Tousley (61 N. Y. S. 1149)....... 624 Tabernacle Baptist Church v. Fifth Ave. Baptist Church (59 N..Y. S. 1116)...... 621 Thayer v. Thayer (58 N.’Y. S. 1150)...... 624 Thomas v. City of Watertown (58 N. Y. S. 1150) ............................... 624 Thomas v. Remington (58 N. Y. S. 1150).. 624 Thompson, People ex rel., v. Fallon (59 N. Y. S. 1112)...............'............ 627 Thorn v. Lazarus (59 N. Y. S. 1116)......622 Tiemann v. Post (In re Riverside Park, 58 N. Y. S. 1029)....... 198 Tillson v. Prudential Ins. Co. (59 N. Y. S. 1116) ............................... 630 Townsend v. Bell (59 N. Y. S. 203)....... 409 Trenton Potteries Co. v. Title Guarantee & Trust Co. (59 N. Y. S. 1116)......... 622 Truslow v. Cocheu (59 N. Y. S. 1116).....626 Union Bank v. Conroy (59 N. Y. S. 631). .. 576 United States Casualty Co. v. O. J. Gude Co. (59 N. Y. S. 1116)................. 622 Universal Trust Co. v. Diedrick (59 N. Y. S. 1116)........•..................... 62r Ver Planck v. Godfrey (58 N. Y. S. 784)... 1( Vincent v. Johnson (58 N. Y. S. 1150)..... 62-Voight v. Meyer (59 N. Y. S. 70)......... 351 Voorhies v. Cummings (58 N. Y. S. 1120).. 26 Vroman v. Pickering (59 N. Y. S. 1117)... 63 Wade v. Strever (59 N. Y. S. 76)......... 33 Wagman v. Carpenter (59 N. Y. S. 1117).. 63 Wallace v. Syracuse Rapid Transit Ry. Co. (59 N. Y. S. 651)..................... 5 Ward v. McKee (58 N. Y. S. 1028)....... L Watson, Matter of 159 N. Y. S. 1117)____6‘ Watson v. Kemp (59 N. Y. S. 142)........ 3 Weiland v. Forgotston, (59 N. Y. S. 1117).. 6 Weissman v. Dry Dock E. B. & B. R. Co. (59 N. Y. S. 1117).................... 6 Wescott v. Higgins (58 N. Y. S. 938)...... Western Massachusetts Mut. Fire Ins. Co. v. Hilton (58 N. Y. S. 996)............. Wicker v. Village of Elmira Heights (59 N. Y. S. 130)............................ Wieland v. President, etc., of Delaware & H. Canal Co. (59 N. Y. S. 1117)........ Williams v. New York Cent. & H. R. R. Co. (59 N. Y. S. 742)...........;...... Yates v. Wing (59 N. Y. S. 78).......... Youngs v. Perry (59 N. Y. S. 19).........

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1215 VOL. 27, MISCELLANEOUS REPORTS. Page Adamson v. Hougktaling (57 N. Y. S. 1133) 819 A. D. Farmer & Son .Type-Founding Co. v. Humboldt Pub. Co. (57 N. Y. S. 821)... 314 Aiken, Lambert & Co. y. Haskins (59 N. Y. . S. 486).............................. 629 Allen v. Marckwald (58 N. Y. S. 706)..... 683 Altworth v. Flynn (58 N. Y. S. 600)...... 838 Alvord v. City of Syracuse (58 N. Y. S. 854) ........................... 392 Amer v. Folk (58 N. Y. S. 397)........... 634 American Bank-Note Co., Matter of (.58 N. Y. S. 275)............................ 572 American Brass & Copper Co. v. Ingersoll (57 N. Y. S. 738)..................... 783 American Church Missionary Soc. v. Gris-wold College (58 N. Y. S. 3)............ 42 Angel v. Rae (57 N. Y. S. 817)...........829 Arfman v. Hare (57 N. Y. S. 759)........ 777 Arkenburgh v. Arkenburgh (59 N. Y. S. 612) .... 760 Baiz v. Malo (58 N. Y. S. 806)........... 685 Baker, Matter of (57 N. Y. S. 398)........ 126 Balia v. Metropolitan St. Ry. Co. (57 N. Y. S. 746).............................. 775 Banzhaf v. Ludwig (57 N. Y. S. 828)...... 821 Barber v. Lane (58 N. Y. S. 1136)........ 804 Barbineau’s Will, Matter of (59 N. Y. S. 375) ................................ 417 Barker, Matter of (58 N. Y. S. 868)...... 395 Barry v. Rainey (57 N. Y. S. 766)........ 772 Battin v. Grand Conservatory of Music (57 N. Y. S. 740)......................... 780 Baxter v. Gilson, Collins & Co. (57 N. Y. S. 815).............................. 812 Bayerdorfer v. Bowles (58 N. Y. S. 202)... 840 Beck v. Cooke (57 N. Y. S. 653).......... 185 Beck v. Donohue (57 N. Y. S. 741)........ 230 Behan v. Phelps (59 N. Y. S. 713).........718 Belsena Coal Min. Co. v. Liberty Dredging Co. (57 N. Y. S. 739).................. 191 Bennett v. Budweiser Brewing Gd. (58 N. Y. S. 313)....................... 805 Benta v. Harris (58 N. Y. S. 398)......... 648 Bentley v. Gardner (58 N. Y. S. 824)...... 674 Bergholtz v. Ithaca St. Ry. Co. (58 N. Y. S. 388).............................. 176 Bernhard v. Cohen (58 N. Y. S. 363)...... 794 Bernheimer v. Prince (58 N. Y. S. 392).... 831 Bialostosky, Matter of (59 N. Y. S. 606) r.. 716 Boessneck v. Bab (58 N. Y. S. 849)..;____379 Bowers v. Stewart (58 N. Y. S. 1137)..... 842 Bradner v. Mullen (59 N. Y. S. 178)...... 479 Braffett, Matter of (57 N. Y. S. 890)...... 329 Brand v. AVeir (57 N. Y. S. 731).........212 Brazee v. Town of Hornby (58 N. Y. S. 387) ................................ 129 Brenner v. Lawrence (58 N. Y. S. 769)... ¡ 755 Brien v. Romano (57 N. Y. S. 750)....... 225 Broadbent v. Marley (57 N. Y. S. 765)____778 Bronx Gas & Electric Co., Matter of (58 N. Y. S. 875)...............«............371 Brumm v. Gilbert (59 N. Y. S. 237)....... 421 Brunnings v. Bittner (58 N. Y. S. 364)____798 Bueh v. Geraty (57 N. Y. S. 655)......... 813 Burdick, Matter of (58 N. Y. S. 759)...... 298 Page Burke v. Burke (58 N. Y. S. 676)......... 684 Burkhart v. Tucker (59 N. Y. S. 711)..... 724 Burnham v. Burnham (58 N. Y. S. 196)... 106 Bussel v. Sagor (57 N. Y. S. 221)......... 810 Carpenter v. City of New York (58 N. Y. S. 421).............................. 272 Carroll v. Toplitz (60 N. Y. S. 1134)...... 833 Casey v. Barry (60 N. Y. S. 768)......... 835 Catholic University of America v. Conrad (57 N. Y. S. 820)...................... 326 Central Trust Co., Matter of (59 N. Y. S. 696) ................................ 613 Cheney v. Rankin (58 N. Y. S. 263)....... 609 City of New York v. Brown (57 N. Y. S. 742) ................................ 218 Coats v. Smith (58 N. Y. S. 1138)......... 807 Cohen v. Levy (58 N. Y. S. 721).......... 330 Conner v. Watson (59 N. Y. S. 213)......444 Connor v. Metropolitan St. Ry. Co. (58 N. Y. S. 340)............................ 