Young v. Equitable Life Assur. Society of United States

101 N.Y.S. 1150

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1906
• Status: Published

Opinion

PER CURIAM.

Motion for leave to go to Court of Appeals granted, and the following questions of law certified to the Court of Appeals as questions of law which ought to he reviewed by said court-: (1) Does the complaint state facts sufficient to constitute a cause of action against the defendant Charles B. Alexander? (2) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry M. Alexander? (3) Does the complaint state facts sufficient to constitute a cause of action against the defendant William Alexander? (4) Does the complaint state facts sufficient to constitute a cause of action against the defendant James W. Alexander? (5) Does the complaint state facts sufficient to constitute a cause of action against the defendant August Belmont? (6) Does the complaint state facts sufficient to constitute a cause of action against the defendant Cornelius N. Bliss? (7) Does the complaint state facts sufficient to constitute a cause of action against the defendant O. Ledyard Blair ? (8) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alexander J. Cassatt? (9) Does the complaint state facts sufficient to constitute a cause of action against the defendant Thomas De Witt Cuyler ? (10) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry C. Deming? (ll) Does the complaint state facts sufficient to constitute a cause of action against the defendant Chauncey M. Depew? (12) Does the complaint state facts sufficient to constitute a cause of action against the defendant Louis Fitzgei'ald? (13) Does the complaint state facts sufficient to constitute a cause of action against the defendant Marcellus M. Dodge? (14) Does the complaint state facts sufficient to constitute a cause of action against the defendant James B. Forgan? (15) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry O. Frick? (16) Does the complaint state facts sufficient to constitute a cause of action against the defendant George J. Gould? (17) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry C. Haarstiek? (18) Does the complaint state facts sufficient to constitute a cause of action against the defendant Edward H. Harriman? (19) Does the complaint state facts sufficient to constitute a cause of action against the defendant James J. Hill? (20) Does the complaint state facts sufficient to constitute a cause of action against the defendant Bradish Johnson? (21) Does the complaint state facts sufficient to constitute a cause of action against the defendant Thomas A. Jordan? (22) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alvin W. Krech? (23) Does the complaint state facts sufficient to constitute a cause of action against the defendant Joseph T. Low? (24) Does the complaint state facts sufficient to constitute a cause of action against the defendant John J. McCook? (25) Does the complaint state facts sufficient to constitute a cause of action against the defendant William H. McIntyre? (26) Does the complaint state facts sufficient to constitue a cause of action against the defendant Darius O. Mills? (27) Does the- complaint state facts sufficient to constitute a cause of action against the defendant David H. Moffat? (28) Does the complaint state facts sufficient to constitute a cause of action against the defendant Levi P. Morton? (29) Does the complaint state facts sufficient to constitute a cause of action against the defendant Jacob H. Schiff? (30) Does the complaint state facts sufficient to constitute a cause of action against the defendant Charles S. Smith? (31) Does the complaint state facts sufficient to constitute a cause of action against the defendant Valentine P. Snyder? (32) Does the complaint state facts sufficient to constitute a cause of action against the defendant George H. Squire? (33) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alfred G. Vanderbilt? (34) Does the complaint state facts sufficient to constitute a cause of action against the defendant William O. Van Horne? (35) Does the complaint state facts sufficient to constitute a cause of action against the defendant George T. Wilson? (36) Are causes of action improperly united in the complaint, as alleged in the said defendants’ several demurrers? (37) Is there a misjoinder of parties plaintiff, as alleged in the said defendants’ several demurrers?

See case of same title immediately preceding.

End of Oases in Vol. 101. *

1

ÍNDEX, ABANDONMENT. Of rights arising from dedication, see “Dedication,” § 2. ABATEMENT AND REVIVAL Judgment as bar to another action, see “Judgment,” g 6. Substitution of parties, see “Parties," § 2. § 1. Transfer or devolution of title, right, interest, or liability. *A suit by a substituted trustee of a testamentary trust held not abated by the death of the beneficiary, under Code Civ. Proc. g 756.— Farmers’ Loan & Trust Co. v. Pendleton (Sup.) 340. ABUTTING OWNERS. Compensation for taking of or injury to lands or easements for public use, see “Eminent Domain,” g§ 1, 3. Bights in streets in cities, see “Municipal Corporations,” § 4. ACCEPTANCE. Of dedication, see “Dedication,” § 1. ACCESSION. Annexation of personal to real property, see “Fixtures.” ACCIDENT. Accident insurance, see “Insurance,” §§ 9, 10. Cause of death, see “Death,” § 1. ACCOMPLICES. Testimony, see “Criminal Law,” § 2. ACCORD AND SATISFACTION. See “Payment”; “Release.” As defense to action for rent, see “Landlord and Tenant," § 5. Plaintiff held entitled to set up fraud vitiating a defense of accord and satisfaction without any pleading thereof.—Whitehead v. Trussed Concrete Steel Co. (Sup.) 250. ACCOUNT. See “Account Stated.” Copies of accounts' alleged or annexed in pleading, see “Pleading,” § 6. Modification of judgment in action for accounting, see “Appeal,” § 7. Accounting by particular classes of persons. See “Executors and Administrators,” § 4. Attorney, see “Attorney and Client.” § 2. Partners, see “Partnership,” g§ 2, 4. Trustee, see “Trusts,” g 5. § 1. Proceedings and relief. ♦Where referee in effect took full account of profits claimed by plaintiff, interlocutory judgment in accounting held not necessary.— Smith v. Smith (Sup.) 521. ACCOUNT, ACTION ON. Copies of accounts alleged or annexed in pleading, see “Pleading,” § 6. ACCOUNT STATED. Where an attorney collected money for a corporation and retained it, facts held insnificient to show a settlement or an account stated between the attorney and the corporation’s assignee under a general assignment or trustee in bankruptcy.—In re Klein (Sup.) 663. ACCRUAL. Of right of action, see “Limitation of Actions,” § 1. ACCUMULATIONS. See “Perpetuities,” ACKNOWLEDGMENT. Operation and effect of admissions as ground of estoppel, see “Estoppel,” § 2. Operation and effect of admissions as evidence, see “Evidence,” g 5. ACTION. Abatement, see “Abatement and Revival.” Accrual, see “Limitation of Actions,” g 1. Bar by former adjudication, see “Judgment, g 6. Counterclaim, see “Set-Off and Counterclaim. » » ♦Point annotated. See syllabus. (1153) 101 N.T.S.—73

1154 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Jurisdiction of courts, see “Courts.” Limitation by statute, see “Limitation of Actions.” Malicious actions, see “Malicious Prosecution.” Set-off, see “Set-Off and Counterclaim.” Actions between parties m particular relations. See “Master and Servant,” §§ 2, 3; “Partnership,” §§ 2, 4. Co-tenants, see “Partition,” § 1. Actions by or against particular classes of persons. See “Brokers,” § 2; “Carriers,” §§ 2, 3; “Infants,” § 1; “Landlord and Tenant,” § 4; “Master and Servant,” § 4; “Municipal Corporations,” § 7; “Principal and Agent,” § 2; “Street Railroads,” § 2. Assignees, see “Assignments,” §§ 1, 2. Assignees in bankruptcy, see “Bankruptcy,” § 1. Corporate officers, see “Corporations,” § 4. Officers of insurance company, see “Insurance," § 1. Actions relating to particular species of property or estates. ;See “Fixtures.” and § 1. § 2. and Particular causes or grounds of action. See “Account Stated”; “Bills and Notes,” § 2; “Death,” § 1; “Fraud,” § 1; “Insurance,” §§ 12, 13; “Libel and Slander,” § 2; “Malicious Prosecution,” § 2; “Money Lent”; “Money Paid”; Negligence,” § 3; “Nuisance,” § 1; “Trespass” ; “Traver and Conversion,” § 1; “Work and Labor.” Alienation of affections, see “Husband Wife,” § 2. Bond of highway ofijeer. see “Highways,” Breach of contract, see “Contracts,” § 5. Compensation of broker, see “Brokers,” Discharge from employment, see “Master Servant,” § 1. Infringement of trade-mark or trade-name, see “Trade-Marks and Trade-Names,” § 3. Malfeasance by officers of insurance company, see “Insurance,” § 1. Penalty for cutting timber on forest preserve, see “Woods and Forests.” Personal injuries, see “Carriers,” § 3; “Landlord and Tenant,” § 4; “Master and Servant,” § 3; “Municipal Corporations,” § 5; “Railroads,” § 6; “Street Railroads,” § 2. Price of goods, see “Sales,” § 4. Recovery of payment, see “Payment,” § 1. Recovery of price paid for goods, see “Sales,” § 5. Recovery of price paid for land, see “Vendor and Purchaser,” § 3. Rent, see “Landlord and Tenant,” § 5. Services, see “Master and Servant,” § 2 ; “Work and Labor.” Taking of or injury to property in exercise of power of eminent domain, see “Eminent Domain,” § 3. Wages, see “Master and Servant,” § 2. Particular forms of action. See “Ejectment”; “Replevin”; “Trespass,” § 2; “Traver and Conversion.” Particular forms of special relief. See “Account” ; “Divorce”; “Injunction” ; “Interpleader”; “Partition,” § 1; “Specific Performance.” Accounting between partners, see “Partnership,” § 4. Alimony, see “Divorce,” § 3. Enforcement or foreclosure of lien, see. “Mechanics’ Liens,” § 2. Establishment of will, see “Wills,” § 2. Foreclosure of mortgage, see “Mortgages,” § 3; “Railroads,” § 4. Reformation of written instrument, see “Reformation of Instruments.” Settling aside fraudulent conveyance, see “Fraudulent Conveyances,” § 2. Particular proceedings in actions. See “Continuance”; “Costs”; “Damages”; “Depositions”; “Dismissal and Nonsuit”; “Evidence”; “Execution” ; “Judgment” ; “Jury”; “Limitation of Actions”; “Motions” ; “Parties” ; “Pleading” ; “Process”; “Reference”; “Trial”; “Venue.” Bill of particulars, see “Pleading,” § 6. Default, see “Judgment,” § 1. Verdict, see “Trial,” § 5. Particular remedies in or incident to actions. See “Attachment”; “Discovery”; “Injunction.” Proceedings in exercise of special or limited jurisdictions. Courts of limited jurisdiction in general, see “Courts,” § 2. Criminal prosecutions, see “Criminal Law.” Review of proceedings. See “Appeal”; “Judgment,” § 4; “Justices of the Peace,” § 1; “New Trial.” § 1. Nature and form. Allegations in an action for the recovery of money held insufficient to stamp it as one in conversion, defeating counterclaims founded on contract.—Lange v. Schile (Sup.) 1080. § 2. Joinder, splitting, consolidation, and severance. A complaint of a stockholder, seeking a recovery of a declared dividend, and to restrain the issuance of new stock, field to improperly join the law action and the equity action.—Searles v. Gebbie (Sup.) 199. Complaint in an action for enticing a wife, field not subject to demurrer as stating separate causes of action against each defendant.— De 'Ronde v. Bell (Sup.) 497. Complaint for the improper use of plaintiff’s photograph held to state but one cause of action, and that against both defendants.—Riddle v. MacFadden (Sup.) 606. ' Under Code Civ. Proc. § 484, a legal and equitable cause of action growing out of the improper use of plaintiff’s photograph held properly joined.—Riddle v. MacFadden (Sup.) 606. Actions on claims on a contract held proper for consolidation.—Wilson v. Locke (Sup.) 831. * Point annotated. See syllabus.

INDEX. 1155 •Delay in making a motion for consolidation of action held not ground for refusal of motion. —Wilson v. Locke (Sup.) 831. •Complaint held subject to demurrer for improperly uniting several causes of action.— Myers v. Lederer (Sup.) 1088. § 3. Commencement, prosecution, and termination. •Plaintiff held not entitled to recover installments under a contract by performing a condition precedent to his right of recovery after the commencement of the action.—Tullís v. Stone (Sup.) 1082. ACTION ON THE CASE. See “Trespass,” § 2. ADJOINING LANDOWNERS. See “Boundaries.” ADJUDICATION. Operation and effect of former adjudication, see “Judgment,” §§ 6, 7. ADMINISTRATION. Of estate of decedent, see “Executors and Administrators.” Of trust property, see “Trusts,” § 3. ADMISSIONS. As evidence in civil actions, see “Evidence,” § 5. ADULTERATION. •In an action to recover a penalty for the delivery of adulterated milk contrary to the Agricultural Law, Laws 1893, p. 655, c. 338, held, that the question whether a sample taken under section 12 (page 659) was a fair one was for the jury.—People v. Weaver (Sup.) 961. In an action under Laws 1893, p. 659, c. 338, § 12, to recover a penalty for the delivery of adulterated milk, held that there was a sufficient delivery to defendant of a sample of the milk in question.—People v. Weaver (Sup.) 961. Failure of an inspector to comply with the provisions of Agricultural Law, Laws 1893, p. 659. c. 338, § 12, in regard to the delivery of a duplicate sample of milk, held to preclude recovery of a penalty under the statute for adulteration.—People v. Weaver (Sup.) 961. In an action under the Agricultural Law, Laws 1893, p. 655, c. 338, to recover a penalty for the delivery of adulterated milk, the fact that the inspector was not present at the entire milking of the herd for the purpose of taking a sample held no bar to a recovery.—People V. Weaver (Sup.) 961. •Point annotate ADULTERY. Ground for divorce, see “Divorce,” § 2. Of plaintiff as defense to action for divorce, see “Divorce,” §§ 1, 2. ADVERSE POSSESSION. See “Limitation of Actions.” ADVERTISEMENT. Of contracts for public improvements, see “Municipal Corporations,” § 3. AFFIDAVITS. See “Depositions.” Particular proceedings or purposes. See “Attachment,” § 1. Examination of judgment debtor, see “Execution,” § 3. To set aside judgment, see “Judgment,” § 4. Verification of claim against town, see “Towns,” § 2. AGENCY. See “Principal and Agent.” AGREEMENT. See “Contracts.” ALIENATION. Of affections, see “Husband and Wife,” .§ 2. Suspension of power of alienation of property, see “Perpetuities." ALIENS. See “Indians.” ALIMONY. See “Divorce,” § 3. ALTERATION OF INSTRUMENTS. See “Reformation of Instruments.” AMBASSADORS AND CONSULS. Under the treaty of April 26, 1826 (8 Stat. 342, art. 8) with the kingdom of Denmark, the Danish consul cannot appear for an infant party to a proceeding for the probate of a last will, so as to give the Surrogate’s Court jurisdiction of such party, without the issuance of a citation.—In re Peterson’s Will (Sur.) 285. AMENDMENT. Of parties, see “Parties,” § 3. Of pleading, see “Pleading,” § 5. Of record on appeal, see “Appeal,” § 4. Power of lower court to allow amendment on remand, see “Appeal,” § 7. 1. See syllabus.

1156 101 NEW YORK SUPPLEMENT and 135 New York State Reporter ANIMALS. Railroads frightening animals, see “Railroads,” APPEAL. See “Justices of the Peace,” § 1; “New Trial.” Costs, see “Costs,” § 5. From judgment of municipal court, see “Courts,” § 2. Power of appellate court to grant injunction, see “Injunction,” § 2. Review in criminal prosecutions, see “Criminal Law,” § 4. Review in special proceedings. Condemnation proceedings, see “Eminent Domain,” § 2. For removal of executor, see “Executors and Administrators,” § 1. In Indian court, see “Indians.” Probate proceedings, see “Wills,” § 2. § 1. Decisions review-able. *A judgment by default cannot be appealed from.—-Levine v. Munchik (Sup.) 14. *An order denying a motion to open a default is appealable.—Levine v. Munchik (Sup.) 14. *Where a municipal court judgment was void because entered more than 14 days after final submission of the cause, and because there had been no trial of the action, the remedy of the defeated party was by appeal.—Barron v. Feist (Sup.) 72. *An order, settling and allowing cross-interrogatories propounded by the plaintiff to defendant, is appealable.—Shafer ' v. McIntyre (Sup.) 268. ■ *It being for the trial court to determine what was before it, its order, resettling the case on appeal to include exhibits alleged to have been omitted, will not be disturbed.—Volhard v. Vol-hard (Sup.) 453. *An order, denying a motion for an adjournment, held not appealable.—Fred S. Chute Co. v. Westbay (Sup.) 527. *An appeal from a judgment by default dismissed where no motion had been made to open the default.—Fred S. Chute Co. v.. Westbay (Sup.) 527. *An order granting a motion for a reargument is not appealable.—Hart v. Kaplan (Sup.) 763. *No appeal lies from an order of the Municipal Court of the city of New York denying a motion for reargument.—Steindler v. American Bonding Co. (Sup.) 795. *A default judgment in the Municipal Court of the city of New York is not appealable.— Steindler v. American Bonding Co. (Sup.). 795. *An appeal lies from an order of the Municipal Court of the city of New York denying a motion to open a default.—Steindler v. American Bonding Co. (Sup.) 795. § 2. Presentation and. reservation ini lower court of grounds of review, *In an action against an executor held, that the objection that the word “as” was omitted between defendant’s name and his title could' not be first raised on appeal.—Pryor v. Milburn (Sup.) 34. ’-Where, in the trial of an action for damages, defendant acquiesced in the rule adopted by plaintiff to show the measure of damages, defendant could not, on appeal, challenge the correctness of the rule.—Morrison v. American Telephone & Telegraph Co. (Sup.) 140. ^Failure to attempt to introduce in evidence in an action on a life insurance policy the application therefor, held, to preclude the raising on appeal of the question of its admissibility.— Carr v. Prudental Ins. Co. (Sup.) 158. *Questions of fact not submitted to the jury on the trial of a case cannot be considered on appeal.—Van Alstine v. Standard Light, Heat & Power Co. (Sup.) 696. The statement of counsel at the trial as to his understanding of the law will not estop Him from urging on appeal that the law is not in harmony with that understanding.—People v. Armstrong (Sup.) 712. § 3. Requisites and proceedings for transfer of cause. *Where a notice of appeal described the judgment as entered in favor of a tenant on June 18, 1906, and the only judgment in the record was against the tenant, and rendered October 38, 1906, the appeal will be dismissed.— Oberwager v. Levy (Sup.) 793. § 4. Record and proceedings not in record. *Lack óf a certificate that the case on appeal contained all the evidence held to result in the presumption that a finding of fact by the tria$ court was correct.—Kuhn v. Knight (Sup.) 1. *For variance between notice of appeal and record as to what the judgment was, held the record would be returned to the trial court for correction.—Hartman v. Kahn-Feinberg Co. (Sup.) 108. Where the judgment from which the appeal purports to be is not in the record held the questions involved in the appeal cannot be considered.—Spencer v. Busch (Sup.) 188. *Where a record is conflicting as to the parties, plaintiff and defendant, in the case, and as to the cause of action involved, it will be returned to the trial court for correction.— Bruck v. Gilmartin & Dewell (Sup.) 527. *On appeal to the appellate term held that the return of the Municipal Court must govern as against an affidavit made by plaintiff’s attorney—Gottlieb v. Kurlander (Sup.) 751. *Where affidavits referred to in briefs on appeal do not appear in record, return will be 0 sent back to files to permit parties to move to amend it.—Waldman v. Mann (Sup.) 757. * Where the notice of .appeal recites an appeal from a judgment of dismissal,- and the See syllabus. * Point annotated."

INDEX, 1157 record does not contain such judgment, the case will be remanded for such action as the parties may deem proper.—Shiel v. Miller (Sup.) 789. ♦Defendant held entitled to an amendment of the case on appeal as to a request to charge.— McMahon v. Delaware, L. & W. R. Co. (Sup.) 805. Whether default in serving printed copies of papers on appeal should be opened must be settled on motion in the Appellate Division, but whether default in service of a case on appeal should be open must be settled at the Special Term.—Hanson v. Walsh (Sup.) 1061. ♦One of the defendants who was defeated held entitled to have the case on appeal resettled so as to disclose the grounds on which his motion to dismiss at the close of plaintiff’s case was made.—Blewett v. Hoyt (Sup.) 1086. 5 5. Dismissal, withdrawal, or abandonment. An appeal from an order continuing an injunction restraining the appellant from acting as executor will be dismissed where before the appeal was argued the letters testamentary issued to appellant were revoked.—In re Hirseh’s Estate (Sup.) 1027. § 6. Review. ♦Where the pleadings present an issue of fact, and the burden is on the plaintiff, and there is no evidence, a judgment for plaintiff must be reversed.—Vitigliano v. Filusia (Sup.) 20. ♦In an action by a servant for personal injuries, granting of a nonsuit, based on the failure to prove defendant’s negligence, held not sustainable on the ground of contributory negligence.— Wendell v. Leo (Sup.) 51. ♦Error cannot be regarded as harmless unless it affirmatively appears that no prejudice resulted.—Englander v. Fleck (Sup.) 125. On appeal from a judgment based on a life insurance policy, a presumption in favor of the judgment held to arise as to a disputed acceptance of premiums by the company, not passed on by the jury.—Carr v. Prudential Ins. Co. (Sup.) 158. ♦On appeal from a judgment, based on a life insurance policy, any error in refusing to submit to the jury the question as to the mailing of a required notice of forfeiture under Laws 1897, p. 92, c. 218, § 92, held favorable to appellant.—Carr v. Prudential Ins. Co. (Sup.) 158. ♦Where defendant appealed from an order allowing cross-interrogatories propounded to him by the plaintiff, it rested upon him to show that they were clearly irrelevant.—Shafer v. McIntyre (Sup.) 268. Where, under the charge, a verdict might have been reached by a finding that deceased was killed by the original accident, not contributed to by deceased’s negligence, which was unwarranted, the verdict could not rest on proof of negligence subsequent to the happening of the accident.—Healy v. United Traction Co. (Sup.) 331. ♦Point annotate The erroneous admission of an offer of compromise in a suit against a firm held not cured by the admission of one of the members of the firm that he made the offer, and stated why he did so.—Franklin v. Hoadley (Sup.) 374. The resettling of the case on appeal to have the title where appearing in the printed papers conform to that in the summons and complaint cannot be complained of.—Yolhard v. Volhard (Sup.) 453. Under Code Civ. Proc. § 1316, a defendant, appealing _ from a final judgment, held entitled to a review of an interlocutory judgment.— Bauer v. Parker (Sup.) 455. ♦Where there was a sharp conflict of proof, the finding will not be disturbed.—J. C. Bogert Co. v. Schmidt (Sup.) 580. ♦A judgment founded on improper instructions, duly excepted to, cannot be upheld.— Stantial v. Union Ry. Co. (Sup.) 662. ♦Upon an appeal from a nonsuit appellant is entitled to the most favorable inferences deducible from the evidence.—Duffy v. Interurban St. Ry. Co. (Sup.) 767. The court in reviewing a judgment of nonsuit must place on the evidence a construction most favorable to plaintiff, and consider the rea' able inferences that may be drawn therefrom.— Fruhauf v. Interborough Rapid Transit Co. (Sup.) 781. ♦Determination of a motion to correct a case on appeal by a justice other than the one who tried the case, and who heard the motion only on the papers submitted, held not conclusive on appeal.—McMahon v. Delaware, L. & W. R. Co. (Sup.) 805. ♦An order continuing a preliminary injunction till trial held not to be disturbed, the facts calling for exercise of discretion.—Manufacturers Commercial Co. v. Anderson (Sup.) 823. ♦The awarding of costs on setting aside a verdict, as authorized by Code Civ. Proc. § 999, for inadequacy of damages, held within court’s discretion, and not subject to reversal on appeal.—Waltz v. Utica & M. V. Ry. Co. (Sup.) § 7. Determination and disposition of cause. ♦Where defendant failed to appear on the hearing of a motion to open a default, and the court thereon improperly ordered a denial instead of a dismissal of the motion, it can only be modified upon appeal by providing for a dismissal.—Levine v. Munchik (Sup.) 14. ♦An erroneous judgment in an action by a partner for an accounting held not subject to correction on appeal, and hence to require a reversal for a new trial.—Hebblethwaite v. Flint (Sup.) 43. ♦An excessive judgment for personal injuries held subject to affirmance on condition of prior stipulation of reduction to a reasonable sum.— Schierloh v. Interurban St. Ry. Co. (Sup.) 437. 1. See syllabus.

1158 101 NEW YORK SUPPLEMENT and 135 New York State Reporter *A reversal of a judgment in an action to enforce a limited liability of the directors of a corporation held to inure to the benefit of a director who did not appeal.—Bauer v. Parker (Sup.) 465. An order dismissing a complaint for failure to prosecute will be reversed on condition where sustaining the order would work great injustice to appellant.—Gunn v. Metropolitan St. Ry. Co. (Sup.) 791. The special term of the Supreme Court held authorized to allow amendment of complaint, and to amend the judgment of dismissal to allow the complaint to stand as amended.—Town of Palatine v. Canajoharie Water Supply Co. (Sup.) 810. APPLIANCES; Liability of employer for defects, see “Master and Servant,” § 8. APPOINTMENT. Of corporate officers, see “Corporations,” § 4. Of executor or administrator, see “Executors and Administrators,” § 1. Of judge, see “Judges,” § 1. Of public officers in general, see “Officers,” § 1. APPORTIONMENT.* Of damages recovered for wrongful death, see “Damages,” § 1. Of legislative districts, see “States,” § 1. ASSIGNMENTS. Counterclaim against assigned cause of action, see “Set-off and Counterclaim,” § 1. Fraud as to creditors, see “Fraudulent Conveyances.” Transfers of particular species of property, rights, or instruments. See “Trade-Marks and Trade-Names,” § 2. Contracts with corporation to consolidated corporation, see “Corporations,” § 6. Corporate shares, see “Corporations,” § 2. § 1. Rights and liabilities of parties. ♦The driver for an express company, who was compelled to pay amount of claim for goods delivered to it and who with the consent of the express company took an assignment of the claim, could maintain an action against the consignee for the value of the goods alleged to have been delivered to him.—Buchhoiz v. Damick (Sup.) 17. § 2. Actions. In an action by assignee of an accepted order requiring defendant to pay to the payee a sum due drawer under a certain contract, evidence held sufficient to show that moneys were due the drawer under such contract—Tim v. Elite Realty Co. (Sup.) 533. ♦The assignee of a claim held not entitled to sue thereon without first demanding payment.— Packard v. Long Island R. Co. (Sup.) 660. ♦Where there was uncontradicted evidence of a paroi assignment of a claim, the assignee could maintain an action thereon in his own name.—Haller v. Ingraham (Sup.) 789. ARCHITECTS, ASSIGNMENTS FOR BENEFIT OF CREDITORS. Approval of architect as condition precedent to recovery for performance of contract, see “Contracts,” § 4. See “Bankruptcy,” § 1. ASSOCIATIONS. ARMY AND NAVY. Preference to veterans in appointment of municipal employes, see “Municipal Corporations,” § 1. ARREST. Illegal arrest, see “False Imprisonment.” Mandamus to reinstate expelled member of, see “Mandamus,” § 3. Mutual benefit insurance association, see “Insurance,” § 13. ASSUMPSIT, ACTION OF. See “Account Stated”; “Money Lent” Paid”; “Work and Labor.” “Money ASSAULT AND BATTERY. Mental suffering as element of damages, see “Damages,” § 1. ASSUMPTION. Of risk by employé, see “Master and Servant,” § 3. Of risk, in general, see “Negligence,” § 2. ASSESSMENT, ATTACHMENT. Of compensation for property taken for public use, see “Eminent Domain,” § 2. Of loss on insured, see “Insurance,” §§ 4, 7. Of tax, see “Taxation,” § 2. § 1. Proceedings to procure. ♦An application for a warrant of attach, ment should be based on legal evidence; hearsay evidence will be substituted therefor only in ♦Point annotated. See syllabus.

INDEX. 1159 cases of necessity.—Gumbes v. Hicks (Sup.) 741 *An attachment against nonresident cannot issue on complaint and affidavit made on information and belief derived from a letter which is not presented.—Gumbes v. Hicks (Sup.) 741. ATTORNEY AND CLIENT. Account stated between attorney and client, see “Account Stated.” Liability of attorney for contempt, see “Contempt.” Reception of testimony of attorney at trial of civil action, see “Trial,” § 2. Right to attorney’s fees under indemnity contract, see “Indemnity.” § 1. The office of attorney. ♦Practicing under an assumed name held, to call for disbarment of an attorney for unprofessional conduct, deceit, fraud, and malpractice. —In re Kaffenburgh (Sup.) 507. Practicing law held not a business, and so not authorized under an assumed name by Pen. Code, § 363b.—In re Kaffenburgh (Sup.) 507. Where an attorney was admitted to practice on a showing that he had practiced in Texas, but he suppressed the fact that he had practiced in Virginia under a different name and had there been disbarred, there was ground for his disbarment.—In re Marx (Sup.) 680. In proceedings to disbar an attorney on the ground that he had previously been disbarred in another state held that his excuse offered was no defense.—In re Marx (Sup.) 680. § 2. Duties and liabilities of attorney to client. Where an attorney retained his client’s money, claiming a lien thereon the Supreme Court held to have jurisdiction to determine the question summarily on application.—In re Klein (Sup.) 663. A trustee in bankruptcy held entitled to maintain an application in the Supreme Court to compel an attorney to pay over moneys collected for the bankrupt.—In re Klein (Sup.) 663. An attorney held justified in refusing on demand of the client’s trustee in bankruptcy to turn over all moneys which the attorney had collected without allowing him to retain anything for his services.—In re Klein (Sup.) 663. ♦Under the evidence held that petitioner did not have a right to maintain summary proceedings against defendant to compel him to pay over money received as an attorney.—In re Nellis (Sup.) 698. ♦The right of a client to proceed in a summary manner against an attorney to compel him to pay over moneys received by him is subject to the discretion of the court.—In re Nellis (Sup.) 698. *On application of a client, the court can, under common law, inquire into the alleged misconduct of his attorney by an order to show cause; and Code Civ. Proc. only regulates the authority and dictates the manner in which ♦Point annotate such right may be exercised.—People v. Fee-naughty (Sup.) 700. ♦Court held to have common-law authority to inquire into alleged misconduct of attorney on application of client.—People v. Feenaughty (Sup.) 700. ♦Remedy of client for recovery of money withheld by attorneys claiming lien held, not by action for conversion, but by application for order to show cause or action for accounting.—Rose v. Whiteman (Sup.) 1024. § 3. Compensation and lien of attorney. In action by an attorney for services, a judgment in his favor held under the facts erroneous as for an insufficient amount.—Allen v. Flynn (Sup.) 747. ♦Attorneys held entitled to assert lien on moneys coming into their hands as attorneys till compensation has been agreed on.—Rose v. Whiteman (Sup.) 1024. AUCTIONS AND AUCTIONEERS. ♦Failure of auctioneers to pay over the proceeds of a sale held a breach of their bond creating an immediate liability thereon.—Plummer v. Bankers’ Surety Go. (Sup.) 529. Where plaintiff requested certain auctioneers to pay over the proceeds of a sale of plaintiff’s goods, such request constituted a sufficient demand to put the auctioneers in defaults—Plummer v. Bankers’ Surety Co. (Sup.) 529. AUTHORITY. Of agent, see “Principal and Agent,” § 2. AUTOMOBILES. Injuries to third person caused by negligence of chauffeur, see “Master and Servant,” § 4. Speculative damages in action for injuries to, see “Damages,” § 1. Use of streets by, see “Municipal Corporations,” § 4. BAILMENT. Particular species of bailments, and bailments incident to particular occupations. See “Banks and Banking,” § 1; “Carriers,” § 2; “Pledges.” ♦Bailees for hire held' not liable for injuries to a truck caused by a collision with a street car, owing solely to the negligence of the motorman.—Littlefield v. New York City Ry. Co. (Sup.) 75. In an action against a bailee for the hire of a lamp, evidence held insufficient to sustain a judgment dismissing the complaint.—Municipal Lighting Co. v. Pauli (Sup.) 84. A bailee, in the absence of negligence, is not liable for the loss' of goods by burglary.— Campbell v. Klein (Sup.) 577. I. See syllabus.

1160 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Evidence held not to show purchaser of dyeing business guilty of negligence rendering her liable for goods stolen from place of business.— Campbell v. Klein (Sup.) 577. BANKRUPTCY. Allegations in complaint in action by trustee in bankruptcy, as to failure to file chattel mortgage, see “Chattel Mortgages,” § 1. Right of trustee in bankruptcy to compel attorney to pay over moneys collected for bankrupt, see “Attorney and Client,” § 2. § 1. Assignment, administration, and distribution of bankrupt’s estate. ♦Action by a trustee in bankruptcy to have set aside a transfer of the bankrupt’s property, held properly brought in equity.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦A complaint by a trustee in bankruptcy to set aside a transfer as preferential under Acts July 1, 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], held to sufficiently allege that the “enforcement” of the transfer would result in a preference.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦Complaint under Acts July 1. 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [TJ. S. Comp. St. 1901, p. 344b], declaring preferential transfers voidable by a trustee in bankruptcy, held sufficient without a specific allegation that the transfer was voidable by the trustee.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦Allegations of a complaint by a trustee in bankruptcy under Acts July 1. 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], declaring a preferential transfer voidable by the trustee, held to sufficiently show plaintiff’s interest.—Lesser v. Bradford Realty Co. (Sup.) 571. § 2. Rights, remedies, and discharge of bankrupt. ♦Discharge of a partner in individual bankruptcy proceedings after the dissolution of the firm held to entitle the bankrupt to a cancellation of a judgment for a firm debt which was duly scheduled and provable in the bankruptcy proceedings, under Code Civ. Proe. § 1268.— Berry Bros. v. Sheehan (Sup.) 371. ♦Defendant’s discharge in bankruptcy under Bankr. Act July 1, 1898. c. 541, § 17, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], held no bar to an action on an agreement whereby defendant was to save plaintiff harmless from partnership debts.—Ogilby v. Munro (Sup.) 753. BANKS AND BANKING. Establishment of trust in bank deposit, see “Trusts,” § 1. § 1. Functions and dealings. ♦Petitioner as one of the trustees of a bank deposit for the benefit of an incompetent held not entitled to an equitable set-off on the insolvency of the bank to the amount of such deposit against his individual debt to the bank. —People v. German Bank (Sup.) 917; In re Hauenstein, Id. § 2. National banks. ♦A contract of guaranty executed by a national bank held void as ultra vires.—Appleton v. Citizens’ Cent. Nat. Bank (Sup.) 1027. ♦Under Rev. St. U. S. § 5136 [U. S. Comp. St. 1901, p. 3455], a national bank held not authorized to enter into a general contract of guaranty by which it becomes liable for debts of others.—Appleton v. Citizens’ Cent. Nat. Bank (Sup.) 1027. § 3. Loan, trust, and investment companies. Depositors with an insolvent trust company having no interest contracts held entitled to interest from the date of the appointment of the receiver.—People v. Merchants’ Trust Co. (Sup.) 255. Holders of certificates of deposit in an insolvent trust company held entitled to interest at a specified rate to the date of the appointment of the receiver, and thereafter at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. A depositor with an insolvent trust company is entitled to payment of interest after dissolution only upon the balances! which would have been due to him had he accepted the several installments of principal at the time they were respectively paid to creditors by the receivers. —People v. Merchants’ Trust Co. (Sup.) 255. Holders of certified checks on an insolvent trust company held entitled to interest upon their respective credit balances from the date of the receivership up to the date of the final payment of principal at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. Appointment of receivers for a trust company obviates necessity for demand by depositors for payment of their deposits.—People v. Merchants’ Trust Co. (Sup.) 255. Depositors, having special interest contracts with an insolvent trust company, held entitled to recover interest at the contract rate up to the time of the appointment of the receiver, and thereafter at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. Where the assets of an insolvent corporation proved sufficient to pay its creditors in full held that they were entitled to interest.—People v. Merchants’ Trust Co. (Sup.) 255. BAR. Of action by former adjudication, see “Judgment,” § 6. BENEFICIAL ASSOCIATIONS. Mandamus to reinstate expelled member of, see “Mandamus,” § 3. Mutual benefit insurance association, see “Insurance,” § 13. 'Point annotated. See syllabus.

INDEX, 1161 BENEFITS. Acceptance of, as ground of estoppel, see “Estoppel,” § 2. BEQUESTS. See “Wills.” BEST AND SECONDARY EVIDENCE In civil actions see “Evidence,” § 4. BIAS. Of witness, see “Witnesses,” § 3. BILL OF EXCHANGE. See “Bills and Notes.” BILL OF, PARTICULARS. See “Pleading,” § 6. BILLS AND NOTES. Part payment within statute of limitations, see “Limitation of Actions,” § 2. Usury in note, see “Usury,” § 1. $ 1. Requisites and validity. In an action on a note signed by a married woman, evidence that she was induced to sign with her husband on his promise th,at she would never be required to pay it, held insufficient to relieve her from liability.—Hover v. Magley (Sup.) 245. *In an action on a note given in part payment on a sale, defendant held entitled to defend on the ground of fraud.—Douglass v. Richards (Sup.) 299. § S. Actions. *Under Negotiable Instruments Law, § 320, Laws 1897, p. 755, c. 612, a complaint on a note made to the maker’s own order, failing to allege the maker’s indorsement, held fatally defective.—Simon v. Mintz (Sup.) 86. In action, by indorsee on note, held error under pleadings and evidence to direct verdict in favor of indorsee.—Royal Bank of New York v. Goldschmidt (Sup.) 101. BONA FIDE PURCHASERS. Of lands, see “Vendor and Purchaser,” § 2. BONDS. Municipal bonds, see “Municipal Corporations,” § 6. Of government contractor, see “United States,” § 1. Sureties on bonds, see “Principal and Surety.” ::: Point annotate Bonds for performance of duties of trust or office. See “Auctions and Auctioneers”; “Officers,” § 3. Highway officers, see “Highways,” § 1. Town officers, see “Towns,” § 1. Bonds in judicial proceedings. See “Costs,” § 4. BOOKS. Of corporation, see “Corporations,” § 4. BOUNDARIES. § 1. Description. *Title to the center of a street is conveyed where the property is conveyed according to a map filed which shows such streets as boundaries, though the city never opens the street. —Trowbridge v. Ehrich (Sup.) 995. BREACH. Of condition, see “Insurance,” §§ 6, 7. Of contract, see “Contracts,” § 4; “Sales,” § 2; “Vendor and Purchaser,” § 1. Of warranty, see “Sales,” §§ 3, 5. BROKERS. Insurance brokers, see “Insurance,” § 2. Retroactive operation of laws repealing laws relating to unauthorized offers for sale of real property, see “Statutes,” § 4. § 1. Compensation and lien. A broker employed to procure a purchaser of land held to have earned his commission.—Lovett v. Clench (Sup.) 174. * Where a broker was employed by both parties to contract of exchange of property, neither could refuse compensation where he had knowledge that the broker was also in the employ of the other.—Tieck v. McKenna (Sup.) 317. ‘^Broker’s right to commissions for procuring execution of contract for exchange of property held not affected by noncompletion of contract. —Tieck v. McKenna (Sup.) 317. - ^Section 640d of the Penal Code (Laws 1901, p. 312, c. 128) held not to preclude broker having no written authority from either party to ask for an exchange of property from recovering commissions for procuring execution of such contract.—Tieck v. McKenna (Sup.) 317. *Real estate brokers held not entitled to commissions.—Ward v. Kennedy (Sup.) 524. Where a memorandum of a broker’s authority to sell was not signed by the owner or her attorney in fact as required by Pen. Code, § 640d, the broker could not recover against the owner’s husband for breach of an implied warranty of authority to place the property for sale.—Hochbaum v. Rotter (Sup.) 531. 1. See syllabus.

1162 ♦Broker negotiating mortgage loan held not entitled to commissions.—Kronenberger v. Teschemacher (Sup.) 764. Claim against decedent’s estate for commissions for sale of decedent’s land dismissed.— In re French’s Estate (Sur.) 734. § 2. Actions for compensation. In an action for services rendered by a broker, evidence examined and held to require submission to jury of question whether defendant employed broker to perform services rendered.— Tieck v. McKenna (Sup.) 317. In an action against party to contract of ■exchange of property for services rendered by broker in procuring execution of such contract, evidence examined and held to show disclosure to defendant by broker of his agency for the other party, also.—Tieck v. McKenna (Sup.) 317. Evidence in an action for commission held insufficient to support judgment for plaintiff.— Greenfield v. Kaplan (Sup.) 567. In an action for commissions earned by a broker, the defense that a written authority is required by Pen. Code, § 640d, held not available unless specially pleaded.—Strunski v. Geiger (Sup.) 786. BUILDING CONTRACTS. See “Contracts,” § 4. BURGLARY. Liability of bailee for loss of goods by burglary, see “Bailment.” CANALS. Forest preserves for protection of water supply for canal, see “Woods and Forests.” CANCELLATION OF INSTRUMENTS. Cancellation of insurance policy, see “Insurance,” § 5. Cancellation of liquor tax certificates, see “Intoxicating Liquors.” § 1. Setting aside fraudulent conveyances, see “Fraudulent Conveyances,” § 2. CARRIERS. Excessive damages in action for injuries to passenger, see “Damages,” § 2. Inadequate damages in action for ejection of passenger, see “Damages,” § 2. Mental suffering as element of damages in action for ejection of passenger, see “Damages,” § 1. Release by passenger of damages sustained, see “Release, § 1. Verdict disregarding instructions injuries to passenger, see “Trial Control and regulation of common CEivriex’S* Under Railroad Law, Laws 1890, p. 1096, c. 565, § 39, and Id. pp. 1113, 1114, §§ 101, 104, as amended by Laws 1892, pp. 1405, 1406. c. 676, a bona fide passenger, desiring to make one continuous trip between two points on a street railway held entitled to recover from the carrier a penalty for its refusal to give a transfer.—Hennion v. New York City Ry. Co. (Sup.) 100. The Hepburn Act, Act Cong. June 29, 1906, 34 Stat. 584, c. 3591, held to apply to railroad with termini in different states and operating coal mines in one state.—Central Trust Co. of New York v. Pittsburg, S. & N. R. Co. (Sup.) 837. § 2. Carriage of goods. ♦In an action against an express company, evidence, that plaintiff did not read the terms of a limited liability receipt, held admissible on the question of his consent to varying the terms of the oral contract.—Coggswell v. Weir (Sup.) 188. ♦In an action against an express company for loss of goods whether plaintiff assented to the terms of a limited liability receipt, held for the jury.—Coggswell v. Weir (Sup.) 188. § 3. Carriage of passengers. In action for injuries received while attempting to board a street car evidence held not to show negligence on part of the motorman.— Egg v. Rochester Ry. Co. (Sup.) 195. ♦Evidence in action for injuries to passenger held to warrant the jury in finding for plaintiff. —McLaughlin v. Syracuse Rapid Transit Ry. Co. (Sup.) 196. ♦In an action for injuries to a boy by jumping from a moving street car on being frightened by "flames issuing from the controller box, whether he was guilty of contributory negligence held for the jury.—Paine v. Geneva, W., S'. F. & C. L. Traction Co. (Sup.) 204. ♦Where a passenger on a street car jumped therefrom because an unusual explosion and fire issuing from the controller box, the burden was on the carrier to relieve itself from the presumption of negligence.—Paine v. Geneva, W., S. F. & C. L. Traction Co. (Sup.) 204. In an action for injuries to a passenger on an electric car, it was no defense that the controller was of the best approved pattern, had been properly inspected, and that there was no known means to determine in advance whether such a controller would explode.—Paine v-Geneva, W., S. F. & C. L. Traction Co. (Sup.) 204. A passenger on a street car held not making a “continuous trip,” within Railroad Law, Laws 1892, p. 1406, c. 676, § 104; and therefore not entitled to recover the penalty for refusal of a transfer.—Hunt v. Brooklyn Heights R. Co. (Sup.) 209. In an action against a street railway for injuries to a passenger, facts held, insufficient to See syllabus. 101 NEW YORK' SUPPLEMENT and 135 New York State Reporter § 1. in action for ” § 5. ♦Point annotated.

INDEX. 1163 show negligence on the part of defendant.— Adams v. New York City Ry. Co. (Sup.) 510. ♦Passenger on street car held guilty of contributory negligence in riding in a dangerous position.—KlefEmann v. Metropolitan St. Ry. Co. (Sup.) 582. ♦A verdict in an action by a passenger against a street railway company for the misconduct of the conductor held excessive.—Burfeindt v. New York City Ry. Co. (Sup.) 589. ♦In an action for injuries to a passenger, while attempting to alight, in consequence of the sadden starting of the ear, the question of the negligence of the company, under Railroad Law, Laws 1890, p. 1126, c. 565, § 138, held for the jury.—Fruhauf v. Interborough Rapid Transit Co. (Sup.) 781. p. 514, c. 418, as amended by Laws 1900, p. 499, c. 248.—Lesser v. Bradford Realty Co. (Sup.) 571. CHEAT. See “False Pretenses”; “Fraud.” CHILDREN. See “Infants.” Injuries to minor servant, see “Master and Servant,” § 3. CHOSE IN ACTION. Assignment, see “Assignments.” CASE ON APPEAL. Making and settlement, see “Appeal,” § 4. CITATION. See “Process.” On appeal, see “Appeal,” § 3. CAUSE OF ACTION. See “Action”; “Malicious Prosecution,” § 1. CERTAINTY. In complaint, as ground for demurrer,. see “Pleading,” § 4. CERTIFICATE. From civil service commission, see “Municipal Corporations,” § 1. CITIES. See “Municipal Corporations.” CITIZENS. See “Indians.” CIVIL RIGHTS. See “Constitutional Law,” § 1. CIVIL SERVICE. CERTIFICATES OF DEPOSIT. In trust companies, see “Banks and Banking,” 8 3. CERTIORARI. To review assessment, see “Taxation,” § 2. In municipalities, see “Municipal Corporations, tt CLAIM AND DELIVERY. See “Replevin.” CLAIMS. CHANGE OF VENUE. Of civil actions, see “Venue,” § 1. CHARGE. Of legacies on property by will, see “Wills,” § 4. To jury in civil actions, see “Trial," § 4. To jury in criminal prosecutions, see “Criminal Law,” § 3. CHATTEL MORTGAGES. See “Pledges.” Jurisdiction of municipal court of action for deficiency on, see “Courts,” § 2. 8 I. Rights and remedies of creditors. A complaint of a trustee in bankruptcy held to sufficiently allege a failure to file a chattel mortgage for record, as required by Laws 1897, ♦Point annotate Against estate of decedent, see “Executors and Administrators,” § 2. Against state, see “States,” § 3. Against town, see “Towns," § 2. COLLATERAL AGREEMENT. Parol evidence, see “Evidence,” § 8. COLLATERAL INHERITANCE TAXES. See “Taxation,” § 3. COLLATERAL SECURITY. See “Pledges.” COLLATERAL UNDERTAKING. See “Frauds, Statute of,” § 1; “Guaranty.” i. See syllabus.

.1164 101 NEW YORK SUPPLEMENT and 135 New York State Reporter COLLECTION. By attorney, see “Attorney and Client,” § 2. COLLEGES AND UNIVERSITIES. Devise to in general, see “Wills,” § 3. COLLISION. Between truck and street car, see “Street Railroads,” § 2. -Contributory negligence in general o£ vessel injured by, see “Negligence,” § 2. COMPUTATION. Of period of limitation, see “Limitation of Actions,” § 1. CONCLUSION. Of witness, see “Evidence,” § 9. CONDEMNATION. Taking property for public use, see “Eminent Domain.” COMMERCE. -Carriage of goods and passengers, see “Carriers.” CONDITIONAL SALES. See “Sales,” § 6. -§ 1. Means and methods of regulation. ♦Franchise tax, created by Laws 1896, p. .'856, c. 908, § 182, held collectible, though the business of the corporation is interstate or foreign commerce.—People v. Roberts (Sup.) COMMISSION., 'To take testimony, see “Depositions.” COMMISSIONS. -Of broker, see “Brokers,” § 1. -Of executor or administrator, see “Executors and Administrators,” § 4. COMMON CARRIERS. ¡See “Carriers.” COMPENSATION. Tor performance of contract, see “Contracts,” ' § 2. Tor property taken for public use, see “Eminent Domain,” § 1. <Of particular classes of officers or other persons. ¡See “Brokers,” § 1; “Executors and Administrators,” § 4; “Physicians and Surgeons.” Attorney, see “Attorney and Client,” §§ 2, 3. Insurance agents, see “Insurance,” § 2. Municipal employés, see “Municipal Corporations,” § 2. ¡Servant, see “Master and Servant,” § 2. COMPETENCY. «Of experts as witnesses, see “Evidence,” § 9. >Of witnesses in general, see “Witnesses,” § 1. COMPROMISE AND SETTLEMENT. ¡See “Accord and Satisfaction”; “Account Stated”; “Payment”; “Release.” Admissibility of evidence of offer of compromise, see ‘‘Evidence,” § 5. Of claims under contracts with municipality, see “Municipal Corporations,” § 3. CONDITIONS. In contracts and conveyances. See “Deeds,” § 1. Insurance policies, see “Insurance,” §§ 6, 7. Precedent to actions or other proceedings. Against municipality, see “Municipal Corporations,” § 7. Amendment of pleading, see “Pleading,” § 5. On bond of highway officer, see “Highways,” § 1. CONDUITS. Grant of permission to construct, as contract irrevocable by legislature, see “Constitutional Law,” § 3. CONFIDENTIAL RELATIONS. Disclosure of communications, see “Witnesses,” § 1. CONFLICT OF LAWS. See “Usury,” § 1. CONSIDERATION. For condition in deed, see “Deeds,” § 1. Of contract in general, see “Contracts,” § 1. CONSOLIDATION. Of actions, see “Action,” § 2. Of corporations, see “Corporations,” § 6. CONSTITUTIONAL LAW. . Provisions relating to particular subjects. See “Jury,” § 1; “States.” Legislative districts, see “States,” § 1. Repeal of statutes, see “Statutes,” § 3. Special or local laws, see “Statutes." § 1. Subjects and titles of statutes, see “Statutes,” ♦Point annotated. See syllabus.

INDEX. 1165. § 1. Personal, civil, and political rights. The clause of section 77 of the Labor Law, Laws 1903, p. 439, c. 184, forbidding the employment of minors under the age of 18 years and females in factories in the nighttime, held not a valid exercise of police power, but an infringement of the right to contract.—People v. Williams (Sup.) 562. $ 2. Vested rights. ♦Where, in action to construe a will, plaintiff took no estate under the will, he had no vested interest that would have prevented the application of the statute of 1893 (Laws 1893, p. 1748, c. 701), under which the will could be pronounced valid, though it created a trust in the trustees of a university, the residuary legatee.—Morgan v. Durand (Sup.) 1002. § 3. Obligation of contracts. The mere granting of permission by a city council to a corporation to construct conduits and subways, does not constitute a contract, where the corporation performs no act thereunder.—People v. Ellison (Sup.) 55. g 4. Retrospective and ex post facto laws. ♦Acts 1905, p. 131, c. 94, amending Laws 1896, p. 795, c. 908, and Laws 1901, p. 297, c. 118, in relation to the taxation of foreign insurance companies, held not invalid on constitutional grounds as retroactive.—People v. Kelsey (Sup.) 902. CONSULS. See “Ambassadors and Consuls.” CONTEMPT. Contempt proceedings to enforce judgment for alimony, see “Divorce,” § 3. Violation of injunction, see “Injunction,” § 4. § 1. Acts or conduct constituting contempt of court. ♦Order imposing fine on attorney and commitment for contempt in failing to pay over moneys to client held void where order requiring payment to client has never been served on the attorney.—People v. Feenaughty (Sup.) 700. § 2. Power to punish and proceedings therefor. Procedure in contempt, under Code Civ. Proc. §§ 2281, 2283, defined.—People v. Feenaughty (Sup.) 700. CONTINUANCE. Where a cause has reached the ready section of the day calendar, excuses for postponement are too late except such as arise after the ready section is reached.—Loehr v. Brooklyn Ferry Co. (Sup.) 209. ♦Where a cause had been placed on the ready section of the day calendar, the court held without authority to set the cause down for trial on a subsequent date.—Loehr v. Brooklyn Ferry Co. (Sup.) 209. ♦Point annotate Under the facts held that the trial court was-justified in refusing to grant a stay of the-trial because of engagements of counsel.—Riesgo v. Clark (Sup.) 832. CONTRACTS. Agreements within statute of frauds, see-“Frauds, Statute of.” Assignment, see “Assignments.” Consolidation of actions on, see “Action,” § 2. Declarations as evidence in action on, see-“Evidence,” § 6. Denial of liberty to contract, see “Constitutional Law,” § 1. Impairing obligation, see “Constitutional Law,”' § 3. Liability of decedent’s estate on contracts of" decedent, see “Executors and Administrators,” § 2. Operation and effect of usury laws, see “Usury,”' Parol or extrinsic evidence, see “Evidence,” § 8~ Questions for jury in action on, see “Trial,” § 3. Reformation, see “Reformation of Instruments.” Set-off in action on, see “Set-Off and Counterclaim,” § 1. Specific performance, see “Specific Performance.” Temporary injunction in action for breach of,. see “Injunction,” § 2. Contracts of particular classes of persons. See “Master and Servant”; “Municipal Corporations,” § 3; “United States,” § 1. Devisees or legatees, see “Wills,” § 4. Contracts relating to particular subjects. See “Interest”; “Trade-Marks and Trade-Names,” § 2. Ground for mechanics’ liens, see “Mechanics’" Liens,” § 1. Municipal improvements, see “Municipal Corporations,” 1 3. Removal of fixtures, see “Fixtures.” Water supply, see “Waters and Water Courses,”" § 1. Particular classes of empress contracts. See “Bailment” ; “Bills and Notes” ; “Chattels Mortgages”; “Guaranty”; “Indemnity”; “Insurance,” § 3; “Partnership”; “Sales.” Agency, see “Principal and Agent.” Employment, see “Master and Servant.” Leases, see “Landlord and Tenant.” Sales of realty, see “Vendor and Purchaser.” Suretyship, see “Principal and Surety.” Particular classes of implied contracts. See “Account Stated”; “Money Lent” ; “Money Paid”; “Use and Occupation”; “Work: and Labor.” Particular modes of discharging contracts. See “Accord and Satisfaction”; “Payment”;: “Release.” $ 1. Requisites and validity. ♦The fact that a party to an executed contract: violated a penal statute in the approach to the-contract held not sufficient to prevent the? I. See syllabus.

1166 101 NEW YORK SUPPLEMENT and 135 New York State Reporter, court from enforcing the contract.—Beilin v. Wein (Sup.) 38. *A contract to transfer certain letters patent to a corporation in consideration, of payments of money and stock held• not void for want of mutuality.—Wills v. Pennell (Sup.) 1017. § 2. Construction and operation. An uncanceled lis pendens in an action for violation of Tenement House Act, Laws 1901, p. 917, c. 334, § 129, held a sufficient reason for declining a loan on the property within a contract requiring the applicant to pay the lender’s charges in examining the title, whether the loan was accepted or declined.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. Where an application for a loan bound the applicant to pay the lender’s charges in examining the title to the property whether the loan was made or not, such charges, on declination of the loan, were recoverable only if the declination was in good faith.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. Under a contract for services in obtaining a reduction of a municipal improvement assessment plaintiff held entitled to recover one-quarter of the difference between a previous proposed assessment, and that subsequently made. —United ' States Title Guaranty & Indemnity Go. v. Marks (Sup.) 483. An alleged guaranty held an essential part of a contract alleged, without proof of which no cause of action existed on the contract.—Linden v. Thieriot (Sup.) 568. § 3. Modification and merger. Contract by the vendors of a manufacturing plant not to engage in certain business under a certain name, held, under the evidence, not to be merged in a subsequent agreement.—Union Mills v. Harder (Sup.) 309. § 4. Performance or breach. *One performing labor on a contract to recover, held required to procure the architect’s certificate or to show that it has been unreasonably refused, or that the other party has waived its production.—Traitel v. Oussani (Sup.) 105. _ Where a building contractor provides for certificate of completion such provision is waived where the owner completes the work under the contract.—Bader v. City of New York (Sup.) 351. Objection that building contractor sublet in violation of contract held waived.—Bader v. City of New York (Sup.) 351. § 5. Actions for breach. In an action on a contract to pay the expenses of examining an application for a loan, whether it was accepted or declined, the burden was on defendant to show that the declination was capricious.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. *Burden of proof as to using a word in a contract with a special meaning determined.—■ Abrams V. Bloch (Sup.) 109. In action for compensation for public printing turned over by defendant to plaintiff, evidence *Point annotated. examined and held to show existence of arrangement as to price and time of payment.—Quayle & Sons v. Brandow Printing Go. (Sup.) 323. * Action for compensation for public printing turned over by defendant to plaintiff held premature as to some of the items, precluding recovery.—Quayle & Sons v. Brandow Printing Co. (Sup.) 323. In an action on an alleged contract under which plaintiff claimed to have delivered certain bonds to defendant for sale and reinvestment of the proceeds under a guaranty to make good any resulting loss, evidence examined, and held insufficient to establish the guaranty. —Linden v. Thieriot (Sup.) 568. Evidence held insufficient to establish the making of a contract to pay a portion of the taxes on certain real estate.—Ereifeld v. M. Groh’s Sons (Sup.) 863. CONTRADICTION. Of record, see “Appeal,” § 4. CONTRIBUTORY NEGLIGENCE. See “Negligence,” § 2. Of passenger, see “Carriers,” § 3. Of person injured by operation of railroad, see “Railroads,” § 6. Of person injured by operation of street railroad, see “Street Railroads,” § 2. Of person injured in street, see “Municipal Corporations,” § 4. Of servant, see “Master and Servant,” § 3. CONVERSION. Wrongful conversion of personal property, see “Traver and Conversion.” CONVEYANCES. In fraud of creditors, see “Fraudulent Conveyances.” In trust, see “Trusts,” § 1. Particular classes of conveyances. See “Assignments”; “Chattel Mortgages”; “Deeds”; “Mortgages.” CORPORATIONS. Action of partners in holding themselves out' as corporation as fraud, see “Fraud,” § 1. Constitutional restriction on enactment of retrospective laws affecting, see “Constitutional Law,” § 4. Engaged in interstate commerce, see “Commerce,” § 1. Examination of corporate officer, see “Discovery,” § 1. Guaranty bjr corporate officer against loss by dealing with corporation, see “Guaranty,” § 2. Joinder of causes of action to recover dividend, see “Action,” § 2. See syllabus.

INDEX, 1167 Mandamus, see “Mandamus,” § 2. Parties to judgment in action to enforce limited liability of directors of corporation, see “Judgment,” § 2. Requirements of statute of frauds as to promise by directors to answer for debt of, see “Frauds, Statute of,” § 1. Taxation of corporations and corporate property, see “Taxation,” §§ 2, 3. Particular classes of corporations. See “Municipal Corporations”; “Railroads”; “Street Railroads.” Insurance companies, see “Insurance.” Telegraph and telephone companies, see “Telegraphs and Telephones.” Trust companies, see “Banks and Banking,” § 3. Water companies, see “Waters and Water Courses,” § 1. § 1. Corporate existence and franchise. ♦A corporation formed in 1882 and maintaining and leasing lines of electrical conductors held duly organized.—People v. Ellison (Sup.) 444. § 2. Capital, stock, and dividends. Where a resident transfer agent of a foreign corporation wrongfully delayed the transfer of stock held by a nonresident decedent, the agent was not liable for damages to the persons to whom the stock was transferred, its liability for nonfeasance being solely to its principal.—Dun-ham v. City Trust Co. (Sup.) 87. ♦Upon proper declaration of a dividend by a corporation, it becomes the debtor of the stockholder.—Searles v. Gebbie (Sup.) 199. ♦False representations held sufficient ground for rescission of exchange of shares of corporate stock.—John v. Reynolds (Sup.) 293. ♦Under Railroad Law, § 2, subd. 13 (Laws 1892, p. 2050, c. 565) a subscriber to the stock of a railroad company to be organized held liable on the subscription on the organization of the company.—Lowville & B. R. R. Co. v. Elliot (Sup.) 328. *A subscriber to the' stock of a railroad company to be organized to build a railroad held liable on his subscription on the company being organized to build, maintain, and operate the road.—Lowville & B. R. R. Co. v. Elliot (Sup.) 328. § 3. Members and stockholders. ♦Under General Corporation Law, § 20 (Laws 1901, p. 975, c. 355), fixing the qualification of voters at corporation elections, a corporation held not entitled to vote stock standing in the name of its directors.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. One, failing to object to a corporation stock-book at the time of an election, held not to be aided in a proceeding to set aside the election, by the fact that the stockbook was not in the exact form required by Stock Corporation Law (Laws 1892, p. 1831, c. 688) § 29.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. ♦Point annotated. § 4. Officers and agents. A corporate election held not to be set aside for an alleged error not affecting the result.— In re Utica Fire Alarm Telegraph Co. (Sup.) 109. Proceedings under General Corporation Law (Laws 1892, p. 1018, c. 687) § 27, to determine the validity of a corporate election, held not appropriate for determining an equitable right in shares of stock.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. The failure of a stockholder, contesting the election of directors under General Corporation Law,' § 27 (Laws 1892, c. 687), to specify in the application that the statutory notice of election was not given, held not a waiver of the omission to give notice, notwithstanding General Rules of Practice, § 37.—In re Keller (Sup.) 133. ♦Under General Corporation Law, j 24 (Laws 1892, c. 687), Stock Corporation Law, § 20 (Laws 1892, c. 688), and the by-laws of a corporation, an election of directors on 12 days’ notice held subject to be set aside on the application of a stockholder who did not appear at the meeting.—In re Keller (Sup.) 133. Directors are not liable to stockholders for a declared dividend, until it has been severed from the assets of the company.—Searles v. Gebbie (Sup.) 199. In an action to charge defendant officer of a corporation on an alleged individual promise evidence held not to show such promise or that plaintiff was entitled to any installments under the contract.—Tullís v. Stone (Sup.) 1082. ♦A director of a corporation held, entitled to an order allowing him to examine its books, records, and accounts, on a showing that he has demanded and been refused permission to do so. —People v. Central Fish Co. (Sup.) 1108. § 5. Corporate powers and liabilities. ♦Facts held to show no contract made by one empowered to bind defendant corporation.— Greenwald v. Petite Cigar Mfg. Co. (Sup.) 86. Laws 1905, p. 2097, c. 737, § 13, prohibiting a corporation from transferring or leasing its franchise to any other person or corporation, does not prohibit such transfer by an individual.—In re Long Acre Electric Light & Power Co. (Sup.) 460. ♦Where a franchise was not forfeited by the city which gave it, because of any terms of the agreement itself, and no action has been taken to dissolve the corporation, or forfeit the franchise, it remains effective.—In re Long Acre Electric Light & Power Co. (Sup.) 460. Misuse of funds by the president of a corporation in contributing to the payment of taxes on certain real estate held no evidence of a contract by the corporation to continue such contributions—Freifeld v. M. Groh’s Sons (Sup.) 863. § 6. Consolidation. Where services rendered, under an employment • contract, were completed before the corporation rendering the same was merged in plaintiff cor-see syllabus.

1168 101 NEW YORK SUPPLEMENT and 135 New York State Reporter poration, it was no defense to plaintiff’s claim therefor that the contract was personal and unassignable.—United States Title Guaranty & Indemnity Go. y. Marks (Sup.) 483. § 7. Foreign corporations. Where complaint showed that plaintiff was a foreign corporation, but did not show that it was a foreign stock corporation, defendant held not entitled to nonsuit for plaintiff’s failure to show compliance with section 15, General Corporation Law, Laws 1892, p. 1805, c. 687.— Charles E. Wright & Co. v. Faulkner (Sup.) 807. . CORRECTION. Of record on appeal, see “Appeal,” § 4. CORROBORATION. Of witness in general, see “Witnesses,” § 3. COSTS. Allowance of to trustee, see “Trusts,” § 5. Effect of jurisdiction on costs recoverable, see “Costs,” § 1. On granting new trial, see “New Trial,” § 2. Payment as condition precedent to permitting amendment of pleading, see “Pleading,” § 5. Review of discretion of court in awarding, see “Appeal,” § 6. § 1. Nature, grounds, and extent of right in general. •Defendant, in whose favor judgment is rendered, is not entitled to costs where he filed no verified pleading or written notice of appearance.—Livingston Press v. Genet (Sup.) •The City Court of the City of New York having no jurisdiction of an action against the city, Code Civ. Proc. § 3228, as amended Laws 1904, p. 1351, c. 557, held not to operate to prevent a plaintiff suing the city in the Supreme Court and recovering less than 8500, from recovering his full bill of costs.—O’Connor v. City of New York (Sup.) 295. § 2. Persons entitled. Where a person served with summons has the same name as defendant except as to an initial, he is justified in defending, and where he is not the person intended he is entitled to costs on dismissal.—City of New York v. Ackerman (Sup.) 687. § 3. Persons, property, and funds liable. Where, under Laws 1896, p. 329, c. 376, plaintiff sued in his own name as agent for a penalty for the detention of milk cans, principals held not liable for costs, within Code Civ. Proc. § 3247, making parties beneficially interested liable for costs, they having previously transferred the cans.—Pierson v. Clark (Sup.) 719. , § 4. Security for payment. •One held to have the right to sue as a poor person, though suing as administrator.—In re Cannice (Sup.) 1054. The moving papers held insufficient to show freedom from contributory negligence, so as to authorize an order for an administratrix to sue as a poor person for death of her intestate.—In re Cannice (Sup.) 1054. ♦An application to require a nonresident, appointed administratrix in New York, to give security for costs under Code Civ. Proc. § 3268, subd. 1, and section 3271, in an action brought in her representative capacity, held within the discretion of the court.—Clarendon v. Milliken Bros. (Sup.) 1105. •Under Code Civ. Proc. § 3271, security for costs will not be required unless it is manifest that there is bad faith involved, or other serious objection to plaintiff proceeding without such guaranty.—Clarendon v. Milliken Bros. (Sup.) 1105. § 5. On appeal or error, and on new-trial or motion therefor. •One, having the case on appeal resettled to insert matters omitted because overlooked by his counsel, held required to pay costs of reprinting the record made necessary thereby.— Volhard v. Volhard (Sup.) 453. COUNTERCLAIM. See “Set-Off and Counterclaim.” COUNTIES. See “Municipal Corporations.” As employers, see “Master and Servant,” § 4. § 1. Property, contracts, and liabilities. •A county is not liable at the suit of a private party for damages.—Moest v. City of Buffalo and County of Erie (Sup.) 996. COURTS. Contempt of court, see “Contempt.” Criminal courts, see “Criminal Law,” § 1. Indian courts, see “Indians.” Judges, see “Judges.” Jurisdiction of action on claims against state, sos “Statos§ 3. Jurisdiction of actions by or against state, see “States,” § 3. Jurisdiction over decedents’ estate, see “Courts.” Justices’ courts, see “Justices of the Peace.” Repeal of statutes granting right of removal from municipal court, see “Statutes,” § 3. Review of decisions, see “Appeal.” Right to trial by jury, see “Jury,” § 1. § 1. Nature, extent, and exercise of jurisdiction in general. An order removing the cause from the Municipal Court to the City Court for trial held not appealable.—Bonagur v. Orlandi (Sup.) 115. •Parties cannot confer jurisdiction over the subject-matter by consent.—Weinstein v. Douglas (Sup.) 251. •Point annotated. See syllabus.

INDEX. 1169 § 2. Courts of limited or inferior jurisdiction. Under Code Civ. Proc. § 3347, subds. 3-4, and Municipal Court Act (Laws 1902, p. • 1503, c. 580) § 24, Code Civ. Proc. § 448, providing for an action by one party for the benefit of all similarly interested, held not applicable to an action in the Municipal Court of New York City.—Reed v. Wiley, Harker & Camp Co. (Sup.) 39. Under Municipal Court Act, Laws 1902, c. 580, p. 1563, § 254, an application to vacate a judgment on a trial by the court must be made within five days after its rendition.— Barron v. Feist (Sup.) 72. Municipal Court Act, Laws 1902, c. 580, p. 1563, § 254, requiring an application to vacate or set aside a judgment to be made within five days, etc., held inapplicable where the motion is made because of 'an irregularity in entering the judgment.—Barron v. Feist (Sup.) 72. Code Civ. Proc. § 724, held inapplicable to a motion to vacate a Municipal Court judgment entered by mistake of the trial judge.—Barron v. Feist (Sup.) 72. Code Civ. Proc. tit. 3, c. 11, providing for the vacation of judgments, made applicable to the Supreme Court, the City Court of New York and county courts by; section 3347, subd. 8, held inapplicable to Municipal Court judgments.—Barron v. Feist (Sup.) 72. Under Municipal Court Act, Laws 1902, p. 1546, c. 580, § 187, the Municipal Court of the City of New York held to have authority to make an order of interpleader.—Englander v.° Fleck (Sup.) 125. Under Municipal Court Act, Laws 1902, p. 1488, c. 580, § 1, subd. 11, in an action in such court to enforce a mechanic’s lien, the court cannot adjudge the priority of liens nor establish the lien of a defendant lienor.—Drall v. Gordon (Sup.) 171. Under Municipal Court Act, Laws 1902, p. 1488, c. 580, § 1, subd. 11, such court in a suit to foreclose a mechanic’s lien held authorized only to render a money judgment to be enforced by ion execution.—Droll v. Gordon (Sup.) 171. ♦Municipal Courts have no jurisdiction except such as is specially conferred by statute.— Weinstein v. Douglas (Sup.) 251. On a submission of controversy under Municipal Court Act, Laws 1902, p. 1560, c. 580, § 241, the affidavit therein required is essential to confer jurisdiction, and cannot be waived.—Weinstein v. Douglas (Sup.) 251. Under Daws 1902, p. 1563, c. 580, § 257," an order of the Municipal Court opening a default and setting aside the judgment held not appealable in the first instance.—Dutch v. Parker (Sup.) 271. Under Amended New York Charter 1901 (Laws 1901, pp. 574, 579, c. 446), §§ 1345, 1364, repealing part of charter of 1897 (Laws 1897, p. ♦Point annotate 92, c. 378) § 262; Laws 1819, p. 74, c. 71; Laws 1858, p. 569, c. 334, § 2; Laws 1860, p. 645, c. 379; Laws 1868, p. 2007, e. 853; Laws 1872, p. 1493, c. 629: Laws 1881, p. 720, c. 537; Laws 1882, p. 305, c. 410, § 1103; Consolidation Act (Laws 1882, pp. 302-335, c. 410) §§ 1208-1278, and Code Civ. Proc. §§ 315, 339—held, that the City Court of the City of New York has "no jurisdiction of an action against the city.—O’Connor v. City of New York (Sup.) 295. An action for a deficiency on a chattel mortgage held not an action on the mortgage, jurisdiction of which is denied the Municipal Court by Laws 1902, p. 1533, c. 580, § 139.—Wilcox v. Perez (Sup.) 391. The Municipal Court of the city of New York being one of limited jurisdiction, no presumptions can be invoked of its jurisdiction.— Katz v. Schreckinger (Sup.) 743. Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, the Municipal Court of the city of New York held to have had no authority to enter a final order in favor of the landlord in proceedings to dispossess a tenant.—Katz v. Schreckinger (Sup.) 743. Under the express provisions of Municipal Court Act, § 311, Laws 1902, p. 1578, c. 580, a defendant may appeal from a judgment rendered against him in an action wherein he did not appear and summons was not personally served on him.—Gottlieb v. Kurlander (Sup.) 751. ' Where a cause was dismissed in the Municipal Court for plaintiff’s failure to appear, it could not be restored to the calendar until the default had been excused and the judgment of dismissal vacated.—Gottlieb v. Kurlander (Sup.) 751. Defendant held not to have consented to an adjournment of an action pending in the Municipal Court for more than the eight days authorized by Municipal Court Act, Laws 1902, p. 1547, c. 580, § 193, and that the court therefore lost jurisdiction by a longer" adjournment.— Clemens v. Werner Co. (Sup.) 755. Under section 230, Municipal Court Act, Laws 1902, p. 1557, c. 580, judgment entered by Municipal Court" more than 14 days after submission of cause to court held not sustainable.— City Button Works v. Cohn (Sup.) 765; Cohn v. City Button Works, Id. § 3. Courts of probate jurisdiction. Provisions of a will directing the surplus income to be applied to the payment of mortgages and to be invested until the termination of two lives on which a trust depended held invalid as creating unlawful accumulations.—Kirk v. Mc-Cann (Sup.) 1093. A surrogate held to have no jurisdiction of controversy between surety of temporary administrator and third person.—In re Weisell’s Estate (Sur.) 273. COVERTURE. See “Husband and Wife.” 1. See syllabus. 101 N.Y.S.—74

1170 101 NEW YORK SUPPLEMENT and 135 New York State Reporter CREDIBILITY. Of witness, see “Witnesses,” § 3. CREDIT INSURANCE. See “Insurance,” § 8. CREDITORS. See “Bankruptcy”; “Fraudulent Conveyances.” Of intestate, see “Descent and Distribution,” § 2. Rights as to chattel mortgage by debtor, see “Chattel Mortgages,” § 1. CREDITORS’ SUIT. Remedies in cases of fraudulent conveyances, see “Fraudulent Conveyances,” § 2. CRIMINAL LAW. Impeachment of witnesses, see “Witnesses,” § 8. Penalties, see “Penalties.” Particular offenses. See “Adulteration”; “Contempt”; “False Pretenses” ; “Homicide”; “Larceny.” Against liquor laws, see “Intoxicating Liquors,” § 2. § 1. Jurisdiction. Under Code Cr. Proe. §§ 22 (6), 22 (4) and 41, held, that the Supreme Court, having sent an indictment to the County Court, which was returned, could again send it to the County Court.—People v. De Puy (Sup.) 81. § 2. Evidence. ♦Nonexperts held not competent to testify whether a person was of sound or unsound mind. —R. A. Schoenberg & Co. v. City Trust, Safe Deposit & Surety Co. (Sup.) 798. Evidence in a prosecution for forgery considered, and held insufficient .to corroborate the ’ evidence of an accomplice.—People v. Colmey (Sup.) 1016. § 3. Trial. ♦To charge- that it is for the jury to say whether a witness was “a vicious and precocious off-scouring of the street” held improper.— People v. Myers (Sup.) 291. ♦To charge that the fact that defendant had been convicted of a prior violation of the statute, for violation of which he was being prosecuted, might be considered in "determining whether defendapt was the kind of man that would continue to violate the statute held prejudicial error.—People v. Myers (Sup.) 291. On a trial for homicide, the refusal to give a charge held not erroneous as placing on accused the burden of convincing the jury that his testimony was true.—People v. Mallon (Sup.) 814. ♦Point annotated. § 4. Appeal. A ruling on the admission of evidence in a homicide case held not reversible error, under Code- Cr. Proc. § 542.—People v. Mallon (Sup.) 814. DAMAGES. Compensation for property taken for public use, see “Eminent Domain,” § 1. Objection to rule as to measure of damages for purpose of review, see “Appeal,” § 2. Provision as to, in contract with municipality, see “Municipal Corporations,” § 3. Damages for particular injuries. See “Death,” § 1; “Nuisance,” § 1; “Trespass,” § 2. Breach by seller of contract for sale of goods, see “Sales,” § 5. Defective condition of demised premises, see “Landlord and Tenant,” § 4. Failure of landlord to perform contract of renting, see “Landlord and Tenant,” § 2. Injuries caused by public improvements, see “Municipal Corporations,” § 3. Personal injuries, see “Carriers,” § 3; “Master and Servant,” § ■ 4. Recovery in particular actions or proceedings. See “Trespass,” § 2. For personal injuries, see “Carriers,” § 3. § 1. Grounds and subjects of compensatory damages. ♦Plaintiff in an action for an assault committed on him in the presence of his wife cannot recover for injuries to the wife occasioned by fright and subsequent loss u of service of the wife.—Hutchinson v. Stern (Sup.) 145. ♦A defendant, agreeing to loan to plaintiff a specified sum to aid him in furnishing a place as a saloon, held on failing to furnish the loan not liable for the rent paid during plaintiff’s occupancy of the premises.—Treanor v. New York Breweries Co. (Sup.) 189. On breach of an agreement by the owner of lands who agreed to convey the same in consideration of his support, plaintiffs, who had lived on the farm for a time and supported him, were not entitled to recover full price for his board, without giving credit for the rent.— Bovee v. Barrett (Sup.) 322. Where building contractors conducted their operations so negligently that a tenant was obliged to vacate a neighboring house, in an action by him against the contractors for damages, the elements of damage determined.— McFadden v. Thompson-Searrett Co. (Sup.) 467.' ♦In an action for ejection of a passenger, plaintiff held entitled to recover damages, for injury to his feelings, and for indignity suffered, though there was no evidence of loss of time, or physical injury.—Samuels v. New York City Ry. Co. (Sup.) 534. ♦An owner refusing to receive insurance policies under an agreement with a broker to See syllabus.

INDEX, 1171 insure his property held not liable for the full amount of commissions which the broker might have received from the company.—Weingrad v. Kletzky (Sup.) 588. " In an action for injuries to an automobile, an allowance of $150 for loss of use held erroneous as speculative.—Foley v. Forty-Second St., M. & St. N. Ave. Ry. Co. (Sup.) 780. ♦Measure of damages recoverable by the vendee in a contract of sale on vendor’s failure to deliver determined.—Atlas Portland Cement Co. v. Hopper (Sup.) 948. S 2. Inadequate and excessive damages. ♦Personal injuries received on a street car held not to entitle plaintiff to more than $1,000. —Schierloh v. Interurban St. Ry. Co. (Sup.) 437. In an action for ejection of a passenger, a verdict for plaintiff for $5 held inadequate.— Samuels v. New York City Ry. Co. (Sup.) 534. *A verdict for $15,000 for the breaking of a leg held excessive, and should be reduced to $5,206.20.—Ross v. Metropolitan St. Ry. Co. (Sup.) 932. DEATH. Caused by operation of street railroads, see “Street Railroads,” § 2. Of partner, see “Partnership,” § 3. Review of verdict on appeal, see “Appeal,” § 6. § 1. Actions for causing death. Where, under Code Civ. Proc. § 2732, subd. 7, plaintiff alone was entitled to recover for the wrongful death of his infant son, and after bringing an action therefor, which was dismissed for his default, settled his claim, plaintiff’s widow could not open the default.—McGurty v. New Amsterdam Gas Co. (Sup.) 235. ♦Under Code Civ. Proc. § 1903, as amended, the surrogate has sole right to determine amount to be paid for funeral expenses from sum recovered for death of decedent by wrongful act. —In re McDonald’s Estate (Sur.) 275. DEBTOR AND CREDITOR. See “Bankruptcy”; “Fraudulent Conveyances.” DEDICATION. § 1. Nature and requisites. ♦Where a deed to city property named two streets as a part of the boundary and conveyed to their respective centers, there was a dedication to the public of the portions of such streets adjoining' the property.—Palmer v. East River Gas Co. (Sup.) 347. ♦Where there had been a dedication of land as public streets, a resolution of a municipal board changing the grade of such streets, and a map relating thereto, were competent evidence to show an acceptance by the city of the land dedicated.—Palmer v. East River Gas Co. (Sup.) 347. ♦A city may make an unofficial street official by acceptance, and the maintenance of street lamps and the granting permission to a gas company to lay mains in streets was an acceptance. —Palmer v. East River Gas Co. (Sup.) 347. ♦Though, by a city’s failure! to work streets, they may have lost their official status, yet as long as they are used by the public, the city may renew its acceptance by an official user, and thereby confer official character upon them. —Palmer v. East River Gas Co. (Sup.) 347. ♦A street may be an irrevocable public street by dedication and general public use without official acceptance by the city.—Palmer v. East River Gas Co. (Sup.) 347. § 2. Operation and effect. Laws 1890, p. 1177, c. 568, providing that every dedicated highway which has not been opened and worked or laid out within six years from the time of its dedication shall cease to Be a highway, does not relate to those becoming and remaining actual highways by general public use.—Palmer v.. East River Gas Co. (Sup.) 347. DEEDS. Denial in answer of allegation in complaint as to conveyance, see “Pleading,” § 2. In trust, see “Trusts,” § 1. Recitals in, as dedication, see “Dedication,” § 1. Reformation, see “Reformation of Instruments.” Trust deeds, see “Mortgages.” DECEDENTS. Estates, see “Descent and Distribution”; “Executors and Administrators.” § 1. Construction, and operation. ♦A deed to a certain plot as shown on a map held to include land laid out as a specially excavated canal.—In re Canal Place in City of New York (Sup.) 397. DECEIT. See “Fraud.” Effect of knowledge on limitation in action for, see “Limitation of Actions,” § 1. DECLARATIONS. As evidence in civil actions, see “Evidence,” § 6. . A condition in a deed by executors or trustees held to be without consideration.—Richter v. Distelhurst (Sup.) 634. ♦Provisions in a deed for forfeiture on breach of condition are viewed with disfavor and should be strictly construed.—Richter v. Distelhurst (Sup.) 634. A condition in a deed by trustees or executors held not open to construction as authorizing heirs of the trustees to re-enter for breach.— Richter v. Distelhurst (Slip.)- 634. . . ♦Point annotated. See syllabus.

1172 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Where a deed stipulated that certain classes of buildings should not be erected on the premises under a penalty “of the forfeiture of the said lot,” such penalty was equivalent to a provision for re-entry by the grantors.—Richter v. Distelhurst (Sup.) 634. One by a deed of land held not to convey his claim for damages for land taken for a street. —Harris v. Kingston Realty Co. (Sup.) 1104. § 2. Pleading and evidence. A deed regular on its face and properly executed and delivered by a grantor who has not been adjudged incompetent will be presumed valid in ejectment.—Smith v. Ryan (Sup.) DEFAMATION. See “Libel and Slander.” DEFAULT. Judgment by, see “Judgment,” § 1. , DEFICIENCY. On foreclosure of mortgage, see “Mortgages,” § 3. DELIVERY. Of,gift, see “Gifts,” § 1. Of goods sold, see “Sales,” § 5. DEMAND. On principal in action on bond of highway officer, see “Highways,” § 1. DEMURRER. In pleading, see “Pleading,” § 4. DENIALS. In pleading, see “Pleading,” § 2. DEPOSITIONS. See “Witnesses,” An affidavit for a commission to take testimony on oral questions outside of the state, as provided by Code Civ. Proc. § 893, held insufficient where it failed to show that the witnesses were adverse to plaintiff or that any effort had been made to obtain information from them.—Depue v. Depue (Sup.) 412. Where witness, in answer to interrogatories, stated that minutes refreshed her memory, the facts she could recall should have been stated or read from the minutes shown her, and embodied in her answers to the interrogatories.—In re Tifft’s Will (Sup.) 1072. DEPOSITS. In bank, see “Banks and Banking,” § 1. Recovery of deposits on purchase price of land, see “Vendor and Purchaser,” § 3. DESCENT AND DISTRIBUTION. See “Executors and Administrators"; “Wills.” Inheritance and transfer taxes, see “Taxation,” § 3. § 1. Persons entitled and their respective shares. Under 2 Rev. St. (1st Ed.) pt. 2, c. 6, tit. 1, art. 3, § 49, as amended by Laws 1869, p. 40, c. 22, a will held to mention a child born after testator’s death so as to deprive the child of the right to take as if the testator died intestate.—Stachelberg v. Stachelberg (Sup.) 178. § 2. Rights and liabilities of heirs and distributees. ♦The interests of a widow and children in real property descending from the deceased husband and father are subject to the debts of the decedent, whether liens on his estate or not.— Lyons Ñat. Bank v. Shuler (Sup.) 62. DESCRIPTION. Of devisees or legatees in will, see “Wills,” § 3. Of property conveyed, see “Boundaries,” § It “Deeds,” § 1. Of property mortgaged, see “Mortgages,” § 2. DETINUE. See “Replevin,” § 1. DEVISES. See “Wills.” , DILIGENCE. Of party asking relief, see “Specific Performance,” § 1. DIRECTING VERDICT. In civil actions, see “Trial," § 3. DISABILITIES. Effect on limitation, see “Limitation of Actions,” § 1. DISBARMENT. Of attorney, see “Attorney and Client,” § 1. DISCHARGE. From employment, see “Master and Servant,” § 1. From indebtedness, obligation, or liability. See “Accord and Satisfaction”; “Bankruptcy,” § 2; “Release.” ♦Point annotated. See syllabus;

DISCOVERY. In proceedings to annul marriage, see “Marriage.” Of property owned by judgment debtor, see “Execution,” § 3. § 1. Under statutory provisions. ♦Plaintiff held entitled under Code Civ. Proc. §§ 870-872, to an order for examination of defendant to enable him to frame his complaint.— Hill v. McKane (Sup.) 411. ♦Where defendant in an action for royalties pleaded a written release and an agreement whereby plaintiff accepted another as debtor, plaintiff held entitled to a discovery.—DeKoven v. Ziegfeld (Sup.) 586. ♦In an action against a corporation, an examination of an officer thereof as such cannot be had apart froto, an examination of the corporation itself.—Shumaker v. Doubleday, Page & Co. (Sup.) 587. A motion for an examination of defendant before trial held properly denied.—Shumaker v. Doubleday, Page & Co. (Sup.) 587. ♦Defendant in a case in which under the facts he might he guilty of a crime cannot be compelled to he examined in regard to them, he stating that his answers will accuse him of a crime. Const, art. 1, § 6; Code Civ. Proc. § 837; Pen. Code § 142—Chappell v. Chappell (Sup.) 846. DISCRETION OF COURT. Granting new trial, see “New Trial,” § 2. Review in civil actions, see “Appeal,” § 6. DISMISSAL AND NONSUIT. Dismissal of motion to open default, see “Judgment,” § 1. Modification' of order of dismissal on appeal, see “Appeal,” § 7. Presumptions on appeal from judgment of non-suit, see “Appeal," § 6. Right to costs on dismissal, see “Costs,” § 2. Scope and extent of review of judgment of nonsuit, see “Appeal,” § 6. In particular actions or proceedings. See “Mandamus,” § 3. Appeal, see “Appeal,” § 5. By or against foreign corporation, see “Corporations,” § 7. By or against infant, see “Infants,” § 1. § 1. Involuntary. ♦Where all adjournments after a cause had been noticed for trial were had either at the request or with the consent of the defendant, it was not entitled to a dismissal for want of prosecution under Code Civ. Proc. § 822, and Gen. Prae. Rule 36.—McHugh v. Metropolitan St. Ry. Co. (Sup.) 95. ♦Where case was not placed on calendar for over three years after issue joined, motion to dismiss for failure to prosecute should have ♦Point annotate 1173 been granted unconditionally.—Anderson v. V. J. Hedden & Sons Co. (Sup.) 585. DISPOSSESSION. Of tenant, see “Landlord and Tenant,” § 6. DISSOLUTION. Of partnership, see “Partnership,” § 4. DISTRIBUTION. Of assets of partnership on dissolution, see “Partnership,” § 4. Of estate of decedent, see “Descent and Distribution” ; “Executors and Administrators,” §3. DIVIDENDS. On corporate stock, see “Corporations,” § 2. DIVORCE. § 1. Defenses. ♦Plaintiff’s adultery cannot be successfully interposed as a defense to an action for divorce unless pleaded and sustained by the proof. —De Marco v. De Marco (Sup.) 600. § 2. Jurisdiction, proceedings, and relief. ♦Plaintiff’s adultery held insufficiently proved to constitute a defense to plaintiff’s action for divorce.—De Marco v. De Marco (Sup.) 600. ♦Defendant in an action for divorce for adultery, having put such charge in issue, held entitled to a trial thereof by jury, under Code Civ. Proc. § 1757.—Wilcox v. Wilcox (Sup.) 828. Defendant in an action for divorce for adultery held not to have waived her right to have such issue tried by a jury by noticing the cause for trial at special term.—Wilcox v. Wilcox (Sup.) 828. General practice rule 31, regulating trials of special issues by jury, held inapplicable to the trial of an issue of adultery in a suit for divorce, specially regulated by Code Civ. Proc. § 1757.—Wilcox v. Wilcox (Sup.) 828. Where defendant in suit for divorce for adultery denied the adulterous acts and pleaded insanity, she was not entitled to a trial of the issue of insanity to a jury.—Wilcox v. Wilcox (Sup.) 828. § 3. Alimony, allowances, and disposition of property. Code Civ. Proc. § 1241, specifying the instances in which a defendant may be punished for disobeying a judgment, held inapplicable to a judgment for alimony.—Stanley v. Stanley (Sup.) 725. Prior to the institution of contempt proceedings for the enforcement of a judgment for alimony, under Code Civ. Proc. § 1773, a certified copy of the decree was properly served 1. See syllalms.

1174 101 NEW YORK SUPPLEMENT and 135 New York State Reporter on defendant and a personal demand made.— Stanley v. Stanley (Sup.) 725. Code Civ. Proc. § 1773 specifically authorizes a contempt proceeding for the enforcement of a judgment directing the payment of alimony.— Stanley v. Stanley (Sup.) 725. DOCKETS. Of judgments, see “Judgment,” § 3. DOCUMENTS. Mandamus to compel granting of permission to construct electric conduits, see “Mandamus,” § 3. The right of a corporation under permission granted by a city council, to construct certain subways, held to have lapsed where it failed to_ procure the approval by the board of commissioners of its plans for the construction thereof within 60 days after the passage of Laws 1885, p. 852, c. 499, and where no attempt was made for over 20 years to act under the permission granted.—People v. Ellison (Sup.) 55. As evidence in civil actions, see “Evidence,” § 7. Production and inspection of writing, see Discovery,” § 1. DOMICILE. *In a proceeding for the imposition of a transfer tax, evidence held- insufficient to support a finding of a New York domicile.—In re White’s Estate (Sup.) 551. A franchise obtained by an electric light' company from a city, was irrevocable by the city where it was not forfeited by any term of the agreement with the city.—People v. Ellison (Sup.) 444. Under Laws 1885, p. 852, <» 499, creating a board of commissioners of electrical subways, the right of an electric corporation organized in 1882 to build subways of its own, was lost.— People v. Ellison (Sup.) 444. DONATIONS, See “Gifts.” DRAINS. ELEVATED RAILROADS. Increase in number and speed of trains of, as ■ ground for compensation to abutting owners, see “Eminent Domain,” § 3. In cities, see “Municipal Corporations,” § 5. EMINENT DOMAIN. DYNAMITE. Explosion in street, see “Municipal Corporations,” § 5. EASEMENTS. See “Dedication”; “Highways.” EJECTMENT. Computation of period of limitation in action of ejectment, see “Limitation of Actions,” § 1. § 1. Pleading and evidence. Where defendants in ejectment rely on an unprobated will, plaintiffs are entitled to prove that at the time the will was executed testator did not have testamentary capacity.—Smith v. Ryan (Sup.) 1011. ELECTIONS. Elections at town meetings, see “Towns,” § 1. Mandamus to compel canvass of votes, see “Mandamus,” § 2. Of corporate officers, see “Corporations,” §§ ELECTRICITY. Corporate existence of electrical corporation, see “Corporations,” § 1. Injuries to servant caused by defective' insulation of wire, see “Master and Servant,” § 3. Conveyance by deed, of claim for damages for land taken for public use, see “Deeds,” § 1. Public improvements by municipalities, see “Municipal Corporations,” § 3. $ 1. Compensation. ♦The owners of certain easements over land used for a canal which had never been dedicated to the public, held not entitled to object that the owner of the canal land was awarded the value of the fee in condemnation proceedings.— In re Canal Place in City of New York (Sup.) 397. ♦Damages for property taken for street purposes accrue at the time the property is taken, and do not pass by a subsequent deed of the remaining premises.—In re Trinity Avenue in City of New York (Sup.) 613; Murray v. City of New York, Id. ♦The provision for making compensation for land taken under eminent domain must pre-exist the taking.—Remington v. State (Sup.) 952. ♦An owner in fee of the bed of a river is the owner of valuable property, and a municipality seeking to acquire the bed for a public highway must make compensation.—In re City of Buffalo (Sup.) 966; Appeal of Appleby, Id. § 2. Proceedings to take property and assess compensation. ♦Evidence held to show that a commissioner in condemnation proceedings by a street railroad company had represented the company in procuring rights of way so as to disqualify him from acting as commissioner.—Rochester, S. & E. R. Co. v. Tolen (Sup.) 433. ♦Point annotated. See syllabus.

INDEX, 1175 * A party held estopped from raising any objection to the regularity of the proceedings by a city to acquire land for a public highway, on appeal from an order confirming the award of the commissioners.—In re City of Buffalo (Sup.) 966; Appeal of Appleby, Id. Laws 1905, p. 2022, c. 723, providing for condemnation of lands by municipal corporations, held not to apply to a proceeding by a municipal corporation to condemn an established and fully equipped plant of a water company.—Village of Waverly v. Waverly Water Co. (Sup.) 1070. § 3. Remedies' of owners of property. Increase in number and speed of trains on elevated road lipid no ground for action for damages by abutting owner.—Wolf v. Manhattan Ry. Co. (Sup.) 493. ESTABLISHMENT. Of railroads, see “Railroads,” § 3; “Street Railroads,” § 1. Of telegraphs or telephones, see “Telegraphs and Telephones,” § 1. Of will, see “Wills," § 2. ESTATES. Created by will, see “Wills,” § 3. Decedents’ estates, see “Descent and Distribution” ; “Executors and Administrators.” Estates for years, see “Landlord and Tenant.” Restrictions, on creation of future estates, see “Perpetuities.” ESTOPPEL. EMPLOYER’S LIABILITY ACTS. See “Master and Servant,” § 3. EMPLOYES. By judgment, see “Judgment,” §§ 6, 7. To appeal, see “Appeal,” § 2. To avoid or forfeit insurance policy, see “Insurance,” § 8. To revoke liquor license, see “Intoxicating Liquors,” § 1. See “Master and Servant.” ENTICEMENT. Of husband or wife, see “Husband and Wife,” § 2. ENTRY. Of judgment, see “Appeal,” § 1; “Judgment,” § 3. EQUITABLE ESTOPPEL. See “Estoppel,” § 2. EQUITABLE SET-OFF. See “Set-Off and Counterclaim.” Against insolvent bank, see “Banks and Banking,” § 1. EQUITY. § 1. By record. *In an action against a receiver for rent, defendant held estopped by his pleadings to claim that former dispossession proceedings against him for nonpayment of rent were void because the Attorney General did not have notice.—Prince v. Schlesinger (Sup.) 1031. ♦In an action against a receiver for rent, defendant cannot defend on the ground that he was a temporary receiver only, where his' answer alleged that on the .day the rent fell due he was permanent receiver.—Prince v. Schlesinger (Sup.) 1031. § 2. Equitable estoppel. ♦Where remaindermen consented to a mortgage for the benefit of the life tenant, and their attorney induced the mortgagee to believe that it covered both the life estate and remainder, the remaindermen were estopped to deny that such was the fact.—Dickinson v. Blake (Sup.) 709. EVICTION. Of tenant, see “Landlord and Tenant,” § 5. Equitable estoppel, see “Estoppel,” § 2. Equitable set-off, see “Set-Off and Counterclaim.” Equitable set-off against insolvent bank, see “Banks and Banking,” § 1. _ Joinder of causes of action at law and in equity, see “Action,” § 2. Laches barring right to set aside judgment, see “Judgment,” § 4. Relief against judgment, see “Judgment,” § 5. Particular subjects of equitable jurisdiction and equitable remedies. See “Account”; “Fraudulent Conveyances”; “Injunction”; “Interpleader”; “Partition,” § 1; “Reformation of Instruments”; “Specific Performance”; “Trusts.” Setting aside transfer by bankrupt, see “Bankruptcy,” § 1. EVIDENCE. See “Depositions” ; “Discovery”; “Witnesses.” As to validity of deed in ejectment, see “Deeds,” § 2. Conformity of judgment to proofs, see ‘ Judgment,” § 2. Questions of fact for jury, see “Trial,” § 3. Reception at trial, see “Trial,” § 2. Verdict or findings contrary to evidence, see “New Trial,” § 1. Wrongful admission as ground for new trial, see “New Trial,” § 1. As to particular foots or issues. See “Deeds,” § 2: “Fraudulent Conveyances,” § 2; “Gifts,” § 1; “Partnership,” §§ 1, 4; “Release,” § 1; “Trusts,” § 1. ♦Point annotated. See syllabus.