541 Coogan, Matter of (59 N. Y. S. Ill)...... 563 Cooper v. Cooper (59 N. Y. S. 86)........ 595 Cotta v. Carr (58 Ñ. Y. S. 317)........... 545 Counrod’s Estate, Matter of (In re Evans, 59 N. Y. S. 164)'..................... 475 Cox v. Bates (57 N. Y. S. 816)........... 816 Craig v. Blake (58 N. Y. S. 330)......... 546 Craswell v. New York & S. B. Ferry & Steam Transp. Co. 157 N. Y. S. 827).... 822 Crompton & ICnowles Loom AVorks v. Brown (57 N. Y. S. 823)............... 319 Cromwell v. Foster (57 N. Y. S. 362)...... 121 Cross v. Birch (58 N. Y. S. 438)..........295 Cuff v. Heine (58 N. Y. S. 324).'.:........498 Davis v. Davis (59 N. Y. S. 223).......... 455 Dean v. Cunningham (57 N. Y. S. 97)..... 31 Deering v. Schreyer (58 N. Y. S. 485).... 237 De Forest v. Andrews (58 N. Y. S. 358)... 145 De Hierapolis v. AVebber (58 N. Y. S. 1139) 789 Delaney’s Estate, Matter of (58 N. Y. S. 924) ................................ 398 Delprat’s Will, Matter of (58 N. Y. S. 768) 355 Dennison v. Lawrence (58 N. Y. S. J42)... 99 Devine v. Metropolitan St. Ry. Co. (58 N. Y. S. 1139)......................'.....844 Diener v. Schwab (58 N. Y. S. 362)....... 544 Doll v. Devery (57 N. Y. S. 767).......... 149 Donaldson, Matter of (In re Ginsburg, 59 N. Y. S. 656)......................... 745 Dougherty v. Thompson (59 N. Y. S. 608) .738 Dudensing v. Jones (58 N. Y. S. 178)..... 69 Duer v. Fox (59 N. Y. S. 426)........... 676 Dupignac v. Quick (58 N. Y. S. 341);..... 500 Dwyer v. McLaughlin (57 N. Y. S. 220)... 187 Edelson v. Epstein (58 N. Y. S. 334)...... 543 Elliott v. Vermilyea (57 N. Y. S. 218)____189 Elliott’s Estate, Matter of (58 N. Y. S. 603J 258 Empire Hardware Co. v. Young (57 N. Y. S 753) 226 Evans, Matter"¿f "(59 N."Y.‘S." 164)! ¡iXX 475 Evans v. Evans (57 N. Y. S. 274)........ 10 Bverdell v. Hill (58 N. Y. S. 447)......... 285

1216 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 21 MIS C—Continued. Page Fajen v. German Dutch Reformed Church (58 N. Y. S. 1140).................... 797 Farmer & Son Type-Founding Co. v. Humboldt Pub. Co. (57 N. Y. S. 821)........ 314 Fenton v. Scholer (57 N. Y. S. 1137)...... 830 Ferguson v. Harrison (58 N. Y. S. 850)... 380 Ferree v. Bloquin-Offerman-Hessenbuttel Coal Co. (58 N. Y. S. 1140)............ 837 Fidelity Trust Co. of Newark, Matter of (57 N. Y. S. 361)..................... 118 Fitzpatrick v. Krause (58 N. Y. S. 283)... 792 Flagg’s Estate, Matter of (59 N. Y. S. 167) 401 Foley’s Estate, Matter of (58 N. Y. S. 201) 77 Forbell v. City of New York (56 N. Y. S. 790) ................................ 12 Foster v. Seurich (57 N. Y. S. 95)........ 25 Fredriehs' v. City of New York (58 N. Y. S. 285) ................................588 Fridenberg v. Lee Const. Co. (58 N. Y. S. 391) ................................ 651 Friede v. Weissenthanner (58 N. Y. S. 336) 518 Funson v. Philo (58 N. Y. S. 419)........ 262 Gallagher v. Dolan (57 N. Y. S. 334)...... 122 Gallagher v. Keating (58 N. Y. S. 306)...'. 131 Gallerstein v. Manhattan Ry. Co. (58 N. Y. S. 374).............................. 506 Gearns’ Estate, Blatter of (58 N. Y. S. 200) ................................ 76 Geis, Matter of (59 N. Y. S. 175)......... 490 G. fi. Haulenbeck Advertising Agency v. November (60 N. Y. S. 573)............ 836 Gibbons v. Hellwig (58 N. Y. S. 291)...... 787 Gihon’s Will, Matter of (59 N. Y. S. 494) 626 Gilroy v. Badger (58 N. Y. S. 392)........ 640 Ginsburg, Blatter of (59 N. Y. S. 656)..... 745 Goddard v. American Queen Incorporated (59 N. Y. S. 46)...................... 482 Goddard v. Mooney (57 N. Y. S. 223)..... 816 Goerl v. Damrauer (58 N. Y. S. 297)...... 555 Gomprecht v. Scott (57 N. Y. S. 799)...... 192 Goodness v. Bletropolitan St. Rv. Go. (57 N. Y. S. 100)................*......... 11 Grand Central Bank, Blatter of (57 N. Y. S. 418).............................. 116 Greenberg v. Britt (58 N. Y. S. 409)...... 799 Gruel v. Yetter (58 N. Y. S. 373)......... 494 Haas v. Selig (58 N. Y. S. 328).......... 504 Hackett v. Bletropolitan St. Ry. Co. (58 N. Y. S. 1141)..................... 839 Hahl v. Sugo (57 N. Y. S. 920)........... 1 Hall v. Lay (59 N. Y. S. 638)............ 602 Halprin v. Schachne (57 N. Y. S. 735).... 195 Hanke v. Cigar Blakers’ International Union (58 N. Y. S. 412).'.............. 529 Hansen v. Third Ave. R. Co. (58 N. Y. S. 282) ............................. 524 Harper. Blatter of (59 N. Y. S. 371)...... 471 Hartman v. Blichel (58 N. Y. S. 373)..... 788 Hastings v. Hastings (58 N. Y. S. 416).... ¿44 Hatch v. Carey (58 N. Y. S. 1142)........ 841 Hathaway’s Estate, Blatter of (59 N. Y. S. 166) ................................ 474 Haulenbeck Advertising Agency v. November (60 N. Y. S. 573)................. 836 Hauser v. Metropolitan St. Ry. Co. (58 N. Y. S. 286)...................... 538 Hawkins v. Deitz (57 N. Y. S. 751)....... 200 Hays v. Union Trust Co. (57 N. Y. S. 801) 240 Healy’s Will, Matter of (58 N. Y. S. 927) 352 Page Henly v. Delaware, L. & W. R. Co. (57 N. Y. S. 396)...................... 811 Hennessy v. Bluhleman (57 N. Y. S. 114). . 232 Herrick v. Snyder (59 N. Y. S. 229)....... 462 Hess v. Bletropolitan St. Ry. Co. (57 N. Y. S. 222)................ 823 Hoffman v. Bletropolitan St. Ry. Co. (57 N. Y. S. 1139).....-........... 786 Holm v. Appelby (57 N. Y. S. 266)........ 49 Hosmer v. City of Gloversville (59 N. Y. S. 559) ................................ 609 Hubbard v. Housley (58 N. Y. S. 432)..... 276 Huff v. Wheeler (59 N. Y. S. 716)........ 763 Hunter v. Batterson (58 N. Y. S. 396).... 642 Hurwitz v. Hamburg-American Packet Co. (56 N. Y. S. 379)...................... 814 Insurance Co. of State of Pennsylvania v. Telfair (57 N. Y. S. 780)............... 247 Interior Conduit & Insulation Co. v. Alexander, Barney & Chapin (59 N. Y. S. 126) 598 Jablinowsky v. Yokel (57 N. Y. S. 1140)... 