1176 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Agency, see “Principal and Agent,” § 1. Defense of statute of frauds, see “Frauds, Statute of,” § 4. Good faith of purchaser of land, see “Vendor and Purchaser,” § 2. Limitation of carrier’s liability, see “Carriers,” §2. Nature of conveyance as mortgage, see “Mortgages,” § 1. Service of process, .see “Process,” § 1. Tenancy, see “Landlord and Tenant,” § 1. Testamentary capacity, see “Wills,” § 1. In actions by or against particular classes of persons. See “Brokers," § 2; “Carriers," §§ 2, 3; “Landlord and Tenant,” § 4; “Master and Servant,” § 3; “Principal and Agent,” § 2; “Street Railroads,”' § 2. Assignees, see “Assignments,” § 2. In particular civil actions or proceedings. See “Ejectment,” § 1; “False Imprisonment,” § 1; Fraud,” § 1; “Malicious Prosecution,” § 2; “Negligence,” § 3; “Replevin,”. § 1. For accounting between partners, see “Partnership,” § 4. For assessment of taxes, see “Taxation,” § 2. For breach of contract, see “Contracts,” § 5. For compensation of broker, see “Brokers,” § 2. Foreclosure, see “Mortgages,” § 3. - For insurance, see “Insurance,” §§ 12, 13. For personal injuries, see “Carriers,” § 3; “Landlord and Tenant,” § 4; “Master and Servant,” § 3; “Municipal Corporations," §§ 4, 5; “Street Railroads,” § 2. Probate proceedings, see “Wills,” § 2. To establish mechanic’s lien, see “Mechanics’ Liens,” § 2. To recover price paid for land, see “Vendor and Purchaser,” § 3. In criminal prosecutions. See “Criminal Law,” § 2; “Homicide,” § 1; “Larceny,” § 1. Review and procedure thereon in appellate courts. See “Appeal,” § 6. . § 1. Judicial notice. The court cannot take judicial notice of the solvency of a foreign state, or the value of its obligations, so as to support a finding as to the value of its bonds.—Hebblethwaite v. Flint (Sup.) 43. ♦The court will take judicial notice of the fact that the villages of New Breman and Beaver Falls are between Lowville and Croghan.—Lowville & B. R. R. Co. v. Elliot (Sup.) 328. § 2. Presumptions. ♦It is to be presumed that a board created by the Legislature performs the duty imposed on it by statute.—Remington v. State (Sup.) 952. § 3. Relevancy, materiality, and. competency in general. ♦Evidence of another mistake held not competent or material to prove the mistake claimed. —Arnold v. Farmers’ Fire Ins. Ass’n (Sup.) Defendant held entitled to introduce in evidence an instrument testified to by plaintiff and as to which defendant had been cross-examined. —Holt v. Zwisohn (Sup.) 191. Where plaintiff’s counsel improperly introduced evidence over objection that defendant was a trust, judgment for plaintiff was properly overruled.—Orammond v. International Paper Co. (Sup.) 363. ( 4. Best and secondary evidence. In an action on a life policy, failure of company to produce the original policy in its possession, held to render admissible a copy thereof. —Carr v. Prudential Ins. Co. (Sup.) 158. § 5. Admissions. ♦Where defendant admitted on cross-examination that she owed plaintiff more than she had tendered him, judgment for defendant held error.—Giovannieilo v. Horton (Sup.) 20. ♦Evidence of defendant’s offer to settle for face of claim held incompetent.—Schwartzman v. Cohen (Sup.) 236. ♦A proposition of settlement held an unaccepted offer of compromise on behalf of all the defendants and was therefore inadmissible against any of them.—Franklin v. Hoadley (Sup.) 374. ♦Where an únaccepted offer of compromise contained no admission of liability on the part of any member of a firm u- an admission that a partnership existed,- it was inadmissible as an admission of an independent fact.—Franklin v. Hoadley (Sup.) 374: Where one of the defendants made default, the erroneous admission of certain evidence, as against the other defendants, could not he justified on the theory that it was admissible against the defaulting defendant alone.—Franklin v. Hoadley (Sup.) 374. § 6. Declarations. ♦An instrument held inadmissible in evidence as a corroboration of plaintiff’s testimony by a writing made by himself.—Englander v. Fleck (Sup.) 125. ♦Where defendant in an action on a contract introduces a letter received from plaintiff which substantiates plaintiff’s version of the contract, it cannot afterwards introduce its reply; such reply being_ merely a declaration of defendant’s understanding of the agreement.—National City Bank of New. York v. Pacific Co. (Sup.) 1098. § 7. Documentary evidence. ♦Exhibits in a foreign language not translated into English are inadmissible.—Squadrilli v. Ciervo (Sup.) 661. § 8. Parol or extrinsic evidence affecting writings. ♦Oral evidence of an independent collateral agreement, as a condition precedent to a contract becoming operative, held not to vary and impeach a written instrument.—Manhattan Guide Co. v. Gluck (Sup.) 528. § 9. Opinion evidence. In an action on a life insurance policy, a general agent cannot testify in general terms ♦Point annotated. See syllabus.

INDEX. 1177 and conclusions as to his powers, and lack of authority to modify or issue a policy of insurance.—Carr v. Prudential Ins. Co. (Sup.) 158. ♦On an issue as to whether the .insufficiency of a brake on a street car was the cause of an accident, certain expert testimony held erroneously admitted.—Regan v. Brooklyn Heights R. Co. (Sup.) 213. ♦An expert held competent to testify as to the usual way in which a counterpoise is placed on a movable steam derrick.—Redhead v. Dunbar & Sullivan Dredging Co. (Sup.) 301. ♦In action for personal injuries testimony of physician as to whether condition of plaintiff could result from a fall, held inadmissible.— Mackey v. Interurban St. Ry. Co. (Sup.) 439. ♦An expert plumber held not qualified to give an expert opinion as to whether a tile drain was broken by the sinking of a pillar supporting an elevated railroad structure.—Epstein v. Interborough Rapid Transit Co. (Sup.) 793. § 10. Weight and sufficiency. ♦Judgment for defendant, plaintiff’s evidence being undisputed, held error.—Karl v. New York City By. Co. (Sup.) ”750. EXAMINATION. Of adverse party before trial, see “Discovery,” Of witnesses in general, see “Witnesses,” § 2. EXCEPTIONS. Taking exceptions at trial, see “Trial,” § 4. EXCESSIVE DAMAGES. See “Damages,” § 2. For injuries to passenger, see “Carriers,” § 3. will probated in 1894, and to be unconstitutional if intended to apply to such cases.—Ringe v. Mortimer (Sup.) 1110. § 2. Lien, levy or extent, and custody of property. The lien of a judgment creditor against trust property held superior to the claim of a prior purchaser.—Lyons Nat. Bank v. Shuler (Sup.) 62. The lien of a judgment creditor, applying for leave to issue execution, as authorized by Code Civ. Proc. § 1380, held superior to the lien of a mortgagee and grantee, notwithstanding the notice of levy, under section 1252, could not be recorded until the execution was actually issued.—Lyons Nat. Bank v. Shuler (Sup.) 62. § 3. Supplementary proceedings. An affidavit for the examination of a judgment debtor in aid of an execution held insufficient to show that the debtor had property or money which he refused to apply to the judgment.—Garcia v. Morris (Sup.) 253. ♦It is only where a judgment creditor can show that his debtor has property not subject to levy, or not capable of being reached by execution that an order for the debtor’s examination in aid of the execution can be issued.— Garcia v. Morris (Sup.) 253. ♦An affidavit for an examination of a judgment debtor in aid of an execution made by the creditor’s attorney on information and belief, held fatally defective.—Garcia v. Morris (Sup.) An affidavit for the examination of a judgment debtor in aid of an execution alleging a demand for the application of certain property to payment of the judgment without facts showing that the debtor's refusal was unjust, etc., held fatally defective.—Garcia v. Morris (Sup.) EXCHANGE OF PROPERTY. Exchange of corporate shares, see “Corporations,” § 2. EXCISE. Regulation of traffic in intoxicating liquors, see “Intoxicating Liquors.” EXECUTION. See “Attachment.” Conclusiveness of adjudication denying leave to sell property under execution on subsequent motion for leave to make such sale, see “Judgment,” § 6. Exemptions, see “Exemptions.” § 1. Property subject to execution. Code Civ. Proc. § 1391, as amended by Laws 19Ü3, p. 1071, c. 461, and Laws 1905, p. 370, c. 175, held not to authorize execution against an income payable under a trust created in a ♦Point annotate EXECUTORS AND ADMINISTRATORS. See “Descent and Distribution”; “Wills.” Claims of brokers against estate of decedent for commissions for sale of land, see “Brokers,” § 1. Computation of period of limitation to recover compensation agreed to be made to decedent, see “Limitation of Actions,” § 1. Courts of probate, see “Courts,” § 3. Dismissal of appeal from injunction restraining person acting as executor, see “Appeal,” § 5. Interest on claims against estate of decedent, see “Interest,” § 1. Letters of administration granted by Indian court, see “Indians.” Objections for purpose of review in action against executor, see “Appeal,” § 2. Security for payment of costs in action by executor or administrator, see “Costs,” § 4. Surety for administrator, see “Principal and Surety,” § 1. Testamentary trustees, see “Trusts.” 1. See syllabus.

1178 § 1. Appointment, qualification, tenure. An application for the appointment of an administrator with the will annexed held based on a false suggestion of a material fact which the Surrogate had power to determine and revoke letters based thereon.—In re Rathyen (Sup.) 289; Smith v. Rathyen, Id. Under Code Civ. Proc. § 2586, on appeal from order removing executor, cause held to be referred to determine whether he had paid indebtedness to estate.—In re Burr (Sup.) 776. § 2. Allowance and payment of claims. Where testatrix contracted to pay for services in obtaining a reduction of an improvement assessment, the fact that she died before the reducéd assessment was finally confirmed did not affect the liability of her executors.—United States Title Guaranty & Indemnity Co. v. Marks (Sup.) 483. * Where services are rendered under a promise to compensate therefor by will, and the person dies without having done so, the person rendering the services is entitled to compensation as a creditor of the estate.—Chambers v. Boyd (Sup.) 486. § 3. Distribution of estate. ’"Code Civ. Proc. § 1819, relating to the time within which proceedings to compel payment of legacy must be brought, does not apply to proceeding in Surrogate’s Court.—In re Cooper (Sur.) 283. ’■"Action, 20 years after plaintiff came of age, to compel payment of legacy, held barred by limitation.—In re Cooper (Sur.) 283. § 4. Accounting and settlement. Motion to postpone final settlement of an administratrix until determination of action to recover funeral expenses denied, the Surrogate having sole jurisdiction under Code Civ. Proc. § 1903, as amended, to require administratrix to pay the same from sum acquired in action for wrongful death.—In re McDonald’s Estate (Sur.) 275. Right of executor to commissions determined. —In re McCoy’s Estate (Sur.) 539. EXEMPTIONS. § 1. Nature and extent. ’"Under Code Civ. Proc. § 1393, providing that pension moneys are exempt from seizure, in legal proceedings such moneys are not subject to cash claims for the support of the pensioner receiving them.—In re Strohm (Sup.) 688. ’"Under Code Civ. Proc. § 1393, pension money of incompetent held liable to state hospital on current charges, but not on arrears existing when pension was first received.—In re Strohm (Sup.) 688. EXPERT TESTIMONY. In civil actions, see “Evidence,” § 9. In criminal prosecutions, see “Criminal Law,” § 2. * Point annotated. EXPLOSIVES. Explosion in street, see “Municipal Corporations,” § 5i EXPRESS COMPANIES. See “Carriers.” EXTENSION. Of time for payment of premium, see “Insurance,”.§ 7. FALSE IMPRISONMENT. See “Malicious Prosecution.” § 1. Civil liability. ’"On charge against railroad of false imprisonment by its servant evidence of acts of plaintiff held admissible under general denial.—East v. Brooklyn Heights R. Co. (Sup.) 364. Under Penal Code, § 426, subd. 2, railroad held not liable for false imprisonment or malicious prosecution because of arrest by servant of person getting on moving train.—East v. Brooklyn Heights R. Co. (Sup.) 364. >Tn an action against railroad company for illegal arrest by its servant, evidence that he believed that plaintiff’s act was a misdemeanor held inadmissible on issue of false imprisonment.—East v. Brooklyn Heights R. Co. (Sup.) FALSE PRETENSES. On prosecution for larceny in obtaining a loan by false representations, it was no defense that the contract for loan was usurious.—People v. Roller (Sup.) 518. FEES. Of attorney, see “Attorney and Client,” §§ 2, 3. Of broker, see “Brokers,” § 1. FELLOW SERVANTS. See “Master and Servant,” § 3. FILING. Record on appeal, see “Appeal,” § 4. FINAL JUDGMENT. Appealability, see “Appeal,” § 1. FINDINGS. Review on appeal, see “Appeal,” § 6. FIRE INSURANCE. See “Insurance.” See syllabus. 101 NEW YORK SUPPLEMENT and 135 New York State Reporter and

INDEX, 1179 FIRES. Municipal fire department, see “Municipal Corporations,” § 2. FIXTURES. Under the facts, plaintiff held not entitled to recover for the removal of fixtures by his vendor. —Brunswick Const. Co. v. Burden (Sup.) 716. *The vendor of a residence held to have the right under the contract of sale to remove mantels, etc.—Brunswick Const. Co. v. Burden (Sup). 716. *Where a vendor reserved right to remove fixtures from the residence sold, the question as to what constituted fixtures within the contemplation of the parties was a question of law. —Brunswick Const. Co. v. Burden (Sup.) 716. FOOD. Adulteration as a public offense, see “Adulteration.” FORCIBLE ENTRY AND DETAINER. Conclusiveness of adjudication in summary proceedings to recover possession of land, see “Judgment,” § 7. FORECLOSURE. Conclusiveness o£ allegation on party pleading in action to foreclose lien, see “Pleading,” § 1. Of lien, see “Mechanics’ Liens,” § 2. Of mortgage, see “Mortgages,” § 3; “Railroads,” § 4. FOREIGN CORPORATIONS. See “Corporations,” § 7. Constitutional restriction on enactment of retrospective laws affecting, see “Constitutional Law,” § 4. FOREIGN LANGUAGE. Exhibits in foreign language as evidence, see “Evidence,” § 7. FORESTS. See “Woods and Forests.” FORFEITURES. In deeds, see “Deeds,” § 1. FORGERY. Testimony of accomplices, see “Criminal Law,” § 2. ♦Point annotated. FORMER ADJUDICATION. See “Judgment,” §§ 6, 7. FORMS OF ACTION. See “Action,” § 1; “Ejectment” ; “Replevin”; “Trespass,” § 2; “Traver and Conversion.” FRANCHISES. Assessment of franchise tax, see “Taxation,” § 2. Corporate franchises, see “Corporations,” § 1. Of corporation engaged in interstate commerce, see “Commerce,” § 1. Of electric light companies, see “Electricity.” Of street railroads, see “Street Railroads,” § 1. Power of corporation to transfer, see “Corporations,” § 5. FRAUD. See “False Pretenses”; “Fraudulent Conveyances.” Bill of particulars in action in which defense is fraud, see “Pleading,” § 6. Effect of knowledge on limitation in action for deceit, see “Limitation of Actions,” § 1. In bill or note, see “Bills and Notes,” § 1. In exchange of corporation shares, see “Corporations,” § 2. § 1. Actions. Evidence in an action to hold persons as partners on the ground of fraud in inducing plaintiff to sign a contract by misrepresenting themselves as a corporation held not to’sustain plaintiff’s contention.—Rossow v. Burke (Sup.) 608. FRAUDS, STATUTE OF. § 1. Promises to answer for debt, default, or miscarriage of another. *A promise of directors to guaranty their proportionate share of a loan to the corporation/, held within the statute of frauds, Laws 1897, p. 510, c. 417, § 21.—Mechanics’ & Traders’ Bank v. Stettheimer (Sup.) 513. § 2. Agreements not to be performed within one year. A paroi lease for one year is valid, even if it is to take effect at a future date.—Fishman v. Wolf (Sup.) 16. *A contract for one year held not within the statute of frauds, though it provides for a renewal beyond the year.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. § 3. Requisites and sufficiency of writing. ♦A contract held to satisfy the statute of frauds.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. § 4. Pleading, evidence, trial, and review. In an action on a contract certain evidence held immaterial.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. See syllabus.

1180 101 NEW YORK SUPPLEMENT and 135 New York State Reporter FRAUDULENT CONVEYANCES. 5 1. Transfers and transactions invalid. ♦A sale of a stock of goods held within Laws 1897, p. 511, c. 417, § 24, in relation to sales in defraud of creditors.—Hall v. Frith (Sup.) 31. -§ 2. Remedies of creditors and purchasers. *A creditor as against whom a sale is void for fraud under Laws 1897, p. 511, c. 417, may levy on the goods sold without bringing any action to have the bill of sale set aside.—Hall v. Frith (Sup.) 31. On an issue whether a sale of goods was fraudulent as against creditors held, that the evidence showed that the purchaser had notice of the vendor’s fraudulent intent.—Hall v. Frith (Sup.) 31. GARNISHMENT. See “Attachment,” GAS. Preliminary injunction in suit to restrain gas company from refusing to supply gas, see “Injunction,” § 2. GIFTS. Transfer taxes, see “Taxation,” § 3. § 1. Inter vivas. ♦A gift inter vivas held established by the unsupported testimony of the donee’s wife.— Andrews v. Nichols (Sup.) 977. Admission in favor of defendant, claiming a gift from • decedent, of statements of decedent to a third person, held not error.—Andrews v. Nichols (Sup.) 977. ♦Delivery alone of a bond and real estate mortgage held enough to constitute a gift.— Andrews v. Nichols (Sup.) 977. GOOD FAITH. Of purchaser, see “Vendor and Purchaser,” § 2. Of trustee in speculation with trust funds, see “Trusts,” § 3. GUARANTY. See “Indemnity”; “Principal and Surety.” ■Grounds for reformation of guaranty, see “Reformation of Instruments,” § 1. Power of national bank to execute contract of guaranty, see “Banks and Banking,” § 2. Requirements of statute of frauds, see “Frauds, Statute of,” § 1. | 1. Requisites and validity. ♦Defendant’s reply to plaintiff’s inquiry as to ■defendant’s willingness to guaranty certain payments, and plaintiff’s acts in pursuance of such reply, held to show a complete meeting of the minds, without any formal acceptance of the ♦Point annotate guaranty by plaintiff.—Drucker v. Heyl-Dia (Sup.) 796. § 2. Construction and operation. A letter of guaranty by a corporate officer held to bind defendant personally, and not intended to guaranty plaintiff personally as distinguished from his assigns.—Nachod v. Hindley (Sup.) 840. A contract held a mere guaranty of collection and not of payment, obligating the person guarantied to use diligent efforts to collect collateral before resorting to the guaranty.—Nachod v. I-Iindley (Sup.) 840. HABEAS CORPUS. § 1. Nature and grounds of remedy, ♦On habeas corpus only jurisdiction of court to make order restraining relator can be attacked.—People v. Feenaughty (Sup.) 700. HARMLESS ERROR. In civil actions, see “Appeal,” § 6. HEALTH. Adulteration as a public offense, see “Adulteration.” HEIRS. See “Descent and Distribution.” HIGHWAYS. See “Municipal Corporations,” §§ 4, 5. Dedication, see “Dedication,” § 2. Injuries to pedestrian caused by operation of railroad, see “Railroads,” § 6. Operation of telegraph and telephone line along, see “Telegraphs and Telephones,” § 1. § 1. Highway districts and officers. The complaint and official bond of a commit sioner of highways sued on held, in view of Town Law, Laws 1890, pp. 1219, 1221, c. 569, §§ 50, 63, to sufficiently show the obligation was to plaintiff town.—Town of Hadley v. Garner (Sup.) 777. Demand on the principal held not a necessary condition to action on the bond of a commissioner of highways of a town. Town Law, Laws 1890, p. l22s, c. 569, § 84.—Town of Hadley v. Garner (Sup.) 777. The allegation of the complaint on the bond of a commissioner of highways of a town that he did not, after expiration of his term, pay over to his successor all moneys remaining in his hands, held to include allegations that he had received money and had it in his hands after expiration of Ms term.—Town of Hadley v. Gamer (Sup.) 777. § 2. Regulation and use for travel. ♦A pile of manure drawn onto a highway by abutting owners held an unlawful obstruction of 1. See syllabus.

INDEX, 1181 the highway, rendering such owners liable for injuries to a traveler occasioned thereby.—Sweet V. Perkins (Sup.) 163. HOLDING OVER. By officer, see “Officers,” § 1. HOMICIDE. Instructions in general, see “Criminal Law,” § 3. Reversal on appeal, see “Criminal Law,” § 4. § 1. Evidence. ♦A conviction of manslaughter in the first degree held supported by the evidence.—People v. Mallon (Sup.) 814. Evidence held sufficient to sustain a conviction of murder.—People v. Yoskow (Sup.) 1062. § 2. Trial. ♦On a trial for homicide, the submission of the issue of self-defense held not required under the evidence.—People v. Mallon (Sup.) 814. ♦An instruction on a trial for homicide defining self-defense held properly refused.—People v. Mallon (Sup.) 814. HOSPITALS. Right to pension money of patient, see “Exemptions,” § 1. HUSBAND AND WIFE. See “Divorce"; “Marriage.” Requisites and validity of note of married woman, see “Bills and Notes,” § 1. Singleness of cause of action for enticing wife, see “Action,” § 2. § 1. Mutual rights, duties, and liabilities. ♦A husband held liable for services of a nurse for his wife.—Schneider v. Rosenbaum (Sup.) 529. § 2. Enticing and alienating. ♦Complaint in an action for enticing a wife, held to state a cause of action.—De Ronde v. Bell (Sup.) 497. IMPAIRING OBLIGATION OF CONTRACT. See “Constitutional Law,” § 3. IMPEACHMENT. Of record, see “Appeal,” § 4. Of witness, see “Witnesses,” § 3. IMPLIED CONTRACTS. See "Account Stated”; “Money Lent”; “Money Paid” ; “Use and Occupation”; “Work and Labor.” ♦Point annotated. IMPRISONMENT. See "False Imprisonment.” Habeas corpus, see “Habeas Corpus.” IMPROVEMENTS. Compensation for, in action of partition, see “Partition,” § 1. Liens, see “Mechanics’ Liens.” On premises demised, see “Landlord and Tenant,” § 4. Public improvements, see “Municipal Corporations,” § 3. IMPUTED NEGLIGENCE. See “Negligence,” §§■ 2, 3. INADEQUATE DAMAGES. See “Damages,” § 2. INCOME. Bequest of, see “Wills,” § 3. INCUMBRANCES. On property of intestate, see “Descent and Distribution,” § 2. INDEMNITY. See “Guaranty”; “Principal and Surety.” Indemnity insurance, see “Insurance,” §§ 4, 11. ♦In an action to recover an amount paid by plaintiff to satisfy a judgment from which defendant was bound to save him harmless, plaintiff held not entitled to recover attorney’s fees: paid in supplementary proceedings against him.. —Ogilby v. Munro (Sup.) 753. INDIANS. Subjects of statutes relating to, see “Statutes,”1 §2. Revocation of letters of administration granted by surrogate’s court of Seneca Nation must be sought by appeal to the council of the nation under its constitution.—Jimeson v. Lehley (Sup.) 215. INDORSEMENT. Of promissory note, see “Bills and Notes,” § 2„ INFANTS. Injuries to minor servants, see “Master and! Servant,” § 3. Laws forbidding employment of infants, as denial of liberty to contract, see “Constitutional Law,” § 1. See syllabus.

1182 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Right of foreign consul to appear for infant in probate proceedings, see “Ambassadors and Consuls.” § 1. Actions. *The dismissal of an action because of plaintiff’s minority at the time of its institution held error.—McGarity v. New York City Ry. Co. (Sup.) 191. INFERIOR COURTS. See “Courts,” § 2. INFRINGEMENT. Of trade-mark, see “Trade-Marks and Trade-Names,” § 3. INHERITANCE. See “Descent and Distribution.” INHERITANCE TAX. See “Taxation,” § 3. INJUNCTION. before there is further need of its protection.— Olms v. Bingham (Sup.) 1106. § 3. Writ, order or decree, service, and enforcement. Where defendants contracted not to use the name “Harder Knitting Company” an injunction restraining them from using the name “Harder Manufacturing Company” . was too broad.—Union Mills v. Harder (Sup.) 309. § 4. Violation and punishment. Evidence held not to show a violation of injunction.—Maine Products Co. v. .Alexander (Sup.) 464. One held not guilty of contempt for violating an injunction.—Maine Products Co. v. Alexander (Sup.) 464. INNKEEPERS. Right to injunction to protect business from interference by police, see “Injunction,” § 1. IN PAIS. Estoppel, see “Estoppel,” § 2. INSANE PERSONS. Suit for, as single cause of action, see “Action,” S' 2. § 1. Subjects of protection and relief. *Hotel owner held entitled by injunction to protect business from continued interference by police.—Olms v. Bingham (Sup.) 1106. § 2. Preliminary and interlocutory injunctions. The injury to plaintiff by breach of contract held not such that a temporary injunction should be granted.—George Ringler & Co. v. Mohl (Sup.) 454. *In a suit by a customer to restrain a gas company from refusing to supply him with gas at the maximum rate fixed by Laws 1906, p. 235, c. 125, the court held required to exercise its discretion in determining the propriety of awarding a preliminary injunction.—Schneider v. New Amsterdam Gas Co. (Sup.) 535. * While the Appellate Division has the power to exercise the judicial discretion vested in the Supreme Court in the granting of a preliminary injunction, the discretion should first be exercised by the court at Special Term.— Schneider v. New Amsterdam Gas Co. (Sup.) 535. * Where, after the granting of an injunction restraining police officers from interfering with complainant’s property pendente lite, complainants used the same as a poolroom, defendants were entitled to apply for a modification of the injunction, though no leave was reserved in the original .order, under Code Civ. Proc. § 627.— Devlin v. McAdoo (Sup.) 546. ^Temporary injunction held not to be continued where plaintiff has failed to bring case on for trial, and where he can bring it on for trial Evidence as to validity of deed of grantor not ' adjudged incompetent, see “Deeds,” § 2. INSOLVENCY. See “Bankruptcy.” Of trust company, see “Banks and Banking,” § INSPECTION. Of writings, see “Discovery,” § 1. INSTRUCTIONS. In civil actions, see “New Trial,” § 1; “Trial,” §§ 4, 5. In criminal prosecutions, see “Criminal Law,” § 3; “Homicide,” § 2. INSURANCE. Best and secondary evidence in action on policy, see “Evidence,” § 4. Constitutional restriction on enactment of retrospective laws affecting insurance companies, see “Constitutional Law,” § 4. Harmless error in action on policy, see “Appeal,” § 6. Objection for purpose of review in action on policy, see “Appeal,” § 2. Of premises demised, see “Landlord and Tenant,” § 4. Presumptions on appeal in action on policy, see “Appeal,” § 6. Subjects of compensatory damages for breach of contract to receive insurance policy: see “Damages,” § 1. *Point annotated. See syllabus.

INDEX. 1183 Transfer tax on certificates of insurance, see “Taxation,” § 3. { 1. Insurance companies. In action against directors of life insurance company for malfeasance in renewal of a lease of premises of great v.alue at an inadequate rental, held there was no presumption that the renewal was compulsory under the original lease.—People y. Equitable Life Assur. Soc. (Sup.) 353. Allegations in action by Attorney General against officers of life insurance company for malfeasance in office held not demurrable.—People v. Equitable Life Assur. Soc. (Sup.) 353. Allegations in action by Attorney General against officers of life insurance company as to failure to distribute profits of policy holders held not to state a cause of action against defendants.—People v. Equitable Life Assur. Soc. (Sup.) 353. In action by state’s attorney against directors of a life insurance company for failure to distribute profits held a defect of parties in nonjoinder of policy holders.—People v. Equitable Life Assur. Soc. (Sup.) 353. Attorney General, under Code Civ. Proc. §§ 1781, 1782 can maintain action against officers of insurance company for neglect and malfeasance.—People v. Equitable Life Assur. Soc. (Sup.) 354. § 2. Insurance agents and brokers. Insurance agent, having failed to obtain certificate from superintendent of insurance, as required by Insurance Law, Laws 1892, p. 1972, c. 690, § 91, held, not entitled to recover agreed compensation.—Wyatt v. McNamee (Sup.) 790. General agent of insurance company making payments to subagent not holding certificate, as required by Insurance Law, Laws 1892, p. 1972, c. 690, § 91, held not entitled to recover them. —Wyatt v. McNamee (Sup.) 790. § 3. The contract in -general. A fire policy held not a renewal of a prior one.—Arlington Co. v. Empire City Fire Ins. Co. (Sup.) 772. A fire policy held not to cover a certain building in the manufacturing plant insured.—Arlington Co. v. Empire City Fire Ins. Co. (Sup.) 772. A writing executed by a subinsurance agent prior to delivery of a semitontine policy held a mere prospectus, and insufficient to impose a liability on the insurer to pay the estimated accumulation dividends.—Langdon v. Northwestern Mut. Life Ins. Co. (Sup.) 914. § 4. Premiums, dues, and assessments. Where insured accepts from an insurance broker a fire policy which the broker had induced the company to issue, and keeps it for three months, he is prima facie liable for the .premium,—Westchester Fire Ins. Co. v. Gurian (Sup.) 50. In an action by an employers’ indemnity insurance company against an insured for additional premiums, evidence held not to sustain * Point annotate a judgment for plaintiff.—Fidelity & Casualty Co. of New York v. Fischer (Sup.) 545. § 5. Cancellation, surrender, abandonment, or rescission of policy. *The acceptance of a fire policy by a broker from the insured held not to operate as a cancellation thereof barring l'ecovery of the premium.—Westchester Fire Ins. Co. v. Gurian (Sup.) 50. § 6. Avoidance of policy for misrepresentation, fraud, or breach of warranty or condition. '"Recovery could not be had on a life policy issued to a person not in sound health on its date, where application provided that such policy should not be binding unless the applicant was alive and in good health at noon upon its date. —Carmichael v. John Hancock Mut. Life Ins. Co. (Sup.) 602. § 7. Forfeiture of policy for breach of promissory warranty, covenant, or condition subsequent. An agreement to extend the time of paying a premium on a policy then in force held not to violate the terms of a receipt for a partial payment on the premium made at the same time.—Carr v. Prudential Ins. Co. (Sup.) 158. *A general agent and superintendent of a life insurance company held to have authority to extend the time of payment of a premium.—Carr v. Prudential Ins. Co. (Sup.) 158. § 8. Estoppel, waiver, or agreements affecting right to avoid or forfeit policy. *A condition of a policy of insurance providing that insurer should not be liable for any loss resulting from fire built within 50 feet of insured building, held not subject to waiver after the destruction of the building by fire built within the prohibited distance.—Draper v. Oswego County Fire Relief Ass’n (Sup.) 168. *Facts held not to show a waiver by insurer of certain condition of policy.—Draper v. Oswego County Fire Relief Ass’n (Sup.) 168. An unaccepted offer to settle a claim for credit insurance, made in ignorance of a breach of warranty, held not a waiver thereof.—Boer v. American Credit Indemnity Co. (Sup.) 672. ^Provision in an application for credit insurance making a soliciting agent the agent of the insured held to preclude a claim that his knowledge was that of the company.—Boer v. American Credit Indemnity Co. (Sup.) 672. § 9. Risks and causes of loss. Under an accident policy held that there could be no recovery for time lost from orchitis.— Sweeney v. National Relief Assur. Ass’n (Sup.) 797. §10. Extent of loss and liability of insurer. *Under an accident policy held, that there could be no recovery without a showing of disability and necessary confinement to the house for a week.—Schneps v. Fidelity & Casualty Co. of New York (Sup.) 106. 1. See syllabus.

1184 101 NEW YORK SUPPLEMENT and 135. New York State Reporter § 11. Right to proceeds. ♦An employer’s liability policy held to confer no right of action on a servant who had recovered judgment for injuries against the master, which judgment the servant was unable to collect because of the master’s insolvency.— Beyer v. International Aluminum Co. (Sup.) S3. § 12. Actions on policies. In an action on a life insurance policy, evidence held sufficient to support a finding that the agent of the company extended the time for payment of the premium.—Carr v. Prudential Ins. Co. (Sup.) 158. Evidence as to the mailing of notice required by Laws 1897, p. 92, c. 218, § 92, before forfeiture of a life insurance policy for nonpayment of premiums, held to present a question of fact precluding nonsuit.—Carr v. Prudential Ins. Co. (Sup.) 158. A conflict in evidence as to whether overdue life insurance premiums were received under an extension of time or merely as contingent revivals of the contract, held to raise a question of fact precluding nonsuit.—Carr v. Prudential Ins. Co. (Sup.) 158. An instruction as to the power of a general agent and superintendent of a life insurance company to bind his company by an extension' for the time of payment of a premium held proper under the evidence.—Carr v. Prudential Ins. Co. (Sup.) 158. *In action on fire policy, evidence of conversations with insured with reference to fires set on farm by particular individual held admissible.—Wells v. Glens Falls Ins. Co. (Sup.) 1059. § 13. Mutual benefit insurance. * Statement of when the limitation for action on a certificate of insurance, provided therein, began to run—Munn v. Masonic Life Ass’n ' (Sup.) 91. Evidence held to show reinstatement in a beneficial association of one whose membership was forfeited by failure to pay an assessment, when due.—Munn v. Masonic Life Ass’n (Sup.) 91. ♦Under the facts held that the one a member of the beneficial association had intended to make his beneficiary was in equity entitled to the proceeds of his certificate.—Tidd v. McIntyre (Sup.) 867. INTENT. Fraudulent, see “Fraudulent Conveyances,” §1. INTEREST. See “Usury.” Effect of pecuniary interest as to credibility of witness, see “Witnesses,” § 3. Liability of receivers of insolvent trust company for, see “Banks and Banking,” § 3. On contract with trust company, see “Banks and Banking,” § 3. On shares in corporation, see “Corporations,” § 2. Payment of interest as part payment within statute x>f limitations, see “Limitation of Actions,” § 2. § I. Rights and liabilities in general. ♦Interest should not be allowed on an unliquidated claim for services rendered under promise to make compensation therefor by will.—Chambers v. Boyd (Sup.) 486. INTERLOCUTORY INJUNCTION. See “Injunction,” § 2. INTERLOCUTORY JUDGMENT. Appealability, see “Appeal,” § 1. Review on appeal, see “Appeal,’.’ § 6. INTERNATIONAL LAW. See “Ambassadors and Consuls.” INTERPLEADER. § 1. Right to interpleader. ♦Where one contracting to erect certain buildings for the United States made a subcontract for painting, and the subcontractor bought materials from plaintiffs for the work, the contractor could not maintain an action of inter-pleader against the subcontractor and the party furnishing the materials to determine the ownership of an unpaid balance of the contract price for the painting.—Mosier y. KurchhoS (Sup.)' 643. INTERROGATORIES. To witnesses, see “Depositions.” Interstate commerce. Regulation, see “Carriers,” § 1; “Commerce.”’ intervention. In actions in general, see “Parties,” § 2. INTESTACY. See “Descent and Distribution.” INTOXICATING LIQUORS. ' § 1. Licenses and taxes. An order discontinuing a proceeding for the cancellation of a liquor tax certificate and directing its surrender reversed.—In re Faber (Sup.) 429. Under Laws 1896, p. 60, c. 112, § 17, subd. 8, consent of owner of fee to issuance of liquor tax certificate held sufficient without that of life tenant.—In re Clement (Sup.) 447. Under Laws 1896, p. 60, c. 112, § 17, subd. 8, double house held to be counted as only one ♦Point annotated. See syllabus.

INDEX, 1185 building in determining number of consents necessary to issuance of liquor tax certificate.— In re Clement (Sup.) 447. Advice of second deputy commissioner of excise held not to estop commissioner of excise from bringing proceeding to revoke liquor tax certificate.—In re Clement (Sup.) 447. A petition to cancel a liquor tax certificate for violation of Liquor Tax Law, Laws 1897, p. 220,' c. 312, § 17, subd. 8, based on information and belief, held sufficient to confer jurisdiction and authorize the taking of proof under section 28, subd. 2 (page 229).—In re Clement (Sup.) 683. § 2. Criminal prosecutions. ■Reference in the charge, on a prosecution for illegal sale of liquor, to the vote of the town against sale of liquor, held improper where defendant merely claimed he made no sale.—People v. Myers (Sup.) 291. INVESTMENT. By trustee, see “Trusts,” § 3. INVESTMENT COMPANIES. See “Banks and Banking,” § 3. ISSUES. Presented for review on appeal, see “Appeal,” § 2. V; JOINDER. Of causes of action, see “Action,” § 2. JUDGES. Vacation of judgment in municipal court, see “Courts,” § 2. In particular cwil actions or proceedings. See “Injunction,” § 3; “Traver and Conversion,” § 1. On appeal, see “Appeal,” § 7. Personal judgment for deficiency on foreclosure, see “Mortgages,” § 3. Probate proceedings, see “Wills,” § 2. See “Appeal.” Review. § 1. By default. Where_ defendant failed to appear on the hearing of his motion to open a default, the motion should have been dismissed.—Levine v. Munchik (Sup.) 14. An order improperly reciting a denial instead of a dismissal of a motion to open a default was valid until set aside or reversed.—Levine v. Munchik (Sup.) 14. fA motion to open a default judgment dismissing an action because of plaintiff’s refusal to go on with the trial held properly denied.— Loehr v. Brooklyn Perry Co. (Sup.) 209. Motion to set aside default held not to be denied because, there being no service of summons on defendant, there was no default.—Waldman v. Mann (Sup.) 757. Judgment in summary proceedings for dispossession of a receiver of bank for nonpayment of rent held conclusive of his liability for the rent according to the stipulations of the lease. —Prince v. Schlesinger (Sup.) 1031. § 2. On trial of issues. Pleadings, demanding a return of pledged stock or an accounting, held not to sustain a money judgment.—Hebblethwaite v. Plint (Sup.) See “Courts”; “Justices of the Peace.” Conduct of, at trial of civil action, see “Trial,” §1. § 1. Appointment, qualification, and tenure. Under Const, art. 6, § 17, Laws 1895, p. 1295, c. 601, § 28, Laws 1895, p, 683, c. 880, Const. 1894, art. 6, § 18, and Laws 1895, p. 796, c. 946, held, that the Court of Special Sessions of the city of New York is within Const, art. 6, § 17, authorizing removal of judges of inferior courts not of record by the Appellate Division.—In re Deuel (Sup.) 1037. JUDGMENT. Appealability of default judgment, see “Appeal,” § 1. Appealability of order denying motion to open default, see “Appeal,” § 1. Power of lower court to amend on remand, see “Appeal,” § 7. Presumptions as to judgment of municipal . court, see “Courts,” § 2. A case held not to result in a mistrial because the trial judge became disqualified before passing on the motion to set aside the verdict and for new trial.—Stern v. Wabash R. Co. (Sup.) 181. In an action to enforce a limited liability of the directors of a corporation, a final judgment against one of the directors not appealing from an interlocutory judgment held not warranted. —Bauer v. Parker (Sup.) 455. A plaintiff held not entitled to a final judgment against one of the defendants either under Code Civ. Proc. § 1205, or under section 1220.—Bauer v. Parker (Sup.) 455. *In an action by a contractor for the balance due and for extra work, a judgment in favor of the owner for the difference between the contractor’s demand and the owner’s counterclaim held erroneous under the evidence.—Cario v. Lippman (Sup.) 768. § 3. Entry, record, and docketing. A stay held not to prevent entry of judgment, but merely to affect issuance of. execution and ♦Point annotated. See syllabus. 101 N.Y.S.—75

1186 101 NEW YORK SUPPLEMENT and 135 New York State Reporter supplementary proceedings.—Stern v. Wabash R.' Co. (Sup.) 181. § 4. Opening or vacating. A party held barred by loches from having a judgment set aside and a third person made a party to the suit.—Lederer v. Adler (Sup.) 53. An affidavit on an application to set aside a judgment and permit the bringing in of an additional party held defective because made by the attorney of the moving party.—Lederer v. Adler (Sup.) 53. § 5. Equitable relief. ♦Where a judgment was rendered without jurisdiction, the judgment debtor was entitled to sue in equity to set it aside.—Barron v. Feist (Sup.) 72. JURISDICTION. Effect on costs recoverable, see “Costs,” § 1. Jurisdiction of particular actions or proceedings. See “Divorce,” § 2; “Mandamus,” § 3. Criminal prosecutions, see “Criminal Law,” § 1. On claims against states, see “States,” § 3. Jurisdiction of particular classes of persons. See “States,” § 3. Special jurisdictions and jurisdictions of particular classes of courts. Particular courts, see “Courts.” JURY. § 6. Merger and bar of causes of action and defenses. ♦A judgment is not a bar to a cause of action accruing after the rendition of the judgment.— Roach v. Curtis (Sup.) 333. On the trial of an action after a remand, a recovery held limited to only one of the items claimed in view of a judgment rendered in another action pending the appeal.—Alcolm Co. v. Philip Hano & Co. (Sup.) 762. ♦Judgment denying receiver leave to sell defendant’s interest as remainderman in certain property held conclusive on subsequent motion for leave to make the sale.—Barber v. Barnum (Sup.) 1065. § 7. Couclusiveness of adjudication. ♦A judgment in summary proceedings awarding possession for failure to pay rent due is conclusive as to the validity of the lease in action by the tenant for fraud in procuring it. —Meyerhoffer v. Baker (Sup.) 24. ♦Where a seller replevied goods sold with a reservation of title in himself until they were paid for, the buyer’s failure to defend the action, or to ask for sale of the goods under Laws 1897, p. 541, c. 418, § 116. as amended by Laws 1900, p. 1624, c. 762, did not bar her right to "recover what she had paid on them, the replevin suit only concluding the right of possession.— Roach v. Curtis (Sup.) 333. Surrogate’s decree allowing executors’ accounts showing disposition of surplus income under provisions of a will creating invalid accumulations held res judicata only so far as the decrees affected assets disclosed in the accounts.—Kirk v. McCann (Sup.) 1093. JUDICIAL NOTICE. Instructions in civil actions, see “Trial,” § 4. Instructions in criminal prosecutions, see “Criminal Law,” § 3. Questions for jury in civil actions, see “Trial,” § 3. Questions' for jury in criminal prosecutions, see “Criminal Law,” § 3. Taking case or question from jury at trial, see “Trial,” § 3. Verdict in civil actions, see “Trial,” § 5. § 1. Right to trial by jury. 1 Under Code Civ. Proc. §§ 968, 970, 1638, 1642, held error to deny jury trial to defendants in an action under section 1638.—Ryan v. Murphy (Sup.) 553. JUSTICES OF THE PEACE. Review of determination of motion to correct case on appeal by justice, see “Appeal,” § 6. § 1. Review of proceedings. ♦On appeal from justice court under Code Civ. Proc. § 3063, the appellate court can only either affirm in whole or in part, or reverse, and cannot modify a judgment.—Hindes v. Mills (Sup.) JUSTIFICATION. Of actionable words, see “Libel and Slander,” § 1. KNOWLEDGE. Effect of ignorance of cause of action on limitation, see “Limitation of Actions,” § 1. LACHES. Laches in setting aside judgment, see “Judgment,” § 4. In civil actions, see “Evidence,” § 3 JUDICIAL SALES. Foreclosure sale, see “Mortgages,” § 3. LANDLORD AND TENANT. See “Use and Occupation.” Actions for injury resulting from negligent condition of demised premises, see-“Negligence,” ♦Point annotated. See syllabus.

INDEX. 1187 Conclusiveness of adjudication in summary pros ceedings to recover demised premises, see “Judgment,” § 7. Dispossession proceedings in municipal court, see “Courts,” § 2. Estoppel of tenant in action for rent by record in former dispossession proceedings, see “Estoppel,” § 1. Negligent condition of demised premises as nuisance, see “Nuisance,” § 1. Requirements of statute of frauds as to leases, see “Frauds, Statute of,” § 2. | 1. Creation and existence of the relation. Evidence in a summary proceeding against a tenant held to show that the landlord leased the premises for a year from May 15, 1906.— Fishman v. Wolf (Sup.) 16. § 2. Leases and agreements in general. ^Leases like other contracts are to be reasonably construed according to the apparent intention of the parties.—City of New York v. United States Trust Co. (Sup.) 574. A letter held to constitute a lease and not to include a prior lease.—Arcade Realty Co. v. Tunney (Sup.) 593. A subtenant, having prevented renewal of a lease to the tenant, held not entitled to damages for failure in the performance of the sublease.—Maas v. Kramer (Sup.) 800. In an action for rent, the judgment on a counterclaim for damages for plaintiff’s failure to perform would not stand where there was no proper evidence of rental value by which such damages could be estimated.—Maas v. Kramer (Sup.) 800. § 3. Terms for years. *An agreement that a lease shall contain the usual conditions does not call for payment of rent in advance.—Arcade Realty Co. v. Tunney (Sup.) 593. § 4. Premises, and enjoyment and nse thereof. *The questions of negligence and contributory negligence held for the jury where a tenant was injured by falling over things left in a path by the landlord who was making repairs. —Sacks v. Segal (Sup.) 41. Facts held not to show that a landlord had retained control of the ceiling of the demised apartment so as to oblige him to repair it.— Schiff v. Pottlitzer (Sup.) 249. *In the absence of evidence it is presumable that the demise of an apartment includes the ceiling of the rooms so that' the landlord is under no obligation to repair it.—Schiff v. Pottlitzer (Sup.) 249. *The measure of damages for injuries to a tenant from the fall of a ceiling which the landlord failed to repair as agreed, stated.— Schiff v. Pottlitzer (Sup.) 249. The owner of a building held liable for injuries to a servant of a tenant caused by a defect in a freight elevator which the servant * Point annotate was rightfully using at the time.—Rosenberg v. Schoolherr (Sup.) 505. Where a building containing a freight elevator is let to various tenants with the right to use the elevator, which is controlled by the owner, the latter is required to maintain the elevator in a reasonably safe condition.—Rosenberg v. Schoolherr (Sup.) 505. Under the provisions of a lease held that the tenant was not liable for the expense of removing steps and a railed areaway which extended from the premises into the street.—City of New York v. United States Trust Co. (Sup.) 574. Where a landlord leases premises with an existing public nuisance thereon, there is no implied agreement that the tenant will pay the expense of remedying the evil.—City of New York v. United States Trust Co. (Sup.) 574. *Where. particular repairs to be made by the lessee are specified in a lease, his liability to incur other expenses cannot be extended by construction.—City of New York v. United States Trust Co. (Sup.) 574. * Where a landlord was bound to repair the premises, that he contracted for the doing of the work did not relieve him from liability for injuries to the tenant’s infant child by the negligence of the workmen.—Rosenberg v. Zeitchik (Sup.) 591. The leaving of a plumber’s furnace unattended on the floor of a barber shop through which plaintiff’s infant son was compelled to go to reach his residence in the rear held negligence.— Rosenberg v. Zeitchik (Sup.) 591. ^Landlord held not liable for injuries sustained by a pedestrian in falling into a cellar-way while it was uncovered.—Opper v. Hellinger (Sup.) 616. ^Owners of building, retaining control of heating plant, held liable for damages from escape of steam from radiators in leased offices.— Bryant v. Carr (Sup.) 646. In an action by a tenant against the landlord for injuries held that the evidence made out a prima facie case rendering it error to dismiss the complaint.—Acker v. Stiner (Sup.) 766. *A landlord having, reserved for the common use of tenants the balconies, stairways, steps, etc., of the rented building, held bound to keep them in a reasonably safe condition.—Walsh v. Frey (Sup.) 774. A tenant injured while using a common porch for her own purposes other than as a thoroughfare held not entitled to recover from the landlord for her injuries.—Walsh v. Frey (Sup.) 774. § 5. Rent and advances. *It was no defense to an action for rent that the landlord had breached a covenant to repair: the tenant’s remedy being a recoupment from the rent or a separate action for damages. —Lewis v. Ritoff (Sup.) 40. *Defendant, in an action for rent, held not entitled' under a general denial to prove evic1. See syllabus.