847 Jackson v. New Amsterdam Gas Co. (57 N. Y. S. 753)...................... 777 Jacobs, Blatter of (59 N. Y. S. 549)....... 757 Jenkinson v. Harris (59 N. Y. S. 548)..... 714 Jessup v. Pringle Blemorial Home (59 N. Y. S. 207)......................i.....427 Johnson v. Thorn (57 N. Y. S. 762)....... 771 Johnson’s Will, Blatter of (58 N. Y. S. 601) 167 Kaplan v. Wein (58 N. Y. S. 1142)........ 790 Keefe’s Will, Blatter of (59 N. Y. S. 490).. 618 Keeler v. Fiseher-IIansen (57 N. Y. S. 821) 324 Kennedy v. Bridgman (58 N. Y. S. 253)... 585 Kenny v. Kane (59 N. Y. S. 555)......... 680 Kerr v. Bletropolitan St. Ry. Co. (57 N. Y. S. 794).............................. 190 ICiernan v. Blanhattan Ry. Co. (58 N. Y. S. 394) ................................ 841 Kingston v. Berry (58 N. Y. S. 331)....... 803 ICirchner v. Reichardt (58 N. Y. S. 314).. . 530 Kirwan v. Barney (57 N. Y. S. 812)...... 181 ICissam v. Bremmerman (57 N. Y. S. 890). . 14 Klein v. Armstrong (57 N. Y. S. 754)...... 785 IClingenstein- v. Goldwasser (58 N. Y. S. 342) ................................ 536 Knudsen v. Friedery (57 N. Y. S. 583).... 98 Kramer v. Scliatzkin (57 N. Y. S. 803).... 206 Kreizer v. Frey (58 N. Y. S. 1143)........ 847 Lasker v. Third Ave. R. Co. (57 N. Y. S. 395) .................... 824 Lassere v. Stein (57 N. Y. S. 1140)....... 847 Lawrence’s Will, Blatter of (59 N. Y. S. 174) .......... 473 League Cycle Co. v. Abrahams (58 N. Y. S. 306) ..........'...................... 548 Le Bowski v. Le Bowski (59 N. Y. S. 499) 759 Lennon v. Bradley & Currier Co. (59 N. Y. S. 277)............... 452 Leonard v. Jacobson (57 N. Y. S. 818).... 325 Lesourd, Blatter of (59 N. Y. S. 371).....414 Levy v. Cohen (57 N. Y. S. 1141)......... 776 Lewis v. Donohue (58 N. Y. S. 319)....... 514 Lippitt v. St. Louis Dressed Beef & Provision Co. (57 N. Y. S. 747)............ 222 Litchfield v. International Paper Co. (57 N. Y. S. 275)............................ 8 Lockwood v. Sello (57 N. Y. S. 816)...... 826

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1217 2Tf MISC.—Continued. Page Lora v. Dora (58 N. Y. S. 1144)......... 806 Lowe v. Bennett (58 Ni. Y. S. 88;......... 856 Lyman, Matter of (57 N. Y. S. 888)....... 327 214 845 825 416 590 124 839 96 McAllister v. Simon (57 X. Y. S. 733).. McCann v. Gerding (59 X. Y. S. 381)... MeCobl) v. Christiansen (59 N. Y. S. 187) McCormick, Matter of (59 N. X. S. 374). MacDongall v. Hoes (58 N. Y. S. 209).. Mclnnes v. Gardiner (57 X. Y. S. 356).. Mack v. Austin (58 N. Y. S. 607)....... McKesson v. Russian Co. (57 X. Y. S. 579) BIcTaggart v. Eastman’s Co. (57 X. Y. S. 222) . ................................ Me William v. Dayton (57 X. Y. S. 819)... Mahoney v. Bernhardt (58 X. Y. S. 748).. Manning v. Ferrier (58 X. Y. S. 332)...... Marcus v. Collins Bldg. &• Const. Co. (57 X. Y. S. 737)............................ Marcus v. Hollander (57 X. Y. S. 11421.. . Market & Fulton Nat. Bank of New York v. Nassau Trust Co. (59 X. Y. S. 567). .. Marks v. Delaglio (59 X. Y. S. 707)...... Marren v. Cram (57 X. Y. S. 771)........ Martin v. Riehl (58 N. Y. S. 141)......... Martin’s Estate, Matter of (In re McCormick, 59 N. Y. S. 374)................. Mead v. Mead (59 X. Y. S. 444). 184 828 339 522 784 817 690 052 158 112 416 459 682 32 306 758 818 818 103 235 101 411 778 ieely v. Munnich (58 X. Y. S. 316)....... 507 Teely v. Munnich (57 X. Y. S. 1143)...... 814 Tegus, Matter of (58 N. Y. S. 877)....... 165 Tewell v. Newell (57 X. Y. S. 403)........ 117 'cw Paltz & Wallldll Val. R. Co., Matter of (59 X. Y. S. 247)................... 451 ew York Mercantile Loan Ass’n v. National Sewing-Mach. Co. (57 X. Y. S. 1143) ............................... 781 ew York Polyclinic Medical School & Hospital v. King (57 X. Y. S. 796). ..... 250 coll v. Doremus (58 X. Y. S. 1145)...... 807 ver v. Village of Bath-on-the-Hudson (58 T. Y. S. 270)......................... 605 nes, Matter of (In re Negus, 58 X. Y. S. 77) ...’............................. 105 sbaum v. Weber (58 N. Y. S. 1140)..... 843 n v. Arendt (58 X. Y. S. 429)........■. 270 phant v. Phyfe (58 X. Y. S. 217)...... 64 and v. Metropolitan St. Ry. Co. (58 X. . S. 335)............................ 526 ourke v. Cram (57 X. X. S. 771)......158 di v. Conde (58 X. Y. S. 410)..........496 Mechanic’s Lien against 478 Cherry Street, Matter of (58 X. Y. S. 665)............ Mercantile Nat. Bank of City of New York v. City of New York (57 X. Y. S. 254). .. Merritt v. Smith (58 X. Y. S. 851)........ Miller v. Miller (59 X. Y. S. 473)......... Mitchell v. Fidelity & Deposit Co. (57 X. Y. S. 1142) .............................. Mitchell v. Klein (57 X. Y. S. 1142)...... Monteith’s Estate, Matter of (58 X. Y. S. 379) ................................ Moore v. Charles E. Monell Co. (58 X. Y. S. 430).............................. kloriarity’s Adm’r, Blatter of (58 X. Y. S. 380) ................................ fount’s Estate, Matter of (59 X. Y. S. 176) furphy v. American Transfer Co. (57 X. Y. S. 1142)........................... Page Patterson v. City Trust, Safe-Deposit & Surety Co. (58 X. Y. S. 206)........... 835 Pennsylvania Glass Co., Blatter of (57 X. Y. S. 396)........................... 815 Pennsylvania & D. Oil Co. v. Spitelnik (58 X. Y. S. 311)......................... 557 People v. Blolinenx (57 X. Y. S. 936)..... 60 People v. Blolinenx (58 X. Y. S. 155)..... 79 People v. Spencer (58 X. Y. S. 1127)..... 491 People ex rel. Bronx Gas & Electric Co. v. Feitner (58 X. Y. S. 875).............. 371 People ex rel. Clint v. Hamilton (58 X. Y. S. 059) ............................. 360 People ex rel. Denholm v. Welde (59 X'. Y. S. 474) ............................. 697 People ex rel. Gardiner v. Goff (57 X. Y. S. 1106)............................. 331 People ex rel. Herrick v. Feitner (57 X. Y. S. 807)............................ 153 People ex rel. Joyce v. York (59 X. Y. S. 418) ................................ 658 People ex rel. Kleet v. Town Board of West Turin (59 X. Y. S. 234)................ 470 People ex rel. Larkin v. Palmer (59 X. Y. S. 62).............. 569 People ex rel. Leonard v. Hamilton (58 X. Y. S. 584)............................ 308 People ex rel. Liatto v. Dunn (58 X. Y. S. 147) ..................... 71 People ex rel. McDonald v. Lantry (57 X. Y. S. 770)...................... 160 People ex rel. Blead v. Dalton (59 X. Y. S. 666) ................................ 067 People ex rel. BXetropolitan St. Iiy. Co. v. Roeseli (57 X. Y. S. 295).............. 44 People ex rel. Bliller v. Feitner (57 X. Y. S. 807).............................. 153 People ex rel. New York Cent. & H. R. R. Co. v. Hilts (58 X. Y. S. 434)........... 290 People, ex rel. O’Brien v. Van Wyck (59 X. Y. S. 134)............................ 439 People ex rel. Ripp v. Town Board of Lewis (59 X. Y. S. 248)......................469 People ex rel. Sagazei v. Sagazei (59 X. Y. S. 701) .............................. 727 People ex rel. Shields v. Scannell (59 X. Y. S. 480)...................... 734 People ex rel. Sloane v. Fallon (57 X. Y. S. 931).............................. 16 People ex rel. Smith v. Foster (58 N. Y. S. 574) ................................ 576 People ex rel.. Stern v. New York Society for Prevention of Cruelty to Children (58 N. Y. S. 118)......................... 457 People ex rel. Struller v. McKean (59 N. X. S. (¡33) .............................. 659 People ex rel. Sutplien v. Feitner (58 N. X. S. 869).............................. 384 People ex rel. Tierney v. Scannell (59 X. Y. S. 679).............................. 662 People ex rel. Tobin v. Knauber (57 X. Y. S. 782).............................. 253 Petschaft v. Lubow (57 X. Y. S. 251)..... 50 Phelan v. Ryeroft (57 X. Y. S. 251)....... 48 Pichel v. Pichel (58 X. Y. S. 335)......... 798 Pierson v. Jackman (58 X. Y. S. 344)..... 425 Pierson v. Ward (58 X. Y. S. 362)........ 793 Podmore v. Seamen’s Bank for Savings (57 X. Y. S. 829)......................... 317 Podmore v. South Brooklyn Sav. Inst. (57 X. Y. S. 406)......................... 120

1218 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 27 MISO.—Continued. Page Porter v. Metropolitan St. Ry. Co. (57 N. Y. S. 1145)........................... 786 "Press Pub. Co. v. Associated Press (58 N. Y. S. 186):..............'............. 90 Prints v. Campbell (57 N. Y. S. 1145).....813 Raff v. ICoster (57 N. Y. S. 252).......... 47 Railway Advertising Co. v. Sire (58 N. Y. S. 204).............................. 637 Reade v. Continental Trust Co. (58 N. Y. - S. 321)................ .-.435 Reading Hardware Co. v. City of New York (59 N. Y. S. 253)..................... 448 Reidy v. Metropolitan St. Ry. Co. (58 N. Y. S. 326).............................. 527 Reilly v. Eastman’s Co. (57 N. Y. S. 825).. 322 Reines v. Berkman (58 N. Y. S. 281)...... 793 Rieser v. Charles F. Parker & Co. (57 N. Y. S. 745)............................ 205 Riverside Park Extension, Matter' of (58 N. Y. S. 963)......................... 373 Roberts v. Dahut (58 N. Y. S. 304)....... 795 Rogers v. Thompson (58 N. Y. S. 273)..... 801 Romberg v. Routher (57 N. Y. S. 729).... 227 Rosenstock v. Montague (58 N. Y. S. 1148) 844 Rosenwald v. Goldstein (57 N. Y. S. 224).. 827 Rosenzweig v. McCaffrey (57 N. Y. S. 219) 808 Russell v. New York Produce Exch. (58 N. . Y. S. 842)......................... 381 Salvinsky v. Levin (58 N. Y. S. 284)...... 521 Samuel v. Roberts (58 N. Y. S. 765)....... 296 Sanchez & Haya Co. v. Hirsch (57 N. Y. S. 795).............................. 202 Sehapiro v. Block (58 N. Y. S. 365)....... 791 Schmid v. De Grauw (59 N. Y. S. 569).... 693 Schreyer v. Jordan (58 N. Y. S. 206)...... 643 Schulz v. City of Albany (57 N. Y. S. 963) 51 Schweiger v. German Sav. Bank (57 N. Y. S. 356) .............................. 123 Scott v. Brown (57 N. Y. S. 763)......... 203 Seidelbach v. Enaggs (58 N. Y. S. 199).... 110 Sess v. Richey (58 N. Y. S. 1148)......... 843 Sherwood v. Ellenstein (57 N. Y. S. 99). .. 30 Sierichs v. John Hancock Mut. Life Ins. Co. (58 N. Y. S. 364).................. 806 Sinnit v. Cambridge Val. Agricultural Society & Stock Breeders’ Ass’n (58 N. Y. S. 238)................-.............. 586 Smith v. Drought (57 N. Y. S. 1148)......810 Smith v. Smith (57 N. Y. S. 774)....... 252 Smith v. Will & Baumer Co. (59 N. Y. S. 482) ........................'........ 600 Snow v. Daggett (57 N. Y. S. 773)........ 256 Sonn v. Weissmann (58 N. Y. S. 1149).... 845 Southack’s Will, Matter of (59 N. Y. S. 696) ................................ 613 Sparks’ Estate, Matter of (58 N. Y. S. 766) 350 Speiss v. Weinberg (57 N. Y. S. 761)...... 774 Sproull v. Star Co. (56 N. Y. S. 1001)..... 27 Steinhardt v. Burt (57 N. Y. S. 751)... 1.. 782 Steinson v. Board of Education (58 N. Y. S. 734).............................. 687 Stephens v. McAlpin (58 N. Y. S. 395).... 832 Stewart v. Butler (59 N. Y. S. 573)...... 708 Stewart v. Hilton (58 N. Y. S. 415)____ 239 Stone v. Mansfield (58 N. Y. S. 339)...... 560 Strong v. Walton (58 N. Y. S. 761)....... 302 Svmons v. Metropolitan St. Ry. Co. (58 N. Y. S. 327)............................ 502 Page Tallman v. Gaillard (57 N. Y. S. 419).....114 Tannenbaum v. Bloomingdale (58 N. Y. S. 235) ................................ 532 Thalmann v. Hoffman House (58 N. Y. S. 227) ................................ 140 Thompson v. City of Sea Isle City (58 N. Y. S. 203)............................ 834 Thompson v. Remsen (58 N. Y. S. 424).... 279 Thorne’s Estate, Matter of (59 N. Y. S. 700) ................ 