1188 101 NEW YORK SUPPLEMENT and 135 New York State Reporter tian or accord and- satisfaction.—Schwartz v. Ribando (Sup.) 599. *Under the facts, the occupation of a basement beneath a store by a tenant held to have rendered him liable for the rental of both store and basement.—Katz v. Schreckinger (Sup.) 743. Lease of farm construed and held to give the landlord option to make rent payablq sooner than specified date.—Musewald v. Seeker (Co. Ct.) 287. Injury to defendants’ property through negligence of other tenants of building held no defense to action for rent.—Brick v. Favilla (Co. Ct.) 970. § 6. Re-entry and recovery of possession by landlord. On appeal in proceedings to dispossess tenant, judgment for defendant modified by directing judgment of dismissal.—Benedict v. Hoffman (Sup.) 37. A process in summary dispossession proceedings which was insufficient to give the court jurisdiction of the tenant in the first instance held not capable of amendment under Municipal Court Act.—Eighty William St Bldg. Co. v. Jones (Sup.) 757. *An allegation in a petition “that said petitioners are the landlords of the premises hereinafter described” is not sufficient, under Code Civ. Proc. § 2235, in a summary proceeding to recover possession of realty.—Bell v. Karsch Brewing Co. (Sup.) 803. LARCENY. See “False Pretenses.” § 1. Prosecution and punishment. In a prosecution for grand larceny, evidence held sufficient to sustain a conviction.—People v. Conlon (Sup.) 597. LAW OF THE ROAD. Application in streets in cities, see ■ “Municipal Corporations,” § 4. LEASES. See “Landlord and Tenant.” . . LEGACIES. See “Wills.” LEGACY TAX. See “Taxation,” § 3. LEGISLATIVE DISTRICTS. See “States,” § 1. LEVY. tif execution, see “Execution,” § 2. *Point an LIBEL AND SLANDER. Bill of particulars in action for libel, see “Pleading,” § 6. § 1. Justification and mitigation. * Answer in action for' libel held to state no-defense and to be stricken out as irrelevant.— W. T. Hanson Co. v. Collier (Sup.) 690. § 2. Actions. A complaint, in an action for libel, held to state a cause of action.—Saper v. Associated Press (Sup.) 342. A complaint for libel, though amplified by a bill of particulars stating facts tending to show that the dispatch was published in good faith and did not refer to plaintiff, held to state a cause of action as against a demurrer.—Saper v. Butler (Sup.) 345. *A complaint for libel, alleging that an article libelous per se was written of and concerning plaintiff, held not demurrable.—Nunnally v. New Yorker Zeitung Publishing & Printing Co. (Sup.) 1041. *In an action for libel, a defense held insufficient on demurrer as a defense in justification or mitigation.—Nunnally v. New Yorker Zeitung Publishing & Printing Co. (Sup.) 1041. LICENSES. Care required as to licensees In general, see “Negligence,” § 1. Contributory negligence of licensee, see “Negligence,” § 2. For sale of intoxicating liquors, see “Intoxicating Liquors,” § 1. Injuries to licensees caused by operation of railroad, see “Railroads,” § 6. To construct steps extending beyond building line, see “Municipal Corporations,” § 4. LIENS. Conclusiveness of allegation on party pleading, in action to foreclose, see “Pleading,” § 1. Liens acquired by particular remedies or proceedings. gee “Execution,” § 2. Particular classes of Mens. See “Mechanics’ Liens.” Attorneys’ liens, see “Attorney and Client,” § 3. Of broker, see “Brokers,” § 1. Pledge, see “Pledges.” Public improvement lien, see “Municipal Cor-: porations,” § 3. LIFE ESTATES. Necessity of consent of life tenant to issuance of liquor tax certificate, see “Intoxicating •Liquors,” § 1. LIFE INSURANCE. See “Insurance." d. . See syllabus.-

INDEX, 1189 LIMITATION OF ACTIONS. Particular actions or proceedings. See “Mandamus,” § 3. By surviving 'partners, against firm debtors, see “Partnership,” § 3. On claims against state, see “States,” § 3. To compel payment of legacy, see “Executors and Administrators,” § 3. To redeem from mortgage foreclosure, see “Mortgages,” § 4. § 1. Computation of period of limitation. ♦Plaintiff, in an action for deceit, held charged with knowledge of the fraud as early as March, 1894, so that the action, not brought until 1902, was barred by limitations.—Coffin v. Barber (Sup.) 147. ♦Time for bringing ejectment held not extended by disability of heirs to whom the title descends after accrual of cause of action.— Messinger v. Foster (Sup.) 387. ♦Time for bringing ejectment held, under Code Civ. Proc. § 375, not to extend more than 3l years after accrual of cause of action, because of the disability of infancy, though the one having the right of action was an infant, and died leaving infant heirs.—Messingerv. Foster (Sup.) 387. ♦Where decedent, who promised to make compensation in her will for services rendered over a long period of years, failed to do so, recovery therefor held not limited to a period of six years before action brought.—Chambers v. Boyd (Sup.) 486. 3 2. Acknowledgement, new promise, and part payment. ♦Payment of interest on a note of a corporation by its treasurer, who was also surety on the note, held not to toll the statute as to the surety.—Ulster County Sav. Institution v. Deyo (Sup.) 263. 3 3. Pleading, evidence, trial, and review. ♦The defense of limitation on undisputed facts held a question for the court.—Munn v. Masonic Life Ass’n (Sup.) 91. LIMITATION OF LIABILITY. Of carrier, see “Carriers,” § 2. LIQUIDATED DAMAGES. Provisions as to, in contract with municipality, see “Municipal Corporations,” § 3. LIQUOR SELLING. See “Intoxicating Liquors.” LOAN COMPANIES. See “Banks and Banking,” § 3. LOANS, Obtaining by false pretense, see “False Pretenses.” Recovery of money loaned, see “Money Lent.” Usury in, see “Usury,” § 1. LOCAL LAWS. See “Statutes,” § 1. LOGS AND LOGGING. Cutting woodland for purpose of erecting telephone line, see “Telegraphs and Telephones,” §1. LOST INSTRUMENTS. Lost will, see “Wills,” § 2. MACHINERY. Liability of employer for defects, see “Master and Servant,” § 3. Production and use of electricity, see “Electricity.” MALICIOUS PROSECUTION. See “False Imprisonment.” § 1. Want of probable cause. Under Pen. Code, § 426, subd. 2, railroad held not liable for false imprisonment or malicious prosecution because of arrest by servant of person getting on moving train.—East v. Brooklyn Heights R. Co. (Sup.) 364. § 2. Actions. ♦In action against railroad company for illegal arrest by its servant, evidence that he believed that plaintiff's act was a misdemeanor held admissible on cause of action for malicious prosecution.—East v. Brooklyn Heights R. Co. (Sup.) 364. ♦In malicious prosecution, the question whether plaintiff has succeeded in establishing a want of probable cause is a question of law.—Freer v. Schmitt (Sup.) 737. In an action for malicious prosecution, evidence held to sustain a finding that plaintiff had failed to prove a lack of probable cause.— Freer v. Schmitt (Sup.) 737. In an action for malicious prosecution, evidence considered, and held to sustain a finding of the court that it did not tend to show that defendant acted without probable cause.—Clark v. Palmer (Sup.) 759. Complaint construed, and held to be for malicious prosecution alone and not for false imprisonment as well.—Clark v. Palmer (Sup.) 759. ♦In an action for malicious prosecution, the question of probable cause is for the court, unless the facts are in dispute and controverted.—Clark v. Palmer (Sup.) 759. See syllabus. ♦Point annotated.

1190 101 NEW YORK SUPPLEMENT and 135 New York State Reporter MANDAMUS. To compel employment by municipality, see “Municipal Corporations,” § 1. § 1. Nature and grounds in general. -Mandamus to compel commissioners of water supply, gas and electricity, to grant permission to construct subways under certain streets, held not to lie where the plans for the construction thereof were not approved by the board of electric control or the officers succeeding to the power vested in such board, as required by Laws 1885, p. 852, c. 499.—People v. Ellison (Sup.) 55. § Z. Subjects and purposes of relief. Mandamus to compel police board of city of Buffalo to reinstate relators as detective -sergeants denied.—In re Pritchard (Sup.) 711; In re Truxes, Id.; In re Stoner, Id.; In re Holmes, Id. * Where inspectors of a town meeting failed to canvass the votes, mandamus will lie to compel them to convene and canvass such votes and the clerk to enter the result.—People v. Armstrong (Sup.) 712. Mandamus held not to lie to compel payment of sum claimed under contract with city for dredging.—In re Morris & Cummings Dredging Co. (Sup.) 726. Stockholder held not entitled to mandamus to require an exhibit of corporate books to aid him in a suit against directors for damages caused by their publication of a false report, whereby he was induced to become a stock holder and incurred loss.—In re Taylor (Sup.) 1039. § 3. Jurisdiction, proceedings, and relief. The limitation of a year provided by Laws 1903, p. 1106, c. 482, § 6, for commencing all proceedings to vacate or reduce an assessment held not to apply to mandamus proceedings to compel formal cancellation on the books of an assessment theretofore adjudged void and vacated.—People v. Brush (Sup.) 312. Relator in mandamus held entitled to discontinuance, but not without prejudice to new proceeding.—People v. Bingham (Sup.) 410. Mandamus, directing telegraph and electrical subway company to accord petitioner space in its subway ducts for electrical conductors, granted on condition.—In re Long Acre Electric Light & Power Go. (Sup.) 460. Mandamus, to compel consolidated telegraph and electrical subway company to give space in its subway ducts for certain electrical conductors, will not be denied because petitioner has not yet applied to the commissioner of water supply, gas and electricity, for his consent.—In re Long Acre Electric Light & Power Go. (Sup.) 460. Directing town meeting inspectors to count the ballots in an election is within the relief prayed for in a petition for mandamus to compel them to make and sign a statement of the *Point annotate canvass of the votes.—People v. Armstrong (Sup.) 712. Mandamus will lie to reinstate an expelled member of a fraternal society, where the facts authorizing expulsion are disputed.—People v. Independent Order Brith Abraham of the United1 States of America (Sup.) 866. MANDATE. See “Mandamus.” To lower court on decision on appeal, see “Appeal,” § 7. MANSLAUGHTER. See “Homicide,” §< 1. MAPS. Reference to, in deeds, see “Deeds,” § 1. MARRIAGE. See “Divorce”; “Husband and Wife.” Proceedings to annul a marriage order for physical examination held properly refused.— Geis v. Geis (Sup.) 845. MARRIED WOMEN. See “Husband and Wife.” MARSHALING ASSETS AND SECURITIES. Of decedent’s estate, to evade transfer tax, see “Taxation,” § 3. MASTER AND SERVANT. See “Work and Labor.” Accounting between, as to profits, see “Account,” § 1. Bill of particulars in action for breach of contract of employment, see “Pleading,” § 6. Construction of contract for services, see “Contracts,” § 2. Employers’ indemnity insurance, see “Insurance,” §§ 4, 11. Laws forbidding employment of certain persons, as denial of liberty to contract, see “Constitutional Law,” § 1. Liability of agent signing name to contract of employment for breach thereof, see “Principal and Agent,” § 2. Liability of landlord for injuries to servant of tenant, see “Landlord and Tenant,” § 4. Scope and extent of review in action for injuries to servant, see “Appeal,” § 6. § 1. The relation. In an action for compensation for services performed, evidence held to support a finding of a contract after a certain date, but insufficient to d. See syllabus.

INDEX, 1191 support a finding of any contract prior thereto. —Brunner v. Mosner (Sup.) 538. *No precise words are necessary to constitute a discharge of an employé; any language by which he is notified that his services are no longer required being sufficient.—Sigmon v. Goldstone (Sup.) 984. *Whether or not an employé was discharged held a question for the jury to determine from the language and conduct of his employer.— Bigmon v. Goldstone (Sup.) 984. § 2. Services and compensation. Award of $3,500 on failure to furnish plaintiff commission business as good as one netting $3,500 a year held sufficient.—Smith v. Smith (Sup.) 521. In determining amount to which plaintiff would be entitled as his share of the profits of a firm after its dissolution, held proper to consider only the last three years of business, and not a former year in which profits were unusually large.—Smith v. Smith (Sup.) 521. A skilled employé who was prevented from doing the work specified in his contract of employment held entitled to recover money retained by his employers under the contract as a guaranty of the faithful performance of his obligations.—Sigmon v. Goldstone (Sup.) 984. § 3. Master’s liability for injuries to servant. In an action by a servant for personal injuries, evidence examined and held sufficient to take to the jury the question whether defendant’s acts of negligence were the cause of the injury.—Wendell v. Leo (Sup.) 51. Setting aside dismissal of action by employé for personal injuries and granting new trial held not error.—Graham v. Williams (Sup.) 77. Employing a boy under 14 years old to work in a factory in violation of Labor Law, Laws 1897, p. 477, c. 415, § 70, held not conclusive of negligence, or absence of contributory negligence, in case of injury of the employé from machinery.—Lee v. Sterling Silk Mfg. Go. (Sup.) 78. *Brakemen assume risks of jolts from failures of attempts to uncouple cars, although such failure is attributable to defective couplers. —Clark v. New York Cent. & H. R. R. Co. (Sup.) 96. *Act of foreman causing injury to plaintiff held, that of a fellow servant, so that the master was not liable either at common law or under Employers’ Liability Act (Laws 1902, p. 1748, c. 600.)—Guiimartin v. Solvay Process Co. (Sup.) 118. ^Injury to servant held not to have been reasonably anticipated so as to render master liable therefor.—Guiimartin v. Solvay Process Co. (Sup.) 118. Conduct of motorman, a fellow servant, held immediate cause of injury to conductor.—Dulfer V. Brooklyn Heights R. Co. (Sup.) 207. * Point annotate *In an action for injuries to a railroad yard laborer by being struck by a car “kicked” on to a side track, defendant held not guilty of negligence in failing to enforce rules for the protection of the yardmen.—Kasesak v. Central R. Co. of New Jersey (Sup.) 211. "The complaint in an action for injuries to an employé held to allege his freedom from contributory negligence under the Employers’ Liability Act (Laws 1902, p. 1748, c. 600).—Red-head v. Dunbar & Sullivan Dredging Co. (Sup.) 301. =:=An employé injured while operating a movable steam derrick in consequence of it partially overturning held not as a matter of law guilty of contributory negligence.—Redhead v. Dunbar & Sullivan Dredging Co. (Sup.) 301. -'Employers’ Liability Act, Laws 1902, p. 1748, c. 600, held not to have changed the general law with respect to contributory negligence.—Chisholm v. Manhattan Ry. Co. (Sup.) *The service of a complaint in an action for death of a servant alleging common-law negligence held ineffective as notice of a cause of action, under Employers’ Liability Act, Laws 1902, p. 1749, c. 600, § 2.—Chisholm v. Manhattan Ry. Co. (Sup.) 622. *At common law a master was not responsible to a servant for the negligence of another servant exercising superintendence in the management of details of the work.—Chisholm v. Manhattan Ry. Co. (Sup.) 622. ^Plaintiff’s intestate, who was killed while in defendant’s employ, held guilty of contributory negligence.—Chisholm v. Manhattan Ry. Co. (Sup.) 622. =:'In an action by a servant for personal injuries, evidence held to require submission to the jury of defendant’s negligence in failing to warn as to the latent danger causing the injury.—Carey v. Manhattan Ry. Co. (Sup.) 631. -'Contributory negligence of a servant held not necessarily shown from the fact that he himself broke the insulation of the wire from which the damaging current came.—Carey v. Manhattan Ry. Co. (Sup.) 631. ^Defendant is not liable for injuries causing death of a servant when the injuries resulted from an order given by decedent through a telephone operator and misunderstood by another servant.—Van Alstine v. Standard Light, Heat & Power Co. (Sup.) 696. * Street railroad company held not liable for injuries to servant.—Carroll v. Union Ry. of New York City (Sup.) 745. ::'The only condition precedent for bringing an action under Laws 1902, p. 1748, c. 600, for injuries to servant, is the service on defendant of a notice in writing within 120 days of the time, place, and cause of the injury, signed by the person injured, or some one in his behalf.— Severson v. Hill-Warner-Fitch Co. (Sup.) 808. In an action against a master for injuries to a servant, a complaint held sufficient, under Laws 1897, p. 480, c. 415, § 81, and Laws 1902, 1. See syllabus.

1192 101 NEW YORK SUPPLEMENT and 135 New York State Reporter pi 1748, c. 600:—Severson v. Hill-Warner-Fitch Co. (Sup.) 808. * Where there was no evidence of negligence on the part of a master except as to leaving a machine unguarded, it was error to refuse an instruction limiting the jury to a consideration of the unguarded condition of the machine.— Severson v. Hill-Warner-Fitch Co. (Sup.) 808. *In an action against a master for injuries to a servant, where there is no evidence that any rule would have been effective to protect plaintiff, it is error to charge that it was the duty of defendant to promulgate rules for the operation of its factory.—Severson v. Hill-Warner-Fitch Co. (Sup.) 808. *In an action for injuries to a servant, held, under the evidence, error to have submitted to the jury a question whether defendant was negligent in not providing a certain device.—Sticht v. Buffalo Cereal Co. (Sup.) 905. *One held a vice principal for whose negligence in failing to instruct an employs as to danger the master was liable.—Tivnan v. Keahon (Sup.) 1076. g 4. Liabilities for injuries to third persons. *In an action for negligent injury, an instruction “that inasmuch as the driver of the truck was' in the employ of defendants, they were accountable for his negligence” was erroneous.— Bursh v. Jackson (Sup.) 19. *In an action against a master for a tort of his servant, punitive damages cannot be given for the malice of the servant.—East v. Brooklyn Heights B. Co. (Sup.) 364. *Under Laws 1871, p. 1478, c. 680, and Laws 1880, p. 135, c. 131, providing for the building and care of a city and county hall, the city and county are not liable for the death of a person due to the negligent operation of an elevator in the hall.—Moest v. City of Buffalo and County of Erie (Sup.) 996. Defendant held not liable for injuries to plaintiff, who attempted to pass between two automobiles with his permission, occasioned by her being tripped by a rope- raised from the ground by the chaffeur moving the forward machine.—Titus v. Tangeman (Sup.) 1000. Where plaintiff was injured while attempting to pass between two automobiles by negligence of chaffeur, evidence held to show that the chaffeur was not the servant of defendant.— Titus v. Tangeman (Sup.) 1000. MEASURE OF DAMAGES. See “Damages,” § 1. For breach by seller of contract for sale of goods, see “Sales,” § 5. § 1. Right to lien. * Where an owner in good faith pays the contractor the full contract price, he cannot be made liable to a subcontractor merely because he permitted such subcontractor to continue the work.—Droll v. Gordon (Sup.) 171. One held to perform work on real estate with the “consent” of the owner within Laws 1897, p. 516, c. 418, § 3 relative to mechanics’ liens.— Tinsley v. Smith (Sup.) 382. *One furnishing materials and labor for the improvement of real estate held entitled to a lien under Laws 1897, p. 514, c. 418, § 3.—Barn-ard v. Lantry (Sup.) 502. *A lien for material furnished a subcontractor can only be enforced to the extent of moneys due him from the contractor.—Wright v. Schoharie Valley By. Co. (Sup.) 801; Schoharie Valley By. Go. v. Union Free School Dist. No. 1, Id. § 2. Enforcement. In "an action to establish a mechanic’s lien facts held insufficient to show that a payment by the owner of the full contract price to the contractor was not made in good faith.— Drall v. Gordon (Sup.) 171. MEETINGS. Of stockholders, see “Corporations,” § 3. MEMORANDA. Bequired by statute of frauds, see “Frauds, Statute of,” § 3. MERGER. Of contracts, see “Contracts,” § 3. Of power of sale under will with fee acquired by donees of power, see “Wills,” * 3. MINORS. See “Infants.” MISREPRESENTATION. See “False Pretenses”; “Fraud.” MISTAKE. Competency of evidence of, see “Evidence,” § 3. Ground for recovery of payment, see “Payment,” § 1. MITIGATION. Of damages, see “Damages,” § 1. MECHANICS’ LIENS. Enforcement of, in municipal court, “Courts,” § 21 MODIFICATION. see Of injunction, see “Injunction,” § 2. Gf judgment or order on appeal, see “Appeal,” § 7. ' * Point annotated. See syllabus. c

INDEX. 1193 MONEY LENT. In an action for money lent, held, that under plaintiff’s evidence the case should have been submitted to the jury.—Pressinger v. Woodhull (Sup.) 36. Complaint in action to recover money loaned held not subject to motion to make more definite and certain.—Citizens’ Central Nat. Bank v. Munn (Sup.) 435. MONEY PAID......... ♦Where plaintiff paid out money, and performed services for defendant, in the absence of proof of request or reasonable occasion therefor, defendant is not liable.—Friedlander v. Lehman (Sup.) 252. MONEY RECEIVED. Recovery of payment in general, see “Payment,” $•1. Recovery of price paid for goods, see “Sales,” § 5. Recovery of price paid for land, see “Vendol and Purchaser,” § 3. MORTGAGES. Amendment of pleading in action for deficiency at foreclosure sale, see “Pleading,” § 5. Effect on marketability of title, see “Vendor and Purchaser,” § 1. Estoppel to deny operation of mortgage as to certain property, see “Estoppel,” § 2. Negotiation of mortgage loan by broker, see “Brokers,” § 1. Of personal property, see “Chattel Mortgages.” Of railroads, see “Railroads,” § 4. Priority of execution lien against mortgaged property, see “Execution,” § 2. Usury in, see “Usury,” § 1. $ 1. Requisites and validity. In an action by a grantor to require the grantee to account for proceeds of the property conveyed, paroi evidence held inadmissible to show that the conveyance was intended as a mortgage.—Nevius v. Nevius (Sup.) 1091. $ 2. Construction and operation. ♦Land used for a canal held to have passed under a mortgage foreclosure sale and not to the grantees in the mortgagor’s deed made subsequent to the mortgage.—In re Canal Place in Ci^y of New York (Sup.) 397. $ 3. Foreclosure by action. ♦A bidder at a foreclosure who unwarrantably refused to complete the purchase, could not be held for the difference between his bid and the lesser amount for which the land was sold, where the resale was made on less favorable terms.—Baecht v. Hevesy (Sup.) 413. Deed to land in possession of one claiming adversely, being void under Laws'1896, p. 603, c. 547, § 225, lis pendens based thereon held ♦Point annotated. no ground for the refusal of a purchaser at foreclosure sale to complete his purchase.— Baecht v. Hevesy (Sup.) 413. ♦Right to release of a bidder at a foreclosure sale, must depend upon the validity of the claim represented by existing lis pendens.— Baecht v. Hevesy (Sup.) 413. Order not appealed from, refusing application of purchaser at foreclosure to be relieved from purchase, held conclusive as to purchaser’s liability for deficiency in amount realized on resale.—Egan v. Buellesbach (Sup.) 476. In action against mortgagors to recover deficiency, mortgagors held not entitled to charge mortgagees with value of land at time of sale, instead of amount realized.—Randrup v. McBeth (Sup.) 604. ♦Heir who was not made party to foreclosure action held not entitled to maintain ejectment against purchaser without having tendered amount due on mortgage.—Lunny v. McClellan (Sup.) 812. In an action to foreclose a mortgage held not necessary for plaintiff to prove the statutory allegation required by Code Civ. Proc. § 1629.— Riesgo v. Clark (Sup.) 832. In an action to foreclose a mortgage, evidence held sufficient to sustain a finding that no other proceeding had been instituted to collect the amount due on the bond and mortgage from which anything had been received that could be credited thereon.—Riesgo v. Clark (Sup.) 832. § 4. Redemption. ♦A person held a mortgagee in possession, time to redeem from whom cannot, under Code Civ. Proc. §§ 379, 396, be more than 25 years.— Messinger v. Foster (Sup.) 387. MOTIONS. For particular purposes or relief. Change of venue in civil actions, see “Venue,” § 1. • Continuance in civil actions, see “Continuance.” New trial in civil actions, see “New Trial,” § 2. Opening or setting aside default judgment, see “Judgment,” § 1. Presentation of objections for review, see “Appeal,” § 2. Striking out evidence, see “Trial,” § 2. ♦A corporation held, not entitled to be heard on a motion to vacate an order settling the accounts of the receiver made in another county.— People v. Anglo-American Savings & Loan Ass’n (Sup.) 270; In re Davis, Id. Code Civ. Proc. § 797, in relation to substituted service, held to have no application to service on nonresidents of the state.—Gotlieb V. Kurlander (Sup.) 751. The granting of a motion for the resettlement of an order allowing an amendment to the complaint held proper.—Wollowitz v. New York City Ry. Co. (Sup.) 830. See syllabus.

1194 101 NEW YORK SUPPLEMENT and 135 New York State Reporter MUNICIPAL CORPORATIONS. See “Counties”; “Courts,” § 1; “Towns.” As employers, see “Master and Servant,” § 4. Claims of municipality against state, see “States,” § 3. Condemnation by municipality, see “Eminent Domain,” §§ 1, 2. Construction of contract for services in obtaining reduction of municipal assessment, see “Contracts,” § 2. Construction of railroads across streets, see “Railroads,” § 3. Conveyance by deed of claim for damages for land taken for streets, see “Deeds,” § 1. Dedication of streets, see “Dedication,” §§ 1, 2. Grant of permission to construct subways, as contract irrevocable by legislature, see “Constitutional Law,” § 3. Injunctions affecting, see “Injunction,” §§ 1, 2. Judicial notice as to situation of municipality, see “Evidence,” § 1. Mandamus, see “Mandamus,” §§ 1, 2. Municipal courts, see “Courts,” § 2. Negligence as question for jury in action for injuries caused by being run over by truck, see “Negligence,” § 3/ Operation of railroads in streets, see “Railroads,” § 2. Ordinances relating to intoxicating liquors, see “Intoxicating Liquors.” Removal by tenant of stairs extending into street, see “Landlord and Tenant,” § 4. Special laws ratifying contract between city and street railroad company, see “Statutes,” § 1. ■ Street railroads, see “Street Railroads.” Streets as boundaries, see “Boundaries,” § 1. Water supply, see “Waters and Water Courses,” § 1. § I. Officers, agents, and employes. Appointment of policeman on certificate of Civil Service Commissioners held to give appointee title to the office.—In re Lazenby (Sup.) 5. Under Laws 1899, p. 807, c. 370, § 19, relating to certificate by Civil Service Commission to pay roll, policeman held entitled to certificate, where appointment was lawful, without regard to his eligibility.—In re Lazenby (Sup.) 5. Under the civil service regulations, relator, a veteran, not having applied for appointment as bridge tender of the city of Buffalo until after the change of such position from Schedule D to C of such regulations, was not entitled to an appointment as of right without examination and a certificate.—People v. Adam (Sup.) 925. In mandamus to compel relator’s appointment as bridge tender in a city to which neither the civil service commission, the city, nor state were parties, fraud in changing such position from one schedule to another of the civil service regulations could not be raised.—People v. Adam (Sup.) 925. § 2. Property. Under Buffalo City Charter, § 273, held, that an action of the commissioner of public ‘‘‘Point annotate works in fixing the salaries of employSs must be called to the attention of the common council for concurrence.—In re Babcock (Sup.) 90. The city of New York held liable for the wages of employes appointed, in an exigency, at a time when no men were obtainable from the civil service list, though the appointments were in violation of Rule 12, § 4,' of the Civil Service Commission.—Gallagher v. City of New York (Sup.) 229; Griffin v. Same, Id.; Trimmer v. Same, Id.; Bunce v. Same, Id. Veteran volunteer fireman, entitled to a preference of employment under Laws 1899, p. 444, c. 184, having been appointed an inspector of masonry, held an employe whose services could be dispensed with for lack of work or funds, etc.—Dunne v. City of New York (Sup.) 078. § 3. Public improvements. ’:‘Where, on abandonment of a contract, the city completes the work, the contractor can recover any balance after deducting cost of completion.—Bader v. City of New York (Sup.) 351. Where owner completes building time for notice of lien runs from the completion.—Bader v. City of New York (Sup.) 351. A lien for work on public improvement held a lien on the fund not on the building.—Bader v. City of New York (Sup.) 351. A city held not entitled to damages for delay in completion of building contract as against subcontractor’s lien without proof thereof.— Bader v. City of New York (Sup.) 351. *A public improvement contract held to be a new contract, rather than a compromise of a prior claim, and to fall within Charter Greater New York, § 419 (Laws 1897, c. 378, p. 148) requiring advertisements and sealed bids.—Cohn v. Metz (Sup.) 392. *An advantage, accruing to the city from a public improvement contract, held not to take such contract from the operation of Charter Greater New York, § 419 (Laws 1897, c. 378, p. 148) requiring it to be under advertisements and bids.—Cohn v. Metz (Sup.) 392. *Oontraet as to a change in a public improvement held a new contract rather than a part of the original contract, and to fall within Charter Greater New York, § 419 (Laws 1897, c. 378, р. 148) requiring in such cases advertisements and sealed bids.—Cohn v. Metz (Sup.) 392. -‘Charter Greater New York, § 149 (Laws 1897, с. 378, p. 41) held not to authorize the comptroller to validate an improperly executed public improvement contract, though in the nature of a compromise of a claim under an old contract. —Cohn v. Metz (Sup.) 392. Contract by city for dredging held to fix by its own terms the amount of work to be done thereunder, and beyond which lawful payment could not be made.—In re Morris & Cummings Dredging Co. (Sup.) 726. An owner sustaining damages in consequence of the change of the grade of a street held entitled, under Laws 1890, p. 473, c. 255, § 9, to I. See syllabus.

INDEX, 1195 recover.—In re Van Rensselaer & Roseville Sts. in City of Buffalo (Sup.) 928. Under a contract for the construction of a trunk sewer the contractor held not entitled to recover for damage from water flowing on .his work from other subsidiary sewers constructed prior to the completion of plaintiff’s work.—Leahy v. City of New York (Sup.) 936. A provision for liquidated damages in a contract to pave a street does not apply to a street widened after the execution of the contract.— Callanan Road Imp. Co. v. Village of Oneonta (Sup.) 1056. *A provision as to liquidated damages in a contract is waived by the failure of the party who is to receive such damages to fulfill his part of the contract.—Callanan Road Imp. Co. v. Village of Oneonta (Sup.) 1056. • Where a village waives a provision for liquidated damages for delay in completion of a contract, it is not incumbent on the contractor to submit to the village engineer a claim which he had by reason of such failure.—Callanan Road Imp. Co. v. Village of Oneonta (Sup.) 1056. § 4. Use and regulation of public places, property, and works. *A license under which stone steps and a railed areaway were constructed which extended into the sidewalk beyond the building line was revocable.—City of New York v. United States Trust Co. (Sup.) 574. In an action to compel the removal of steps and a railed areaway encroaching on a sidewalk in a city, evidence held sufficient to show that the structures extended into the street.— City of New York v. United States Trust Co. (Sup.) 574. In an action for injuries received by a pedestrian, on a street, struck by an automobile, evidence held insufficient to sustain the burden of showing freedom from contributory negligence.—Wilkins v. New York Transp. Co. (Sup.) 650. *The law of the road does not apply to a collision between a bicycle and a wagon on a street before the driver of the wagon has an opportunity to straighten his vehicle after driving upon the street from an alley.—Dickinson v. Platt (Sup.) 956. Where there is no occasion to apply the law of the road, and defendants do not object to instructions as to such law, they are entitled to an instruction as to the negligence of their driver in crossing to the center of the street.— Dickinson v. Platt (Sup.) 956. Evidence in an action to recover for causing death of plaintiff’s intestate on a highway considered, and held to establish contributory negligence.—Dickinson v. Platt (Sup.) 956. § 5. Torts. *Under Rapid Transit Act, § 34 (Laws 1891, р. 18, c. 4, as amended by Laws 1896, p. 719, с. 729), city held not liable for injuries from explosion of dynamite kept in street in pursuance of contract with board of rapid transit commis- * Point annotate sioners.—Carpenter v. City of New York (Sup.) 402. In an action against a city for damages by discharge of surface drainage and sewage into a stream, injunction pendente lite denied.—Pen-field v. City of New York (Sup.) 442. Evidence considered, and held insufficient to prove that defendant’s engine was a nuisance or that defendant was negligent in its operation. —Munro v. Wells Bros. Co. (Sup.) 900. The burden is on plaintiff, in an action to recover for injuries caused by a horse frightened by defendant’s engine, to show that the engine' was negligently operated.—Munro v. Wells Bros. Co. (Sup.) 900. ^Maintenance of a peanut roaster on a sidewalk held not a public nuisance as matter of law, so as to make the village liable for injury to a pedestrian from explosion thereof.—Frank v. Village of Warsaw (Sup.) 938. § 6. Fiscal management, public debt, securities, and taxation. *City Charter of Oneida, § 59, subd. 25, (Laws 1904, p. 563, c. 273) held not to authorize issue of bonds to pay part of valid assessment previously made on property holders for construction of sewer.—City of Oneida v. King (Sup.) 239. § 7. Actions. *Under Laws 1902, p. 4, c. 4, held, that in an action against a city of the second class for services performed before 1902, a nonsuit should be granted, in the absence of evidence that the claim was presented to and passed on by the board of estimate and apportionment.— Lyons v. City of Syracuse (Sup.) 247. MURDER. See “Homicide,” § 1. MUTUAL BENEFIT INSURANCE. See “Insurance,” § 13. NAMES. See “Trade-Marks and Trade-Names.” Practicing law under assumed name, as ground for disbarment, see “Attorney and Client,” § 1. NATIONAL BANKS. See “Banks and Banking,” § 2. NAVIGABLE WATERS. See “Waters and Water Courses.” NECESSARIES. Liability of husband for necessaries of wife, see “Husband and Wife,” § 1. 1. See syllabus.

1196 101 NEW YORK SUPPLEMENT and 135 New York State Reporter NEGLIGENCE. Causing death, see “Death,” § 1. Negligent condition of premises as nuisance, see “Nuisance,” § 1. Subject of compensatory damages, see “Dam- • ages,” § 1. By particular classes of persons. See “Carriers,” §§ 2, 3; “Municipal Corpora-» tians,” § 5; “Railroads,” § 6; “Street Railroads,” § 2. .Bailee, see “Bailment:” Employers, see “Master and Servant,” § 3. Persons using street, see “Municipal Corporations,” § 4. Condition or use of particular species of property, works, machinery, or other instrumentalities. See “Electricity”: “Highways,” § 2; “Railroads,” § 6; “Street Railroads,” §§ 1, 2. Demised premises, see “Landlord and Tenant,” § L Contributory negligence. ■Of passenger, see “Carriers,” § 3. Of person injured by operation of railroad, see “Railroads,” § 6. Of person injured by operation of street railroad, see “Street Railroads,” § 2. Of person injured in street, see “Municipal Corporations,” § 4. Of servant, see “Master and Servant,” § 3. § 1. Acts or omissions constituting negligence. Under Labor Law, Laws 1897, p. 468, c. 415, -§ 201, an instruction that the owner of a building being erected was liable for injuries to plaintiff if she had a superintendent on the job to put in a certain floor or to cover a floor, ■held improper.—Hashagen v. Schafer (Sup.) 11. ♦Facts held to show plaintiff a mere licensee to whom defendant owed no duty of active care. —Rosenthal v. United Dressed Beef Co. (Sup.) ■532. § 2. Contributory negligence. In case of collision of a vessel with a tow lashed to the side of a seaworthy and competently manned tug held, that the negligence of the tug was not imputable to the tow.—Rock-land Lake Trap Rock Co. v. Lehigh Valley R. ■Co. (Sup.) 222. ♦A licensee held to have assumed the ordinary risks of the premises.—Rosenthal v. United Pressed Beef Co. (Sup.) 532. § 3. Actions. Under Labor Law, Laws 1897, p. 468, c. 415, -§ 201, if the owner of a building being erected bad no carpenter contractor whose duty it was to comply with such provision, such circumstance might be admissible on the question of her negligence.—Hashagen v. Schafer (Sup.) 11. Evidence in action for injuries to boy run -over by defendant’s truck held to warrant submission to jury of question of negligence of ■driver of truck and contributory negligence of boy.—Levin v. Dunn (Sup.) 25. ♦Point annotated. In an action for injuries to a child, his parents held not guilty of negligence contributing to the injury.—Rosenberg ,v. Zeitchik (Sup.) 591. In an action for injuries caused by defendant’s negligence in permitting a dumb-waiter in a tenement house owned by him to become unsafe, evidence examined, and held to sustain a verdict for plaintiff.—Muller v. Vesell (Sup.) 1064. NEGOTIABLE INSTRUMENTS. See “Bills and Notes.” NEW TRIAL Costs, see “Costs,” § 5. In action for injuries to servant, see “Master and Servant,” § 3. Remand by appellate court for new trial, see “Appeal,” § 7. Review of discretion of court in granting, see “Appeal,” § 6. § 1. Grounds. ♦Setting aside of a verdict held not justified by the contradictory testimony of two witnesses, though the trial judge would have arrived at a different conclusion.—Vogel v. Werner (Sup.) 21. ♦A verdict will not be set aside and new trial granted where the evidence is conflicting on the material points, though the conclusion reached by the jury may be one which the court itself would not have reached upon the same testimony.—Salcinger v. Interurban Street Ry. Co. (Sup.) 804. Where two questions were properly submitted, and there was a general verdict, which on one of the questions would be against the weight of evidence, held, that a new trial would be granted.—Rossenbaeh.v. Supreme Court I. O. F. (Sup.) 890. ♦The trial court is justified in setting aside a verdict for the wrongful admission of evidence.—National City Bank of New York v. Pacific Co. (Sup.) 1098. § 2. Proceedings to procure new trial. ♦Where the granting of a new trial was largely discretionary, costs should have been imposed as a condition.—Hart v. Kaplan (Sup.) 763. NEXT OF KIN. See “Descent and Distribution.” NONSUIT. Before trial, see “Dismissal and Nonsuit.” NOTES. Promissory notes, see “Bills and Notes,” § 1. See syllabus.

INDEX. 1197 NOTICE. . As affecting particular classes of persons. See “Principal and Agent,” § 2; “Vendor and Purchaser,” § 2. Of particular facts, acts, or proceedings not judicial. Election of corporate officers, see “Corporations,” § 4. Injuries to servant, see “Master and Servant,” § 3. Intent of vendor to defraud creditors, see “Fraudulent Conveyances,” § 2. Municipal improvement lien, see “Municipal Corporations,” § 3. Of particular judicial proceedings. See “Motions.” Appeal, see “Appeal,” § 3. Levy of execution, see “Execution,” § 2, NUISANCE. Maintenance in public place in city, see “Municipal Corporations,” § 5. Removal by tenant of nuisance, see “Landlord and Tenant,” § 4. § 1. Public nuisances. ♦Action against elevated road to abate nuisance caused by increased number and speed of trains held not maintainable.—Wolf v. Manhattan Ry. Co. (Sup.) 493. ♦To sustain action to abate public nuisance by private person, some special damage must be shown.—Wolf v. Manhattan Ry. Co. (Sup.) 493. Where an action was tried on the theory that a cellarway, into which plaintiff fell, was a nuisance, held that recovery could not be had on the theory of negligence.—Opper v. Davega (Sup.) 621. OBLIGATION OF CONTRACT. Laws impairing, see “Constitutional Law,” § 3. OBSTRUCTIONS. Of highways, see “Highways,” § 2. OCCUPATION. Of real property, see “Use and Occupation.” OFFICERS. Injunctions affecting, see “Injunction,” §§ 1, 2. Mandamus, see “Mandamus,” § 2. Quo warranta, see “Quo Warranto.” Particular classes of officers. See “Ambassadors and Consuls”; “Judges”; “Justices of the Peace.” Commissioners in condemnation proceedings, see “Eminent Domain,” § 2. ♦Point annotate Corporate officers, see “Corporations,” §§ 4, 5. Excise commissioners, see “Intoxicating Liquors,” § 1. Highway officers, see “Highways,” § 1. Municipal officers, see “Municipal Corporations,” § 1. Of insurance company, see “Insurance,” § 1„. State officers, see “States,” § 1. Town officers, see “Towns,” § 1. § 1. Appointment, qualification, and, tenure. Under Public Officers’ Law, Laws 1892, p. 1657, c. 681, a supervisor of a town board held to have no right to vote upon a resolution to-appoint his successor.—In re Smith (Sup.) 992. 6 2. Title to and possession of office. ♦A public officer held entitled to books and-papers pertaining to his office, within CodeCiv. Proc. § 2471a, authorizing proceedings to-compel delivery of books and papers to public officers.—In re Smith (Sup.) 992. § 3. Liabilities on official bonds. ♦Breach of an official bond annexed to the-complaint held sufficiently pleaded as against a demurrer by negativing the language of the-condition.—Town of Hadley v. Garner (Sup.)-777. ♦An official bond being in form joint andl several, held that action could be brought against the sureties alone.—Town of Hadley v. Gamer (Sup.) 777. OPENING. Judgment, see “Judgment,” §§ 1, 4. OPINION EVIDENCE. In civil actions, see “Evidence,” § 9. In criminal prosecutions, see “Criminal Law,”1 § 2. ORDERS. For examination of judgment debtors, see “Execution,” § 3. Of court, see “Motions.” Review of appealable orders, see “Appeal.” PARENT AND CHILD. See “Infants.” Imputing negligence of parent to child, see “Negligence,” § 3. PAROL EVIDENCE. In civil actions, see “Evidence,” § 8. To establish trust, see “Trusts,” § 1. PARTICULARS. Bill of, see “Pleading,” § 6. 1. See syllabus.

1198 101 NEW YORK SUPPLEMENT and 135 New York State Reporter PARTIES. Correction of record on appeal as to parties, see “Appeal,” § 4. In action for wrongful death, see “Death,” § 1. In municipal courts, see “Courts,” § 2. Interpleading, see “interpleader.” Power of lower court to allow ■ amendment of, on remand, see “Appeal,” § 7. Resettlement of order on amendment, see “Motions.” Rights and liabilities as to costs, see- “Costs,” §§ 2, 3. Service of answer on interveners, see “Pleading,” § 2. To, see “Assignments,” § 1; “Judgment,” § 2. § 1. Plaintiffs. *In an action for conversion plaintiff held the real party in interest.—Hall v. Frith (Sup.) § 2. New parties and change of parties. ’■’Code Civ. Proc. § 452, held not to give the court authority to compel or authorize plaintiff in an action for money only not to bring in a third party defendant even on his own application.—Horan v. Bruning (Sup.) 986. Code Civ. Proc. § 723 held not to authorize the court in an action for tort to bring in a third person as an additional party defendant. '—Horan v. Bruning (Sup.) 986. * Where, after the institution of an action, another person is admitted as coplaintiff by consent of the parties, such coplaintiff is entitled to the same rights as though she had jointly instituted the action.—Weed v. B’irst Nat. Bank (Sup.) 1045. An order adding a new party defendant should be made on condition that the plaintiff desiring the additional party should assume responsibility for costs therefor if the litigation prove unsuccessful.—Weed v. First Nat. Bank (Sup.) 1045. § 3. Defects, objections, and amendment. *In action by a foreign corporation, objection to its failure to show compliance with section 181 of the Tax Law, Laws 1896, p. 856, c. 908, as amended by Laws 1901, p. 1364, c. 558 cannot be raised on motion for non-suit.—Charles E. Wright & Co. v. Faulkner (Sup.) 807. Under Code Civ. Proc. §§ 488, 498, 499, a defect of parties defendant is waived by the failure to raise the objection by demurrer or answer.—Wills v. Pennell (Sup.) 1017. PARTITION. § 1. Actions for partition. ’5ln partition, a defendant adjudged to have no title held entitled to compensation for the reasonable value of improvements made on the premises.—Lyons Nat. Bank v. Shuler (Sup.) 62. * Point annotate PARTNERSHIP. Action of partners in holding themselves out as corporation as fraud, see “Fraud,” § 1. Harmless error in action against partnership, see “Appeal,” § 6. § 1. The relation. * Where plaintiff and another engaged in a joint speculative venture in cotton agreeing to put up an equal amount of margins and share profits equally, they were partners.—Jones v. Walker (Sup.) 22. "One of the members of a firm held competent to prove the fact of partnership.—Franklin v. Hoadley (Sup.) 374. ^’Declarations of a partner that he is a partner or that others are partners with him held inadmissible to prove the partnership except so far as they bind the declarant as declarations against interest.—Franklin v. Hoadley (Sup.) 374. *A partnership having been established, declarations of one of the partners while acting for the firm that others were partners with him and that he was buying stock in question from plaintiffs for the firm held admissible to show to whom plaintiffs gave credit.—Franklin v. Hoadley (Sup.) 374. § 2. Mutual rights, duties, and liabilities of partners. * Where plaintiff and another were partners in a speculative. adventure in cotton, plaintiff’s remedy to recover the balance of his share of the profits was a suit in equity for an accounting.— Jones v. Walker (Sup.) 22. *A partnership agreement held to entitle one of the partners to payment of all expenses out of property on hand before the other partner received anything. — Hebblethwaite v. Flint (Sup.) 43. § 3. Death of partner, and surviving partners. Certain order in supplementary proceedings held either not to interfere with plaintiff, as surviving partner of a firm, so as to interrupt the running of the statute of limitations as to an action by him against a firm debtor, and hence bar the action, or to devest him of all legal title to the firm assets, rendering him not the real party in interest, and, hence, without right to maintain the action.—Gibbons v. Bush Co. (Sup.) 721. Action by surviving partner against firm debt- or' held barred either by statute of limitations or fact that plaintiff was not real party in interest.—Gibbons v. Bush Co. (Sup.) 721. § 4. Dissolution, settlement, and accounting. In an action for an accounting between partners, a finding that the par value of certain bonds held by defendant was their actual value, held not to be supported by the rule applicable in cases of conversion.—Hebblethwaite v. Flint (Sup.) 43. In an action by a partner for an accounting, defendant’s account held properly surehargeable 1. See syllabus.

INDEX, 1199 with the actual value only of certain depreciated bonds erroneously included therein.— Hebblethwaite v. Flint (Sup.) 43. In a suit by plaintiff to restrain his ex-partner from using the firm name, that plaintiff had directed the postmaster to deliver all firm mail to him held not available as a defense or counterclaim.—Bastable v. Oarroll (Sup.) 637. Where a member of a firm sued to restrain his former partner from using the firm name, under the dissolution agreement, a separate defense that the agreement was signed by defendant’s attorney in fact without authority held not demurrable.—Bastable v. Oarroll (Sup.) 637. Where a suit was based on a partnership dissolution agreement, a separate defense, alleging that defendant’s attorney in fact was bribed to sign the agreement, held demurrable. —Bastable v. Oarroll (Sup.) 637. PART PAYMENT. Within statute of limitations, see “Limitation of Actions,” § 2. PASSENGERS. § 1. Nature and grounds, and extent of liability. Under Laws 1902, p. 1135, c. 482, § 1, amending Laws 1896, p. 329, c. 376, § 29, held, there is but a single penalty for having in one’s possession without the consent of the owner more than one milk can of a dealer in milk bearing his initials (Laws 1865, p. 472, c. 295; Laws 1887, p. 500, c. 401; Laws 1890, p. 33, c. 25; Laws 1896, p. 1112, c. 977; and Laws 1892, p. 1392, c. 677, §§ 32, 33).—United States Condensed Milk Co. v. Smith (Sup.) 129. PENSIONS. See “Exemptions,” § 1. PERPETUITIES. Conclusiveness of adjudication as to perpetuities, see “Judgment,” § 7. *A provision in a will for accumulation of income held to be void, under Rev. St. (1st Ed.) p. 726, pt. 2, c. 1, tit. 2, §§ 37, 38, so that the income belonged to the donee of the life estate and not to the remaindermen.—In re Hoyt (Sup.) 557. See “Carriers,” § 3. PATENTS. Requisites and validity of contract to transfer letters patent, see “Contracts,” § 1. PAUPERS. Release from giving security for cost, see “Costs,” § 4. PAYMENT. See “Accord and Satisfaction.” Effect of payment to principal contractor on right of subcontractor to mechanic’s lien, see “Mechanics’ Liens,” § 1. Of compensation for property taken for public use, see “Eminent Domain,” § 1. Part payment within statute of limitations, see “Limitation of Actions,” § 2. Recovery for money paid, see “Money Paid.” § 1. Recovery of payments. *A cablegram, directing plaintiffs to pay money for the account of another, held ambiguous, and that plaintiffs were entitled to recover the money as paid under a mistake of fact.—Kessler v. Herklotz (Sup.) 418. PENALTIES. For particular acts or omissions. Adulteration of food, see “Adulteration.” Cutting timber on forest preserve, see “Woods and Forests.” Refusal of transfer, see “Carriers,” § 3. Violation by carrier of regulations, see “Carriers,” § 1. * Where a testator in a will by which he devised certain moneys to a university under a clause “since 1873, before which this plan was formed, my. estate has shrunk, and it will be necessary to accumulate it,” etc., such clause contains testator’s suggestion as to the management of the fund, and is not a provision for the accumulation of the income of personal property in violation of Personal Property Law, § 4, Laws 1897, p. 508, c. 417.—Morgan v. Du-rand (Sup.) 1002. *Under Code Civ. Proc. § 2472, subds. 3, 4, and section 2481, subd. 11, the Surrogate’s Court has no inherent power to construe a will except as necessarily incident to its general powers to control executors or testamentary trustees, and to direct the payment or charging of legacies.—Kirk v. McCann (Sup.) 1093. PERSONAL INJURIES. Particular causes or means of injury. See “Negligence.” Defective condition of demised premises, see “Landlord and Tenant,” § 4. Explosion in street, see “Municipal Corporations,” § 5. Negligence in use of streets, see “Municipal Corporations,” § 4. Negligence of employe, see “Master and Servant,” § 4. Operation of railroads, see “Railroads,” § 6. Operation of street railroad, see “Street Railroads,” § 2. Particular classes of persons injured. Employs, see “Master and Servant,” § 3. Passenger, see “Carriers,” § 3. Travelers on highway, see “Highways,” § 2; “Municipal Corporations,” § 5. * Point annotated. See syllabus.