624 Tieonderoga Pulp & Paper Co. v. Jones (58 N. Y. S. 178)......................... '69 Timpone v. Dry Dock, E. B. & B. R. Co. (57 N. Y. S. 827)..................... 826 Tinker v. City Trust, Safe-Deposit & Surety Co. (57 N. Y. S. 910)............... 23 Townsend v. Townsend (58 N. Y. S. 420).. 268 Treacy v. Ellis (57 N. Y. S. 418)......... 116 Trenkmann v. Schneider (57 N. Y. S. 652) 808 Tucker’s Estate, Matter of (59 N. Y. S. 699) ................................ 616 Victoria Paper Mills Co. v. New York & P. Co. (57 N. Y. S. 397).............. 179 Vincent v. Cram (57 N. Y. S. 771)........ 158 Volkmar v. Third Ave. R. Co. (57 'N. Y. S. 1149) ............................... 818 Wabberson v. Wabberson (57 N. Y. S. 405) 125 Wadsworth, Matter of"(57 N. Y. S. 911).. 264 Wallace v. Arkell (57 N. Y. S. 655)....... 819 Wallace v. Frey (56 N. Y. S. 1051)....... 29 Wallace v. Mount Morris Bank (56 N. Y. S. 1051)...........................'. 29 Wallace v. United States Trust" Co. (56 N. Y. S. 1051)........................... 29 Waltenberg v. Bernhard (58 N. Y. S. 325) 794 Wanamaker v. Megraw (59 N. Y. S. 81)... 591 Wasson v. Hoff (57 N. Y. S. 953)........ 55 Webb v. Hecox (58 N. Y. S. 382)......... 169 Weinstraub v. Metropolitan Life Ins. Co. (58 N. Y. S. 295)..................... 540 Wester v. Mutual Reserve Fund Life Ass’n (57 N. Y. S. 832)..................... 830 Western Union Tel. Co. v. Manhattan Ry. Co. (57 N. Y. S. 357).................. 101 Westervelt v. Burns (57 N. Y. S. 749). ... 781 West .Side Bank v. Foehrenbach (57 N. Y. S. 396)......................'........81c Wetmore v. Wetmore (59 N. Y. S. 586).... 701 White v. West (58 N. Y. S. 841)......... 39' AVhitman v. Seibert (59 N. Y. S. 185).....81-Whitman & Barnes Mfg. Co. v. Hamilton (57 N. Y. S. 760)..................... 19 Wiehle v. Safford (58 N. Y. S. 298)........ 56 Wilber’s Estate, Matter of (57 N. Y. S. 942) ................................ 5 Wilbur’s Estate, Matter of (In re Baker, 57 N. Y. S. 398)...................... 1 Williams v. Webb (58 N. Y. S. 300)...... 5 Williams-’ Estate, Matter of (59 N. Y. S. 606) ................................ 7 Winfield v. Cauchois (57 N. Y. S. 763).... 7 Wolff v. Zeller (58 N. Y. S. 608).........6 Workum v. Caldwell (58 N. Y. S. 175).... Wright v. May (57 N. Y. S. 1151)........ Yates’ Estate. Matter of (In re Barker, 58 N. Y. S. 868)..... 3

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1219 VOL. 28, MISCELLANEOUS REPORTS. Page Abrams v. Fine (59 N. Y. S. 550)......... 533 Alaske Unterstuetzung Verein v. Wall (58 N. Y. S. 1115)........................ 174 Alixanian v. Alixanian (59 N. Y. ¡3. 1068). . 638 Amerv. Folk (59 N. Y. S. 532)........... 508 Anthony v. Carl (58 N. Y. S. 1084)....... 200 Amheim v. Arnheim (59 N. Y. S. 948)____399 Atkinson, Matter of (59 N. Y. S. 792).694 August v. Crane (59 N. Y. S. 583)........ 549 Baertz v. Krueger (58 N. Y. S. 1055, 1109) 755 Bagley v. Mutual Reserve Fund Life Ass’n (59 N. Y. S. 812).....................270 ............... ..... ... 128 ... 1 Co. ... 238 ... 490 ... 459 985) 375 753 304 389 769 Baker v. McMullen (58 N. Y. S. 1086) Balcom, Matter of (58 N. Y. S. 1097). Bailing v. New York & C. Mail S. S. (58 N. Y. S. 1074)................ Banzliaf v. Ludwig (59 N. Y. ¡3. 535). Barkley v. Williams (59 N. Y. S. 1038) Batterman v. Journal Co. (59 N. Y. S. Beckham v. Hague (GO N. Y. S.'213).. Bender v. Van Allen (59 N. Y. S. 885). Berry v. Schaad (59 N. Y. S. 551)____ Billington v. Richters (59 N. Y. ¡5. 60)..... Bittiner v. Gomprecht (58 N. Y. S. 1011).. 218 Blair’s Estate, Matter of (59 N. Y. S. 1090) 611 Blank v. Kearney (59 N. Y. S. 645)....... 383 Bliss v. Caryell (59 N. Y. S. 13)____...... 162 Boker v. Demorest Mfg. Co. (59 N. Y. S. 826) ................................ 263 Bonrp’s Estate, Matter of (59 N. Y. S. 1097) ......................... 474 Bowns v. Stewart (59 N. Y. S. 721)....... 475 Boyce v. Lambeck & Betz Eagle Brewing Co. (58 N. Y. S. 1054)................. 761 Brandreth’s Estate, Matter of (59 N. Y. S. 1092) .................... 468 Brewster v. McLaughlin (58 N. Y. S. 989) 50 Briggs v. Todd (59 N. Y. S. 23).......... 208 Brock’s Commercial Agency v. Bean (59 N. Y. S. 1099)..................... 797 Brown, Matter of (59 N. Y. S. 844)....... 273 Bryant v. Metropolitan St. Ry. Co. (59 N. Y. S. 595)...................... 532 Buchanan v. Buchanan (59 N. Y. S. 810). . 201 Buddington v. Kennedy (59 N. Y. S. 1099) 763 Bueb v. Geraty (59 N. Y. S. 249)......... 134 Burke v. Lincoln-Valentine Co. (58 N. Y. S. 1077, 1124).......................... 202 Butler v. Atlantic Trust Co. (59 N. Y. S. 814) ..................... 42 ¡Campbell v. Tappen 159 N. Y. S. 601)..... 553 lOampe v. AVeir (58 N. Y. S. 1082)....____243 ¡Carr v. Hilton (59 N. Y. S. 1100)......... 782 Oiavin v. Smith (59 N. Y..S. 593)........ 531 ¡Christiansen v. Mendham (59 N. Y. S. I 1100) .................. 765 Cleveland’s AVill, Matter of (59 N. Y. S. I 985) ................................ 369 Blokey v. International Rubber Clothing ■ Co. (59 N. Y. S. 878).............. 326 Bohen v. Farley (58 N. Y. S. 1102).......168 Bohn, Matter of (59 N. Y. S. 1028).......“658 Bomer v. Nelson (59 N. Y. S. 184)........ 793 v Page Conway v. Metropolitan St Ry. Co. (59 N. Y. S. 1101)........................ 783 Conway v. Stevens (58 N. Y. S. 1004)...... 785 Cook v. Benson (59 N. Y. S. 1101)........ 781 Copp v. Colorado Coal & Iron Co. (59 N. Y. S. 1101) ............................. 795 Courtney v. Metropolitan St. Ry. Co. (59 N. Y. S. 1101)........................ 779 Craswell v. New York & S. B. Ferry & Steam Transp. Co. (59 N. Y. S. 554).... 487 Crompton & Knowles Loom Works v. Brown (59 N. Y. S. 556).............. 513 Crosby, Matter of (59 N. Y. S. 865)...... 300 Balease, Matter of (58 N. Y. S. 1139)..... 773 Dannhauser v. Wallenstein (60 N. Y. S. 50) 690 Davidson v. Hammerstein (59 N. Y. S. 563) 529 De Lemos v. Cohen (59 N. Y. S. 498)..... 