1200 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Remedies. Affirmance of judgment on appeal, see “Appeal,” § 7. Evidence as to release of injury, see “Release,” § 1. Evidence of negligence, see “Negligence.” § 3. Excessive damages, see “Damages,” § 2. Expert evidence, see “Evidence,” § 9. Scope and extent of review, see “Appeal,” § 6. PHYSICIANS AND SURGEONS. Privileged communications, see “Witnesses,” §1. . Striking out testimony of, see “Trial,” § 2. Evidence that an operation was necessary, and was performed on the patient, warrants an inference that there was a request by the patient and an understanding for compensation. —Pryor v. Milburn (Sup.) 34. ■ PLEADING. Conformity of judgment to pleadings, see “Judgment,” § 2. Direction of verdict on pleadings, see “Trial,” Joinder of causes of action in, see Action,” § 2. Power of lower court to allow amendment on remand, see “Appeal,” § 7. Allegations as to particular foots, acts, or transactions. See “Release,” § 1. Validity of accord and satisfaction, see “Accord and Satisfaction.” In actions by or against particular classes of persons. See “Brokers,” § 2; “Master and Servant,” § 3. Officers of insurance company, see “Insurance,” § 1. Trustee in bankruptcy, see Bankruptcy,” § 1. In particular actions or proceedings. See “False Imprisonment,” § 1; “Libel and Slander,” § 2; “Malicious Prosecution,” § 2; “Money Lent”; “Replevin,” § 1. For compensation of broker, see “Brokers,” § 2. Foreclosure, see “Mortgages,” § 3. For enticing wife, see “Husband and Wife,” § 2. For malfeasance by officer of insurance company, see “Insurance,” § 1. For personal injuries, see “Master and Servant,” § 3. For price of goods, see “Sales,” § 4. For rent, see “Landlord and Tenant,” § 5. On bill of exchange or promissory note, see “Bills and Notes,” § 2. On bond of highway officer, see “Highways,” § 1. To recover demised premises, see Landlord and Tenant,” § 6. To .set aside transfer by bankrupt, see “Bankruptcy,” § 1. § 1. Form and allegations in general. In an action by a subcontractor to foreclose lien for repairs, on public school after answer by city it cannot object that the action should have been brought against the board of education.—Bader v. City of New York (Sup.) 351. § 2. Flea or answer, cross complaint, and affidavit of defense. Where a railroad reorganization committee did not serve its answer to a suit to foreclose a mortgage on certain intervening defendants, under Code Civ. Proc. § 521, there could be no-determination as between them in such suit of the ownership of certain of the bonds secured by the mortgage.—Knickerbocker Trust Co. v. Oneonta, C. & R. S. Ity. Co. (Sup.) 241. ♦Issues as to certain allegations of the complaint regarding conveyance held not raised by the averments of the answer that defendant has no knowledge or information sufficient to form a belief and denies the same.—Schwartz, v. Ribando (Sup.) 599. § 3. Replication, or reply and subsequent pleadings. ♦In an action for goods sold motion to compel plaintiff to reply to new matter set up as a defense in the answer granted.—Seaton v. Garrison (Sup.) 526. § 4. Demurrer or exception. ♦Under Code Civ. Proc. § 490, objection in a demurrer to a town supervisor’s legal capacity to sue held not sufficiently specific to raise the question as to whether the town should have brought the action.—Palmer v. Roods (Sup.) 186. ♦An objection to a complaint of a town officer on the ground that it did not state facts to constitute a cause of action held not to raise a question as to whether the town should not have brought the action.—Palmer v. Roods (Sup.) 186. ♦Rules stated as to construction of pleadings attacked by demurrer as not stating facts sufficient to constitute a cause of action.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦The remedy for a complaint not sufficiently specific is by motion to make it more definite and certain.—Town of Hadley v. Garner (Sup.) 777. Code Civ. Proc. § 497, authorizes the court, on sustaining a demurrer to a petition for including separate causes of action, to divide the actions into as many as necessary for proper determination without leave to amend.— Myers v. Lederer (Sup.) 1088. § 5. Amended and supplemental pleadings and repleader. ♦Under Code Civ. Proc. § 723, authorizing amendments of pleading by the court, an amendment to a complaint held- authorized though it changed the cause of action, and substituted another of a different class.—Rubin v. Maine S. S. Co. (Sup.) 30. ♦An amendment to an answer held improperly allowed.—Jacobs v. Mexican Sugar Refining Co. (Sup.) 320. ♦Faint annotated. See syllabus;

INDEX, 1201 *A party held not ordinarily permitted _ to amend a pleading to set forth facts of which he had knowledge when he filed the original pleading.—Jacobs v. Mexican Sugar Refining Co. (Sup.) 320. *A defendant held entitled to file a second amended answer.—Herbert v. De Murías (Sup.) 381. In action for deficiency at foreclosure sale, defendants held not entitled to amend answer to charge plaintiffs with actual value of property at time of sale.—Randrup v. McBeth (Sup.) 604. ♦Payment of accrued costs as well as of costs of motion held, a proper condition for allowing amendment of complaint.—Town of Palatine v. Canajoharie Water Supply Co. (Sup.) 810. *A denial of a motion to amend the answer held not error.—Riesgo v. Clark (Sup.) 832. ♦Where plaintiff released his cause of action for damages after defendant had answered, noticed the case for trial, and placed it on the calendar, defendant could plead the release as a defense only by leave of court in the form of a supplemental answer, as provided by Code Civ. Proc. § 544.—Calm v. Sullivan (Sup.) 1060. § 6. Bill of particulars and copy of account. ♦Granting plaintiff a bill of particulars in a case where defendant’s defense is fraud held not error.—Douthitt v. Nassau Fire Ins. Co. (Sup.) 94. ♦Plaintiff, in action for breach of contract of employment, held entitled to bill of particulars specifying the nature and items of the “course of conduct” alleged in answer to justify discharge.—Burhans v. Hudson River Wood Pulp Mfg. Co. (Sup.) 271. ♦Motion by defendant in an action for libel for bill of particulars denied.—W. T. Hanson Co. v. Collier (Sup.) 690. ♦In action for libel, bill of particulars stating customers lost to plaintiff because of' such libel denied.—W. T. Hanson Co. v. Collier (Sup.) 690. An order made on a motion by plaintiff, under Code Civ. Proc. § 531, to preclude the giving of evidence of certain accounts, held such that it should be modified.—Smith v. Irvin (Sup.) 904. On a motion by plaintiff, under Code Civ. Proc. § 531, precluding defendants from giving evidence of certain accounts relied on by them, held within the discretion of the court to preclude the giving of evidence unless the accounts be furnished within a specified time.—Smith v. Irvin (Sup.) 904. ♦Under the allegations of a counterclaim in an action for money held, that plaintiff’s motion for a bill of particulars should have been granted.—Washburn v. Graves (Sup.) 1043. ♦Point annotate PLEDGES. See “Assignments,” § 2. A transfer by the pledgee of the pledged property for other property held not to constitute a conversion.—Hebblethwaite v. Flint (Sup.) 43. The recovery of property transferred for pledged property held to be the pledgor’s remedy in action to recover the pledged property or for an accounting.—Hebblethwaite v. Flint (Sup.) 43. One suing to recover pledged personal property held entitled to at least no moré of a money judgment than the actual value of property fairly exchanged for the pledged property. —Hebblethwaite v. Flint (Sup.) 43. POLICE. See “Municipal Corporations,” § 1. POLICY. Of insurance, see “Insurance.” POLITICAL RIGHTS. See “Constitutional Law,” § 1. POSSESSION. Of demised premises, see “Landlord and Tenant,” § 6. Of office, see “Officers,” § 2. POST OFFICE. Direction by partner to postmaster to deliver all firm mail to him, as defense in suit to restrain ex-partner from using firm name, see “Partnership,” § .4. POWERS. Creation by will, see “Wills,” § 3. PRACTICE. Procedure of particular courts, see “Courts.” Prosecution of actions in general, see “Action,” § 3. In particular civil actions or proceedings. See “Account,” § 1; “Contempt,” § 2; “Divorce,” § 2; “Ejectment”; “Interpleader” ; “Mandamus,” § 3; “Replevin.” Condemnation proceedings, see “Eminent Domain,” § 2. Particular proceedings in actions. See “Abatement and Revival”; “Continuance”; “Costs”; “Depositions”; “Dismissal and Non-suit” ; “Execution”; “Evidence”: “Judgment”; “Jury”; “Limitation of Actions”; “Motions”; “Parties”; “Pleading”; “Process”; “Reference” ; “Trial”; “Venue.” Verdict, see “Trial,” § 5. 3. See syllabus. 101 N.X.S.—76

1202 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Particular remedies in or incident to actions. See “Attachment”; “Discovery”; “Injunction.” Procedure in criminal prosecutions. See “Criminal Law.” For offenses against liquor laws, see “Intoxicating Liquors,” § 2. Procedure on review. See “Appeal”; “Justices of the Peace,” § 1; “New Trial.” PREFERENCES. By bankrupt, see “Bankruptcy,” § 1. PREJUDICE. Ground for reversal in civil actions, see “Appeal,” § 6. PRELIMINARY INJUNCTION. See “Injunction,” § 2. PREMIUMS. For insurance, see “Insurance,” §§ 4, 7. PRESUMPTIONS. In civil actions, see “Evidence,” § 2. On appeal, see “Appeal,” §§ 4, 6. PRINCIPAL AND AGENT. Conclusions of agent as to' his powers, as evidence, see “Evidence,” § 9. Agency in particular relations, offices, or occupations. See “Attorney and Client”; “Brokers.” Corporate agents, see “Corporations,” §§ 4; 5. . Insurance agents, see “Insurance,” § 2. , S 1. The relation." ♦Evidence held admissible to prove agency as against a third party.—Badger v. Cook (Sup.) § 2. Rights and liabilities as to third persons. ♦In an action for breach of contract, evidence held not to show the execution of the contract by defendant or its ratification.—Bender-Martin Co. v. Apollo Co. (Sup.) 75. ♦An agent signing his name to a contract of employment held not liable-for breach thereof where the name of the principal was. disclosed.—Collier v. Myers. (Sup.) 659. ♦Under the evidence held "that it was not to be assumed as a matter of law that an agent had knowledge of the invalidity of a contract so as to charge his" principal.—Badger v. Cook (Sup.) 1067. ... ", ♦Point .annotate Burden of proof of knowledge of agent held to be on the party seeking to charge the principal therewith.—Badger v. Cook (Sup.) 1067. In an action to recover the purchase price of goods taken from the purchaser by the federal authorities, evidence held to require the submission to the jury of the question as to whether the sale was to the purchaser or his agent.—Badger v. Cook (Sup.) 1067. PRINCIPAL AND SURETY. See “Guaranty”; “Indemnity.” Liabilities on bonds for performance of duties of trust or office, see “Officers,” § 3. 5 1. Creation and existence of relation. A power of attorney executed by a distributee of an estate to S., who was also administrator, held not to authorize him as administrator to pay the grantor’s distributive share to himself as her attorney in fact and exonerate his surety on his administration bond.—Lahn v. Sullivan (Sup.) 920. PRIVILEGED COMMUNICATIONS. Disclosure by witness, see “Witnesses,” § 1. PROBABLE CAUSE. For prosecution, see “Malicious Prosecution,” §1. PROBATE. Of will, see “Wills,” § 2. PROBATE COURTS. See “Courts,” § 3. PROCESS. Right of person served with process, to costs, see “Costs,” § 2. In particular actions or proceedings. On appeal, see “Appeal,” § 3. To recover demised premises, see “Landlord and Tenant,” § 6. Particular forms of writs or other process. See “Execution”; “Injunction” ; “Mandamus”; “Quo Warranto”; “Replevin.” § 1. Service. Evidence held to show that defendant was not . served with summons.—Pfotenhauer v. •Brooker (Sup.) 762. PROHIBITION. Of traffic in intoxicating liquors, see “Intoxicating Liquors.” 1. See syllabus.

INDEX, 1203 PROMISSORY NOTES. See “Billa and Notes.” PROOF. Of service of process, see “Process,” § 1. PROPERTY. See “Fixtures”; “Trade-Marks and Trade-Names.” Constitutional guaranties of rights of property, see “Constitutional Law,” § 2. Dedication to public use, see “Dedication.” Of states, see “States,” § 2. Taking for public use, see “Eminent Domain.” PROVINCE OF COURT AND JURY. In criminal prosecutions, see “Criminal Law,” § 3. PUNITIVE DAMAGES. For personal injuries, see “Master and Servant,” § 4. QUANTUM MERUIT. See “Work and Labor.” QUESTIONS FOR JURY. In civil actions, see “Trial,” § 3. In criminal prosecutions, see “Criminal Law,” § 3. QUO WARRANTO. § 1. Nature and grounds. Quo warranta is not a proper remedy to enforce delivery of books and papers from a public officer whose successor had been chosen and qualified.—In re Smith (Sup.) 992. PROXIMATE CAUSE. Direct or remote consequences of injury, see “Damages,” § 1. Of injury caused by operation of railroads, see “Railroads,” § 6. PUBLIC DEBT. See “Municipal Corporations,” § 6. PUBLIC IMPROVEMENTS. By municipalities, see “Municipal Corporations,” § 3. PUBLIC NUISANCE. See “Nuisance,” § 1. PUBLIC PRINTING. Action for breach of contract for, see “Contracts,” § 5. Set-off in action for public printing, see “SetOffi and Counterclaim,” § 1. PUBLIC USE. Dedication of property, see “Dedication.” Taking property for public use, see “Eminent Domain.” PUBLIC WATER SUPPLY. See “Waters and Water Courses,” § 1. PUNISHMENT. See “Penalties.” For violation of injunction, see "Injunction,” § 4. •Point annotate RAILROADS. See “Street Railroads.” Abatement of nuisance by, see “Nuisance,” § 1. As employers, see “Master and Servant.” Carriage of goods and passengers, see “Carriers.” Liability of railroad company for false imprisonment by servant arresting person on train, see “False Imprisonment,” § 1. Liability of railroad for malicious prosecution, see “Malicious Prosecution,” § 1. § 1. Control and regulation in general. ^Railroad Law, § 59 (Laws 1895, p. 317, c. 545), held to limit the board of railroad commissioners to the issuance of a certificate of the necessity of the construction of the railroad as proposed in the articles of association of the railroad petitioning therefor.—In re Directors of Ticonderoga Union Terminal (R. Co. (Sup.) 107. § 2. Right of way and other interests in land. The application of a steam railroad company for permission to operate roads on streets of a village held properly denied because the company was not organized for such business, and because it had not procured the consents of the property owners and the local authorities as provided by Railroad Law, Laws 1890, p. 1108, c. 565, § 91.—In re Keeseville, A. S. C. & L. C. R. Co. (Sup.) 237. *An application of a railroad company for an order permitting it to construct its road on streets in a village held properly denied in view of Railroad Law, Laws 1890, p. 1087, c. 565, § 11.—In re Keeseville, A. S. C. & L. C. R. Co. (Sup.) 237. § 3. Construction, maintenance, and equipment. *Order of board of railroad commissioners for change of highway crossing railroad at grade to under-crossing held improper.—In re Delaware, L. & W. R. Co. (Sup.) 9. 1. See syllabus.

1204 101 NEW YORK SUPPLEMENT and 135 New York 'State Reporter Under Railroad Law (Heydecker’s Gen. Laws, pp. 3291, 3292, c. 39, §§ 62, 65) one whose property is damaged by the lowering of the street to go under a railroad held not entitled to recover of the village, railroad, or state, having served no notice of claim on the railroad commissioners.—Mehlenbacker v. Village of Salamanca (Sup.) 1073. § 4. Indebtedness, securities, liens, and mortgages. Where the right of a trustee to foreclose a railroad mortgage was not dependent on the request of bondholders, an issue could not be raised on the identity of such holders.—Knickerbocker Trust Co. v. Oneonta, C. & R. S. By. Co. (Sup.) 241. In a suit by a trustee in a railroad mortgage to foreclose the same, an issue as to the ownership of certain bonds secured by the mortgage as between rival claimants held immaterial to the trustee’s right to foreclose.—Knickerbocker Trust Co. v. Oneonta, C. & R. S. Ry. Co. (Sup.) The right of a trustee of a railroad mortgage to foreclose the same in its discretion held not dependent on the request of the bondholders.— Knickerbocker Trust Co. v. Oneonta, C. & R. S. Ry. Co. (Sup.) 241. § 5. Receivers. That the Hepburn Act, Act Cong. June 29, 1906, 34 Stat. 584, c. 3591, would apply to a railroad from state to state transporting coal from mines owned by it, held not ground for refusing to allow the receiver to expend money opening new mines and improving the road.— Central Trust Co. of New York v. Pittsburg, S. & N. R. Co. (Sup.) 837, REAL-ESTATE AGENTS. See “Brokers.” RECEIVERS. Estoppel to allege appointment as temporary receiver only, see “Estoppel,” § 1. Of insolvent trust companies, see “Banks and Banking," § 3. Of railroad companies, see “Railroads,” § 5. Parties to motions affecting orders in receiver ship proceedings, see “Motions.” RECORDS. See “Judgment,” § 3. Affecting rights of purchasers of land, see “Vendor and Purchaser,” § 2. Estoppel by record, see “Estoppel,” § 1. Transcript on appeal, see “Appeal,” § 4. REDEMPTION. From mortgage, see “Mortgages,” § 4. REFERENCE. In proceedings on appeal from order removing executor, see “Executors and Administrators,” § 1. § 1. Referees and proceedings. Objection to the reception of testimony before a referee not subscribed by witnesses, as re quired by the general rules of practice, heh waived,—In re Hirsch’s Estate (Sup.) 893. § 6. Operation. *Where a union station company located a train at its station so that the engine partially extended into a street, in violation of a statute, and plaintiff’s horse was frightened, the wrongful act was that of the station company, for which the railroad company was not liable.— Burns v. Delaware & Hudson Co. (Sup.) 225. In an action for death of’ a licensee on railroad track, the railroad company’s failure to give -warning of the approach of a train held not the proximate cause of intestate’s death.— Grathwohl v. New York Cent. & H. R. R. Co. (Sup.) 667. *In an action for the death of a licensee on a railroad structure, intestate held not shown to have been free from contributory negligence.— Grathwohl v. New York Cent. & H. R. R. Co. (Sup.) 667. *Where a pedestrian was injured by a defect in a street railroad track, the railroad company was liable therefor.—Ross v. Metropolitan St. Ry. Co. (Sup.) 932. REAL ACTIONS. See “Ejectment.” REFORMATION OF INSTRUMENTS., Competency of evidence in action to reform written instruments, see “Evidence,” § 3. § 1. Right of action and defenses. Where an agreement for a lease provided that “when executed” it should be subject to the approval of the parties’ attorneys, no reformation was required for the purpose of substituting the words “before execution thereof” for the words “when executed.”—Pittsburgh Amusement Co. v. Ferguson (Sup.) 217. *A party held not entitled to the reformation of a guaranty in‘a contract for the installation of machinery in' a plant.—Westinghouse, Church, Kerr & Co. v. Remington Salt Co. (Sup.) 303. REHEARING. See “New Trial.” RELEASE. See “Accord and Satisfaction”; “Payment.” Of bidder at foreclosure sale, see “Mortgages,” § 3. '- Point annotated. See syllabus.

JNDBX, 1205 { 1. Pleading, evidence, trial, and review. Evidence in action for injuries to passenger •examined, and held to show that plaintiff was rational and realized what he was doing at the time of executing a release of damages sustained.—McLoughlin v. Syracuse Bapid Transit By. Co. (Sup.) 196. RELEVANCY. Of evidence in civil actions, see “Evidence,” § 3. REMAINDERS. Estoppel to deny operation of mortgage as to remainder, see “Estoppel,” § 2. Bights of remaindermen to income of trust fund created by will, see “Wills,” § 3. REMAND. Of cause on appeal, see “Appeal,” § 7. REMITTITUR. Of cause on appeal, see “Appeal,” § 7. REMOVAL. Of trustee, see “Trusts,” § 2. REMOVAL OF CAUSES. Change of venue or place of trial, see “Venue,” § 1. RENEWAL Of contract as affecting operation of statute of frauds, see “Frauds, Statute of,” § 2. RENT. See “Landlord and Tenant,” § 5. Water rent, see “Waters and Water Courses,” § 1. REPAIRS. Of premises demised, see “Landlord and Tenant,” § 4. REPEAL. Of statutes, see “Statutes,” § 3. REPLEVIN. Conclusiveness of adjudication in action of replevin, see “Judgment,” § 7. § 1. Pleading and evidence. Under Code Civ. Proc. § 549, when considered in connection with section 550, and Laws 1886, p. 960, c. 672, amending the two sections, and section 1487, a plaintiff in an action to recover * Point, annotate a chattel cannot recover where he fails to prove the allegation of the complaint that the chattels had been concealed so that the same could not be taken by the sheriff, etc.—Merriam v. Johnson (Sup.) 627. ■ In replevin, the exclusion of evidence negativing the claim that the goods were covered by chattel mortgage held error.—Spiegel v. Fehr (Sup.) 651. REPLICATION. See “Pleading,” § 3. REPLY. See “Pleading,” $ 3. REPRESENTATIONS. Of devisees or legatees, see “Wills,” § 3. RESCISSION. Of insurance policy, see “Insurance,” § 5. RESIDENCE. See “Domicile.” RES JUDICATA. ' See “Judgment,” §§ 6, 7. RETROSPECTIVE LAWS. See “Statutes,” § 4. Constitutional restrictions, see “Constitutional Law,” § 4. RETURN. Of record of proceedings for purpose of review, see “Appeal," § 4. REVENUE. See “Taxation.” REVIEW. See “Appeal”; “Criminal Law,” § 4; “Justices of the Peace,” § 1. REVOCATION. Of appointment of trustee, see “Trusts,” § 2. RIGHT OF WAY. Of railroads, see “Bailroads,” § 2. RISKS. Assumed by employé, see “Master and Servant,” § 3. Within insurance policy, see “Insurance,” § 9. 1. See syllalms.

1206 101 NEW YORK SUPPLEMENT and 135 New York State Reporter ROADS. See “Highways.” Streets in cities, see “Municipal Corporations,” §§ 4, 5. ROYALTIES. Discovery in action for, see “Discovery,” § 1. SALES. By auction, see “Auctions and Auctioneers.” Change of venue in action for price of goods, see “Venue,” § 1. In fraud of creditors, see “Fraudulent Conveyances,” §§ 1, 2. Of intoxicating liquors, see “Intoxicating Liquors.” Of realty, see “Vendor and Purchaser.” Of street railroad franchises; see “Street Railroads,” § 1. On foreclosure of mortgage, see “Mortgages,” § 3. Reply to new matter set up as defense in action for goods sold, see “Pleading,” § 3. Subjects of damages for breach of contract of sale, see “Damages,” § 1. To principal or agent, as question for jury, see “Principal and Agent,” § 2. § 1. Requisites and validity of contract. ! *Facts held insufficient to constitute a sale of merchandise by plaintiffs to defendants, so that a retention of the goods by defendants created no promise on defendants’ part to pay plaintiffs therefor.—Thalmann v. Giles (Sup.) 980. § 2. Performance of contract. ♦Any breach of contract for sale of metal by the buyer not paying cash held waived by the seller making a second delivery before the first is paid for.—Moers v. Dietz (Sup.) 590. A dealer accepting an installment of an order for an article to be manufactured held not to waive his right to reject a subsequent installment for failure to comply with the terms of the order.—Robert Gair Go. v. Lyon (Sup.) 787. § 3. Warranties. Under the facts, held there was no implied warranty that packages sold at auction by ware-housemen for charges contained the commodity indicated by the catalogue in which all articles to be sold were listed.—Hirsh v. Duval Co. (Sup.) 35. § 4. Remedies of seller. In an action on a note for the price of goods, where the defendant sets up breach of an express warranty, but not as a counterclaim, he must show a return or offer to return the goods.—P. H. & F. M. Roots Co. v. New York Foundry Co. (Sup.) 104. ♦Averments of a complaint held sufficient to show a request by defendants for the manufacture of goods by plaintiff and of a promise •Point annotate to pay therefor.—Mrs. Osborn Co. v. Shubert (Sup.) 761. § 5. Remedies of buyer. ♦An instruction on a counterclaim in an action for services in installing a furnace equipment held erroneous.—Westinghouse, Church, Kerr & Co. v. Remington Salt Co. (Sup.) 303. ♦Statement of measure of damages for breach of contract for sale by refusal to deliver.—Moers v. Dietz (Sup.) 590. In an action to recover the purchase price of cattle taken from the purchaser by the federal authorities, question of plaintiff’s knowledge that the cattle had been smuggled into the country held one of fact—Badger v. Cook (Sup.) 1067. § 6. Conditional sales. ♦Where goods were sold with a reservation of title in the seller until they were paid for, he had a right to retake them on default and no title vested in the buyer.—Roach v. Curtis (Sup.) 333. Where a seller retook goods sold with a reservation of title in himself until paid for and failed for more than 60 days thereafter to sell them, he was liable under Laws 1897, p. 541, c. 418, § 116, as amended by Laws Í9Ó0, p. 1624, c. 762, to the buyer for the amount paid on them, notwithstanding her failure to accept an offer of a return of the goods on the payment of the balance due.—Roach v. Curtis (Sup.) 333. Laws 1897, p. 541, e. 418, § 116, as amended by Laws 19Ó0, p. 1624, c. 762, apply to cases where goods sold with a reservation of title in the seller until paid for, are retaken by replevin as well as where they are surrendered voluntarily.—Roach v. Curtis (Sup.) 333. Where goods were sold reserving title in the seller until they were paid for and giving him a right on retaking to sell at public or ■ private sale, and he retook them, but made no sale, he could not claim that the buyer had waived her rights under Laws 1897, p. 541, c. 418, § 116, as amended by Laws 1900, p. 1624, c. 762.— Roach v. Curtis (Sup.) 333. Where a seller replevied goods sold with a reservation of title in himself until they were paid for and the buyer had made no appearance, her attempt to open default held no abandonment of her right under Laws 1897, p. 541, c. 418, § 116, as amended by Laws 1900, p. 1624, c. 762.—Roach v. Curtis (Sup.) 333. Where a seller retook goods sold with a reservation of title in himself until paid for, and had negotiated with the buyer for an adjustment of the: matter, it was for the jury to determine whether the buyer had waived her right under Laws 1897, p. 541, c. 418, § 116, as amended by Laws 1900, p. 1624, c. 762.—Roach v. Curtis (Sup.) 333. ♦A purchaser of a machine sold on conditional sale held entitled to recover payments made and damages owing to his vendor’s lack of title. Lien Law, Laws 1897, p. 540, c. 418, § 112.—Bowen v. Dawley (Sup.) 878. 1. See syllabus.

INDEX, 1207 SATISFACTION. See “Accord and Satisfaction”; “Payment”; “Release.” SCHOOLS AND SCHOOL DISTRICTS. Town school funds, see “Towns,” § 1. SECONDARY EVIDENCE. In civil actions, see “Evidence,” $ 4. SELF-DEFENSE. See “Homicide,” § 2, SEMI-TONTINE POLICY. See “Insurance,” § 3. prove a counterclaim against, the seller.—Thalmann v. Giles (Sup.) 980. SETTLEMENT. See “Accord and Satisfaction”; “Account Stated”; “Payment”; “Release.” By executor or administrator, see “Executors and Administrators,” § 4. By partners, see “Partnership,” § 4. SEWERS. See “Municipal Corporations,” § 3. Defects or obstructions, see “Municipal Corporations,” § 5. SITUS. Of property for purposes of taxation, see “Taxation,” § 1. SERVICE. Of process, see “Process,” § 1, SLANDER. See “Libel and Slander.” SERVICES. See “Master and Servant,” § 2; “Work and Labor.” SET-OFF AND COUNTERCLAIM. Against insolvent bank, see “Banks and Banking,” § 1. Counterclaim for breach of warranty, see “Sales,” § 5. For rent, see “Landlord and Tenant,” § 2. Pleading matter of set-off or counterclaim, see “Pleading,” §§ 2, 6. Right to counterclaim as dependent on form of action, see “Action,” § 1. § 1. Subject-matter. •In an action for the price of glazing certain show cases, defendant held entitled to counterclaim damages for injuries to the cases by the negligence of plaintiff’s employes.—Hutkoff v. Lauckhardt (Sup.) 12. •Where plaintiff’s servants in glazing show cases injured the cases, it was no answer to defendant’s counterclaim for such injuries that the amount was slight in comparison with the total amount of work performed.—Hutkoff v. Lauckhardt (Sup.) 12. •An action for compensation for public printing being an action in contract, a cause of action in tort cannot be set off therein.—Quayle & Sons v. Brandow Printing Co. (Sup.) 323. •In action for compensation for public printing, counterclaims which did not show that the claims existed at the commencement of the action held faulty.—Quayle & Sons v. Brandow Printing Co. (Sup.) 323. A sale of merchandise to defendant under a •bill payable to plaintiffs held a mere equitable assignment to plaintiffs, entitling defendants to SPECIAL LAWS. See “Statutes,” § 1. SPECIFIC PERFORMANCE. § 1. Good faith and diligence. Neither plaintiff nor his assignor having tendered performance of a contract for a lease within the time agreed, plaintiff held not entitled to maintain a bill for specific performance.—Pittsburgh Amusement Co. v. Ferguson (Sup.) 217. SPECULATION. By trustee with trust funds, see “Trusts,” § 3. SPECULATIVE DAMAGES. See “Damages,” § 1. SPIRITUOUS LIQUORS. See “Intoxicating Liquors.” STATEMENT. By witness inconsistent with testimony, see “Witnesses,” § 3. Of case or facts for purpose of review, see “Appeal,” § 4. STATES. See “United States.” Commission of trespass by state, see “Trespass,” § 1. Courts, see “Courts.” Judicial notice as to solvency of foreign states, see “Evidence,” § 1. •Point annotated. See syllabus.

1208 101 NEW YORK SUPPLEMENT and 135 New York State Reporter State forest preserves, see “Woods and Forests.” Use and occupation of land by state, see “Use and Occupation.” . § 1. Government and officers. , *Laws 1906, p. 1032, c. 431 (Apportionment Act of 1906), held not unconstitutional as violative of Const art. 3, § 4, par. 1, providing that each legislative .district shall contain as nearly as may be an equal number -of inhabitants— Payne v. O’Brien (Sup.) 367; Pendleton v. Same, Id. Joinder of Richmond county to Queens county in forming senatorial district held proper, under Const, art. 3, § 4.—Payne v. O’Brien (Sup.) 367; Pendleton v. Same, Id. The spirit of Const. 1894, art. 3, § 4, providing for legislative apportionment of senate districts every. 10 years, and requiring the districts to consist of contiguous territory, held not invaded by Laws 1906, p. 1032, c. 431, which attached Richmond, an island county, to a non-contiguous county.—Payne v. O’Brien (Sup.) 858; Pendleton v. Same, Id.; Sherrill v. Same, Id. Laws 1906, p. 1032, c. 431, apportioning senate districts, held not to violate Const. 1894, art. 3, § 4, requiring the districts to be compact in form by joining three counties, making a long, narrow district—Payne v. O’Brien (Sup.) 858; Pendleton v. Same, Id.; Sherrill v. Same, Id. Laws 1906, p. 1032, c. 431, apportioning senate districts, held not to violate Const, art. 3, § 4,-requiring the districts to contain, as nearly as. may be, equal population, by not giving Westchester two districts.—Payne v. O’Brien (Sup.) 858; Pendleton v. Same, Id.; Sherrill v. Same, Id. I § 2. Property, contracts, and liabilities. Certain acts held to devest defendant of,, and to invest the state with, title to certain land.— People v. Fisher (Sup.) 1047. § 3. Claims against state. Rev. St. 1829 (1st Ed.) pt. 1, c. 9, tit. 5, art. 5, § 7, and Laws 1886, p. 710, c. 435, substantially re-enacted in Laws 1894, p. 572, c. 317, held to provide a method for the determination and payment of the claim of a city for an assessment on state property for a local improvement, and unless the claim is presented in time the same will be barred, under Const, art. 7, § 6.—City of Buffalo v. State (Sup.) 595. Laws 1901, p. 1093, c. 407, when construed in connection with Const, art. 7, § 6, held to require the disallowance of so much of the claim of a city for assessments on state property for improvements as is barred by limitations.—City of Buffalo v. State (Sup.) 595. Under Laws 1876, p. 477, c. 444, § 2, Laws ■1883, pp. 213, 215, c. 205, §§ 7, 12, Laws 1897, p. l4, c. 36, and Code Civ. Proc. § 264, as *Point annotated. amended by Laws 1905; p. 851, c. 370, relating to jurisdiction of claims against the state, the Court of Claims has jurisdiction of a claim for use and occupation' by the State Forest, Fish and Game Commission.—Remington v. State (Sup.) 952. Dismissal by the Court of Claims of a claim for use and occupation by the state for want of jurisdiction is error.—Remington v. State (Sup.) 952. STATUTES. Laws impairing obligation of contracts, see “Constitutional Law,” § 3. Validity of retrospective or ex post facto laws, see “Constitutional Law,” § 4. Provisions lelaMng to particular subjects. See “Carriers,” § 1; “Descent and Distribution” ; “Discovery,” § 1; “Exemptions,” § 1; “Execution,” § 1; “Fraudulent Conveyances,” § 1; “Intoxicating Liquors”; “Judges,” § 1; “Jury,” § 1; “Master and Servant,” § 3; “Mechanics’ Liens”; “Penalties,” § 1; “Sales,” § 6; “States” ; “Usury,” § 1; “Vendor and Purchaser,” § 2; “Venue,” § 1. Employers’ liability, see “Master and Servant,” § 3. Forest preserves, see “Woods and Forests.” Issuance of municipal bonds, see “Municipal Corporations,” § 6. Legislative districts, see “States,” § 1. Statute of frauds, see “Frauds, Statute of.” § 1. General and special or local laws. *Laws 1892, p. 311, c. 151, ratifying a contract between a city and its street railroads, held a valid grant of power to the city rather than a special bill granting a right to lay railroad tracks in violation of Const, art. 3, § IS.— ICuhn v. Knight (Sup.) 1. § 2. Subjects and titles of acts. *Laws 1900, p. 506, c. 252, affirming Revised Constitution of Seneca Nation, held to properly express the subject in the title.— Jimeson v. Lehley (Sup.) 215. § 3. Amendment, revision, and codification. Laws 1904, p. 1429, c. 598, § 1. repealing Municipal Court Act (Laws 1902, p. 1490, c. 580) § 3, granting the right of removal from the Municipal Court to the City Court of New York, held to contravene Const, art. 3, § 16, as to titles of local bills.—Bonagur v. Oi-landi (Sup.) 115. § 4. Construction and operation. Laws 1906, p. 1405, c. 516, repealing Pen. Code, § 640d, relating to unauthorized offers for the sale of, and unauthorized application for loans on real property, held to save the expense of costs to those defending actions based on the repealed statute.—Beilin v. Wein (Sup.) 38. See syllabus.

INDEX. 1209 STATUTES CONSTRUED. NEW YORK. CONSTITUTION. Art 1, § 6..............846 Art 3, § 4...........367, 858 Art. 3, § 16............. 115 Art. 6, §§17, 18.........1037 Art. 7, § 6.............595 Art. 7, § 7..............1047 CODE OF CIVIL PROCEDURE § 264. Amended by Laws 1905, p. 851, ch. 370... 952 §§ 315, 339.............. 295 §§ 375, 379, 396.......... 387 § 448 .................. 39 § 452 ................. 986 § 484 .................. 606 § 488 ..................1018 § 490 .................. 186 § 497 ..................1088 §§ 498, 499.............1018 § 521 .................. 241 § 531 .................. 904 § 544 ..................1060 §§ 549, 550. Amended by Laws 1886, p. 960, ch. 672 .................. 627 § 627 .................. 546 § 723 ...............30, 986 § 724 .................. 72 § 756 .................. 340 § 797 .................. 751 § 798 .................. 769 § 822 .................. 95 § 836 .................. 845 § 837 .................. 846 §§ 870-872 ............. 411 § 893 .................. 412 §§ 968, 970............. 553 §§ 983, 986............. 769 § 999 .................. 968 §§ 1205, 1220............ 455 § 1241 ................. 725 § 1252 ................. 62 § 1268 ............. 371 § 1316 .................455 § 1380 ................. 62 § 1391. Amended by Laws 1903, p. 1071, ch. 461; Laws 1905, p. 370, ch. 175 ..................1110 § 1393 ................. 688 § 1487 ................. 627 § 1629 ................. 832 §§ 1638, 1642........... 553 § 1757 ................. 828 § 1773 ................. 725 §§ 1781, 1782............ 353 § 1819 .................283 § 1903 ................. 275 § 2235 ................. 803 §§ 2281, 2283 ............ 700 § 2471a................992 § 2472, subds. 3, 4.......1093 § 2481 .............882, 1093 § 2586 ................. 776 §§ 2615, 2618, 2619....... 882 § 2620 ................. 971 § 2653a................313 § 2732, subd. 7..........235 § 3063 ................. 843 § 3247 ................. 719 §§ 3268, 3271 ...........1105 § 3347 ...............39, 72 CODE OF CRIMINAL PROCEDURE. §§ 22(4), 22(6), 41...... 81 § 542 .................. 814 PENAL CODE. § 142 .................. 846 § 363b .................507 § 426, subd. 2...........364 § 640d.........317, 531, 786 § 640d. Repealed by Laws 1906, p. 1405, ch. 516... 38 HEYDEOKER’S GENERAL LAWS. Pages 3291, 3292, ch. 39, §§ 62, 65..............1073 REVISED STATUTES. First Edition. Volume 1. Pt. 2, ch. 4, tit. 3, § 5. Amended by Laws 1837, p. 486, ch. 430......... 65 Volume 2. Pt. 1, ch. 9, tit. 5, § 77____595 Pt. 2, ch. 1, tit. 2, §§ 37, 38 ................... 557 Pt. 2, ch. 6, tit. 1, art. 3, § 49. Amended by Laws 1869, p. 40, ch. 22.....178 Pt. 2, ch. 6, tit. 1, art. 3, § 52........... 152 CITY CHARTERS. Buffalo, § 273........... 90 Greater New York. Laws 1897, p. 41, ch. 378, § 149 .................: 392 Greater New York. Laws 1897, p. 92, ch. 378, § 262. Repealed by Laws 1901, pp. 574, 579, ch. 466, §§ 1345, 1364..... 295 Greater New York. Laws 1897, p. 148, ch. 378, § . 419 ....... 392 Oneida, § 59, subd. 25. Laws 1904, p. 563, ch. 273 .................. 239 LAWS. 1819, p. 74, ch. 71......295 1837, p. 486, ch. 430..... 65 1858, p. 569. ch. 334, § 2.. 295 1860, p. 645, ch. 379..... 295 1865, p. 472, ch. 295...... 129 1868, p. 2007, ch. 853____295 1869, p. 40, ch. 22........178 1871, p. 1478, ch. 680____996 1872, p. 1493, ch. 629..... 295 1876, p. 477, ch. 444, § 2. . 952 1880, p. 135, ch. 131.....996 1881, p. 720, ch. 537 ...... 295 1882, pp. 305, 322-335, ch. 410, §§ 1103, 1208-1278 295 1883, pp. 213, 215, ch. 205, §§ 7, 12............... 952 1885, p. 852, ch. 499.. .55, 444 1886, p. 710, ch. 435..... 595 1886, p. 960, ch. 672...... 627 1887, p. 500, ch. 401......129 1890, p. 33, ch. 25....... 129 1890, p. 473, ch. 255, § 9.. 928 1890, p. 1087, ch. 565, § 11 237 1890, p. 1096, ch. 565, § 39; Laws 1890. pp. 1113, 1114, §§ 101, 104. Amended by Laws 1892, pp. 1405, 1406, ch. 676.. 100 1890, p. 1108, ch. 565, § 92...... 237 1890, p.'iiíá.'ch." 565", '§98 694 1890, p. 1126, ch. 565, § i 138 ....... 781 1890, p. 1150, ch. 566, § 82 , 232 1890, *p"."ÍÍ77," ch‘.‘5é8¡ ¡ ¡ ¡ 347 1890, p. 1218, ch. 569, § 37. Amended by Laws 1899, p. 321, ch. 168......... 712 1890, p. 1219, ch. 569, § 50 ................... 777 1890, p. 1221, ch. 569, §§ 60, 63.............186, 777 1890, p. 1223, ch. 569, § 84 ................... 777 1890, p. 1235, ch. 569, § 167 ...............1.. 782 1891, p. 18, ch. 4, § 34. Amended by Laws 1890, p. 719, ch. 729 ......... 402 1892, p. 311, ch. 151..... 1 1892, p. 1018, ch. 687, § 27 .................. 109 1892, p. 1302, ch. 677, §§ 32, 33................ 129 1892, pp. 1405, 1406, ch. 676................... 100 1892, p. 1406, ch. 676, § 104 ................ 209 1892, p. 1657, ch. 681____002 1892, p. 1805, ch. 687.....807 1892, p. 1810, ch. 687, § 27 133 1892, p. 1828, ch. 688, § 20 ................... 133 1892, p. 1831, ch. 688, § 29 ................... 109 1892, p. 1972, ch. 690, § 91 790 1892, p. 2050, ch. 565, § 2, subd. 13........'.......328 1893, p. 655, ch. 338____961 1893, p. 659, ch. 338, § 12 961 1893, p. 1748, ch. 701____1002 1894, p. 572, ch. 317____ 595

1210 1894, p. 1194, ch. 556, § 17 .................... 186 1895, p. 317, ch. 545, § 59 107 1895, p. 683, eh. 880.....1037 1895, p. 796, ch. 946......1037 1895, p. 1295, ch. 601, § 28 ........ 1037 1896, p. 60, ch. 112, § 17, subd: 8................447 1896, p. 329, ch. 376..... 719 1896, p. 329, ch. 376, § 29. Amended by Laws 1902, p. 1135, ch. 482, § 1.....129 1896, p. 569, ch. 547, § 56.. 152 1896, pp. 603, 607, ch. 547, §§ 225, 241............ 413 1896, p. 719, ch. 729 ..... 402 1896, p. 795, ch. 908..... 610 1896, p. 795, ch. 908. Amended by Laws 1905, p. 131, ch. 94......... 902 1896, p. 856, ch. 908, § 181. Amended by Laws 1901, p. 1364, ch. 558... 807 1896, p. 856, ch. 908, § 182 184 1896, p. 872, ch. 908, § 228. Amended by Laws 1902, p. 351, ch. 101......... 87 1896, p. 1112, ch. 977..... 129 1897, p. 14, ch. 36........ 952 1897, p. 41, ch. 378, § 149. Greater New York Charter ...................392 1897, p. 92, ch. 218, § 92.. 158 1897, p. 92, ch. 378, § 262. Greater New York Charter. Repealed by Laws 1901, pp. 574, 579, ch. 446, §§ 1345, 1364...... 205 1897, p. 148, ch. 378, § 419. Greater New York Charter ..............392 1897, pp. 220, 229, ch. 312, §§ 17, 28............. 683 1897, p. 466, ch. 415, §§ 15, 16................824 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 1897, p. 468, ch. 415, $ 201 .................. 11 1897, p. 477, ch 415, § 70.. 78 1897, p. 480, ch. 415, § 81 ................... 808 1897, p. 508, ch. 417, § 4. .1002 1897, p. 510, ch. 417, § 21 513 3897, p. 511, ch. 417, § 24.. 31 1897, p. 514, ch. 418, § 3.. 502 1897, p. 514, ch. 418. Amended by Laws 1900, p. 499, ch. 248......... 571 1897, p. 516, ch. 418, § 3 382 1897, p. 540, ch. 418, § 112 ...... 878 1897, p. 541, ch. 418, § 116. Amended by Laws 1900, p. 1624, ch. 762... 333 1897, p. 610, ch. 481......712 1897, p. 755, ch. 612...... 86 1899, p. 321, ch. 168......712 1899, p. 444, ch. 184..... 678 1899, p. 807, ch. 370, § 19 5 1900. pp. 61, 63, ch. 20, §§ 2lé, 222.. .............1047 1900, p. 499, ch. 248 ...... 571 1900, p. 506, ch. 252..... 215 1900, p. 1624, ch. 762____333 1901, p. 297, ch. 118.... 902 1901, p. 312, ch. 128......317 1901, pp. 574, 579, ch. 446, §§ 1345, 1364. Greater New York Charter......295 1901, p. 917, ch. 334, § 129 7 1901, p. 975, ch. 355, § 20 109 1901, p. 1093, ch. 407 ..... 595 1901, p. 1229, ch. 494, § 93 ................... 1 1901, p. 1364, ch. 558.... 807 1902, p. 4, ch. 4..........247 1902, p. 351, ch. 101...... 87 1902, p. 1135, ch. 482, § 1 129 1902, p. 1488, ch. 580, § 1, subd. 11.............. 171 1902, p. 1490, ch. 580, § 3. Repealed by Laws 1904, p. 1429, ch. 598, § 1.... 115 1902, p. 1503, ch. 580, § 24 ................... 39 1902, p. 1533, ch. 580, § 139 .................. 391 1902, p. 1546, ch. 580, § 187 ..................125 1902, p. 1547, ch. 580, § 19¿ ....... 755 1902, p.. 1557, ch. 580, § 230 ....... 765 1902, p. 1560, ch. 580, § 241 .................. 251 1902, p. 1561, ch. 580, § ■ 248 .................. 743 1902, p. 1563, ch. 580, § 254 .................. 72 1902, p. 1563, ch. 580, § 257 .................. 271 1902, p." 1578," ch." 580,' § 311 ..................751 1902, p. 1748, ch. 600.... 118, 301, 622, 808 1902, p. 1749, ch. 600, § 2 !■...................622 1903, p. 439, ch. 184, § 77 ....... 562 1903, p. 1071, ch. 401.....1110 1903, p. 1106, ch. 482, § 6.. 312 1904, p. 563, ch. 273. City Charter of Oneida...... 239 1904, p. 1351, ch. 557..... 295 1904, p. 1429,' ch. 598, § 1 115 1905, p. 131, ch. 94.'......902 1905, p. 370, ch. 175.....1110 1905, p. 851, ch. 370...... 952 1905, p. 2022, ch. 723.... 1071 1905, p. 2097, ch. 737, § 13.................... 460 1906, p. 235. ch. 125..... 535 1906, p. 1032, ch. 431..367, 858 1906, p. 1405, ch. 516..... 38 STIPULATIONS. As to admission of privileged communications, see “Witnesses,” § 1. STOCK. Corporate stock, see “Corporations,” § 2. STOCKHOLDERS. Of corporations, see “Corporations,” § 3. STREET RAILROADS. See “Railroads.” As employers, see “Master and Servant.” Carriage of passengers, see “Carriers.” Excessive damages in action for injuries caused by operation of, see “Damages,” § 2. * Point annotate Expert evidence in action for injuries caused by operation of, see “Evidence,” § 9. Instructions in general in action against, see “Street Railroads,” § 4. Liability of bailee of truck for injuries caused by collision with street car, see “Bailment.” Special laws ratifying contract between city and street railroad company, see “Statutes,” § 1. § 1. Establishment, construction, and maintenance. Railroad Law, § 93 (Laws 1901, p. 1229, c. 494) held to require the sale at public auction of a street railway franchise in a certain city of the first class in any case in which a certain contract referred to did not permit an exception.—Kuhn v. Knight (Sup.) 1. Contract between a city and its street railway corporations construed and held to authorize the city authorities to grant an extension of a line to one of the companies with-1. See syllabus.

INDEX. 1211 out a sale of the franchise at public auction.— Kuhn v. Knight (Sup.) 1. ♦Under Railroad Law, § 98, Laws 1890, p. 1113, c. 565, every street railway company is required to keep a strip two feet in width outside of its tracks on each side in repair.— City of Amsterdam v. Fonda, J. & G. R. Co. (Sup.) 694. Facts held insufficient to warrant a finding that the breaking of a tile drain by the settling of an iron pillar supporting an elevated railroad structure was due to the negligence of the railroad.—Epstein v. Interborough Rapid Transit Co. (Sup.) 793. § 2. Regulation and operation. ♦In an action for injuries to a truck by a collision with a street car, the motorman of the car held guilty of negligence.—Littlefield v. New York City Ry. Co. (Sup.) 75. ♦The driver of a truck which was injured in a collision with a street car, held not guilty of contributory negligence.—Littlefield v. New York City Ry. Co. (Sup.) 75. ♦In an action against a street railroad for damages to a vehicle by a collision with defendant’s car, the question of negligence held one for the jury.—Muller v. New York City Ry. Co. (Sup.) 98. ♦In an action against a street railroad for damages to a vehicle by a collision with defendant’s car, the question of contributory negligence held one for the jury.—Muller v. New York City Ry. Co. (Sup.) 98. In an action for death of a person struck by a street car, plaintiff held not entitled to recover, notwithstanding intestate’s contributory negligence, on the theory that defendant was guilty of negligence in moving the car while intestate was under it.—Healy v. United Traction Co. (Sup.) 331. ♦In an action for death of plaintiff’s intestate, in collision with a street car, intestate held guilty of contributory negligence, as a matter of law.—Healy v. United Traction Co. (Sup.) 331. In an action for injuries resulting from being struck by a street car, evidence held to support a verdict based on the exercise by the pedestrian of ordinary care.—Ring v. Nassau Electric R. Co. (Sup.) 389. In an action against a street railway company for injuries received by plaintiff while crossing defendant’s track, instructions held erroneous.—Marguiles v. Interurban St. Ry. Co. (Sup.) 499. In an action against .a street railway company for injuries at a crossing, held that plaintiff was guilty of contributory negligence.— Marguiles v. Interurban St. Ry. Co. (Sup.) 499. In an action against a street railway company for injuries received by being thrown from a wagon which was struck by one of defendant’s street cars, evidence held not to sustain verdict for plaintiff.—Klasson v. Interurban St. Ry. Co. (Sup.) 581. ♦Point annotated. In an action against a street railway company for personal injuries, evidence held insufficient to support a verdict based on the theory that plaintiff was thrown from his truck by a collision with a street car.—Gormley v. Forty-Sec- and St. etc. Ry. Co. (Sup.) 583. ♦Whether a motorman is negligent in failing to stop his car within a distance of 125 feet is a question of fact.—Duffy v. Interurban St. Ry. Co. (Sup.) 767. ♦A person attempting to cross a street at a crossing with but 15 feet to go when a car is approaching from a distance of 125 feet is not guilty of contributory negligence as a matter of law.—Duffy v. Interurban St. Ry. Co. (Sup.) 767. In an action for injuries to a driver of a wagon, caused by a collision with a street car, evidence examined, and held to sustain a verdict for plaintiff.—Salcinger v. Interurban St. Ry. Co. (Sup.) 804. ♦A street car company authorized to run cars over a railroad track owned by another held not liable for injuries to a pedestrian caused by a defect in the track or street adjoining the same.—Ross v. Metropolitan St. Ry. Co. (Sup.) 932. *In an action for injuries to a truck driver in collision with a street car, facts held insufficient to convict the motorman of negligence, but sufficient to charge plaintiff with contributory negligence as matter of law.—Litzour v. New York City Ry. Co. (Sup.) 990. STREETS. See “Highways”; “Municipal Corporations,” §§ 4, 5. As boundaries, see “Boundaries,” § 1. SUBMISSION OF CONTROVERSY. Under municipal court act, see “Courts,” § 2. SUBSCRIPTIONS. To corporate stock, see “Corporations,” § 2. SUBWAYS. Electrical conduits, see “Electricity.” Grant of permission to construct as contract irrevocable by Legislature, see “Constitutional Law,” § 3. Right to mandamus to compel granting of permission to construct, see “Mandamus,” § 1. SUIT. See “Action.” SUMMARY PROCEEDINGS. Against attorney to compel payment of money-received in professional capacity, see “Attorney and Client,” § 2. See syllabus.