579 Delaware, L. & W. R. Co. v. Syracuse, L. & B. R. Co. (59 N. Y. S. 1035)......... 456 Dixon v. Coleman (59 N. Y. S. 806)....... 64 Dommerich v. Garfunkel (58 N. Y. S. 1006) 433 Dreyfus v. Carroll (58 N. Y. S. 1116)..... 222 Dulon v. Camp (59 N. Y. S. 508)......... 548 Dyer v. Osborne (58 N. Y. S. 1123)...... 234 Ehrenreich v. Lichtenberg (59 N. Y. S. 383) 789 Eisinger v. Betz (59 N. Y. S. 1102)....... 797 Elliott v. Vermilyea (59 N. Y. S. l8l)..... 790 Epstein v. United States Fidelity & Guaranty Co. (58 N. Y. S. 1135)............ 440 Falkenberg v. Erie R. Co. (59 N. Y. S. 44) 165 Fallon, Matter of (59 N. Y. S. 849)....... 748 Fallon v. Farber (59 N. Y. S. 11)......... 197 Faulkner v. Cody (59 N. Y. S. 807)....... 66 Fellerman v. Goldberg (58 N. Y. S. 1113).. 235 First Nat. Bank of Brooklyn, Matter of (59 N. Y. S. 1042).................... 662 First Nat. Bank of Plainfield v. Mortimer (60 N. Y. S. 47)....................... 686 Fleischman v. Glaser (59 N. Y. S. 686).... 555 Gerkhardt v. Austin (58 N. Y. & 1072).... 191 Getman, Matter of (59 N. Y. S. 1013)..... 451 Getman v. Dorr (59 N. Y. S. 788)......... 654 Gilroy v. Badger (58 N. Y. S. 1106)...... 143 Gluck v. Duberstein (59 N. Y. S. 497)..... 777 Goldberg v. Kratzenstein (59 N. Y. S. 1104) 771 Goldberg v. Kratzenstein (59 N. Y. S. 1104) 772 Goldstein v. Goldsmith (59 N. Y. S. 677).. 569 Gordon v. Dowley (59 N. Y. S. 1105)...... 797 Graham v. Schleimer (59 N. Y. S. 689).... 535 Greene v. Seitz (59 N. Y. S. 383)......... 790 Gude Co. v. Farley (58 N. Y. S. 1036).... 184 Haig v. Feist (59 N. Y. S. 1105).......... 764 Hall v. Jones (58 N. Y. S. 1063)____..... 767 Hardy, Matter of (59 N. Y. S. 912).......307 I-Iart v„ Metropolitan St. Ry. Co. (58 N. Y. S. 1087)........................... 766 Hartman v. Hicks (59 N. Y. S. 529)....... 527 Hatfield v. Sisson (59 N. Y. S. 73)....... 255 Haug v. Schumacher (59 N. Y. S. 1056)... 671 Hays v. Ledman (59 N. Y. S. 687)........ 575 *

1220 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. 28 MISC.—Continued. Page Heaton v. Hull (59 N. Y. S. 281)......... 97 Hedden v. Nederburg (58 N. Y. S. 1065)... 233 Heimerdinger v. American Mfg. Co. (58 N. Y. S. 1022)..................... 773 Henly v. Delaware, L. & W. R. Co. (59 N. Y. S. 857)............................."499 Herrmann Furniture & Plumbers’ Cabinet Works'v. Hyman (59 N. X. S. 520)...... 567 Herron v. Herron (39 N. Y. S. 861)....... 323 Heslin v. Eastern Building & Loan Ass’n (59 N. Y. S. 572)..................... 376 Hirseh v. Ánnin (58 N. Y. S. 1010)....... 228 H. L. Judd & Co. v. Bennett (59 N. Y. S. 624) ................................ 558 Hodge, Matter of (59 N. Y. S. 775)....... 104 Hoes v. Allen (59 N. Y. S. 101)........... 450 Hoey v. Hoey (59 N. X. S, 946).......... 396 Hoffman House of New York v. Jordan (58 N. Y. S. 1091)........................ 193 Hotaling y. Scliermerhorn (59 N. Y. S. 484) ................................ 311 Hunter, Matter of (59 N. X. S. 874)...... 314 Hunter y. Batterson (39 N. Y. S. 501)..... 479 Hyman v. Hearn (59 N. Y. S. 1107)767 Imneriale Bldg. Co. y. Woodbury Dermatological Institute (59 N. Y. S. 186)....... 786 Irish’s Estate, Matter of (GO N. Y. S. 30). . 647 Iron Clad Mfg. Co. v. Smith (59 N. Y. S. 332) .........•....................... 172 Israel v. Israel (59 N. Y. ¡3. 800)......... 57 Jacobs y. Friedman (59 N. Y. S. 382)...... 441 Jaeger v. Koenig (50 N. Y. S. 182)........ 436 Jennings v. Chelsea Division Benefit Fund Soc. (59 N. Y. S. 862)................. 556 Jensen, Matter of (59 N. Y. S. 653)....... 378 Jewelers? League v. Hepke (60 N. Y. S. 224) ................................. 716 Johnson’s Will, Matter of (59 N. Y. S. 906) 363 Johnstown Cemetery Ass’n v. Parker (59 N. Y. S. 821)............................ 280 Jones, Matter of (59 N. Y. S. 893)........ 338 Jones, Matter of (59 N. Y. S. 983) ....... 356 Jones v. Jones (59 N. Y. S. 974)......... 421 Judd & Co. v. Bennett (59 N. X. S. 624)... 558. Kahn v. Crawford (59 N. Y. S. 853)...... 572 Kearney v. Alexander (58 N. Y. S. 1075). . 760 Kessler, Matter of (59 N. Y. S. 888)...... 336 Kiernan v. Manhattan Ry. Go. (59 Ñ. Y. S. 626) ................................ 516 Kinzel, Matter of (59 N. Y. S. 682)....... 622 Klein v. Turkel (58 N. Y. S. 1119)........ 190 Kramer v. Gerlach (59 N. Y. S. 855)...... 525 Lake Geneva Ice Co-, v. Selvage (59 N. Y. S. 544).............................. 581 Lambert v. Salomon (5-9 N. Y. S. 676)..... 562 Lancaster, Matter of (59 N. Y. S. 1022)... 595 Leary v. Hegeman (59 N. Y. S. 59).......195 Liston v. New York Casualty Co. (58 N, Y. S. 1090)............................. 240 Lutz v. Lutz (59 N. Y, S. 972)........... 393 Lyman, Matter of (59 N. Y. S. 828)...... 278 Lyman, Matter of (59 N. Y. S. 971)...... 385 Lyman, Matter o-f (59 N. Y. S. 968)...... 408 Lynch v. Rabe (59 N. Y. S. 109)......... 215 McCobb t. Christiansen (59 N. Y. S. 303).. 119 McDonald v. Green (59 N. Y. S. 787)..... 55 ■ Page McKenna v. Fireman’s Ins. Co. (59 N. Y. S. 41)............................... McMahon’s Estate, Matter of (60 N. Y. S. 64) ................................. McNulty v. Duffy (59 N. Y. S. 592)....... McNulty v. Rowe (59 N. Y. S. 690)....... McTaggart v. Eastman’s Co. (58 N. Y. S. 1118) ............................... Mahoney v. O’Neill (59 N. Y. S. 378)...... Maier v. Hubbard (59 N. Y. S. 1109)..... Marks v. Dellaglio (50 N. Y. S. 509)...... Martin v. Hamilton (58 N. Y. S. 1118).... Marx v. Pennsylvania Fire Ins. Co. (59 N. X. S. '693)............................. Maye-r v. Lithauer (58 N. Y. S. 1064)..... Meany v. Rosenberg (59 N. Y. S. 582).... Milhau’s Estate, Matter of (59 N. Y. S. 910) ................................ Miller, Matter o-f (59 N. Y. S. 978)........ Miller v. Dodge (59 N. Y. S. 1070)........ Miller v. Northern Imp. Co. (59 N. Y. S. 305) ................................ Miller v. Ricci (59 N. Y. S. 1060)........ Mills v. Albany Exch. Sav. Bank (59 N. Y. S. 149).............................. Mills v. Mills (59 N. Y. S. 1048).......... Moeran v. New York Poultry, Pigeon & Pet-Stock Ass’n (50 N. Y. S. 584)....... Monell, Matter of (59 N. Y. S. 981)....... Morgan v. Metropolitan St. Ry. Co. (59 N. Y. S. 1110).......................'. Morgan v. Wavne Bldg., Loan & Accumulating Fund Ass’n (59 N. Y. S. 1110).... Moss v. Geddes (59 N. Y. S. 867)......... Mueller v. Schmenger (59 N. Y. S. 189).... Murphy’s Will, Matter of (59 N. Y. S. 1078) ............................... Myers ,V. Twelfth Ward Bank (58 N. Y. S. 1065) ............................... Myers’ Will, Matter of (59 N. X. S. 908).. 173 69 77 52, 788 539 768 49G 171 520 360 373 640 762 666 251 633 537 308 783 758 291 445 650 188 359 Newell v. Smith (58 N. Y. S. 1025)....... 182 Nicholson v. Grossman (59 N. Y. S. 1111) 797 Nicoll v. Karrick (58 N. Y. S. 1018)...... 199 O’Brien v. Mutual Reserve Fund Life Ass’n (59 N. Y. S. 812)................ 270 O’Donoghue’s Estate, Matter of (59 N. X. S. 1087)............................. 607 O’Hara v. City of New Xork (59 N. X. S. 36) ................................. 258 O. J. Gude Co. v. Farley (58 N. X. S. 1036) 184j O’Neill, Matter of (In re Jones’ Estate, 59 N. X. S. 1020)........................ 599 O’Neill v. Morris (59 N. X. S. 1075)...... 013 O’Reilly v. New Brunswick, A. & N. X. I Steamboat Co. (59 N. Y. S. 261)........ 112l Osterhoudt v. Osterhoudt (59 N. Y. S. 797) 28a Oswego- County Sav. Bank v. Town of I Genoa (59 N. Y. S. 829)............... 7| Palmer V. Harrison (58 N. X. S. 1107).... 18(1 Parke v. Gay (59 N. X. S. 890)........... 32il Pasternak v. Weiss (59 N. Y. S. 1111).... 78| Pennsylvania Glass Co., Matter of (58 N. I X. S. 1067)........................... 13| People v. Hayes (59 N. Y. S. 761)....... 9Í People ex rel. Alsberge v. Cram (59 N. Y. ■ S, 922).............................. 32fl People ex rel. Boyd v. Hertle (60 N. X. S. I 23) ................................. Sfl

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1221 28 MISC — Continued. Page People ex rel. Decker v. Decker (60 N. Y. S. 60)........... 699 People ex rel. Gales v. McDonough (60 N. >Y. S. 45)............................. 652 eople ex rel. Manhattan Ry. Go. v. Barker <59 N. Y. S. 926)..................... 13 People ex rel. Mehegan v. gcannell (59 N. Y. S. 950)............................ 401 People ex rel. Moore v. Leavy (59 N. Y. S. 408) ................................ 246 People ex rel. Pierce v. Cassidy (39 N. Y. S. 1112)............................. 589 People ex rel. Sherrill v. Guggenheimer (59 ' N. Y. S. 913)......................... 735 People ex rel. Shook v. Kilburn (59 N. Y. S. 1052)............................. 679 People ex rel. Smith v. Doyle (59 Ñ. Y. S. 959) ................................ 411 People ex rel. Speir v. Tax Corn’rs (59-N. Y. S. KUO)........................... 591 People ex rel. Tavlor v. Welde (59 Ñ. Y. S. 1030) ............................... 582 People ex rel. United States Grand Lodge of Order of Brith Abraham v. Payn (59 Ñ. Y. S. 851)........................:... 275 People ex rel. West v. City of Syracuse (59 N. Y. S. 763)......................... 95 Perkins v. Allen (58 N. Y. S. 1080; 59 N. Y. S. 258)............................ 145 Phillip Semmer Glass Co. v. Nassau ShowCase Co. (59 N. Y. S. 530)............. 577 Pierson, Matter of (59 N. Y. S. 1003)..... 726 Piskosh v. Third Ave. R. Co. (59 Ñ. Y. S. 1113) ............................... 778 Podmore v. Seamen’s Bank (59 N. Y. S.' 629) ................................ 488 Poliak v. Metropolitan St. Rv. Co. (58 Ñ. Y. S. 1133)..................... 791 Powell v. Allen (59 N. Y. S. 091)......... 775 Purdy, Matter of (59 N. Y. S. 887)....... 303 Quantmeyer v. J. H. Mohlman Go. (59 N. Y. S. 1113)........................... 795 Rand’s Will, Matter of (59 N. Y. S. 1082).. 465 Rawlinson v. Brainard & Armstrong Co. (59 N. Y. S. 880)..................... 287 Ray v. Adams (59 N. Y. S. 1047)......... 664 Eeade v. Continental Trust Co. (60 Ñ. Y. S. 258).............................. 721 Reals v. Weston (59 N. Y. S. 807)........ 67 Reilly v. Eastman’s Co. (58 N. Y. S. 1089) 125 Reiss v. Metropolitan St. Ry. Co. (58 N. Y. S. 1024)..................... 198. Rhind v. Stake (59 N. Y. S. 42)..........177 Rihan v. Namhoal (59 N. Y. S. 1114).....772 Ritter v. Greason (59 N. Y. S. 1053)...... 656 Rockefeller v. Taylor (59 N. Y. S. 1038)... 460 agers v. Sattler (58 N. Y. S. 1073)...... 242 posa v. Brooklyn Heights R. Co. (59 N. Y. S. 664).............................. 387 osenstock v. Montague (59 N. Y. S. 500) 483 osenzweig v. McCaffrey (59 Ñ. Y. S. 863) 485 othchild v. Schwarz (59 Ñ. Y. S. 527).... 521 ottenberg v. Stajer (59 N. Y. S. 192)____442 oy Watch-Case Co. v. Camm-Roy Watch-Case Co. (58 N. Y. S. 979)............. 45 upp, Matter of (59 N. Y. S. 997)........ 703 achs v. Walsh (60 N. Y. S. 214)........ 751 alomon v. State Bank (59 Ñ. Y. S. 407).. 324 Page Schreiber v. Finan (59 N. Y. S. 594)...... 560 Seaman v. Metropolitan St. Ry. Co. (58 N. Y. S. 1053)........................ 769 Semmer Glass Co. v. Nassau Show-Case Go. (59 N. Y. S. 530)..................... 577 Sheehan v. McMahon (59 N. Y. S. 969)____733 Shipway v. Rofrano (58 N. Y. S. 1111)____230 Silverstein v. Rugiero (58 N. Y. S. 1059).. 139 Slingerland v. International Contracting Co. (59 N. Y. S. 860).................. 319 Smith v. Harman (59 N. Y. S. 1044)...... 681 Smith v. National Surety Co. (59 X. Y. S. 789) ............................... 628 Sorzano v. Coudert (59 N. Y. S. 1064)..... 677 Spofford v. Pearsall (60 N. Y. S. 218)..... 