1212 101 NEW YORK SUPPLEMENT and 135 New York State Reporter -Judgment in, see “Judgment,” § 1. .Recovery of possession by landlord, see “Landlord and Tenant,” § 6. SUMMONS. :See “Process.” SUPPLEMENTAL PLEADING. "See “Pleading,” § 5. SUPPLEMENTARY PROCEEDINGS. :See “Execution,” § 3. SURETYSHIP. ■See “Principal and Surety.” SURRENDER. ‘Of insurance policy, see “Insurance,” § 5. SURVIVING PARTNERS. "See “Partnership,” § 3. SUSPENSION. Of attorney, see “Attorney and Client,” § 1. SWINDLING. See “False Pretenses.” TAXATION. 'Constitutional restriction on enactment of retrospective tax laws, see “Constitutional Law,” § 4. . Domicile for purpose of taxation, see Domicile.” "Franchise tax on corporation engaged in interstate commerce, see “Commerce,” g 1. Liability of decedent’s estate on contract to procure reduction of taxes, see “Executors and Administrators,” § 2. Privilege taxes, see “Intoxicating Liquors,” g 1. § 1. Liability of persons and property. ♦Certain property field taxable against person having virtually a life estate therein.— People v. Board of Assessors of Town of Pulteney (Sup.) 176. ♦Personal property outside of the state held ■not taxable under Laws 1896, p. 795, c. 908.— People v. O’Donnell (Sup.) 610. § 2. Levy and assessment. ♦Affidavit as to nonownership and nonoccupancy of property assessed for taxes against affiant held not conclusive on the board of tax assessors.—People v. Board of Assessors of "Town of Pulteney (Sup.) 176. ♦Point annotate Laws 1896, p. 856, c. 908, § 182, held to require the franchise tax to be based on the amount of capital engaged, and not the amount of business done, so as to preclude objections to an error in a computation of the tax, based on the actual business done.—People v. Roberts (Sup.) 184. Invested surplus earnings of a corporation held not capital within the meaning of Laws 1896, p. 859, c. 908, § 182, creating a franchise tax to be computed on the capital of the corporation.—People v. Roberts (Sup.) 184. Under the petition and return on certiorari to review an assessment held error to reduce the assessments without the taking of evidence. —People v. Feitner (Sup.) 1021. § 3. Legacy, inheritance, and transfer taxes. Stock in a foreign corporation owned by a nonresident being nontaxable, a transfer in New York of such stock held by a nonresident decedent did not require the consent of the comptroller provided for by Laws 1896, p. 872, c. 908, § 228, amended by Laws 1902, p. "351, c. 101.—Dunham v. City Trust Co. (Sup.) 87. Certain property held not subject to the transfer tax.—In re Hillman’s Estate (Sup.) 640. Certain certificates of life insurance held not subject to transfer tax at death of insured.— In re Parsons’ Estate (Sur.) 430. Corporate stock standing in the name of testator’s wife held no part of his estate subject to the transfer tax.—In re Parsons’ Estate (Sur.) 430. It is the duty of an executor to marshal the assets of the estate in favor of the legatee, and not so as to increase the transfer tax in favor of the state.—In re McEwan’s Estate (Sur.) 733. Executor of decedent, who resided in New Jersey leaving assets there and in New York, could pay legacies which were not taxable in New York out of the assets in that state, and legacies taxable at a higher rate from the assets in New Jersey.—In re McEwan’s Estate (Sur.) 733. TELEGRAPHS AND TELEPHONES. § 1. Establishment, construction, and maintenance. The grant to a telephone company of the right to operate a line “over and along” a 3,100-acre tract, “including necessary poles along the roads adjoining the tract,” held to be a grant to operate a line along the highways extending through the tract, and not across the land.— Morrison v. American Telephone & Telegraph Co. (Sup.) 140. Judgment for a trespass in cutting woodland and erecting a telephone line, may be based upon damages that have accrued to the commencement of the action, but not upon those that may accrue upon the assumption that the trespass will be permanent.—Morrison v. American Telephone & Telegraph Co. (Sup.) 140. 1. See syllabus.

INDEX, 1213-TENANCY IN COMMON. Creation by will, see “Wills,” § 3. TERMS. Of leases, see “Landlord and Tenant,” § 3. Of office, see “Officers,” § 1. TESTAMENT. See “Wills.” TESTAMENTARY CAPACITY. See “Wills,” §§ 1, 2. TESTAMENTARY POWERS. Creation, see “Wills,” § 3. THEFT. See “Larceny.” TIMBER. See “Woods and Forests.” TIME. For action for breach of contract, see “Contracts,” § 5. For notice of public improvement lien, see “Municipal Corporations,” § 3. For redemption from mortgage foreclosure, see “Mortgages,” § 4. TITLE. Affected by dedication, see “Dedication,” § 2. Of statutes, see “Statutes,” § 2. Of trade-marks or trade-names, see “TradeMarks and Trade-Names,” § 2. Sufficiency of title of vendor of land, see “Vendor and Purchaser,” § 1. To office, see “Officers,” § 2. TONTINE POLICY. See “Insurance,” § 3. TOOLS. Liability of employer for defects, see “Master and Servant,” § 3. TORTS. Causing death, see “Death,” § 1. Set-off of cause of action in tort in action on contract, see “Set-Off and Counterclaim,” § 1. Liabilities of particular classes of persons. See “Counties,” § 1; “Municipal Corporations,” § 5. Employés, see “Master and Servant,” § 4. ♦Point annotate Particular torts. See “False Imprisonment.” § 1; “Fraud” “Libel and Slander”; “Malicious Prosecution” ; “Negligence”; “Nuisance”; “Trespass” ; “Traver and Conversion.” Remedies for torts. See “Trespass,” § 2. TOWNS. See “Counties”; “Highways,” § 1; “Municipal Corporations.” Demurrer to complaint in action by town officer, see “Pleading,” § 4. Mandamus to town officers, see “Mandamus,” §§ 2, 3. § 1. Government and officers. Laws 1894, p. 1194, c. 556, § 17, providing: for one kind of a town supervisor’s bond covering school moneys, held not to require that the-county treasurer sue on a bond of a town* supervisor covering school moneys given as. required by Laws 1890, p. 1221, c. 569, § 60.. —Palmer v. Roods (Sup.) 186. Under Laws 1890, p. 1218, c. 569, § 37, as-renumbered by Laws 1897, p. 610, c. 481, and amended by Laws 1899, p. 321, c. 168, it is. the duty of town meeting inspectors to canvass, the votes and the duty of the clerk to announce the result and enter it in his minutes.—People v.. Armstrong (Sup.) 712. § 2. Claims against towns. ♦Creditor of a town held not barred from, a presentation and audit of its claim by a previous illegal audit and disallowance.—Peoplev. King (Sup.) 782. Verification of a claim against a town held' insufficient, under Laws 1890, p. 1235, c. 569,. § 167, to authorize a legal audit thereof.— People v. King (Sup.) 782. TRADE-MARKS AND TRADE-NAMES.. Penalties for possession of milk cans bearing: initials of certain dealer, see “Penalties,” § 1. g 1. Marks and names subjects of ownership. A label adopted by a union of employés to designate the product of the members thereof held to include the labor of the members of subordinate councils, within Labor Law, Laws 1897, p.. 466, c. 415, § 15.—Lynch v. John Single Paper-Go. (Sup.) 824. g 2. Title, conveyances, and contracts. Labor Law, Laws 1897, p. 466, c. 415, § 15,, held to authorize a labor union on adopting a label to designate the product of the labor-of its members to confer the label on the members constituting a subordinate branch.—Lynch, v. John Single Paper Go. (Sup.) 824. § 3. Infringement and unfair competition. ♦Under Labor Law, Laws 1897, p. 466, c.. 415, § 16, as amended, an action for the wrong-1. See syllabus.

1214 101 NEW YORK SUPPLEMENT and 135 New York State Reporter fui use of a label adopted by a union having subordinate councils held properly brought by the union and a council receiving the right to use the label.—Lynch v. John Single Paper Co. (Sup.) 824. TRADE UNIONS. Trade-marks to designate product of member, see “Trade-Marks and Trade-Names,” §§ 1-3. TRANSCRIPTS. Of record for purpose of review, see “Appeal,” § 4. TRANSFERS. Street car transfer, see “Carriers,” § 3. TRANSFER TAX. See “Taxation,” § 3. Domicile for purpose of imposition of transfer tax, see “Domicile.” TREATIES. Rights of foreign consul under treaty, see “Ambassadors and Consuls.” TREES. See “Woods and Forests.” TRESPASS. In cutting timber for purpose of erecting telephone line, see “Telegraphs and Telephones,” § 1. To the person, see “False Imprisonment.” § 1. Acts constituting trespass and liability therefor. ♦Entry on land by permission of a stranger to the title constitutes trespass, unless done under legislative authority.—Remington v. State (Sup.) 952. § 2. Actions. ♦Where forest land had been invaded and trees cut, the diminution in value to the whole premises may be shown in an action of trespass.—Morrison v. American Telephone & Telegraph Co. (Sup.) 140. TRIAL. Instructions as to negligence, see “Negligence,” § 1. Instructions in general as to breach of warranty in action for services in installing furnace, see “Sales,” § 5. Instructions in general in action for injuries caused by operation of street' railroad, see “Street Railroads,” § 2. Limitation of carrier’s liability as question for jury, see “Carriers,” § 2. Limitations as question for court, see “Limitation of Actions,” § 3. Objection to failure to submit questions to jury for purpose of review, see “Appeal,” § 2. Questions for jury in action for injuries caused by operation of street railroad, see “Street Railroads,” § 2. Questions for jury in action for injuries to passenger, see “Carriers,” § 3. Review of discretion of court, see “Appeal,” § 6. What constitute fixtures, as question of law or fact, see “Fixtures.” Proceedings incident to trials. See “Continuance.” Entry of judgment after trial of issues, see “Judgment,” § 2. Place of trial, see “Venue,” § 1. Right to trial by jury, see “Jury,” § 1. Trial of actions by or against particular classes of persons. See “Brokers,” § 2; “Carriers,” §§ 2, 3; “Landlord and Tenant,” § 4; “Master and Servant,” §§ 3, 4; “Principal and Agent,” § 2; “Street Railroads,” § 2. Trial of particular civil actions or proceedings. See “Malicious Prosecution,” § 2; “Money Lent”; “Negligence,” § 3. For compensation of broker, see “Brokers,” § 2. For insurance, see “Insurance,” § 12.. For loss of goods, see “Carriers,” § 2. For personal injuries, see “Carriers,” § 3; “Landlord and Tenant,” § 4; “Master and Servant,” §§ 3, 4; “Municipal Corporations,” § 4; “Street Railroads,” § 2. For wrongful discharge of employé, see “Master and Servant,” § 1. On bill of exchange or promissory note, see “Bills and Notes,” § 2. To recover price paid for goods, see “Sales,” § 5. Trial of criminal prosecutions. See “Criminal Law,” § 3; “Homicide,” § 2. For offenses against liquor laws, see “Intoxicating Liquors,” § 2. See “New Trial”; “Reference”; “Witnesses.” Appealability of order denying motion for adjournment, see “Appeal,” § 1. Appealability of order denying motion for re-argument, see “Appeal,” § 1. Discharge of employé as question for jury, see “Master and Servant,” §. 1. Effect of statements of counsel not raising objection on right to review, see “Appeal,” § 2. Harmless error in instructions, see “Appeal,” § 1. Course and conduct of trial in general. ♦In an action for injuries to passenger, refusal of court to hear question of juror, and refer jury to certain testimony at request of counsel, held error.—McLaughlin v. Syracuse Rapid Transit Ry. Co. (Sup.) 196. 5 2. Reception of evidence. ♦Testimony of physician as to condition of plaintiff not shown to be the result of the ♦Point annotated. See syllabus.

INDEX, 1215 injury complained of, held to be stricken out on motion.—Mackey v. Interurban St. By. Go. (Sup.) 439. Befusal to allow counsel for party to testify because in giving testimony he has taken advantage is error.—Greenfield v. Kaplan (Sup.) 567. $ 3. Taking case or question from jury. . In an action for the return of money paid on an invalid contract, held error to direct verdict for plaintiff.—Conte v. City of New York (Sup.) 491. ♦Whether a contract sued on was in fact made held for the court where the evidence is undisputed.—Freifeld v. M. Groh’s Sons (Sup.) 863. In an action to recover charges for transmitting money to a foreign country, where defendant admits all the allegations of the complaint, but contends that a premium was not authorized, and plaintiff presents proof of all its allegations, a verdict should be directed for plaintiff.—National Oity Bank of New York v. Pacific Co. (Sup.) 1098. § 4. Instructions to jury. An exception held, under the facts as to the main charge, insufficient to authorize review of requested charge given.—Jones v. Hoadley (Sup.) 470. ♦Instruction withdrawing question of contributory negligence and placing burden of proving defendant’s freedom from negligence on defendant held error, notwithstanding charge in general terms to the contrary.—Damsky v. New York City By. Co. (Sup.) 579. In action against street railway company, instruction withdrawing question of contributory negligence and placing the burden of proving defendant’s negligence on defendant held not corrected by other instruction.—Damsky v. New York City By. Co. (Sup.) 579. § 5. Verdict. ♦Verdict disregarding instruction held contrary to the law of the case and not to be sustained.—Hesselgrave v. Butler Bros. Const. Co. (Sup.) 103. ♦A general verdict for defendants held unsustainable, where if plaintiff’s evidence was believed, they were entitled to recover $875, while if defendants’ evidence was believed, they were entitled to recover $472.83.—La Bosa v. Wilner (Sup.) 193. ♦In an action for injuries to a passenger, an instruction- held the law of the case and to preclude the jury from finding a verdict for plaintiff on the issue submitted.—Paine v. Geneva, W. S. F. & C. L. Traction Co. (Sup.) 204. ♦A verdict opposed to the law as laid down by the court without exception cannot be sustained.—Van Alstine v. Standard Light, Heat & Power Co. (Sup.) 696. ♦Point annotate TROVER AND CONVERSION. Conversion by attorney, see “Attorney and Client;” § 2. Conversion of pledge, see “Pledges.” Form of action as conversion, see “Action,” § 1. Beal party in interest as proper party plaintiff in action for conversion, see “Parties,” § 1. § 1. Actions. ♦In an action for conversion, plaintiff held entitled to money judgment without alternative of return of possession.—Schwartz v. Marks (Sup.) 792. TRUST COMPANIES. See “Banks and Banking,” § 3. TRUSTS. Creation by will, see “Wills,” § 3. Death of beneficiary of trust as ground for abatement of action by trustee, see “Abatement and Bevival,” § 1. Lien created by execution against trust property, see “Execution,” § 2. Bight to issue execution on income arising from trust estate, see “Execution,” § 1. Trust deeds, see “Chattel Mortgages”; “Mortgages.” § 1. Creation, existence, and validity. ♦Conveyance of grantor’s interest as devisee and legatee under his parents’ wills to his brother held an absolute conveyance, and not one in trust on which the grantee could be required to account.—Nevius v. Nevius (Sup.) 1091. ♦Where a conveyance of the grantor’s interest as legatee and devisee under his parents’ wills was absolute on its face and unambiguous, paroi evidence was inadmissible to show that it was intended as a conveyance in trust.— Nevius v. Nevius (Sup.) 1091. ♦Evidence held insufficient to establish a trust. —In re King’s Will (Sur.) 279. ♦Evidence held sufficient to establish a trust in moneys deposited in a bank.—In re King’s Will (Sur.) 279. § 3. Appointment, qualification, and tenure of trustee. Letters testamentary of an executor and trustee held revocable where trustee’s interests were necessarily antagonistic to those of beneficiaries. —In re Hirsch’s Estate (Sup.) 893. ♦Bemoval of testamentary trustee denied when misconduct was caused by a misconception of his duties.—In re Bothaug’s Estate (Sur.) 973. § 3. Management and disposal of trust property. Good faith of trustee held not to excuse action in continuing speculation begun by decedent.—In re Hirsch’s Estate (Sup.) 893. The carrying on margin of stocks purchased by decedent on margin held not authorized by 1. See syllabus.

1216 101 NEW YORK SUPPLEMENT and 135 New Ytirk State Reporter provisions in will.—In re Hirsch’s Estate (Sup.) 893. § 4. Execution of trust by trustee or by court. ♦Certain payments made by executor and trustee out of income of trust fund with consent of beneficiary allowed.—In re Sheldon’s Estate (Sur.) 729. § 5. Accounting and compensation of trustee. ♦On accounting as to trust fund, judgment rendered awarding costs to executor out of the fund and giving directions for administration of trust.—In re Sheldon’s Estate (Sur.) 729. ULTRA VIRES. Acts of bank, see “Banks and Banking,” § 2. Contract for public water supply, see “Waters and Water Courses,” § 1. UNDERTAKINGS. Of officers, see “Officers,” § 3. UNDUE INFLUENCE. Procuring making of will, see “Wills,” § 2. UNITED STATES. Indians, see “Indians.” Interpleader by contractor for erection of building for government in suit between subcontractor and materialman, see “Interpleader,” § 1. § 1. Property, contracts, and liabilities. Liability of contractor’s bond on work for the United States to persons furnishing material to subcontractors determined.—Hosier v. KurchhofC (Sup.) 643. USE AND OCCUPATION. ♦There is an implied agreement by the state to pay the fair value for use and occupation of land occupied by permission of the owner.— Remington v. State (Sup.) 952. USURY. As defense in prosecution for false pretenses, see “False Pretenses.” § 1. Usurious contracts and transactions. ♦A mortgage on land in the state held not void under 1 Rev. St. (1st Ed.) p. 722, pt. 2, c. 4, tit. 3, § 5, as amended by Laws 1837, p. 486, c. 430, the loan contract, providing for such security, being a contract of another state, where the interest reserved was not usurious.—Manhattan Life Ins. Co. v. Johnson (Sup.) 65. ♦A note in the hands of "one receiving no bonus, nor knowing of the taking of a bonus, is not tainted with usury.—Ferguson v. Bien (Sup.) 100. VACANCY. In office, see “Officers,” § 1. VACATION. Of particular acts, instruments, or proceedings. Decree in probate proceedings, see “Wills,” § 2. Judgment, see “Judgment,” §§ 1, 4. Judgment in municipal court, see “Courts,”" § 2. VENDOR AND PURCHASER. See “Sales.’; Conveyance of right to compensation for property taken for public use, see “Eminent Domain,” § 1. Rights as to fixtures, see “Fixtures.” Specific performance of contract, see “Specific Performance.” § 1. Performance of contract. A purchaser refusing to take the title by reason of an alleged defect in the vendor’s title must point out and prove the defect.—Baecht v. Hevesy (Sup.) 413. ♦A mortgagee in possession, right of action to redeem from whom is barred, held to have a marketable title, unaffected by the fact that an action of ejectment by the mortgagor may not be barred by reason of disabilities.—Messinger v. Foster (Sup.) 387. ♦A vendee held not authorized to reject the title because the record of a mortgage did not show the time when it matured, or the rate of interest.—Halpern v. Fisch (Sup.) 1019. § 2. Rights and liabilities of parties. Facts held insufficient to put a vendee on inquiry and deprive him of the protection of the recording act.—Trombly v. Turner (Sup.) 27. Under Laws 1896, p. 607, c. 547, § 241, making unrecorded conveyances void as to subsequent bona fide purchasers, where a bona fide grantee took a quitclaim deed and recorded it, her title could not be assailed by one claiming adversely under a prior but unrecorded conveyance from her grantor.—Baecht v. Hevesy (Sup.) 413. Where a mortgagee purchased at foreclosure and took a quitclaim deed from her remote grantor, that she had made one a party defendant in the foreclosure who claimed an interest in the land, not knowing that he claimed superior title, did not show that she was not a bona fide purchaser.—Baecht v. Hevesy (Sup.) 413. § 3. Remedies of purchaser. In an action to recover money deposited on the purchase of real estate, it being alleged that the date for the making of the contract expired, evidence held insufficient to support plaintiff’s action.—Kroshinsky v. Klein (Sup.) Where a vendee agreed to take title to certain property subject to a mortgage, and the recorded mortgage did not show the term nor rate ■♦Point annotated. See syllabus.

INDEX, 1217 of interest, a letter from the mortgagee to the vendee’s attorney disclosing the term, etc., was immaterial.—Halpern v. Fisch (Sup.) 1019. A bond secured by a mortgage held admissible to show that the mortgage in fact conformed to a contract for the sale of the property.— Halpern v. Fisch (Sup.) 1019. VENUE. 8 1. Change of venue or place of trial. *Under Code Civ. Proc. §§ 798, 983, 986, and under the circumstances, held error to have denied defendant’s motion to change the place of trial.—State Board of Pharmacy v. Rhinehardt (Sup.) 769; Same v. Cornell (Sup.) 772. *The venue of an action for price of goods sold should be changed from the county in which plaintiffs reside to the one in which defendant resides, and in which the contract was made and the goods delivered, and where the majority of the witnesses live.—Shaff v. Rosenberg (Sup.) 892. VERDICT. Directing verdict in civil actions, see “Trial,” §3. In civil actions, see “Trial,” § 5. Review on appeal, see “Appeal,” § 6. Setting aside, see “New Trial,” § 1. VERIFICATION. Of claim against town, see “Towns,” § 2. VESTED RIGHTS. Protection, see “Constitutional Law," § 2. VETERANS. Preference to, in appointment of municipal employes, see “Municipal Corporations,” § 1. VICE PRINCIPALS. See “Blaster and Servant,” § 3. VILLAGES. See “Blunieipal Corporations.” WAGES. See “Master and Servant,” § 2. WAIVER. See “Estoppel.” Of objections to particular acts, instruments, or proceedings. Breach of contract of sale, see “Sales,” § 2. Defect of parties, see “Parties,” § 3. Reception of testimony before referee, see “Reference,” § 1. * Point annotated. Of rights or remedies. See “Insurance,” § 8. Certificate of completion of contract, see “Contracts,” § 4. Liquidated damages provided for in contract with municipality, see “Municipal Corporations,” § 3. Notice of election of corporate officer, see “Corporations,” § 4. Right to have certain issue submitted to jury in action for divorce, see “Divorce,” § 1. WAREHOUSEMEN. Warranty on sale of goods by warehousemen, see “Sales,” § 3. WARRANTY. On sale of goods, see “Sales,” §§ 3, 5. WATERS AND WATER COURSES. Condemnation of bed of water course, see “Eminent Domain,” § 1. Right to mandamus to compel water commissioners to permit construction of subways, see “Mandamus,” § 1. Water courses in cities, see “Municipal Corporations,” § 5. § I. Public water supply. A city held not entitled to maintain an action to strike out certain provisions from a contract between itself and a water corporation, on the ground that the provisions were ultra vires. Laws 1890, p. 1150, c. 566, § 81.—City of Mount Vernon v. New York Interurban Water Co. (Sup.) 232. A municipal corporation has no such concern or interest in the relations of a waterworks corporation and an individual consumer as warrants the corporation in bringing an action to determine the reasonableness of rates charged individual consumers.—City of Mount Vernon v. New York Interurban Water Co. (Sup.) 232. WAYS. Public ways, see “Highways”; “Municipal Corporations,” §§ 4, 5. WILLS. See “Descent and Distribution”; “Executors and Administrators.” Computation of period of limitation to recover compensation agreed to be made by decedent, see “Limitation of Actions,” § 1. Construction and execution of trusts, see “Trusts.” Courts of probate, see “Courts,” § 3. Evidence as to, in action of ejectment, see “Ejectment,” § 1. Execution on income of trust created by, see “Execution,” § 1. Interest on claims against estate of decedent, see “Interest,” § 1. See syllabus. 101 N.Y.S.—77

1218 101 NEW YORK SUPPLEMENT ■ and 135 New York State Reporter Laws impairing vested rights acquired through will, see “Constitutional Law,” § 2. Legacy and succession taxes, see “Taxation,” § 3. Liability of decedent’s estate on contract of deceased to make will, see “Executors and Administrators,” § 2. Restrictions on perpetuities, see “Perpetuities.” Right of foreign consul to appear in probate proceeding, see “Ambassadors and Consuls.” § 1. Testamentary capacity. ♦In action to have will declared void, burden of showing testator’s incapacity held to be on plaintiff under Code Civ. Proc. § 2653a.—Mc-Gown v. Underhill (Sup.) 313. ♦In action to have a will declared void, evidence held insufficient to show incapacity of testator.—McGown v. Underhill (Sup.) 313. § 2. Probate, establishment, and annulment. On an appeal from refusal to admit a will to probate, evidence held to raise doubt as to correctness of findings as to testator’s testamentary capacity and undue influence, requiring a reversal of his decree and submission of such questions to a jury.—In re Finch’s Will (Sup.) 135. Under the facts, Code Civ. Proc. § 2481, subd. 6, held not to authorize the vacation of a surrogate’s decree admitting a will and codicil to probate. Code Civ. Proc. § 2615, subd. 3, and Code Civ. Proc. §§ 2618-19.—In re Gaffney’s Estate (Sup.) 882. ♦Probate of a will is only presumptive evidence of its due execution so far as it relates to real property.—Smith v. Ryan (Sup.) 1011. ♦Evidence held insufficient to authorize probate of lost or destroyed will, under Code Civ. Proc. § 2620.—In re Halstead’s Estate (Sur.) 971. Evidence held to require denial of probate of will offered 30 years after its alleged execution. —In re Duffy’s Will (Sur.) 974. Where proponent of a will for probate testified that she took the will shortly after its execution and put it in a box, that from that time until a little while before it was offered for probate, nearly 30 years later, she never opened the document to ascertain its contents, was incredible.—In re Duffy’s Will (Sur.) 974. Probate of will will be refused when presented 30 years after its alleged execution, and the circumstances attending it are suspicious.—In re Duffy’s Will (Sur.) 974. § 3. Construction. ♦A will construed and held not to create a trust, but to vest testatrix’s property in a beneficiary named.—Schneider y, Heilbron (Sup.) 152. ♦Under Rev. St. (1st Ed.) p. 2, c. 6, tit. 1, art. 3, § 52, and Real Property Daw, Daws 1896, p. 569, c. 547, § 56, the children of a testator took as tenants in common the estate devised, and the issue of a deceased child took his share. —Schneider v. Heilbron (Sup.) 152. ♦Point annotate The" interest of a devisee under a will containing a power of sale held to have vested in the donees of the power by descent so that the power became merged in the fee thereby acquired by them.—In re Rathyen (Sup.) 289; Smith v. Rathyen, Id. ♦A will construed and held to give the testator’s wife the power to sell the estate devised and to use the proceeds.—Dodin v. Dodin (Sup.) 488. A will construed as intending that all the income of a fund during the life of a person should be paid to her, so that any not paid went to her representatives and not to the remaindermen.- —In re Hoyt (Sup.) 557. ♦Will devising property to nephews and nieces held to vest testator’s estate in his nephews and nieces and grandnephews and grandnieces. —Leask v. Richards (Sup.) 652. ♦Will construed, and testator’s widow held to take fee with absolute power of disposition by her last will.—Hayes v. Gunning (Sup.) 875. ♦Devise to trustees of the University of Rochester held to them in their corporate capacity or to the university, and that no trust was thereby created.—Morgan v. Durand (Sup.) 1002. ♦Will construed and invalidity of ineffective alternative provision held not to affect the validity of a devise.—In re McCoy’s Estate (Sur.) 539. § 4. Rights and liabilities of devisees and legatees. ♦A contract between an executrix and a child of the testator construed and held to bind the child to pay the price of goods bought from the executor, or to have the same, together with interest, deducted from his share in the estate. —Schneider v. Heilbron (Sup.) 152. Adult children of a testator held not entitled to complain of the act of the testator’s widow in distributing the estate devised to her.—Dodin v. Dodin (Sup.) 488. ♦Certain land devised held to have been charged with a legacy.—Irwin v. Teller (Sup.) 853. ♦The probate of a will disposing of real property is not necessary to pass title thereto.— Smith v. Ryan (Sup.) 1011. WITNESSES. See “Depositions”; “Evidence.” Change of venue for convenience of, see “Venue,” § 1. Examination before trial, see “Discovery,” § 1. Experts, see “Evidence,” § 9. Opinions, see “Evidence,” § 9. Testimony of accomplices, see “Criminal Law,” § 2. § 1. Competency. Under Code Civ. Proc. § 836, held that a stipulation by a party waiving the incompetency as a witness of her physician should be signed both by herself and her attorneys.—Gels v. Geis (Sup.) 845. d. See syllabus.

INDEX. 1219 § 2. Examination. * Where a witness was asked whether plaintiffs were not supplied with materials sufficient for them to go ahead with the work in question, an answer that, so far as the witness knew, plaintiffs were always supplied with material to go ahead with the work, was objectionable.—La Rosa v. Wilner (Sup.) 193. ^Refusal to strike a part of an answer, as nonresponsive, was erroneous.—La Rosa v. Wilner (Sup.) 193. § 3. Credibility, impeachment, contradiction, and corroboration. Statement of plaintiff held not to render improbable his uncontradicted and corroborated testimony, so as to allow it to be disregarded.— Berus v. New York City Ry. Go. (Sup.) 748. "The hostility of a witness may be shown on his cross-examination or by witnesses who can testify to the facts showing it without previous cross-examination on the subject.—People v. MaJon (Sup.) 814. . The defense in a criminal case held not entitled to impeach a witness by proof of his hostility in the absence of a proper foundation having been laid therefor.—People v. Mallon (Sup.) 814. *A witness may be impeached by proof of inconsistent statements on the proper foundation having been laid.—People v. Mallon (Sup.) 814. WOODS AND FORESTS. Gutting woodland for purpose of erecting telephone line, see “Telegraphs and Telephones,” § 1. Trespass on forest land, see “Trespass,” § 2. The holding by the state of a belt of timber land in connection with its canal system held not inconsistent with its being a part of the forest preserve, where the purpose of the holding was not to cut the timber and devastate the land, but to preserve and protect the water supply.—People v. Fisher (Sup.) 1047. Under Const, art. 7, § 7, and Forest, Fish, and Game Law, Laws 1900, pp. 61, 63, c. 20, gg 216, 222, state held entitled to maintain action for penalties for timber cut on the land owned by it in the county of Herkimer.—People v. Fisher (Sup.) 1047. WORK AND LABOR. Existence of relation of master and servant, see “Master and Servant,” g 1. Liens for work and materials, see “Mechanics’ Liens.” Where plaintiff paid out money and performed services for defendant, in the absence of proof of request or reasonable occasion therefor, defendant is not liable.—Friedlander v. Lehman (Sup.) 252. WRITS. See “Process.” Particular writs. See “Execution” ; “Habeas Corpus” ; “Injunction” ; “Mandamus” ; “Quo Warranto”; “Replevin.” YEAR. Agreements not to be performed within one year, see “Frauds, Statute of,” g 2. Estates for years, see “Landlord and Tenant.” *Point annotated. See syllabus.

TABLES OF NEW YORK SUPPLEMENT CASES APPEARING IN OTHER REPORTS. VOL. Ill, APPELLATE DIVISION REPORTS. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. Rep Supp. Rep. Supp. Rep. Supp. Rep Supp. Rep Supp. Rep Supp. Rep Supp. p& Vol. Pg. PR. Vol. pg. PR. Vol pg. Pg. Vol. Pg. p& Vol Pg. pg. Vol Pg. pg. Vol. pg. 1 97 514 158 97 606 281 97 459 [ XXX XX XXXX ] 460 97 697 578 98 496 765 97 843 4 97 666 160 97 685 285 97 503 380 97 901 465 98 116 585 98 90 770 98 4 8 97 516 164 97 588 292 97 692 [ XXX XX XXXX ] 467 98 118 [ XXX XX XXXX ] 773 98 28 12 97 532 170 97 692 294 97 861 383 97 859 473 98 130 600 97 929 781 97 871 16 97 519 174 97 603 297 97 742 386 97 836 475 , 97 913 613 98 81 785 97 863 19 97 521 176 97 607 300 97 749 [ XXX XX XXXX ] 480 98 88 616 98 76 789 98 157 23 97 171 178 97 604 303 97 735 392 97 831 482 97 911 618 97 SOI 801 97 955 32 97 194 181 97 602 306 97 733 895 97 700 485 97 908 624 97 884 805. 97 951 35 97 1117 183 97 465 308 97 791 [ XXX XX XXXX ] 490 97 917 637 97 808 809 97 954 39 97 645 189 97 586 314 97 737 [ XXX XX XXXX ] [ XXX XX XXXX ] 656 97 758 812 97 673 50 97 577 191 97 557 316 97 744 404 97 841 504 98 86 669 98 502 814 97 866 57 97 499 196 97 600 319 97 509 407 97 838 508 97 938 674 97 926 817 97 868 63 97 582 199 97 623 321 97 511 411 97 835 513 97 707 679 97 945 821 98 174 70 97 670 202 97 235 322 97 701 413 97 902 [ XXX XX XXXX ] 686 97 853 828 98 183 80 97 653 206 97 415 326 97 670 [ XXX XX XXXX ] [ XXX XX XXXX ] 693 97 846 831 98 179 87 97 661 209 97 722 [ XXX XX XXXX ] [ XXX XX XXXX ] [ XXX XX XXXX ] 700 97 852 836 98 94 94 97 561 230 97 444 332 97 658 420 97 716 536 97 943 702 97 874 842 98 72 101 97 566 235 97 21 337 97 704 422 97 768 539 97 949 706 97 996 848 98 121. 108 97 636 237 97 668 339 97 705 426 97 7,73 541 97 942 718 97 790 853 98 109 113 97 634 240 97 609 341 97 805 435 97 674 543 98 510 720 97 S23 860 98 33 117 97 631 254 97 719 [ XXX XX XXXX ] 437 97 694 [ XXX XX XXXX ] 726 97 894 864 98 171 122 97 625 259 97 747 353 98 124 442 97 731 648 98 506 737 97 788 870 98 56 [ XXX XX XXXX ] 260 97 740 358 98 128 445 97 751 553 98 78 741 98 492 875 98 48 140 96 480 253 97 738 [ XXX XX XXXX ] 447 97 771 558 98 83 [ XXX XX XXXX ] 879 98 bl 142 97 421 266 97 478 364 97 833 449 97 753 561 97 925 754 97 827 882 98 15 145 97 595 273 97 717 [ XXX XX XXXX ] 452 97 688 [ XXX XX XXXX ] 757 97 795 903-926* 152 97 653 275 97 619 371 97 905 457 97 821 [ XXX XX XXXX ] ♦Memorandum decisions; parallel citations not required. VOL. Ill, APPELLATE DIVISION REPORTS. Page Abel v. BischofE (96 N. Y. S. 1112)......925 Allen v. Pierson (97 N. Y. S. 1127)...... 908 Altkrug v. Horowitz (97 N. Y. S. 716).... 420 AndrewsS v. H. & H. Reiners (97 N. Y. S. 674) .............. 435 Andrews v. H. & H. Reiners (96 N. Y. S. 1112) ...............................916 Anglo-Continental Chemical Works v. Dillon (97 N. Y. S. 1081)................. 418 Appleby v. Dalrymple (96 N. Y. S. 1112).. 910 Archer, People ex rel., v. McAdoo (96 N. Y. S. 1140)........................... 919 Arkin v. Interborough Rapid Transit Co. (96 N. Y. S. 1112).................... 924 Arlington Co. v. fourteen Other Ins. Cos. (96 N. Y. S. 1112)..................... 914 101 N.Y.S. G Page Arlington Co. v. Insurance Co. of New York (96 N. Y. S. 1112).............. 914 Arnot v. Union Sait Co. (96 N. Y. S. 1112) ............................... 911 Arnot v. Union Salt Co. (96 N. Y. S. 80).. 912 Asheim’s Estate, Matter of (97 N. Y. S. 607) ................i............... 176 Babcock v. Leonard (97 N. Y. S. 861)... 294 Bailey, Matter of (98 N. Y. S. 725)...... 909 Baird v. Erie R. Co. (97 N. Y. S. 1127).. 909 Baker, Matter of (In re Ricketts, 98 N. Y. S. 502).............................. 669 Baker v. Metropolitan Life Ins. Go. (97 N. Y. S. 1088).......................... 500

1222 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 111 APP. DIV.—Continued. Page Baldwin, People ex rel., v. McAdoo (96 N. X. S. 1140).......................... 916 Ball v. Ball (96 N. X. S. 1113)......... 918 Bank of Port Jefferson v. Darling (96 N. X. S. 1112).......................... 920 Bankers’ Surety Co. v. Rothschild (96 N. X. S. 1113)..........................130 Bannister v. Michigan Mut. Life Ins. Co. (97 N. X. S. 843)..................... 765 Barnett v. J. B. Sparrow Theatrical & Amusement Co. (96 N. X. S. 1113).....919 Barrett Chemical Co. v. Stern (96 Ñ. X. S. 1113).............................. 913 Barson v. Mulligan (96 N. X. S. 1113).... 913 Basso y. Press Pub. Co. (96 N. X. S. 1113) .............................. 915 Bean v. New Xork Edison Co. (96 N. X. S. 1114).............................. 914 Beardsworth. v. Whitehead (96 N. X. S. ^2.14) ............... ... , 923 Beeeroft v. New Xork Áthietic Club (97 Ñ." X. S. 831)........................... 392 Belotti y. Metropolitan St. R. Co. (9Í Ñ. X. S. 1128).......................... 925 Bengston v. Swanston (96 Ñ. X. S. 1114).. 919 Berkowitz v. Chicago, M. & St. P. R. Co. (96 N. X. S. 1114).................... 918 Berry v. French (96 Ñ. X. S. 1114)..... 910 Berthelson v. Gabler (97 N. X. S. 421)... 142 Bidwell, People ex rel., v. Pitts (97 N. X. • S. 509).............................. 319 Bidwell, People ex rel., Pitts v. (97 Ñ. X. S. 511) ............. 912 Bishop’s Estate. Matter of (97 N. X. S. 1098) ....... 545 Blair v. Cargill (98 N. X. S. 109)........ 853 Biansett v. Duffy (96 N. X. S. 1114)......908 Blum v. Whitney (96 N. X. S. 1114).....922 Bly v. Edison Electric Illuminating Co. (97 N. X. S. 592)......................... 170 Board of Examiners of Erie County, Matter of (97 N. X. S. 1128).............910 Board of Health of Village of Friendship, ■ People ex rel., v. Triez (97 N. X. S. 1143) ....... 910 Board of Rapid Transit R. Com’rs of City of New Xork, Matter of (96 N. X. S. 1115) ...............................919 Boiler v. Bolle* (97 N. X. S. 609)........ 240 Bonny v. Bonny (96 N. X. S. 1115).....917 Bowers v. Male (97 N. X. S. 722)........ 209 Brady v. Brady (97 N. X. S. 1129)...... 926 Brandmeier v. Demuth Glass Mfg. Co. (96 N. X. S. 1115)....................... 919 Branson v. New Xork Cent. & H. R. R. Co. (97 N. X. S. 788)..................-737 Bridges v. Wade (96 N. X. S. 1115)......914 Briggs v. Weeks (96 N. X. S. 1115).......908 Bronk v. Binghamton R. Co. (96 N. X. S. 1116) ............................... 910 Brooklyn Bar Ass’n, Matter of (96 N. X. S. 1116)............................. 918 Brown v. Brown (97 Ñ. X. S. 1129)...... 907 Brown v. Palmer (97 Ñ. X. S. 1130)..... 909 Brown, People ex rel., v. Baker (97 N. X. S. 1143)............................. 926 Buffalo, Grade Crossing Com’rs of City of, Matter of (97 N. X. S. 1135).......... 909 Buffum v. Avery (96 N. X. S. 1116)..; i. 914 Bunke v. New Xork Tel. Co. (96 N. X. S. 1116) ............................... 925 Page Burke v. Baker (97 N. X. S. 768)......... 422 Burke v. Ñew York Cent. & H. R. R. Co. (96 N. Y. S. 1116).................915 Burke, People ex rel, v. Partridge (96 N. X. S. 1140).......................... 923 Burlingame v. Dykeman (97 N. X. S. 1130) ............................... 908 Byron v. Gingold (96 N. X. S. 1116).....917 Cabbie v. Cabbie (97 N. X. S. 773)...... 426 Caldwell v. New Xork & H. R. Co. (97 Ñ. X. S. 588)............................ 164 Cameron v. McBride (97 N. X. S. 1130).. 909 Cardeza v. Griswold (96 Ñ. X. S. 1117).. 920 Carpenter v. New Xork Evening Pub. Co. (97 N. X. S. 478).................... 266 Cavanaugh v. Thorne (96 N. X. S. 1117).. 925 Century Mercantile Co. v. Heeran (96 N. X. S. 1117).......................... 910 Chadeayne v. City of Buffalo (97 N. X. S. 1130) ............................... 909 Chadsey, Matter of (In re Brooklyn Bar Ass’n, 96 N. X. S. 1116)...............918 Chichester v. Winton Motor Carriage Co. (96 N. X.S. 1117).................:... 918 Cholet v. City of Syracuse (96 N. X. S. 1117) ..........................*.....903 City of Buffalo, Grade Crossing Com’rs of. Matter of (97 N. X. S. 1135)........ 909 City of Elmira v. Seymour (97 N. X. S. 623) ................................ 199 City of New Xork, Board of Rapid Transit R. Com’rs, Matter of (96 Ñ. X. S. 1115) ............................... 919 City of New Xork v. Draper (In re Commissioner of Public Works, 97 N. X. S. 503) ................................ 285 City of Rochester, Matter of (97 N. X. S. 1130) ............................... 909 Clark v. Scovill (97 N. X. S. 1117)....... 35 Clark v. Trost (96 N. X. S. 1120).....916 Clifford v. Denver & R. G. R. Co. (97 N. X. S. 707)........................... 513 Clifford v. Ñew Xork Cent. & H. R. R. Co. (97 N. X. S. 954)..................... 809 Cohn v. Hessel (96 N. X. S. 1120).......914 Cohn v. Wolfstein (In re Asheim’s Estate 97 N. X. S. 607)..................... 176 Colcord, Matter of (96 N. X. S. 1120).....916 Coleman v. Interurban St. R. Co. (96 N. X. S. 1120).......................,... 915 Coles v. Graburn (96 N. X. S. 1120)......917 Coles v. Graburn (96 N. X. S. 1120)......918 Collins, People ex rel., v. Brower (97 N. X. S. 349).............................. 915 Collyer, Matter of (96 N. X. S. 1121).....917 Commissioner of Public Works in City of New Xork, Matter of (97 N. X. S. 503).. 285 Compton v. Compton (97 N. X. S. 618)... 923 Comptroller of State of New Xork v. Parsons (In re Bishop’s Estate, 97 N. X. S. 1098)............................. 545 Conlen v. Riser (96 N. X. S. 1121)......925 Connelly v. Harris (96 N. X. S. 1121)____920 Conner’s Will, Matter of (96 N. X. S. 1121) ...............................920 Conway v. Cooney (98 Ñ. X. S. 171)......864 Cook v. Griswold (96 N. X. S. 1121).....910 Cook, People ex rel., v. Pitts (97 N. X. S. 511) ................................ 321 Cooper v. Clark (96 N. X. S. 1121)1...... 915

TABLES OE NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1228 111 APP. DIV.—Continued. Cooper v. Payne (97 N. Y. S. 863)........ Copstein y. Union R. Co. of New York City (96 N. Y. S. 1121).............. Corn Exch. Bank v. Peabody (98 N. Y. S. 78) .............;................... Cornwell v. East" Rockaway Eire Dept. (96 N. Y. S. 1122).................... Cowles, Matter of (In re Morton’s Estate, 96 N. Y. S. 1137).................... Cramsey v. Sterling (97 N. Y. S. 1082).. Crowley v. City of New York (96 N. Y. S. 1122) ............................... Cullin y. Alvord (97 N. Y. S. 1131)... Cunningham y. Shea (97 N. Y. S. 884)____ Curtice’s Estate, Matter of (97 N. Y. S. 444) ................................ Curtin v. Curtin (97 N. Y. S. 771)...... Daley v. Ratigan (96 N. Y. S. 1122)..... Daly v. Kister (96 N. Y. S. 1122)....... Daly v. Reineldt (96 N. Y. S. 1122)..... Davis, Matter of (In re City of Rochester, 97 N. Y. S. 1130)..................... Davis v. Martin (97 N. Y. S. 835)....... Decker v. Hunt (98 N. Y. S. 174)........ Deegan v.- Syracuse Lighting Co. (97 N. Y. S. 1132)........................... Deering v. Schreyer (97 N. Y. S. 1132)... Delaney v. Rivington St. School Site, Matter of (96 N. Y. S. 1145).............. Di Lorenzo v. Di Lorenzo (97 N. Y. S. 644) Donohue v. American Bridge Co. of New York (96 N. Y. S. 1123).............. Dooley Estate, Matter of (97 N. Y. S. 1133) ............................... Driscoll v. Interurban St. R. Co. (96 N. Y. S. 1123).......................... Driscoll v. New York & Q. 0. R, Co. (96 N. Y. S. 1123)........................ Dwight v. Lawrence (98 N. Y. S. 76)..... Dwyer, Matter of (96 N. Y. S. 1123)..... Dwyer, People ex rel., v. Greene (97 N. Y. S. 1144).......................... Dyhr v. Bush Co. (96 N. Y. S. 1123)...... Eastman Kodak Co. v. Lewis (96 N. Y. S. 1123)............................. Ebbets v. City of New York (97 N. Y. S. 833) ................................. Edison v. Interurban St. R. Co. (96 N. Y. S. 1123) ............................ Edmonds v. Attacks Music Pub. Co. (96 N. Y. S. 1123) ......................... Ehrich v. Grant (97 N. Y. S. 600)........ Elmira, City of, v. Seymour (97 N. Y. S. 623) ................................ Elton v. Hill (96 N. Y. S. 1124)......... Emmerich Co. v. Sloane (96 N. Y. S. 1125) ............................... Fahnestock Transmitter Co., People ex rel., v. Kelsey (96 N. Y. S. 1141)............ Fancher v. Fonda, J. & G. R. Co. (97 N. Y. S. 666) .......................... Farrell v. Brooklyn Heights R. Co. (96 N. Y. S. 1124)........................... Fay v. Moose River Lumber Go. (96 N. Y. S. 1124) ........................ Fennelly, People ex rel., v. Amalgamated Copper Co. (96 N. Y. S. 1141)......... Fennessy v. Fennessy (97 N. Y. S. 602)... Page Ferdinand Hosch Co. v. City of New York (96 N. Y. S. 1124)........... 917 Finan v. New York Cent. & H. R. R. Co. (97 N. Y. S. 859).................. 383 Finucan v. Ramsden (96 N. Y. S. 1124)... 920 First Nat. Bank of City of Brooklyn v. Gridley (96 N. Y. S. 1124)...... 920 Fitch, Matter of (97 N. Y. S. 1134)...... 909 Fitter v. Moroney (96 N. Y. S. 1125)...... 924 F. J. Emmerich Co. v. Sloane (96 N. Y. S. 1125) ..................... 914 Flaka, Matter of (97 N. Y. S. 853)._____686 Flanders v. Rosoff (97 N. Y. S. 514)...... 1 Flinn, People ex rel., v. Cullinan (97 N. Y. S. 194) ..................... 32 Flood v. Patton (96 N. Y. S. 1125)......915 Flynn v. Smith (98 N. Y. S. 56)....____870 Follett v. City of New York (96 N. Y. S. 1125) ........................ 917 Fox v. Davidson (97 N. Y. S. 603)...... 174 Fox v. Norton & Dalton Contracting Co. (96 N. Y. S. 1125)..... 915 Freemont v. Boston & M. R. Co. (98 N. Y. S. 179) ....... 831 Friedmann v. Ramon Hotel Co. (96 N. Y. S. 1125) ............. 924 Froment, Matter of (96 N. Y. S. 1125).... 919 Gags v. City of New York (96 N. Y. S. 1126) ......... 914 Gail v. Fischer (97 N. Y. S. 1135)........ 909 Gaillard Realty Co. v. Garth (97 N. Y. S. 640) ........... 924 Gaines v. Fidelity & Casualty Co. (97 N. Y. S. 836) ..................... 386 Gallagher v. Newman (96 N. Y. S. 1126).. 924 Gauge v. Commonwealth Trust Co. (97 Ñ. Y. S. 1091)..................... 530 Gedney v. Sias (97 N. Y. S. 1135)........ 925 Geneva Mineral Springs Co. v. Steele (97 N. Y. S. 996) .................... 706 Gilboa, Town of, Matter of (in re Wood, 97 N. Y. S. 871)...................... 781 Gilliam v. Guaranty Trust Co. (97 N. Y. S. 758)................... 656 Globe & Rutgers Fire Ins. Co. v. Robbins & Myers Co. (96 N. Y. S. 1126)........ 914 Goldman v. Corn (97 N. Y. S. 926)...... 674 Goldmark v. U. S. Electro-Galvanizing Co. (97 N. Y. S. 1078) .................. 526 Goodman v. Maze (96 Ñ. Y. S. 1126)..... 924 Gott v. Brooklyn Heights R. Co. (96 Ñ. Y. S. 1127) ........................ 919 Grade Crossing Com’rs of City of Buffalo, Matter of (97 N. Y. S. 1135).......... 909 Grant v. City of New York (97 Ñ. Y. S. 685) .................... 160 Gray v. Siegel Cooper Co. (97 N. Y. S. 1135) ............................... 926 Green v. Urban Contracting & Heating Co. (97 N. Y. S. 1135)................ 926 Green v. Utica & M. V. R. Co. (97 Ñ. Y. S. 1135) ................... 910 Gregory v. Elmira Water, Light & R. Co. (96 N. Y. S. 1127) .................. 911 Groppe, Matter of (96 Ñ. Y. S. 1127).... 921 Guth v. Barth (96 N. Y. S. 1127)........919 Gwynne v. Altonwood Park Co. of New York (96 N. Y. S. 1127)............... 920 Page 785 913 553 920 924 568 917 911 624 230 447 911 920 917 909 411 821 908 914 914 920 908 926 915 920 616 911 926 917 924 364 915 924 196 199 915 914 911 4 916 907 914 181