730 Springfield Metallic Casket Co. v. Wielar (59 N. Y. S. 1115).................... 784 Sprogg v. Dichman (59 Ñ. Y. S. 906)...... 409 Steinhart v. Carver (59 Ñ. Y. S. 1115).... 794 Stern v. Barrett Chemical Co. (58 Ñ. Y. S. 1129) ...............................429 Stilwell v. Armstrong (59 Ñ. Y. S. 671).... 546 Stokes v. Stokes (59 N. Y. S. 801)........ 58 Strauss v. Benheim (59 N. Y. S. 1054).... 660 Stages, Matter of-(59 N. Y. S. 783)...... 110 Sutherland’s Will, Matter of (59 N. Y. S. 989) .............................. 424 Syracuse Rapid Transit Ry. Co. v. Salt Springs Nat. Bank (59 N. Y. S. 1066). .. 619 Thedford v. Eeade (59 N. Y. S. 537)....... 563 Third Nat. Bank v. Spring (59 Ñ. Y. S. 794) ................................ 9 Thompson v. City of Sea Isle City (59 Ñ. Y. S. 596)....................... 494 Thompson v. Rich (59 N. Y. S. 819)....... 265 Thompson v. Vidal (60 N. Y. S. 57)....... 711 Tompkins, Matter of (59 N. Y. S. 902).... 351 Torres v. Rogers (58 N. Y. S. 1104).......176 Town v. Metropolitan St. Ry. Co. (59 Ñ. Y. S. 1116)........................... 784 Tully v. Tully (59 N. Y. S. 818).......... 54 Turrell’s Will, Matter of (59 N. Y. S. 780) 106 Tyroler v. Gummersbach (59 N. Y. S. 266, 319) ...... .151 United States Mortgage & Trust Co. v. Hodgson (58 N. Y. S. 1132)............ 447 University Press v. Williams (59 N. Y. S. 817) ................................ 52 Van Horn v. Kittitas County (59 N. Y. S. 883) ................................ 333 Van Leeuwen v. Fish (39 Ñ. Y. S. 183).... 443 Victoria Paper Mills v. New York & P. Go. (58 N. Y. S. 1070).................... 123 Volk Hat Co. v. Loman (59 N. Y. S. 1116) 793 Volkmar v. Third Ave. R. Co. (58 N. Y. S. 1021) ............................... 141 Von Keller, Matter of (59 N. Y. S. 1079).. 600 Wallace v. Arkell (59 N. Y. S. 597)....... 502 Wallace’s Estate, Matter of (59 Ñ. Y. S. 1084) ............................... 603 Wallach v. Maack (59 N. Y. S. 1117)......797 Walton v. Riverside Bank (58 Ñ. Y. S. 1008) ............................... 449 Warrin’s Estate, Matter of (60 Ñ. Y. S. 191) ................................ 695 Watson v. Dealy (59 N. Y. S. 623)....... 544

1222 61 NEW YORK SUPPLEMENT and 95 New -York State Reporter. SZ8 MISC .—Continued. Page West Side Bank v. Foehrenbach (58 N. Y. S. 1067)............................. 130 Widmayer, Matter of (59 N. Y. S. 980).... 362 Wies v. Hoffman House (59 N. Y. S. 38)... 225 Williams y. Zimmermann (59 N. Y. S. 1119) 797 Wilso-n v. Tabernacle Baptist Church (59 N. Y. S. 148)......................... 268 Woodward’s Will, Matter of (59 N. Y. S. 1080) ................................ 602 Wormser’s,Estate, Matter of (59 N. Y. S. 1088) ................................60S Worthington v. London Guarantee & Accident Co. (58 N. Y. S. 1088)............. 774 Wulff v. Cilento (59 N. Y. S. 525)......... 551 VOL. 13, NEW YORK Page People v. Baker (50 N. Y. S. 771), .....105 People v. Burnham (48 N. Y. S. 946)..... 204 People v. Coombs (55 N. Y. S. 276). ...... 525 People v. Cornelius (55 N. Y. S. 723)..... 4l6 People v. Hippold (51 N. Y. S. 859)...... 23Ó People v. Dortliy (46 N. Y. S. 970)....... 173 People v. Dunn (52 N. Y. S. 968)........ 263 People v. Gartland (52 N. Y. S. 352)...... 163 People v. Gibson (48 N. Y. S. 861)....... 208 People v. Heiselbetz <51 N. Y. S. 685)..... 223 People v. Heiselbetz (55 N. Y. S. 4)..... 470 People v. Hill (56 N. Y. S. 282).......... 550 People v. ICellina (50 N. Y. S. 653)....... 134 People v. Levy (53 N. Y. S. 643)..... 269 People v. Lindenborn (52 N. Y. S. 101).... 195 People v. Lovejoy (55 N. Y. S. 543)....... 411 People v. Lovell (48 N. Y. S. 879)........ 206 People v. Lyons (51 N. Y. S. 811)......... 108 People v. Mack (54 N. Y. S. 698)......... 401 People v. Molineux (57 N. Y. S. 643)..... 544 People v. Mulkins (54 N. Y. S. 414)....... 359 People v. Nicholson (55 N. Y. S. 447)..... 472 People v. Ray (55 N. Y. S. 410)..........437 People v. Reilly (53 N. Y. S. 1005)........ 338 People v. Royal (48 N. Y. S. 742)......... 27 People v. Shaver (55 N. Y. S. 729)........ 420 People v. Shinburne (50 N. Y. S. 51)...... 157 People v. Sickles (50 N. Y. S. 377)........ 138 People v. Sullivan (54 N. Y. S. 538)...... 377 People v. Sumner (53 N. Y. S. 817).......318 People v. Thompson (53 N. Y. S. 497)..... 273 People v. Van Tassel (50 N. Y. S. 53).....160 People v. Wade (59 N. Y. S. 846)......... 425 CRIMINAL REPORTS. Page People v. Wade (57 N. Y. S. 645)........ 546 People v. Watkins (48 N. Y. S. 856)...... 218 People v. Willis: (52 N. Y. S. 808)........ 255 People v, Willis (54 N. Y. S. 52)......... 343 People v. Willis (54 N. Y. S. 129)........ 346 People v. Wilmarth (51 N. Y. S. 688)..... 227 People v. Wolf (53 N. Y. S. 296)......... 261 People ex rel. Bedell v. ICinney (48 N. Y. S. 749).............................. 21 People ex rel. Day v. Reese (53 N. Y. S. 965) ............ 334 People ex rel. Gardiner v. Olmstead (55 N. Y. S. 472)............................ 406 People ex rel. Hunt v. Markell (50 N. Y. S. 766).............................. 115 People ex rel. ICellar v. Schrady (53 N. Y. S. 964)............ 331 People ex rel. Keller v. Hinsdale (51 N. Y. S. 425)............................... 112 People ex rel. Kirkpatrick v. Crowley (49 N. Y. S. 214)......... 200 People ex rel. McLane v. Whitney (49 N. Y. S. 589) .......................... 191 People ex rel. Perry v. Hagan (54 N. Y. S. 826) ............................... 418 People ex rel. Saloom v. Whitney (53 N. Y. S. 570).............. 341 People ex rel. Sloane v. Fallon (57 N. Y. S. 931) .................................429 People ex rel. Sloane v. Fallon (57 N. Y. S. 931) ....................'............ 553 People ex rel. Snyder v. Whitney (49 N. Y. S. 591) ............................. 192 WEST PUBLISHING CO., PKINTEBS AND STEREOTYPERS, ST. PAUL, MINN.