1224 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 111 APP. DIV. —Continued. Page Hagadorn v. McNair (97 N. Y. S. 1136)... 910 Hall, Matter of (96 N. Y. S. 1127)......912 Hall v. Cayuga Lake Cement Co. (97 N. Y. S. 955)........................... 801 Hall v. Wagner (97 N. Y. S. 570)......... 70 Hand v. Egbert (96 N. Y. S. 1127)........ 920 Hanlon v. Central R. Co. of New Jersey (96 N. Y. S. 3127) ..................918 Hannan v. Boldin (96 N. Y. 8. 1127)......918 Harbeck v. Tobin (96 N. Y. S. 1128).....913 Haskin, Matter of (97 N. Y. S. 827)...... 754 Haubner v. Metropolitan St. R. Co. (96 N. Y. S. 1128) ...................... 924 Healy v. Buffalo, Rochester & Pittsburgh R. Co. (97 N. Y. S. 801) ............. 618 Hearn v. Charles A. Stevens & Bro. (97 N. Y. S. 566) ........................... 101 Heller v. Methner (97 N. Y. S. 1137)____925 Heilman v. City Trust, Safe Deposit & Surety Co. (98 N. Y. S. 51).........879 Hester St. School Site, Matter of (96 N. N. Y. S. 1128) ....................... 914 Heyman v. Schlesinger (96 N. Y. S. 1128).. 924 Hicks v. Eggleston (96 N. Y. S. 1129?... 918 Hildreth v. City of New York (97 N. Y. S. 582) ................................ 63 Hillock v. Grape (97 N. Y. S. 823)........ 720 Hinckel Brewery Co. v. Newman (96 N. Y. S. 1129) ......................... 911 Hobby v. Burdick (96 N. Y. S. 1129)...... 920 Hodes v. City of New York (96 N. Y. S. 1129) ............................... 920 Hoff v. Robert H. Reid & Co. (96 N. Y. S. 1129) ............................... 914 Hoffman v. Metropolitan Exp. Co. (97 N. Y. S. 838) ........................... 407 Hoffman House v. Barkley (97 N. Y. S. 1095) ............................... 564 Hof man Co. vi Murphy (96 N. Y. S. 1130) ............................... 908 Holly v. Grinberg (96 N. Y. S. 1129)..... 920 Hood v. Lehigh Val. R. Co. (97 N. Y. S. 1137) ............................... 908 Horning v. Hudson River Tel. Co. (97 N. Y. S. 625) ........................... 122 Hosch Co. v. City of New York (96 N. Y. S. 1124)............................. 917 H. Remington & Son Pulp & Paper Co. v. Water Com’rs of City of Watertown (96 N. Y. S. 975)..................... 907 Huddy, Matter of (96 N. Y. S. 1129).....916 Hudson Water Works, Matter of (98 N. Y. S. 33) ............................ 860 Hull’s Estate, Matter of (97 N. Y. S. 701).. 322 Hull’s Estate, Matter of (96 N. Y. S. 1130) ____'........................... 916 Huntington v. Herrman (98 N. Y. S. 48).. 875 Hurst, Matter of (97 N. Y. S. 697)....... 460 Hynds v. Brooklyn Heights R. Co. (97 N. Y. S. 705)........................... 339 Ingalls v. Perkins (96 N. Y. S. 1130).... 911 Jackson v. Ingalls (96 N.- Y. S. 1130)...... 925 Janney v. Early (In re Venable, 97 N. Y. S. 938) ............................. 508 Jennings v. House (96 N. Y. S. 1130).....917 Jetter v. 'Scollan (96 N. Y. S. 1130)...... 925 John Hofman Co. v. Murphy (96 N. Y. S. 1130) ........................ 908 Page Johnson v. City of New York (96 N. Y. S. 1130) ............................... 918 Johnson County Sav. Bank v. Phillips (96 N. Y. S. 1130) ...................... 914 Kamaiky v. Sarasohn (96 N. Y. S. 1144).. 925 Keefe v. Liverpool & L. & G. Ins. Co. (96 N. Y. S. 1131) ....................... 907 Keese v. Dewey (97 N. Y. S. 519)........ 16 Keim, People ex rel., v. Desmond (97 N. Y. S. 795) ........................... 757 Kells v. J. E. Davis Mfg. Co. (96 N. Y. S. 1131) ............................... 911 Kelly v. Ashforth (96 N. Y. S. 1131)......922 ICettell v. Kettell (96 N. Y. S. 1131)......918 Keyes v. George 0. Elint Co. (96 N. Y. S. 1131) ................. 914 Kiefer v. Brooklyn Heights R. Co. (97 N. Y. S. 841)........................... 404 Kirkwood v. Smith (96 N. Y. S. 1132)..... 923 Kissick v. Rees (97 N. Y. S. 692)........ 292 Kissinger v. Livingstone (96 N. Y. S. 1132) ............................... 923 . Knickerbocker v. Conger (96 N. Y. S. 1132) ............................... 914 Knickerbocker v. Groton Bridge & Mfg. Co. (97 N. Y. S. 595)...................... 145 Knickerbocker Trust Co. v. Oneonta, C. & R. S. R. Co. (97 N. Y. S. 673)........ 812 Kohm v. Interborough Rapid Transit Co. (97 N. Y. S. 1138) ................... 925 Kragel v. Green (96 N. Y. S. 1132)...... 925 Kushes v. Ginsberg (96 N. Y. S. 1132)____924 Lamberti V. Sun Printing & Publishing Ass’n (97 N. Y. S. 694)................ 437 Landin v. Cunard S. S. Co. (96 N. Y. S. 1132) ............................... 911 Lange v. Schile (98 N. Y. S. 81)......... 613 Lawrence v. Sias (97 N. Y. S. 1139)...... 925 Lawrence v. Wilson (96 N. Y. S. 1132). .. 918 Lawrence Bros. v. Heylman (98 N. Y. S. 121) .........'....................... 848 Lawson, People ex rel., Lawson (98 N. Y. S. 130) ....■......................... 473 Lawton v. Partridge (97 N. Y. S. 516).... 8 Layton v. Kraft (98 N. Y. S. 72)......... 842 Leggett v. Schwab (97 N. Y. S. 805)..... 341 Lenorak v. Duffy (96 N. Y. S. 1133)...... 921 Levis & Co.- v. Ehrenberg (97 N. Y. S. 1149) ..... 909 Levy, People ex rel., v. Butler (96 N. Y. S. 1141) ............................... 924 Lewis v. Delaware, L. & W. R. Co. (97 N. Y. S. 1140) .......................... 909 Lindheim & Co. v. Central National Realty & Construction Co. (97 N. Y.-S. 619)... 275 Lindwall v. May (97 N. Y. S. 821)....... 457 Linzy v. Whitney (96 N. Y. S. 1133)..... 908 Loftus v. Straight Line Engine C'o. (97 N. Y. S. 790)........................... 718 Lomas v. New York City R. Co. (97 N. Y. S. 658) ............................. 332 Lomax, People ex rel., v. Greene (96 N. Y. S. 1141)............................. 914 Longworth v. Wray (In re Conner’s Will, 96 N. Y. S. 1121)................. 920 Lord v. Equitable Life Assur. Soc. of the U. S. (97 N. Y. S. 1140)......'......... 918 Lord’s Estate, Matter of (97 N. Y. S. 553) 152

TABLES OE NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1225 111 APP. DIV.—Continued. Page" Lordville & Equinunk Bridge Co. v. De Lackner (96 N. X. S. 1133)............911 Lowry v. Interurban St. R. Co. (96 N. X. S. 1134)....................... 925 McAuley v. New York Cent. & H. R. R. Co. (97 N. X. S. 631)..................117 McCall v. Supreme, Council A. L. H. (96 N. X. S. 1134)........................ 911 McCormack v. Coddington (97 N. Y. S. 1140) ............................... 914 MacDonald -v. Sun Printing & Publishing Ass’n (98 N. Y. S. 116)...............465 MacDonald v. Sun Printing & Publishing Ass’n (98 N. Y. S. 118).................467 McDonough v. Pelham Hod Elevating Co. (98 N. Y. S. 90)...................... 585 McEchron v. Martine (97 N. Y. S. 951)... 805 McGahie v. Sproat (97 N. Y. S. 751)..... 445 McGinn v. G. H. Hammond Co. (90 N. Y. S. 1.135)............................. 915 McGuinness v. Allison Realty Co. (97 N. Y. S. 1141)........ ..................926 McGuire v. Union Mut. Life Ins. Co. (96 N. Y. S. 1135)........................ 911 Mack, Matter of (90 N. Y. S. 1135)......912 Mack v. Hilsinger (96 N. Y. S. 1135).....912 McLaughlin v. Manhattan R. Co. (97 N. Y. S. 719).............................. 254 McLoughlin v. Board of Education of City of New York (96 N. Y. S. 1135)........ 921 McVickar-Gaillard Realty Co. v. Garth (97 N. Y. S. 640)..................... 924 Makin v. Pettibone Cataract Paper Co. (97 N. Y. S. 894)........................ 726 Mann v. Shrive (97 N. Y. S. 688)........ 452 Marine Nat. Bank of Buffalo v. Greene (06 N. Y. S. 1135)........................ 908 Mark v. Krippendorf (97 N. Y. S. 1141)... 908 Markham v. Stevenson Brewing Co. (97 N. Y. S. 604)........................... 178 Marietta v. Tumpowski (97 N. Y. S. 1141) 909 Marx v. Brogan (98 N. Y. S. 88)......... 480 Mead v. New York Life Ins. Co. (97 N. Y. S. 1141)............................. 909 Meli v. Metropolitan St. R. Co. (96 N. Y. S. 1136)............................. 913 Melody, People ex rel., v. Pound (97 N. Y. S. 700).............................. 395 Mendoza v. Levy (97 N. Y. S. 753)....... 449 Mercantile Nat. Bank of New York v. Sire (96 N. Y. S. 1136).................... 923 Michales, People ex rel., v. Ahearn (98 N. Y. S. 492)........................... 741 Michigan Sav. Bank v. Coy, Hunt & Co. (96 N. Y. S. 1136)....................914 Michigan Sav. Bank v. Hubbs (96 N. Y. S. 1136) ............................... 915 Miller v. Vining (96 N. Y. S. 1136).......917 Mink v. Mink (97 N. Y. S. 1141).........910 Mishkind-Feinberg Realty Co. v. Sidorsky (98 N. Y. S. 496)..................... 578 Mishkind-Feinberg Realty Co. v. Sidorsky (96 N. Y. S. 1136).................... 925 M. Lindheim & Co. v. Central National Realty & Construction Co. (97 N. Y. S. 619) ................................ 275 Monahan, v. Schenectady R. Co. (96 N. Y. S. 1137)............................. 912 Page Monjo v. Woodhouse (97 N. Y. S. 653).... 80 Moore v. Delaware, L. & W. R. Co. (96 N. Y. S. 1137).......................... 908 Moran v. Kent (96-N. Y. S. 1137)........917 Morhard v. Richmond Light '& R. Co. (98 N. Y. S. 124)...................... 353 Morris & Co. v. Mendham (96 N. Y. S. 1142) ............................... 915 Mt. Morris Bank v. New York & H. R. Co. (96 N. Y. S. 1137)................. 925 Moyer v. Village of Nelliston (96 N. Y. S. H37) .................... 911 Mulville v. Metropolitan St. R. Co. (96 N. Y. S. 1137).................... 915 Muscatine Mortgage & Trust Co. v. Scott (96 N. Y. S. 1137).................... 914 Myers v. Town of Gates (97 N. Y. S. 1142) 909 National Bank of Commerce in New York v. Scblesinger (97 N. Y. S. 1142)....... 926 New York Cent. & H. R. R. Co. v. Lally (96 N. Y. S. 1137)................... 918 New York, Board of Rapid Transit It. Com’rs of City of, Matter of (96 N. Y. S. 1115) .................... 919 New York, City of, v. Draper (In re Commissioner of Public Works, 97 N. Y. S. 503) .............................. 285 New York Mortgage & Security Co. v. Concourse Park Hotel Co. (96 N. Y. S. 1138) 919 Niagara County Irrigation & Water Supply Co. v. College-Heights L. Co. (98 N. Y. S. 4)....................... 770 Niagara, Lockport & O. P. Co., Matter of (97 N. Y. S. 853)..................... 686 Nichols v. City of New Rochelle (96 N. Y. S. 1138)____'...................... 921 Niemann v. Cordtmeyer (97 N. Y. S. 670). . 326 North v. North (96 N. Y. S. 1138)........ 921 North Hempstead, Town of, v. Eldridge (98 N. Y. S. 157).......... 789 Nowak v. Barkas (96 N. Y. S. 1138)..... 921 Nunnally v. New Yorker Staats-Zeitung (97 N. Y. S. 911)................ 482 Nunnally v. Tribune Ass’n (97 N. Y. S. . 908) ........................... 485 Nussbaum v. Brooklyn Ferry Co. of New York (96 N. Y. S. 1138)............... 921 Oakes v. Meyer (96 N. Y. S. 1138)....... 924 O’Connell, People ex rel., v. Hayes (96 N. Y. S. 1141).................... 925 Oil Well Supply Co. v. Phoenix Iron Works Co. (97 N. Y. S. 1142)................. 909 Oishei v. Metropolitan St. R. Co. (97 N. Y. S. 450).....................■......... 913 Oishei v. Metropolitan St. R. Co. (97 N. Y. S. 451).............................. 912 Oppenheimer v. McNamara (96 N. Y. S. 1138) .............................. 921 Osborne v. Auburn Tel. Co. (97 N. Y. S. 874) ................................ 702 Oser v. Herrmann (96 N.'Y. S. 1139).....917 Owego Gas Light Co. v. Boyer (96 N. Y. S. 486).............................. 140 Oyster Bay, Town of, v. Jacob (96 N. Y. S. 1148)........................... 919 Paige v. New York Cent. & H. R. R. Co. (98 N. Y. S. 183)..................... 828

1226 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 111 APP. DIV.—Continued, Page Parks v. City of New York (98 N. Y. S. 94) 836 Parsons v. Teller (97 N. Y. S. 808)....... 637 Peace v. McAdoo (96 N. Y. S. 1139).....919 Pearsall v. Stewart (96 N. Y. S. 1139)____919 People v. Christianna (96 N. Y. S. 1139)... 917 People v. Dibol (96 N. Y. S. 1139)....... 924 People v. Dolan (97 N. Y. S. 929)........ 600 People v. Gianvecchio (96 N. Y. S. 1139).. 924 People v. Kopp (96 N. Y. S. 1139)....... 924 People v. Damson (96 N. Y. S. 1140)..... 924 People v. Lewis (98 N. Y. S. 83)......... 558 People v. Lipp (98 N. Y. S. 86).......... 504 People v. McDermott (97 N. Y. S. 901)... 380 People v. Menzel (96 N. Y. S. 1140)...... 924 People v. Sekeson (97 N. Y. S. 917)......490 People v. Weisberg (96 N. Y. S. 1140).... 924 People ex rel. Archer v. McAdoo (96 N. Y. S. 1140)............................. 919 People ex rel. Baldwin v. McAdoo (96 N. Y. S. 1140).......................... 916 People ex rel. Bidwell v. Pitts (97 N. Y. S. 511) ................................ 912 People ex rel. Bidwell v. Pitts (97 N. Y. S. 509).............................. 319 People ex rel. Board ofi Health of the Village of Friendship v. Friez (97 N. Y. S. 1143) ..........$...................910 People ex rel. Brown v. Baker (97 N. Y. S 1143)............................. 926 People ex rel. Burke v. Partridge (96 N. Y. S. 1140).............................. 923 People ex rel. Collins v. Brower (97 N. Y. S. 349).............................. 915 People ex rel. Cook v. Pitts (97 N. Y. S. 511) ................................ 321 People ex rel. Dwyer v. Greene (97 N. Y. S. 1144)............................. 926 People ex rel. Fahnestock Transmitter Co. v. ICelsey (96 N. Y. S. 1141)............. 911 People ex rel. Fennelly v. Amalgamated ' Copper Co. (96 N. Y. S. 1141)..........914 People ex rel. Flinn v. Cullinan (97 N. Y. S. 194).............................. 32 People ex rel. Keim v. Desmond (97 N. Y. S. 795).............................. 757 People ex rel. Lawson v. Lawson (98 N. Y. S. 130).............................. 473 People ex rel. Levy v. Butler (96 N. Y. S. 1141) ......... 924 People ex rel. Lomax v. Greene (96 N. Y. S. 1141) ............................... 914 People ex rel.” Melody v. Pound (97 N. Y. S. 700).............................. 395 People ex rel. Michales v. Ahearn (98 N. Y. S. 492)........................... 741 People ex rel. O’Connell v. Hayes (96 N. Y. S. 1141).......................... 925 People ex rel. Stoutenburgh v. Hayes (96 N. Y. S. 1142)....................... 925 People ex rel. Uvalde Asphalt Paving Co. v. Grout (98 N. Y. S. 185)............. 924. People ex rel. .Venner v. New York Life Ins. Co. (97 N. Y. S. 465)............. 183 People ex. rel. Walters v. Lewis (97 N. Y. S. 1057)............................. 375 Phelps v. Phelps (96 N. Y. S. 1142)...... 921 Philip Morris & Co. v. Mendham (96 N. Y. S. 1142).......................... 915 Piper v. Seager (97 N. Y. S. 634)......... 113 Page Pitkin v. New York Cent. '& H. R. R. Co. (96 N. Y. S. 1142).................... 908 Powell v. Nevius (97 N. Y. S. 1145)....... 909 Pratt’s Estate, Matter of (97 N. Y. S. 1145) .......'........................908 Pyinm v. City of New York (97 N. Y. S. 1108) ............................... 330 Raymond v. New York Cent. & H. R. R. Co. (97 N. Y. S. 1145)................. 910 Raymond v. Security Trust & Life Ins! Co. (97 N. Y. S. 557)..................... 191 Reardon v. Woerner (97 N. Y. S. 747).... 259 Reda v. Rohrich (96 N. Y. S. 1143).......914 Remington & Son Pulp & Paper Co. v. Water Com’rs of1 City of Watertown (96 N. Y. S. 975)..................... 907 Remsen v. New York, Brooklyn & M. S. R. Co.' (97 N. Y. S. 902).................. 413 Reno v. Thompson (97 N. Y. S. 744)...... 316 Rice v. Town of Adams (97 N. Y. S. 1146) 910 Ricketts, Matter of (98 N. Y. S. 502)..... 669 Ricketts v. Powell (96 N. Y. S. 1143)..... 916 Robert v. Kidansky (97 N. Y. S. 913).....475 Roberts v. Gifford (97 N. Y. S. 1146)..... 908 Robertson v. de Brulatour (98 N. Y. S. 15) 882 Robeson v. Herzog (96 Ñ. Y. S. 1143).... 925 Rochester, City of, Matter of (97 N. Y. S. 1130) .................'............. 909 Rochester Dry Goods Co. v. Fahy (97 N. Y. S. 1013).......................... 748 Rodrigues v. Village of Ossining (97 N. Y. S. 742) .............................. 297 Rollins v. Sidney B. Bowman Cycle Co. (96 N. Y. S. 1143)......................915 Rosenfeld v. Central Vermont R. Co. (97 N. Y. S. 905)........................ 371 Rothman v. Granat (96 N. Y. S. 1143).... 921 Rothschild, Matter of (96 N. Y. S. 1143).. 914 Rourke v. Elk Drug Co. (96 N. Y. S. 1143) ............................... 912 Roxbury, Matter of (In re Kearney’s Estate, 96 N. Y. S. 1131)......... 914 Rudomin v. Interurban St. R. Go. (98 N. Y. S. 506)........................... 548 Russell v. Barron (97 N. Y. S. 1061)...... 382 Russlend v. Bridge (96 N. Y. S. 1144)____918 Ryan’s Certificate, Matter of (In re Smith, 99 N. Y. S. 1149)..................... 910 Ryer v. Prudential Ins. Co. of America (96 N. Y. S. 1144)........................ 916 Sachs v. Rose (96 N. Y. S. 1144)........917 Saekett & Wilhelms Lithographing & Printing Co. v. Cummins (97 N. Y. S. 749).... 300 Sadler v. Bohm (97 N. Y. S. 1146)....... 926 St. Regis Paper Co. v. Watson Page Lumber Co. (97 N. Y. S. 636)............. 108 Sallie v. New York City R. Co. (96 N. Y. S. 1144)............................. 925 Sarasohn v. Kamailiy (96 N. Y. S. 1144).. 925 Sartorelli v. Ezagui (96 N. Y. S. 1144)... 925 Savage v. Brooklyn Heights R. Co. (96 N. Y. S. 1144).......................... 916 Scherer, Matter of (97 N. Y. S. 171)...... 23 Schlesinger v. Gilhooly (97 N. Y. S. 606).. 158 Schlesinger v. Scheuer (97 N. Y. S. 1147).. 926 Schmalholz v. Schmalholz (98 N. Y. S. 510) ........... 543

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1227 111 APF. DIV.—Continued. Page Schmitz v. Brooklyn Union Elevated R. Co. (97 N. X. S. 791)..................... 308 Schneider, Matter of (In re Grade Crossing Com’rs, 97 N. X. S. 1135).............. 909 School Site, Delancey & Rivington Sts., Matter of (96 N. X. S. 1145)...........914 Schribner v. Xoung (97 N. X. S. 866).... 814 Senior v. New Xork City R. Co. (97 N. X. S. 645).............................. 39 Sessler v. Martin (96 N. X. S. 1145)......917 Shaughnessy v. Weekes (96 N. X. S. 1145) ............................... 918 Shaw v. Cooke (97 N. X. S. 235)........ 202 Shoen v. Scott (96 N. X. S. 1145)........911 Shonts v. Thomas (96 N. X. S. 1146)......916 Sinclair v. Higgins (97 N. X. S. 415)......206 Sloan v. National Surety Co. (97 N. X. S. 561) .........'....................... 94 Sloane v. Metropolitan St. R. Co. (96 N. X. S. 1146)........................... 914 Slocum v. Town (96 N. X. S. 1146)......911 Sloss Iron & Steel Co. v. Jackson Architectural Iron Works (96 N. X. S..1146)..... 925 Smith, Matter of (97 N. X. S. 171)....... 23 Smith, Matter of (99 N. X. S. 1149)......910 Smith, Matter of (96 N. X. S. 1146)...... 924 Smith v. Bleier (96 N. X. S. 1146)........914 Smith v. Borden’s Condensed Milk-Co. (96 N. X. S. 1146).......................914 Smith v. Marsh (96 N. X. S. 1146)......913 Smith v. Ryan (96 N. X. S. 1146)........ 924 Smith v. Ryan (97 N. X. S. 1148)........ 926 Snook v. French (97 N. X. S. 1148)......910 Snyder, Matter of (97 N. X. S. 1148)____926 Snyder v. Monroe Eckstein Brewing Co. (96 N. X. S. 1146)....................917 Starkey v. Webster (96 N. X. S. 1146).... 916 Standard Pub. Co. v. City of New Xork (97 N. X. S. 740)................. 260 Sterling v. Chapin (96 N. X. S. 1147).... 912 Stevens, Matter of (98 N. X. S. 28)...... 773 Stevens -v. City of New Xork (97 N. X. S. 1062) ...............................362 Stevens v. Taylor (97 N. X. S. 925)...... 561 Stoddard v. Rusaw (97 N. X. S. 1148)____909 Strobridge Lithographing Co. v. Johnston (97 N. X. S. 1148)................... 926 Stojitenburgh, People ex rel., v. Hayes (96 N. X. S. 1142)....................... 925 Strait v. Lindsay (96 N. X. S. 1147)......911 Strong, Matter of (97 N. X. S. 459)...... 281 Stronge v. Supreme Lodge, K. P. (97 N. X. S. 661)...................... 87 Stump v. Butterfield (96 N. X. S. 1147).... 916 Swarthout v. Culver (96 N. X. S. 1147).. 908 Sweet v. Howell (96 N. X. S. 1148)......911 Syracuse Trust Co. v. Syracuse Const. Co. (96 N. X. S. 1148).................... 907 Talbot v. Laubheim (96 N. X. S. 1148)____915 Tanenbaum v. Federal Match Co. (97 N. X. S. 1101)............................. 416 Taylor v. Briggs (96 N. X. S. 1148)......914 Terriberry v. Mathot (97 N. X. S. 21).... 235 Thomas R. Levis & Co. v. Ehrenberg (97 N. X. S. 1149)...................... 909 Thompson-Starrett CO. v. Brooklyn Heights Realty Co. (98 N. X. S. 128).......... 358 Tierstein v. Glassberg (96 N. X. S. 1148).. 919 Tierstein v. Glassberg (96 N. X. S. 1148).. 916 Page Tiffany’s Estate, Matter of (96 N. X. S. 1148) ...............................914 Tishman v. Acritelli (97 N. X. S. 668).... 237 Town of Gilboa, Matter of (In re Wood, 97 N. X. S. 871)..................... 781 Town of North Hempstead v. Eldridge (98 N. X. S. 157)..... 789 Town of Oyster Bay v. Jacob (96 N. X. S. 1148) .......... 919 Town of Walton v. Adair (97 N. X. S. 868) ................................817 Tracey v. Reid (97 N. X. S. 1074)........ 396 Triest v. City of New Xork (96 N. X. S. 1148) ....................... 921 Tynberg v. New Xork & H. R. Co. (96 N. X. S. 1149).......... 925 Tunison v. Metropolitan St. R. Co, (96 N. X. S. 1148)................ 913 Uhlfeider v. Palatine Ins. Co. (97 N. X. S. 499) ..................... 57 United States Condensed Milk Co. v. Smith (97 N. X. S. 1149)............ 908 Uvalde Asphalt Pav. Co., People ex rel., v. Grout (98 N. X. S. 185).:......... 924 Urbansky v. Shirmer (97 N. X. S. 577).... 50 Vandevoort v. Mink (97 N. X. S. 1149)____910 Van Sant v. Heyman (96 N. X. S. 1149).. 921 Van Sant v. Whitbeck (96 N. X. S. 1149).. 921 Vaughn v. Glens Falls Portland Cement Co. (96 N. X. S. 1149).................912 Venable, Matter of (97 N. X. S. 938)...... 508 Venner, People ex rel., v. New Xork Life Ins. Co. (97 N. X. S. 465).............. 183 Vines v. Clarke (97 N. X. S. 532)........ 12 Von der Born v. Schultz (97 N. X. S. 738).. 263 Voorhees Rubber Mfg. Co. v. McEwen, (97 N. X. S. 942)........................ 544 Vroman v. Maher (96 N. X. S. 1149)...... 912 Wade v. Mutual Reserve Life Ins. Co. (96 N. X. S. 1149)........... 923 Wadleigh v. Wadleigh (97 N. X. S. 1063).. 367 Wahrman v. City of New Xork (97 N. X. S. 1066)................. 345 Walden v. Post (96 N. X. S. 1149)____.... 917 Walker v. Newton Falls Paper Co. (97 N. X. S. 521)..................... 19 Wallach v. New Xork & H. R. Co. (97 N. X. S. 717)....................... 273 Walrod v. Noel (96 N. X. S. 1149)....____911 Walters, People ex rel., v. Lewis (97 N. X. S. 1057)..... 375 Walton, Town of, v. Adair (97 N. X. S. 868) 817 Wander v. Wander (97 N. X. S. 586)...... 189 Washington v. Episcopal Church of St. Peter’s (97 N. X. S. 1072).............. 402 Watt v. Feltman (97 N. X. S. 737)...... 314 Webel v. Kelly (97 N. X. S. 1009)....____521 Weber v. Wallerstein (97 N. X. S. 846)."... 693 Weber v. Wallerstein (97 N. X. S. 852)____7<>n Weddigan v. Whiting (96 N. X. S. 1150).. 907 Weeks v. Coe (97 N. X. S. 704).......... 337 Wendin v. Brooklyn Heights R. Co. (97 N. X. S. 1073).................. 390 Whitehouse v. Staten Island Supply .Co. (96 N. X. S. 1150)................. 919 Whyard, Matter of (97 N. X. S. 1150).... 919 Wilbert v. Isnecker (96 N. X. S. 1150).... 907

1228 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 111 APP, DIV.—Continued. Page Wilcox v. New York Cent. & H. R. R. Co. (96 N. Y. S. 1150)................... 908 Wilcox v. New York Cent. & H. R. R. Co. (97 N. Y. S. 1150).................... 910 Wiley, Matter of (97 N. Y. S. 1017).......590 Williams y. Metropolitan. Life Ins. Co. (06 N. Y. S. 1150)........................ 919 Williams Y. Silverman Realty & Construction Co. (97 N. Y. S. 945)............. 679 Williams v. Wilson & McNeal Co. (97 N. Y. S. X31).......................... 442 Williamson v. Randolph (97 N. Y. S. 949).. 539 Wilson v. New York Milk Products Co. (97 N. Y. S. 1150).................... 909 Wilson v. Weissel (96 N. Y. S. 1151).....916 Wilson v. Weissel (96 N. Y. S. 1150)...... 921 Page Winchell v. Town of Camillus (97 N. Y. S. 1151) ..................'.............910 Winter v. Friedman (97 N. Y. S. 733).... 306 Wolinsky v. Okun (97 N. Y. S. 943)...... 536 Wood, Matter of (97 N. Y. S. 871)........ 781 Wood v. Rairden (97 N. Y. S. 735)........ 303 Wood v. Snider (96 N. Y. S. 1151)........ 908 Worden v. Bentley (97 N. Y. S. 1151)----910 WuifE v. Fifth Ave. Coach Co. (96 N. Y. S. 1151)............................. 918 Yetter v. Lake Erie Wine Cellars (96 N. Y. S. 1151)............................. 907 Zambetti v. Moder (96 N. Y. S. 1151).....921 VOL. 112, APPELLATE DIVISION REPORTS. A.Div. N.T. A.Div. N.T. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. A.Div. N.Y. Rep Supp. Rep. Supp. Rep Supp. Rep Supp. Rep. Supp. Rep. Supp. Rep. Supp. pg. Vol. pg. Pg. Vol. pg. pg. Vol. Pg. pg. Vol. Pg. Pg. Vol. Pg. pg. Vol. pg. pg. Vol. Pg. 1 98 36 [ XXX XX XXXX ] [ XXX XX XXXX ] 367 98 594 487 98 386 652 98 458 769 98 6C0 4 98 38 [ XXX XX XXXX ] 276 98 429 370 98 438 489 98 523 655 98 541 772 99 201 7 98 68* 146n 97 1105 278 98 378 373 98 480 493 98 385 657 98 542 775 98 572 13 98 53 150 98 282 279 98 461 377 98 437 495 98 483 659 98 676 777 98 623 18 98 99 155 98 286 283 98 423 378 98 658 500 98 382 663 98 - 605 783 99 548 25 98 104 160 98 331 291 98 454 382 98 403 503 98 415 667 98 602 788 99 472 32 98 40 163 98 334 296 98 452 384 98 432 511. 98 549 670 99 6 791 99 486 35 97 1123 165 98 334 299 98 421 385 98 391 516 98 486 674 98 632 794 99 519 39 98 163 166 98 290 302 98 420 387 98 398 524 98 525 680 98 880 798 99 392 51 97 881 168 98 253 304 98 466 389 98 440 533 98 539 686 98 604 803 99 398 67 97 1119 176 98 42 305 98 406 395 98 661 536 98 797 688 98 729 806 99 432 62 98 113 181 98 46 308 98 563 397 98 433 543 98 804 695 98 977 810 99 551 65 98 60 184 98 97 313 98 583 398 98 445 547 98 801 698 98 781 812 99 411 69 98 144 187 98 365 318 98 596 408 9S 535 552 98 770 703 98 777 814 99 561 72 98 134 195 98 329 324 98 592 414 98 433 555 98 765 708 98 974 818 98 678 74 98 132 199 98 335 327 98 544 419 98 616 560 98 769 712 98 970, 822 98 341 76 98 62 202 98 1 330 98 581. 424 98 557 562 99 9 717 98 863 828 98 351 77 98 135 205 98 247 332 98 574 430 98 404 581 98 719 723 98 885 832 98 338 79 98 142 211 98 274 336 98 587 431 98 476 589 98 792 727 98 963 837 98 251 81 98 145 214 98 353 338 98 591 436 98. 479 596 98 763 [ XXX XX XXXX ] 840 98 347 91 98 186 225 98 361 341 98 667 437 98 431 599 98 760 732 98 809 845 98 237 97 97 1115 231 98 260 345 98 588* 438 98 376 604 98 965 [ XXX XX XXXX ] 853 98 545 99 98 297 234 98 388 347 98 577 442 98 394 609 98 614 [ XXX XX XXXX ] 856 98 468 102 98 346 239 98 278 352 98 464 449 98 381 612 98 609 [ XXX XX XXXX ] 860 98 519 104 98 262 241 98 279 355 98 407 451 98 622 620 98 629 745 99 85 866 98 399 109 - 98 268 246 98 294 356 98 444 456 98 548 625 98 739 748 99 76 [ XXX XX XXXX ] 114 98 242 250 98 291 368 98 380 458 98 553 [ XXX XX XXXX ] 751 98 954 875 98 im 121 98 136 264 98 265 360 98 661 464 98 321 639 98 408 [ XXX XX XXXX ] [ XXX XX XXXX ] ISO 98 63 260 98 276 363 98 620 475 98 471 648 98 387 760 m 1052 880 98 751 [ XXX XX XXXX ] 262 98 272 366 98 467 483 9S 532 649 98 459 765 08 957 883—923* [ XXX XX XXXX ] 265 98 371 ♦Memorandum decisions; parallel citations not required. VOL. 112, APPELLATE DIVISION REPORTS. Abrahamson v. General Supply & Construction Co. (98 N. Y. S. 596)............ 318 Abrams, Matter of (98 N. Y. S. 1096).. 923 A. Buchanan’s Sons v. Cranford Co. (98 N. Y. S. 378)........................ 278 Adams, Matter of (97 N. Y. S. 1127)..... 904 Adams v. Lawson (97 N. Y. S. 1127)..... 886 Agresta v. Stevenson (98 N. Y. S. 594).. 367 Agricultural Ins. Co. v. Smith (98 N. Y. S. 347).............................. 840 Ahrons v. Cuneo Trading Co. (98 N. Y. S. • 1096) .............................. 911 Alden v. Aluminum Press Co. (99 N. Y. S. 1134)............................. 913 Allen v. New York Sav. Bank (97 N. Y. S. 1127)............................. 886 Allen v. Pierson (97 N. Y. S. 1127)...... 901 Allter v. Jerome (97 N. Y. S. 1127)...... 905 Amsterdam Ave., Matter of (98 N. Y. S. 331) ............................... 160

TABLES OP NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1229 112 APP. DIV.—Continued. Page Amsterdam Ave., Matter of (98 N. Y. S. 334) 163 Amsterdam Ave., Matter of (98 N. Y. S. 334) ............................... 165 Amsterdam Ave., Matter of (In re College Site, 98 N. Y. S. 1099)............ 912 Andrews v. Reiners (98 Ñ. Y. S. 658).... 378 Antes v. Watkins (98 N. Y. S. 519)......860 Archer-Nesbitt, Matter of (98 N. Y. S. 1109) 899 Arcieri v. Long Island R. Co. (98 N. Y. S. 1096) 912 Armstrong v. Armstrong (96 N. Y. S. 1112) .............................. 898 Ashheim, Matter of (98 N. Y. S. 1096).. 913 Back v. Muller (98 N. Y. S. 1096)____919 Bacon, Matter of (98 N. Y. S. 290)...... 106 Bainbridge’s Estate, Matter of (98 N. Y. S. 1096)............................. 890 Baker, Matter of (98 N. Y. S. 331)......160 Baker v. Packard (98 N. Y. S. 804)...... 543 Baldinger v. Schwartzler (97 N. Y. S. 1127) 886 Bambace v. Interurban St. R. Co. (97 N. Y. S. 1127) ............................ 898 Bambace v. Interurban- St. R. Co. (98 N. Y. S. 1096).......................... 913 Banister’s Will, Matter of (98 N. Y. S. 1096) 902 Bannon v. New York Cent. & H. R. R. Co. (98 N. Y. S. 770).................... 552 Barber v. Dreyfus (98 N. Y. S. 1097).... 891 Barbour, Matter of (99 N. Y. S. 1134).... 913 Barg v. Dry Dock, E. B. & B. R. Co. (98 N. Y. S. 1097)...................... 922 Barnes v. Carlisle (97 N. Y. S. 1127)____886 Barr v. New York Cent. & H. R. R. Co. (98 N. Y. S. 1097)................... 901 Barrus v. Parsons (97 N. Y. S. 3128).... 904 Barrus v. Parsons (97 N. Y. S. 1128).... 905 Barson v. Mulligan (98 N. Y. S. 1097).... 899 Baughen v. New York City R. Co. (98 N. Y. S. 1097)....................;.....922 Baxter v. Conner (97 N. Y. S. 1128)..... 891 Beaver v. Metropolitan St. R. Co. (98 N. Y. S. 1097).......................... 910 Becker v. Hotchkin (97 N. Y. S. 1128).. 901 Beecroft v. New York Athletic Club of City of New York (98 N. Y. S. 1097)...... 917 Beekman v. Congress Brewing Co. (97 N. Y. S. 1128)..............?...........887 Belden v. Oldsmobile Co. (98 N. Y. S. 1097) .............................. 899 Bellinger v. Rice (98 N. Y. S. 1097).... 903 Bender, People ex rel., v. Milliken (97 N. Y. S. 1143)......................... 906 Bender, People ex rel., v. Milliken (97 N. Y. S. 223)........................... 907 Berkowitz v. Chicago, M. & St. P. R. Co. (98 N. Y. S. 1097)................... 922 Berlin v. Berlin (99 N. Y. S. 1135)......914 Bernhardt, Matter of (98 N. Y. S. 1099) .. 912 Bernstein v. New York House Wrecking Co. (97 N. Y. S. 1128)................ 891 Berthelson v. G-abler (97 N. Y. S. 1128).. 890 B. P. Boyer Co. v. Shaffer (98 N. Y. S. Biesenthai v. Wise (97 Ñ. Y. S. 1128).... 894 Biogioni v. Eglee Bunting Co. (98 N. Y. S. 591)............................. 338 Page Bishop v. American Bridge Co. of New York (98 N. Y. S..1098).............. 905 Bjerrum v. Springfield Breweries Co. (98 N. Y. S. 1098)....................... 919 Blair v. Utica & M. V. R. Co. (98 N. Y. S. 614)............................. 609 Blanck v. Preston (97 N. Y. S. 1128).. 887 Blanck v. Preston (98 N. Y. S. 1098)____917 Bloomgarden v. Hoffman (97 N. Y. S. 1128) 887 Blum v. Whitney (97 N. Y. S. 1128)---- 900 Board of Rapid Transit R. Com’rs of City of New York, Matter of (97 N. Y. S. 1129)............................. 893 Board of Rapid Transit R. Com’rs of City of New York, Matter of (98 N. Y. S. 1098) 918 Boody v. Johnstone (97 N. Y. S. 1129).. 892 Borrelli v. Pohle (97 N. Y. S. 1129).... 890 Bossert v. City of New York (97 N. Y. S. 1129) 887 Bossert v. Seldner (97 N. Y. S. 1129)---- 885 Boyer Co. v. Shaffer (98 N. Y. S. 1098).. 923 Bradley v. Standard Life & Accident Ins. Co. (98 N. Y. S. 797)................. 536 Brady v. Powers (98 N. Y. S. 237)...... 845 Brady’s Estate, Matter of (98 N. Y. S. 1098) 918 Brandt v. H. A. Baker & Co. (97 N. Y. S. 1129 ............................... 887 Brewster v. Montanye (99 N. Y. S. ' 1135) .............................. 914 Briggs v. Weeks (97 N. Y. S. 1129)..... 904 Brink v. Stratton (98 N. Y. S. 421)...... 299 Brodt v. Eorsyth (97 N. Y. S. 1129)____887 Brooklyn Bar Ass’n, Matter of (98 N. Y. S. 1098)............................ 918 Brooklyn, Q. C. & S. R. Co., Matter of (97 N. Y. S. 1129)............ 885 Brooklyn Union Elevated R. Co. v. City of New York (98 N. Y. S. 1098).......... 923 Brooks v. International R. Co. (98 N. Y. S. 765).............................. 555 Broughton v. City of Mt. Vernon (97 N. Y. S. 1129).......................... 892 Brower’s Will, Matter of (98 Ñ. Y. S. 438). ............................... 370 Brown v. Paile (98 N. Y. S. 420)........ 302 Brown v. Gilmour (97 N. Y. S. 1129).... 887 Brown v. New York Cent. & H. R. R. Co. (98 N. Y. S. 1098)................... 901 Brown v. Palmer (97 N. Y. S. 1130)____903 Brown v. Retsof Mining Co. (97 N. Y. S. 1130)............................ 887 Brown v. Smith (97 N. Y. S. 1130)...... 900 Buchanan’s Sons v. Cranford Co. (98 N. Y. S. 378)........................... 278 Buckley v. Citizens’ Ins. Co. of Missouri (98 N. Y. S. 622).................... 451 Buel v. Brooklyn Heights R. Co. (98 N. Y. S. 1098).......................... 891 Buellesbaeh v. Henderson (98 N. Y. S. 36) ................................ 1 Buongierno v. Schiller (98 Ñ. Y. S. 464).. 916 Burke v. O’Brien (97 N. Y. S. 1130)..... 885 Burnham v. Tryon (98 N. Y. S. 600)---- 769 Bums v. United States Printing Co. of Ohio (97 N. Y. S. 1130)............... 892 Busch v. Interborough Rapid Transit Co. (96 N. Y. S. 1116)...................898

1230 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 112 APP. DIV.—Continued. Page Busch v. Reinheimer (97 N. Y. S. 1130).. 887 Bushe v. Wright (99 N. Y. S. 1136).... 915 Buskist v. Wait (98 N. Y. S. 1098)...... 902 Buss v. Rosenberg (97 N. Y. S. 1130).... 887 Cadigan v. Glens Falls Gas & Electric Light Co. (98 N. Y. S. 954)........... 751 Carroll v. Long Island R. Co. (98 N. Y. S. 1098)................-............. 891 Carthage, Village of, v. Central New York Telephone & Telegraph (97 N. Y. S. 1149) 903 Cartier v. Pabst Brewing Co. (98 N. Y. S. 516).............................. 419 Cassatt v. Sproul (99 N. Y. S. 1136).....913 Ceballos v. Munson S. S. Line (98 N. Y. S. 464) ............................. 352 Chase v. H. A. Baker & Co. (97 N. Y. S. 1130)........i.................... 887 Cheever v. New York Transo. Co. (98 N. Y. S. 1099).......................... 919 Christie v. Miller (98 N. Y. S. 1099)____898 Chumar v. Melvin (98 N. Y. S. 351)...... 828 Citizens’ Nat. Bank of Saratoga Springs v. Bang (99 N. Y. S. 76).............. 748 Citizens’ Trust Co., Matter of (97 N. Y. S. 1130)............................ 885 Citizens’ Trust Co. of Brooklyn, Matter of (98 N. Y. S. 1099)................... 918 City of Geneva. People ex rel., v. Geneva, W., S. F. & C. L. Traction Co. (98 N. Y. S. 719)............................. 581 City of New York, Matter of (In re Amsterdam Ave.,. 98 N. Y. S. 331)......... 160 City of New York, Matter of (In re Amsterdam Ave., 98 N. Y. S. 334)........ 163 City of New York, Matter of (In re Amsterdam Ave., 98 N. Y. S. 334)......... 165 City of New York, Matter of (In re East 138th St., 99 N. Y. S. 1138)...........914 City of New York, Matter of (98 N. Y. S.1 1099)............................ 912 City of New York, Matter of (101 N. Y. S. 1116)............................. 912 City of Rochester, Matter of (People ex rel. Rochester R. & Light Co. v. Stearns, 98 N. Y. S. 1112)..................... 906 City of Rochester, Matter of (97 N. Y. S. 1144) .............................. 907 City of Watertown v. Rodenbaugh (98 N. Y. S. 885)........................... 723 Clancy v. Yonkers R. Co. (97 N. Y. S. 1131) 887 Clark v. General Chemical Co. (98 N. Y. S. 1099) ............................... 891 Clark v. Lynch (97 N. Y. S. 1131).......905 Cleary v. Waterbury Co. (97 N. Y. S. 1131) ............................... 892 Clews v. Peper (98 N. Y. S. 404)......... 430 Closson v. Thompson Pulp & Paper Co. (97 N. Y. S. 1113)........................ 273 Coatsworth v. Lehigh Valley R. Co. (98 N. Y. S. 1099).......................... 901 Coe v. Geneva Power & Light Co. (97 N. Y. S. 1131)......................... 904 Cohen v. Behr (98 N. Y. S. 1099)........ 923 Cohen v. Cohen (99 N. Y. S. 1136)........914 Cohen v. Sun Insurance Co. (99 N. Y. S. ' 1136) ............................... 914 Cohn v. Hessel (96 N. Y. S. 1120)........ 898 Page Cole v. Sweet (98 N. Y. 8, 625).......... 777 Coleman v. New York Cent. & H. R. R. Co. (98 N. Y. S. 1099).................... 902 Coles v. Interurban St. R. Co. (97 N. Y. S. 1131) ............................... 900 College Site, In re (98 N. Y. S. 1099)---- 912 Condon v. Church of St. Augustine (98 N. Y. S. 253)........................... 168 Conion v. City of New York (98 N. Y. S. 1099) ............................... 912 Connell v. Connell (98 N. Y. S. 1099)...... 919 Connell v. Hayes (97 N. Y. S. 1131)......887 Connor’s Will, Matter of (97 N. Y. S. 1131) ............................... 885 Conroy v. Acken (98 N. Y. S. 1099)....... 918 Continental Ins. Co., People ex rel., v. O’Donnel (98 N. Y. S. 1112)...........899 Coombs v. Kenyon (In re Waterman’s Estate, 98 N. Y. S. 583)................. 313 Cooney’s Will, Matter of (98 N. Y. S. 676) 659 Cooper, Matter of (96 N. Y. S. 1121).....895 Corbally v. Erie R. Co. (98 N. Y. S. 1100) 919 Corcoran, People ex rel., v. McAdoo (97 N. Y. S. 1144).......................... 900 Cornell v. Bu'rhans (97 N. Y. S, 1148).... 907 Costello v. O.utterson (98 N. Y. S. 880)... 680 County of Dutchess v. State (98 N. Y. S. 1101) .................. 905 Crowell v. Orange County Traction Co. (97 N. Y. S. 1131)....................... 892 Crowley v. State (98 N. Y. S. 1094)....... 872 Cullman v. Daly (99 N. Y. S. 1137).......913 Cummings, People ex rel., v. Greene (97 N. Y. S. 748)........................ 883 Cunningham v. Peirce (98 N. Y. S. 60).... 65 Curry v. Prudential Ins. Co. of America (99 N. Y. S. 1137)....................... 913 Cutter v. Gudebrod Bros. Co. (97 N. Y. S. 1131) ............................... 894 Dancy v. Walz (98 N. Y. S. 407)........ 355 Darrin v. Federal Union Surety Co. (97 N. Y. S. 1131).......................... 887 Dassau v. New York Ice Co. (98 N. Y. S. 1100) ............................... 898 Davenport v. Corbett (98 N. Y. S. 403)... 382 Davidson v. Jones (98 N. Y. S. 265)...... 254 Davis v. Broadalbin Emitting Co. (99 N. Y. S. 1137).......................... 907 De Agramonte v. City of Mt. Vernon (98 N. Y. S. 454).................... 291 De Agrámente v. City, of Mt. Vernon (98 N. Y. S. 1100)....................... 919 Dealy v. Coble (98 N. Y. S. 452)........ 296 De Barbieri v. Societa Giuseppe Mazzini Italiana Di Mutuo Soccorso (98 N. Y. S. 1100) ............................... 911 Deegan v. Syracuse Lighting Go. (97 N. Y. S. 1131)............................. 901 De Ford v. Gleason (97 N. Y. S. 1132).... 904 Demmerle v. City of New York (98 N. Y. S. 1100)............................. 912 Demuth Glass Mfg. Co. v. Royal Glass Jar & Bottle Co. (97 N. Y. S. 1132)......... 894 Denike v. Denike (97 N. Y. S'. 1132)...... 885 Denike v. Denike (98 N. Y. S. 1100)......918 Depew v. New York City R. Co. (98 N. Y. S 276).............................. 260 De Puy, Matter of (97 N. Y. S. 1132).... 904

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1231 112 APP. DIV—Continued. Page Derby v. Degnon-McLean Contracting Co. (98 N. Y. S. 592).................... 324 De Ronda v. Bell (99 N. Y. S. 1138).....915 Desmond v. New York & Q. Electric Light & Power Co. (97 N. Y. S. 1132)........ 887 Deuel, Matter of (98 N. Y. S. 297)....... 99 Devine v. Hart (97 N. Y. S. 1132)........ 887 De Wolff v. Howe (98 N. Y. S. 262)...... 104 Dick v. Marvin (97 N. Y. & 1132)....... 904 Dickinson v. Oliver (99 N. Y. S. 432).... 806 Diehl v. City 'of New York (98 N. Y. S. 1100) ............................... 912 Dillon v. Mandelbaum (97 N. Y. S. 1132) 894 Doersch v. Central Paper Box Co. (98 N. Y. S. 1100) ............................ 919 Dolan v. Long Island R. Co. (97 N. Y. S. 1133) ..............................'.892 Donnelly v. Heilman (98 N. Y. S.. 1100).. 923 Donnelly v. Third Ave. R. Co. (98 N. Y. S. 387).............................. 648 Donohue’s Will, Matter of (98 N. Y. S. 1100) ............................... 920 Dooher v. Barry (98 N. Y. S. 1100)...... 923 Doremus, Matter of (98 N. Y. S. 1100).... 915 Dorf v. Henry Miles & Sons (98 N. Y. S. • 1100) ............................... 919 Dorienza v. New York City R. Co. (99 N. Y. S. 3138).......................... 913 Dorr v. Bsders (97 N. Y. S. 1133)........ 896 Dougherty v. McCollum (98 N. Y. S. 590).. 917 Downey v. Hodgins (98 N. Y. S. 1101).... 899 Doyle v. Delaney (98 N. Y. S. 468)....... 856 Doyle v. Delaney (98 N. Y. S. 1101)......899 Drexel v. Hollander (98 N. Y. S. 104)..... 25 Dunham v. Hastings Pav. Co. (99 N. Y. S. 3138) ............................... 915 Dutchess County v. State (98 N. Y. S. 1101) ............................... 905 Dwight v. Lawrence (99 N. Y. S. 1138).. 915 Dwyer, Matter of (98 N. Y. S. 329)_,......195 East One Hundred & Thirty-Eighth St., Matter of (99 N. Y. S. 1138)........914 Ebling Brewing Co. v. New York City Interborough R. Co. (98 N. Y. S. 1101) 912 Egan, Matter of (97 N. Y. S. 1134)....... 894 Egan’s Will, Matter of (99 N. Y. S>. 1138) 913 Elide v. Golde (97 N. Y. S. 1134)........ 903 Ehrieh v. Grant (96 N. Y. S. 1124)...... 898 Eighth Ward Bank of Brooklyn v. Ehrlich (97 N. Y. S. 766)....................883 Eisig v. Smith (98 N. Y. S. 1101)........ 920 Electric Steel Elevator Co. v. John Kam Malting Co. (98 N. Y. S. 604).......... 686 • Elliott v. Winterstein (97 N. Y. S. 1134).. 905 Enequist v. City of New York (98 N. Y. S. 1101)...............................920 Enequist v. Read Holliday & Sons (98 N. Y. S. 1101).............. 920 Ennis, Matter of (98 N. Y. S. 1101)......918 Eppens, Smith & Wiemann Co. v. Hartford Eire Ins. Co. (97 N. Y. S. 1134).... 900 Eugene C. Lewis Co. v. Metropolitan Realty Co. (98 N. Y. S. 391)................. 385 Everett v. Village of Potsdam (98 N. Y. S. 963) ............. 727 Fagan v. McDonnell (100 N. Y. S. 1114) .. 885 Fanning v. Varick Contracting Co. (98 N. Y. S. 1101).................... 899 Page Farrell v. Town of North Elba (97 N. Y. S. 1130)............................. 144 Farwell v. Boody (98 N. Y. S. 385)....... 493 Fawcett v. City of New York (98 N. Y. S. 286) ................................ 155 Fay v. Moose River Lumber Co. (97 N. Y. S. 1134) ............................ 901 Feldman v. Goldberg (98 N. Y. S. 1101).. 920 Ferguson v. W. & J. Sloane (97 N. Y. S. 1134) ............................... 887 Perm v. New York, O. & W. R. Co. (98 N. Y. S. 1102).................... 920 Fielding, People ex rel., v. Greene (98 N. Y. S. 1112)........ 928 Fiesel v. New York & Q. C. R. Co. (97 N. Y. S. 1134)......................... 888 Fink v. Hartog & Beinhauer Candy Co. (98 N. Y. S. 393)...................... 387 Firestone v. Realty Associates (98 N. Y. S. 1102)............................. 920 First Nat. Bank of City of Brooklyn v. Gridley (98 N. Y. S. 445).............. 398 First Nat. Bank of Ossining v. Hoag (98 N. Y. S. 1102)..................920 Fitch v. Hay (98 N.-Y. S. 1090).......... 736 Fitzpatrick v. Oldner (98 N. Y. S. 1102).. 920 Flash v. Early (98 N. Y. S. 1102)...... 920 Foley v. Smith (98 N. Y. S. 1102)........912 Forgesen v. Schultz (98 N. Y. S. 1102)____911 Fourth Ave. Route, Matter of (in re Board of Rapid R. Com’rs of City of New York, 97 N. Y. S. 1129).................... 893 Fox v. New York City Interborough R. Co. (98 N. Y. S. 338)..................... 832 Fox v. New York City Interborough R. Co. (98 N. Y. S. 341).....................910 Fox v. New York City Interborough R. Co. (98 N. Y. S. 1102)....................915 Franklin v. Leiter (98 N. Y. S. 1102)____899 Franklin v. New York Herald Co. (97 N. Y. S. 1134) ......................... 888 Frederick v. City of Gloversville (97 N. Y. S. 1105)............................. 146 Freund v. Kremer (97 N. Y. S. 1135).... 900 Friedman v. City of New York (98 N. Y. S. 1102)................................912 Fuller Buggy Co. v. Waldron (99 N. Y. S. 561) ...... 814 Ganesvoort Bank v. Empire State Surety Co. (98 N. Y. S. 382)................ 500 Ganonico v. Cunard S. S, Co. (98 N. Y. S. 1098) ............................... 915 Garanto v. Dooling (97 N. Y. S. 1135)____888 Gardner, People ex rel., v. Supreme Court I. O. F. (98 N. Y. S. 1112)............906 Gause v. Commonwealth Trust Co. (98 N. Y. S. 1102)....................... 913 Gause v. Commonwealth Trust Co. of New York (98 N. Y. S. 1102).............. 900 Gegan v. Union Trust Co. of New York (99 N. Y. S. 1139)........... 914 Geneva, City of, People ex reí., v. Geneva, W., S. F. & C. L. Traction Co. (98 N. Y. S. 719)........................... 581 Geneva Mineral Springs Co. v. Steele (98 N. Y. S. 1103)............ 901 Geneva Mineral Springs Co.-v. Steele (97 N. Y. S. 1135)................ 905 Gilbert v. Westergren (97 N. Y. S. 1135).. 894-

1232 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 112 APP. DIV.—Continued. Page Gilhooly, People ex rel., v. McAdoo (97 N. Y. S. 1144)....................... 886 Gillian v. Dyett (98 N. Y. S. 1103)......913 Glanckopf v. Schultz (98 N. Y. S. 1103).. 911 Gleason v. Mayhew (98 N. Y. S. 1103).. 901 Gleitsman, People ex rel., v. Lewis (97 N. Y. S. 1144)...............:....... 889 Glover v. Interborough Rapid Transit Co. (99 N. Y. S. 1139)....................914 Gottsberger, People ex rel., v. Littleton (97 N. Y. S. 1144)....................... 889 Gottsberger, People ex rel., v. Littleton (98 N. Y. S. 1112)..................922 Greehy v. Metropolitan St. R. Co. (98 N. Y. S. 274)........................ 211 Greene v. New York Cent. & H. R. R. Co. (97 N. Y. S. 1135)................... 903 Greenley v. Early (97 N. Y. S. 1136).... 885 Griffin v. New York City R. Co. (98 N. Y. S. 1103)............................. 899 Grimes v. Long Island R. Co. (97 N. Y. S. 1136)............................. 892 Grimm v. Krahmer (98 N. Y. S. 523).... 489 Greasier v. Meyer (97 N. Y. S. 1136).... 888 Gruenstein v. Gurley (96 N. Y. S. 1127).. 898 Gruenstein v. Gurley (99 N. Y. S. 1139).. 915 Gurski v. Doscher (98 N. Y. S. 588)..... 345 Gutheil v. City of New York (98 N. Y. S. 1103)............................. 918 Gutkes v. New York Produce Exch. (98 N. Y. S. 1103).......................... 920 Gutkes v. New York Produce Exch. (98 N. Y. S. 1103)....................... 923 Haack v. Brooklyn Labor Lyceum Ass’n (97 N. Y. S. 1136)................... 888 Haack v. Brooklyn Labor Lyceum Ass’n (97 N. Y. S. 1136).................... 893 Haase v. Schneider (98 N. Y. S. 587)____336 Hahlo v. Cole (98 N. Y. S. 1049)........ 636 Hahlo v. Cole (99 N. Y. S. 1139)........913 Haigh v. Whitlock (98 N. Y. S. 1103).. 915 Haight v. Haight & Freese Co. (98 N. Y. S. 471).............................. 475 Hall v. Metropolitan St. R. Co. (99 N. Y. S. 1139)........;.................... 913 Hall v. New York, C. & St. L. R. Co. (97 N. Y. S. 1136)....................... 903 Halloran v. Straus (98 N. Y: S. 1103).. 899 Hamilton Street in Village of La Salle, Matter of (97 N. Y. S. 1136).......... 905 Hammond v. Sullivan (99 N. Y. S. 472).. 788 Handibode v. City of New York (98 N. Y. S. 1103).......................... 910 Harding, Matter of (97 N. Y. S. 1136).. 907 Harris v. Baltimore Machine & Elevator Co. (98 N. Y. S. 440).................. 389 Harrison v. Jacobs (98 N. Y. S. 1103).... 903 Hauser v. New York & Q. Electric Light & Power Co. (97 N. Y. S. 1136)........ 888 Haven v. Nichols (97 N. Y. S. 1136)____900 Haviland v. Thayer (Keogh, Matter of, 98 N. Y. S. 433)........................ 414 Hawkesbury Lumber Co. v. Paterson (99 N. Y. S. 1140)....................... 914 Hawkins v. Go'ssner (97 N. Y. S. 1136).. 894 Hawley, Matter of (98 N. Y. S. 1104).. 902 Hay, Matter of (98 N. Y. S. 334)........ 165 Hays v. Faatz Reynolds Felting Co. (98 N. Y. S. 386)........................ 487 Page Heifer v. Consumers’ Park Brewing Co. of Brooklyn (97 N. Y. S. 1137)........... 888 Helwig,- People ex rel.; v. McAdoo (97 N. Y. S. 1144).......................... 886 Herb, Matter of (98 N. Y. S. 334)...... 163 Herbst v. Kellogg Mfg. Co. (98' N. Y. Hermann v. Hermann (98 Ñ. Y. S. 655).. 891 Hettrick v. Seiner (98 N. Y. S. 1104).... 920 Hibbs v. Brown (98 N. Y. S. 353)........ 214, Higgins v. Wentworth (98 Ñ. Y. S. 1104) 923 Hildreth v. City of Ñew York (98 Ñ. Y. S. 1104)............................. 913 Hildreth v. Mercantile Trust Co. (98 N. Y. S. 582).............................. 916 Hilton v. Cram (97 N. Y. S. 1123)....... 35 Hirsch, Matter of (98 N. Y. S. 1104).....913 Hirsch v. American Hist. Tel. Co. (98 N. Y. S. 371)........................... 265 Hirsch’s Estate, Matter of (99 N. Y. S. 1140) .................. 914 Hodge v. Rutland R. Co. (97 N. Y. S. 1107) 142 Hoffman House, New York v. Manhattan Storage & Warehouse Co. (98 N. Y. S. 1104) 898 Holmes v. Ñew York Cent. & H. R. R. Co. (97 N. Y. S. 1137)................... 904 Holsgrove v. Interurban St. R. Co. (98 N. Y. S. 1104)....................... 910 Hopkins’ Will, Matter of (97 Ñ. Y. S. 1137) •.............................. 800 Horning v. Hudson River Tel. Co. (97 N. Y. S. 1137).......................... 905 Horowitz v. Goodman (98 N. Y. S. 53).. 13 Horrmann v. Furgueson (98 N. Y. S. 1104) .............................. 920 Hoyt v. J. E. Davis Mfg. Co. (98 Ñ. Y. S. 1031)............................. 755 Hubbs v. Lehmann (97 N. Y. S. 1137) .. 888 Hudson & M. R. Co. v. Wendel (98 N. Y. S. 341).............................. 822 Hughes v. Havens (98 Ñ. Y. S. 1104).... 902 Hull, Matter of (98 N. Y. S. 1104)____906 Hummel v. Hurd (98 N. Y. S. SOI).....547 Hummel, People ex rel., v. Reardon (98 N. Y. S. 399)........................ 866 Hunn v. Wilmarth (97 N. Y. S. 1137)____892 Hunn v. Wilmarth (98 N. Y. S. 1105)... 918 Hyde v. Anderson (98 N. Y. S. 62)...... 70 Indrizzo v. New York City R. Co. (98 N. Y. S. 1105).......................... 891 Industrial & General Trust v. Tod (97 N. Y. S. 1137).......................... 900 Industrial & General Trust v. Tod (99 N. Y. S. 1140)....................... 914 Isbell-Porter Co. v. Heineman’ (97 N. Y. S. 1138)........■..................... 900 Isham v. Erie R. Co. (98 N. Y. S. 609) .. 612 Jacobs v. Mexican Sugar Refining Co. (98 N. Y. S. 542)........................ 657 Jacobs v. Mexican Sugar Refining Co. (98 N. Y. S. 541)........................ 655 J. A. Mahlstedt Lumber & Coal Co. v. Tier (97 N. Y. S. 1138)............... 889 Janin v. Jacobson (98 N. Y. S. 1105).... 923 I

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS. 1233 112 APR. DIV—Continued. Page Jarashow v. Sun Printing & Publishing Ass’n (97 N. Y. S. 1138).............. 888 Jay, People ex rel., v. O’Donnel (98 N. Y. S. 1112)............................. 899 Jensen v. Welsing (In re Milligan’s Estate, 98 N. Y. S. 480)..................... 373 Jerome, People ex rel., v. Court of General Sessions (98 N. Y. S. 557)........ 424 Jetter v. Scallon (97 N. Y. S. 1138)...... 900 J. J. Spurr & Sons v. Empire State Surety Co. (98 N. Y. S. 1105)............... 919 John Single Paper Co., People ex rel., v. Edgcomb (98 N. Y. S. 965)............ 604 Johnson v. Empire State Dairy Co. (98 N. Y. S. 1105)....................... 920 Johnson v. Eey (97 N. Y. S. 1138)....... 888 Johnson v. Grenell (98 N. Y. S. 629)____620 Johnson v. Onondaga Paper Co. (98 N. Y. S. 602).............................. 667 Johnston v. Hughes (98 N. Y. S. 525).... 524 John Turl’s Sons, People ex rel., v. O’Donnel (98 N. Y. S. 1112)................912 Jones y. Arkenburgh (98 N. Y. S. 532).. 483 Judge v. Interurban St. R. Co. (97 N. Y. S. 1138)............................. 895 Judicial Salesrooms, Matter of (97 N. Y. S: 1138).....'....................... 900 Judson y. Richards (98 N. Y. S. 1105)____912 Katzenstein v. Jonasson (98 N. Y. S. 1105) 915 Keene v. Newark Watch Case Material Co. (98 N. Y. S. 68)...................... 7 Kellogg v. Kovar (98 N. Y. S. 1105)____912 Kelsey v. Church (98 N. Y. S. 535).... 408 Kennedy’s Estate, Matter of (98 N. Y. S. 1105)............................. 902 Kennedy’s Estate, Matter of (97 N. Y. S. 1138)............................. 905 Keogh, Matter of (98 N. Y. S. 433)...... 414 Kervan v. Morison (97 N. Y. S. 1138).. 892 Kesselman v. Reiss (97 N. Y. S. 1138).. 888 Kiernan, Matter of (98 N. Y. S. 1105).. 899 Kilgen, Matter of (98 N. Y. S. 1110).. 922 King v. New York Cent. & II. R. R. Co. (98 N. Y. S. 1105).................... 905 Kissinger v. Livingstone (98 N. Y. S. 1106) .............................. 913 Klarmanu y. Grauer (98 N. Y. S. 1106).. 920 Klein v. Garvey (98 N. Y. S. 1106) .... 911 Klein v. Morrisey (98 N. Y. S. 1106)____920 Kletzein v. Kletzein (98 N. Y. S. 1106).. 921 Knickerbocker Trust Co. v. Oneonta, C. & R. S. R. Co. (97 N. Y. S. 1138)........ 906 Knowles v. Board of Sup’rs of Chemung County (97 N. Y. S. 1111)............138 Koebel v. Beetson (98 N. Y. S. 408)...... 639 Kosower v. Sandler (98 N. Y. S. 1106).. 015 Koster v. Coyne (97 N. Y. S. 1138)...... 885 Kranz v. Lewis (98 N. Y. S. 1106)....... 923 Kushes v. Ginsberg (98 N. Y. S. 1106)... 913 Lablack v. Brooklyn Heights R. Co. (97 N. Y. S. 1139).................... 888 La Chicotte, People ex rel., v. Best (98 N. Y. S. 1112).................... 912 Lackner v. American Clothing Co. (98 N. Y. S. 376).............................. 438 Lackner v. American Clothing Co. (97 N. Y. S. 1139).......................... 885 Page Lahey, People ex rel., v. Woodbury (98 N. Y. S. 142)........................... 79 Lake Erie Boiler Compound Co. v. Caldwell (98 N. Y. S. 1106)............... 902 Lambert v. St. Bernard’s Seminary (In re Cooney’s Will, 98 N. Y. S. 676)........ 659 Lane v. New York Cent. & H. R. R. Co. (97 N. Y. S.. 1139).................. 904 Lapieduse v. Syracuse Rapid Transit R. Co. (97 N. Y. S. 1139).................... 904 Larkin v. McNamee (97 N. Y. S. 1139)... 885 Larkin v. McNamee (97 N. Y. S. 1139)... 890 Laturen v. Bolton Drug Co. (98 N. Y. S. 1106) .............................. 921 Lau v. Volkmann (97 N. Y. S. 1139)..... 888 Laughlin v. People’s Gas, Light & Coke Co. (98 N. Y. S. 1106)................... 901 Lavandowski v.' Dymowski (97 N. Y. S. 1139) .................. 888 Lawrence v. Grout (98 N. Y. S. 279).... 241 Lawson v. Lawson (97 N. Y. S<. 1139)..... 892 Lederer v. McElroy (98 N. Y. S. 247).... 205 Lefevre v. Silo (98 N. Y. S. 321)........ 464 Leifert v. Interborough Rapid Transit Co. (97N.Y. S. 1139).................... 889 Leifert v. Interborough Rapid Transit Go. (97 N. Y. S. 1139)................... 893 Leu v. Koscherak (97 N. Y. S. T139)......885 Levy v. Bingham (98 N. Y. S. 1106)____921 Levy v. City of New York (98 N. Y. S. 1107) 919 Lewis v. Town of Cornwall (97 N. Y. S. 1140) ................................ 885 Lewis Co. v Metropolitan Realty Co. (98 N. Y. S'. 391)............... 385 Lighten v. City of Syracuse (98 N. Y. S. 792) ............................... 589 Lipis v. Metropolitan St. R. Co. (98 N. Y. S. 259)...................... 909 Lipshitz v. Salaway (9,8 N. Y. S. 1107).... 921 Lipshitz v. Schneider (98 N. Y. S. 1107).. 921 Lischinsky v. Hellinger (97 N. Y. S. 1140) 894 Loewer v. German-American Bank (98 N. Y. S. 1107).................... 901 Lomas v. New York City R. Co. (98 N. Y. S. 1107) ............................ 919 Love v. Burton (97 N. Y. S. 1140)....... 885 Lovett v. Lovett (98 N. Y. S. 1107)..... 921 Lowry v. Interurban St. R. Co. (98 N. Y. S. 1107).................... 911 Lowther v. Rader (98 N. Y. S. 1107)...... 899 Luckey v. Mockridge (98 N. Y. S. 335).. 199 Luckey v. Mockridge (98 N. Y. S. 337)... 908 Ludlow v. Galindo (97 N. Y. S. 1140).... 889 Ludlow v. Galindo (97 N. Y. S. 1140)... 893 Lynch v. Shanley Co. (98 N. Y. S. 406).. 305 McAfee v. Wyckoff (97 N. Y. S. 1140).. 892 McAuley v. New York Cent. & H. R. R. Co. (97 N. Y. S. 631)................ 906 McAuley v. New York & Q. C. R. Co. (98 N. Y. S. 1107)....................... 923 McAvoy’s Estate, Matter of (98 N. Y. S'. 437) ................................ 377 McCabe, Matter of (98 N. Y. S. 1107).... 918 McCarthy v. Gillies (97 N. Y. S. 1140)____892 McCullom v. Carr (97 N. Y. S. 1141)____892 Macdonald v. Macdonald (98 N. Y. S.) 581)..........;.....................330

1234 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 112'APP. DIV—Continued. Page McGarren’s Éstate, Matter of (98 N. Y. S. 415) ................................ 503 McGovern v. Manhattan R. Co. (98 N. Y. S. 97)............................ 184 McIntosh v. Moore (97 N. Y. S. 1141)____905 Mack v. Hilsinger (97 N. Y. S, 1141).....907 McLaughlin v. Connors (98 N. Y. S. 1107) 906 McLaughlin v. Manhattan R. Co. (99 N. Y. S. 1141).......................... 915 McManus v. St. Regis Paper Co. (97 N. Y. S. 1141)............................. 903 MacMullen v. City of Middletown (98 N. Y. S. 145).............................. 81 MacMullen v. City of Middletown (98 N. Y. S. 1107) ............................ 919 McPherson v. General Synod of Reformed Church in America (98 N. Y. S. 1108).. 891 Mahlstedt Lumber & Coal Co. v. Tier (97 N. Y. S. 1138)....................... 889 Mahoney v. Harlam (97 N. Y. S. 1141).. 905 Malloy v. City of New York (98 N. Y. S. 1108) ............................... 911 Malone v. Yonkers R. Co. (97 N. Y. S. 1141) ................................ 885 Manthai v. Erie R. Co. (98 N. Y. S. 1308) 921 Marson v. City of Rochester (97 N. Y. S. 881) ................................ 51 Marson v. City of Rochester (98 N. Y. S. 1108) ................;..............905 Martens v. Tiedemann (97 N. Y. S. 1141) 894 Martin v. Flahive (98 N. Y. S. 577)...... 347 Marx v. McKenzie (97 N. Y. S. 1141)____889 Mathers v. Interurban St. R. Co. (98 N. Y. S- 433) ............................. 397 Mayer v. Patten (People v. Bank of Staten Island, 99 N. Y. S. 486).............. 791 Meltzer v. Interurban St. R. Co. (98 N. Y. S. 1108)............................. 899 Merow, Matter of (99 N. Y. S. 9)........562 Mexico Onyx Quarry Co. v. Kelley (98 N. Y. S. 1108).......................... 899 Meyer v. Page (98 N. Y. S. 739)......... 625 Michigan Sav. Bank v. Coy, Hunt & Co. (96 N. Y. S. 1136).................... 898 Michigan Sav. Bank v. Hubbs (96 N. Y. S. 1136)............................. 898 Michigan Sav. Bank v. Millar (96 N. Y. S. 1136)............................. 898 Miller v. Carpenter (98 N. Y. S. 1108).... 921 Miller v. Miller (99 N. Y. S. 1142)......914 Miller v. Vining (98 N. Y. S. 466)...... 304 Milligan’s Estate, Matter of (98 N. Y. S. ■480) ................................ 373 Minor v. Garden (98 N. Y. S. 1108)......915 Mladinich v. Livingston (98 N. Y. S. 46).. 181 Moriarty v. Board of Education of City of New York (98 N. Y. S„ 251)........... 837 Morris, People ex rel., v. Baker (97 N. Y. S. 1144)............................. 900 Morse v. Douglass (99 N. Y. S. 392)...... 798 Mossein v. Empire State Surety Co. (98 N. Y. S. 144)........................... 69 Moynihan, People ex rel., v. McAdoo (98 N. Y. S. 40).......................... 32 Muldoon v. Herren (99 N. Y. S. 1142).. 915 Mulville v. Metropolitan St. R. Co. (97 N. Y. S. 1141).......................... 900 Murphy v. City of Watertown (99 N. Y. S, 6.).....:............;............ 670 Murphy v. Émsheimer (98 N. Y. S. 1108).. 921 Page Murphy, People ex rel., v. McAdoo (97 N. Y. S. 1144).......................... 886 Mutual Milk & Cream Co. v. Prigge (98 N. Y. S. 458)......................... 652 Myers v. Reade (98 N. Y. S. 620)......... 363 Myers v. Town of Gates (98 N. Y. S. 1108) 902 National Enameling & Stamping Co., People ex rel., v. Miller (98 N. Y. S. 751)... 880 Neate v. Gelm (97 N. Y. S. 1142)......... 904 Nesbitt, Matter of (98 N. Y. S. 1109)..... 899 Neville v. Pennsylvania & W. V. Co. (97 N. Y. S. 1142).......................... 886 Newman v. Bums (97 N. Y. S. 1142)...... 892 New York, City of, Matter of (In re Amsterdam Ave., 98 N. Y. S. 331)......160 New York, City of, Matter of (In re Amsterdam Ave., 98 N. Y. S. 334)......... 163. New York, City of, Matter of (In re Amsterdam Ave., 98 N. Y. S. 334).......... 165 New York, City of, Matter of (In re College Site, 98 N. Y. S. 1099)........... 912 New York, City of, Matter of (In re East 138th St., 99 N. Y. S. 1138)............914 Niagara, L. & O. Power Co., Matter of (97 N. Y. S. 858)......................... 901 Niagara, L. & O. Power Co., Matter of (97 N. Y. S. 1142)........................ 904 Nichols v. Riley (98 N. Y. S. 346)........ 102 Niewenhous v. Manhattan R. Co. (98 N. Y. S. 501)............................ 895 Noble v. Hahnemann Hospital of Rochester (98 N. Y. S. 605)..................... 663 Northern Assur. Co. of London, People ' ex rel., v. O’Donnel (98 N. Y. S. 1112).. 899 North Hempstead, Town of, v. Eldridge (98 N. Y. S. 1115)..................... 893 Nugent, People ex rel., v. McAdoo (97 N. Y. S. 1144)........................... 886 Nunnally v. New York Staats Zeitung (99 N. Y. S. 1143)....................... 915 Nunnally v. Tribune Ass’n (99 N. Y. S. 1143) .......i....................... 915 O’Brien v. Brady (97 N. Y. S. 1142)...... 889 O’Connell v. Utica & M. V. R. Co. (98 N. Y. S. 1109)........... 901 Ohlau v. Lemcke (98 N. Y. S. 1109)....... 921 Oil Well Supply Co. v. Phoenix Iron Works Co. (97 N. Y. S. 1142).......... 904 Olcott v. Baldwin (98 N. Y. S. 1109)...... 921 Olsen v. Henderson (98 N. Y. S. 1109)..... 919 Omphalius, Matter of (97 N. Y. S. 1143).. 903 Ó’Reilly v. Brooklyn Heights R. Co. (97 N. Y. S. 1143)...................... 893 Oriental Bank v. Gallo (98 N. Y. S. 561).. 360 Osborn v. Cardeza (98 N. Y. S. 1109).... 921 O’Shaughnessy v. City of New York (98 N. Y. S. 1109)........................ 911 Osmulski v. New York & Q. C. R. Co. (98 N. Y. S. 1109)...................... 921 Ostrander v. State (98 N. Y. S. 1061).... 875 Owen v. Whitehouse (98 N. Y. S. 1109).. 891 Czark Cooperage Co. v. Quaker City Cooperage Co. (98 N. Y. S. 113)............. 62 Pace, Matter of (98 N. Y. S. 1109)......918 Palmer v. Larchmont Horse R. Co. (98 N. Y. S. 567)........................... 341

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 1235 112 APF. DIV.—Continued. Page Paterson v. Robinson (People v. Merchants’ Trust Co., 98 N. Y. S. 1110)............906 Patterson v. John H. Woodbury Dermatological Institute (97 N. Y. S. 1143).. 900 Peabody v. Long Acre Square Bldg. Co. (98 N. Y. S. 242)...................... 114 Peacock v. Bailey (98 N. Y. S. 1109)____921 Pearsall v. New York Cent. & H. R. R. Co. (97 N. Y. S. 1143)................... 904 Pearsall v. Stewart (98 N. Y. S. 467).... 366 People v. Bank of Staten Island (99 N. Y. S. 486).............................. 791 People v. BerghofE (99 N. Y. S. 201)...... 772 People v. Biglizen (98 N. Y. S. 361)...... 225 People v. Conlon (97 N. Y. S. 1143)...... 900 People v. Couchois (98 N. Y. S. 1109)____911 People v. Dibol (96 N. Y. S. 1139)...... 898 People v. Dolan (98 N. Y. S. 1109)......913 People v. Eckert (98 N. Y. S. 1109)....... 902 People v. Family Fund Soc. (97 N. Y. S. 1143) ............................... 906 People v. Federal Bank of New York (97 N. Y. S. 1143)....................... 900 People v. Friedman (99 N. Y. S. 1145).... 915 People v. Gianvecchio (96 N. Y. S. 1139).. 898 People v. Jaffe (98 N. Y. S. 486)........ 516 People v. Johnston (99 N. Y. S. 411)......812 People v. Joyce (98 N. Y. S. 863)........717 People v. Kopp (98 N. Y. S. 1110)........913 People v. Merchants’ Trust Co. (98 N. Y. S. 1110).......... 906 People v. New York Building-Loan Banking Co. (98 N. Y. S. 290)....... 166 People v. Nolan (97 N. Y. S. 1143)...... 900 People v. Republic Savings & Loan Ass’n (98 N. Y. S. 1110)..................922 People v. Rogers (98 N. Y. S. 1110)......921 People v. Rothschild (97 N. Y. S. 1143).. 900 People v. Schneider (98 N. Y. S. 1110).. 891 People v. Stein (97 N. Y. S. 923)........ 896 People v. Troupe (98 N. Y. S. 1112)......906 People v. Weisberg (96 N. Y. S. 1140).... 898 People v. Wickes (98 N. Y. S. 103)....... 39 People v. Wolf (98 N. Y. S. 381)........ 449 People v. Wolf (97 N. Y. S. 1143)........ 886 People ex rel. Bender v. Milliken (97 N. Y. S. 1143).......................... 906 People ex rel. Bender v. Milliken (97 N. Y. • S. 223).............................. 907 People ex rel. City of Geneva v. Geneva, W., S. F. & O. L. Traction Co. (98 N. Y. S. 719)............................ 581 People ex rel. Continental Ins. Co. v. O’Donnel (98 N. Y. S. 1112)......... 899 People ex rel. Corcoran v. McAdoo (97 N. Y. S. 1144)................ 900 People ex rel. Cummings v. Greene (97 N. Y. S. 748)............................ 883 People ex rel. Fielding v. Greene (98 N. Y. S. 1112)........................... 923 People ex rel. Gardner v. Supreme Court of I. O. F. (98 N. Y. S. 1112)..........906 People ex rel. Gilhooly v. McAdoo (97 N. Y. S. 1144).......................... 886 People ex rel. Gleitsman y. Lewis (97 N. Y. S. 1144)..................... 889 People ex rel. Gottsberger v. Littleton (97 N. Y. S. 1144)....................... 889 People ex rel. Gottsberger v. Littleton (98 N. Y. S. 1112)....................... 922 Page People ex reí. Helwig v. McAdoo (97 N. Y. S. 1144).......................... 886 People ex rel. Hummel v. Reardon (98 N. Y. S. 399)...........................-866 People ex rel. Jay v. O’Donnel (98 N. Y. S. 1112)............................. 899 People ex rel. Jerome v. Court of General Sessions (98 N. Y. S. 557)............. 424 People ex rel. John Single Paper Co. v. Edgcomb (98 N. Y. S. 965)............ 604 People ex rel. John Turl’s Sons v. O’Donnel (98 N. Y. S. 1112).................... 912 People ex rel. La Chicotte v. Best (98 N. Y. S. 1112)............................. 912 People ex rel. Lahey v. Woodbury (98 N. Y. S. 142)...................... 79 People ex rel. Morris v. Baker (97 N. Y. S. 1144)........... 900 People ex rel. Moynihan v. McAdoo (98 N. Y. S. 40)........................ 32 People ex rel. Murphy v. McAdoo (97 N. Y. S. 1144)............... 880 People ex rel. National Enameling & Stamping Co. v. Miller (98 N. Y. S. 751)______ 880 People ex rel. Northern Assur. Co. of London v. O’Donnel (98 N. Y. S. 1112)____899 People ex rel. Nugent v. McAdoo (97 N. Y. S. 1144)............... 886 People ex rel. Randolph v. Clarke (99 N. Y. S. 1145)............. 915 People ex rel. Rizzo v. New York Catholic Protectory (99 N. Y. S. 1145)...____.... 914 People ex rel. Rochester R, & Light Co. v. Stearns (98 N. Y. S. 1112).......... 906 People ex rel. Rochester R. & Light Co. v. Stearns (97 N. Y. S. 1144)______...... 907 People ex rel. Sellew v. Hayes (97 N. Y. S. 1144) ........ 900 People ex rel. Stillman v. Stillman (97 N. Y. S. 1144).......................... 889 People ex rel. Stoney v. McAdoo (97 N. Y. S. 1145) ..... 886 People ex rel. Troy Steel Co. v. Munn (98 N. Y. S. 1112)........... 906 People ex rel. Venner v. New York Life Ins. Co. (96 N. Y. S. 1142)............ 898 People ex rel. Walrath v. O’Brien (97 N. Y. S. 1115)...... 97 People ex rel. Whitaker v. McAdoo (97 N. Y. S. 1145)........................... 886 People ex rel. Woodruff v. McAdoo (97 N. Y. S. 1145).......................... 886 Perlstein v. Helman (98 N. Y. S. 1113).... 891 Perry, Matter of (98 N. Y. S. 1113)...... 913 Perry v. Village of Newport (97 N. Y. S. 1145) ............................... 903 Peterson v. Bonert (98 N. Y. S. 1113).... 922 Pfeiffer v. Heartstone (98 N. Y. S. 1113).. 911 Phillips v. Bindley (98 N. Y. S. 423)______ 283 Fillet v. City of New York (97 N. Y. S. 1145) ..................... ....889 Pinkney, Matter of (98 N. Y. S. 1099).... 912 Plant v. Bahr (97 N. Y. S. 1145)........ 902 Poland v. United Traction Co. (97 N. Y. S. 1145) ........ 907 PolhemuS v. Bedes (98 N. Y. S. 1313)____921 Pollard v. Worth (97 N. Y. S. 1145)...... 893 Poth v. Commercial Advertiser Ass’n (97 N. Y. S. 1145)........................... 900

1236 101 NEW YORK SUPPLEMENT ' and 135 New York State Reporter 112 APP. DIV.—Continued. Page Potsdam Electric Light & P. Co. v. Village of Potsdam (99 N. X. S. 551)...........- 810 Potter, Matter of (98 N. T. S. 1113).....903 Potter v. Village of Hammondsport (98 N. X. S. 186)........................... 91 Prentice v. Goodale (In re Roberts’ Will, 98 N. X. S. 809)........................ 732 Price v. Interurban St. R. Co. (98 N. Y. S. 1110) ............................... 911 Price v. New Xork & B. Dispatch Exp. Co. (97 N. Y. S. 1145)................... 889 Bruyn v. Guayaquil & Q. R. Co. (97 N. X. S. 1145).....1....................... 907 Ramsey v. Hayes (98 N. Y. S. 394)...... 442 Rand v. Sage (98 N. X. S. 1110).........922 Randolph, People ex rel., v. Glarke (99 N. Y. S. 1145)........................... 915 Ransom v. Cutting (98 N. Y. S. 282)...... 150 Raymond v. Security Trust, etc., Co. (98 N. Y. S. 1110)......................... 913 Reed v. Provident Sav. Life Assur. Soc. (98 N. Y. S. 1111)........................ 922 Rees v. New Xork Herald Co. (98 N. Y. S. 548) ................................ 456 Reibstein v. Nassau Electric R. Co. (98 N. Y. S. 1111).......................... 891 Reilly v. Empire Life Ins. Co. (98 N. Y. S. 1111) .............................. 922 Reincke, Matter of (98 N. Y. S. 1111).....891 Reinheimer v. Heyman (98 N. Y. S. 1111).. 922 Reiser v. Metropolitan Exp. Co. (98 N. X. S. 1111) ............................ 911 Remsen v. Wingert (98 N. X. S. 388).... 234 Remy v. Interurban St. R. Co. (99 N. X. S. 1146) ............................... 913 Rende v. New Xork & T. S. S. Co. (98 N. Y. S. .1111).......................... 922 Reporters’ Ass’n of America v. Sun Printing & Publishing Ass’n (98 N. Y. S. 294) ......•......................... 246 Rewitzer v. Switchmen’s Union of North America (98 N. X. S. 974)............. 708 Reynolds v. New York, N. H. & H. R. Co. (97 N. Y. S. 1146)................... 893 Rich v. Pennsylvania R. Co. (98 N. Y. S. 678) 818 Richardson & Boynton Co. v. Schiff (97 N. Y. S. 1146) ......................... 893 Ricketts v. Ramsdell (98 N. X. S. 1111).. 919 Rizzo, People ex rel., v. New Xork Catholic Protectory (99 N. Y. S. 1145)..........914 Roberts’ Will, Matter of (98 N. Y. S. 809) ............................... 732 Robinson v. Niles (98 N. Y. S. 1111)...... 899 Rochester, City of, Matter of (People ex rel. Rochester R. & Light Co. v. Stearns, 98 N'. Y. S. 1112)..................... 906, Rochester, City of, Matter of (97 N. Y. S. 1144) ..............................'907 Rochester R. & Light Co., People ex rel., v. Stearns (98 N. Y. S. 1112)............ 906 Rochester R. & Light Co., People ex rel., v. Stearns (97 N. Y. S. 1144)............. 907 Rock v. Acker Process Co. (98 N. X. S. 977) ............................... 695 71 overs v. Herter (97 N. Y. S. 1146)...... 900 Roosevelt v. Holland Trust Co. (98 N. X. S. 1111)............................. 911 Rosenberg v. Haggerty (97 N. X. S. 1146) 893 Page Rosenfeld v. Central Vermont R. Co. (97 N. Y.- S. 1146)....................... 891 Rosenstein v. Traders’ Ins. Co. of Chicago (98 N. Y. S. 1113)...................902 Rosenthal v. New York, S. & W. R. Co. (98 N. Y. S. 476)..................... 431 Rosenthal v. New York, S. & W. R. Co. (98 N. X. S. 479)....................... 436 Roth v. Mautner (99 N. X. S. 1146)...... 915 Rowe y. Gerry (98 N. Y. S. 380)...... 358 Rowe v. White (98 N. Y. S. 729)......... 688 Rowland v. Logan (97 N. X. S. 1146).... 889 Rozett v. Zetterberg (97 N. Y. S. 1146).. 889 Rudiger v. Coleman (98 N. Y. S. 461)____279 Rudomin v. Interurban St. R. Co, (99 N. X. S. 1146) ......................... 915 Russell v. Lehigh Valley R. Co. (97 N. X. S. 1146)............................ 903 Russell Hardware & Implement Mfg. Co. v. Utica Drop Forge & Tool Go. (98 N. X. S. 777)....................... 703 St. Albans Beef Co. v. Aldridge (99 N. X. S. 398)............................. 803 St. Regis Paper Co. v. Santa Clara Lumber Co. (98 N. Y. S. 572)................. J75 St. Regis Paper Co. v. Watson Page Lumber Co. (97 N. Y. S. 1146)............ 907 Samson v. Harman (97 N. Y. S. 1146).. 893 Sands, Matter of (98 N. X. S. 459)...... 649 San Filippo v. American Bill Posting Co. (98 N. X. S. 661)..................... 395 Sargent v. St. Mary’s Orphan Boys’ Asylum (98 N. Y. S. 632)................ 674 Saul v. Swartz (98 N. Y. S. 549)........ 511 Scallon v. Manhattan R. Co. (98 N. X. S. 272)........................ 262 Schellenberg v. Mulianey (98 N. X. S. 432) ,.............................. 384 Schermerhorn v. Glens Falls Portland Cement Co. (98 N. X. S. 1113).......... 906 Scherzer v. Martin (98 N. X. S. 1113).. 918 Scheu v. Union R. Co. of New "York City (98 N. Y. S. 278)..................... 239 Schlesinger v. Bernstein (98 N. Y. S. 1113) 910 Schlesinger v. Bischoff "(99 N. X. S. 1148) ................;.............914 Schlesinger v. Bluestone (98 N. Y. S. 1114) 899 Schlesinger v. Borough Bank of Brooklyn (98 N. Y. S. 136).................... 121 Schlesinger v. Klinger (98 N. X. S. 545).. 853 Schlesinger v. Manhattan R. Co. (98 N. Y. S. 1114).......................... 935 Schmid, Matter of (98 N. X. S. 1114)____918 Schnurr v. Quinn (97 N. X. S. 1147)____SS6 Schoener v. Hartford Carpet Corporation (98 N. Y. S. 1114)................... 922 Schreiber’s Will, Matter of (98 N. X. S. 483) 495 Sehroeder v. Meyer (98 N. Y. S. 1114).. 922 Schultz v. Greenwood Cemetery (98 N. Y. S. 1114)........:.................922 Schulz v. Metropolitan Jockey Club (97 N. Y. S. 1147)....................... 889 Seeley, Matter of (96 N. Y. S. 1145).. 898 Seeley v. New York City R. Co. (97 N. X. S. 1147).........:................ 907 Seger v. Farmers’ Loan & Trust Co. (98 N. X. S. 1114).....................T. 911

TABLES OF NEW YORK SUPPLEMENT CASES IN OTHER REPORTS, 123T 112 A3PP. BIV.—Continued. Page Seidman v. Janos (98 N. Y. S. 1114).. 919 Sellew, People ex rel., v. Hayes (97 N. Y. 1144) .............................. 900 Shapiro v. Shapiro (97 N. Y. S. 1147).. 886 Sharpies v. Angelí (98 N. Y. S. 1114).. 906 Shaughnessy v. Weekes (97 N. Y. S. 1147) .............................. 8Í Shaver v. Cunningham (97 N. Y. S. 1147) ..............................906 Shedd v. Lent (98 N. Y. S. 1114).......891 Sholes v. Seamans (98 N. Y. S. 1114).. 912 Sidebotham v. Yonkers Electric Light & Power Co. (97 N. Y. S. 1147)........ 889 Silinski v. Prime (97 N. Y. S. 1147) .... 889 Single Paper Co., People ex rel., v. Edgcomb (98 N. Y. S. 965)................ 604 Skenandoa Cotton Co. v. Enid & Hatch Knitting Co. (98 N. Y. S. 1114)........902 SIoss Iron & Steel Co. v. Jackson Architectural Iron Works (97 N. Y. S. 1147).. 900 Smith v. Barber (98 N. Y. S. 365)........ 187 Smith v. Paris (97 N. Y. S. 1147)........ 890 Smith v. Lehigh Valley R. Co. (97 N. Y. S. 1148) ............................... 903 Smith v. Manhattan R. Co. (98 N. Y. S. 1) 202 Smith v. Village of Ft. Plain (97 N. Y. S. 1148) ............................... 907 Somborn v. Somborn (97 N. Y. S. 1148).. 890 Soop, Matter of (97 N. Y. S. 1148)....... 907 Soop v. Burhans (98 N. Y. S. 1115)._____906 Soronen v. Von Pustau (98 N. Y. S. 431).. 437 Spring v. Ryan (97 N., Y. S. 1148)....-.. 901 Spurr' & Sons v. Empire State Surety Co. (98 N. Y. S. 1105)...................919 Stage v. Waldo (97 N. Y. S. 1148)...... 904 Stammer v. Harmon (99 N. Y. S. 519).... 794 Stanton v. Board of Sup’rs of County of Essex (98 N. Y. S. 1059)............... 877 Starkey v. Webster (97 N. Y. S. 1148).... 886 Stein-Bloch Co. v. Kohn (99 N. Y. S. 1149) 914 Steinway v. Steinway (98 N. Y. S. 99)..... 18 Stevens v. McAdoo (98 N. Y. S. 553).... 458 Stillman v. Johnson (99 N. Y. S. 1149).... 914 Stillman, People ex rel., v. Stillman (97 N. Y. S. 1144)....................... 889 Stock v. Hoffstetter (99 N. Y. S. 1150).... 914 Stokes v. New York Life Ins. Co. (98 N. Y. S. 135).:......................... 77 Stollarick v. New York Cent. & H. R. R. Co. (97 N. Y. S. 1148)................. 907 Stone v. Rochester Herald Co. (98 N. Y. S. 1115) ......................'.........899 Stoney, People ex rel., v. McAdoo (97 N. Y. S. 1145).......................... 886 Stony Wold Sanatorium v. Keese (98 N. Y. S. 1088)...................... 738 Storck v. Interurban St. R. Co. (99 N. Y. S. 1150)............................. 913 Streimer v. Cohen (97 N. Y. S. 1148).... 890 Sturmdorf v. Saunders (98 N. Y. S. 1115) 919 Sumerwell v. Rochester Herald Co. (97 N. Y. S. 1148).......................... 905 Sutherland v. Ammann (98 N. Y. S. 574).. 332 Sutherland v. City of Rochester (98 N. Y. S. 970)............................. 712 Sweet v. Gildea (97 N. Y. S. 1149)....... 894 Thomas v. George G. Fuessels’ Sons (98 N. Y. S. 1115)........................... 915 Thompson v. Erlanger (99 N. Y. S. 1142).. 914 101 N.Y.S.—b Page Tilly v. Von Arnim (97 N. Y. S. 1149).. 890 Tingley v. Long Island R. Co. (97 N. Y. S. 1149)................ 886 Tisdale, Matter of (97 N. Y. S. 1149).... 907 Tocci v. Gianveechio (98 N. Y. S. 1115)... 915 Todd’s Estate, Matter of (97 N. Y. S. 1149) 902 looker v. Bppinger & Russell Co. (97 N. Y. S. 1149)..... 890 Town of North Hempstead v. Eldridge (98 N. Y. S. 1115)...... 893 Townsend v. Fieldstein (97 N. Y. S. 1149) 886 Treffinger v. M. Groh’s Sons (98 N. Y. S. 291) .................... 250 Treffinger v. M. Groh’s Sons (98 N. Y. S. 1115) .....'.......... 915 Trott v. Schmitt (98 N. Y. S. 1115)._____923 Troy Steel Co., People ex rel., v. Munn (98 N .Y. S. 1112)..................... 906 Trustees of City & County Hall, Matter of (97 N. Y. S. 1127).................... 903 Turl’s Sons, People ex reí., v. O’Donnel (98 N. Y. S. 1112).................... 912 Tuscarora Land & Imp. Co. v. Mentz (97 N. Y. S. 1149).................... 905 Tyrrell v. Forsythe (97 N. Y. S. 1149).... 890 United States Fidelity & Guaranty Co. v. Clifford (In re Dwyer, 98, N. Y. S. 329).. 195 Untermyer v. City of Yonkers (98 N. Y. S. 563)....... 308 Valentine, Matter of (In re Brooklyn Bar Ass’n, 98 N. Y. S. 1098).............. Valentine v. Stevens (97 N. Y. S. 1149).... Van Allen v. Peabody (97 N. Y. S. 1119).. Van Cott v. Hayes (97 N. Y. S. 1149)____ Van Ostrand v. Delaware & Hudson Co. (99 N. Y. S. 548)........................ Van Valkenberg, Matter of (101 N. Y. S. 1116) .............................. Venable, Matter of (98 N. Y. S. 1115)_____ Venner, People ex rel., v. New York Life Ins. Co. (96 N. Y. S. 1142)............. Ventresca v. Beckwith (98 N. Y. S. 134)... Village of Carthage v. Central New York Telephone & Telegraph Co. (97 N. Y. S. Von Der Heidé" vi'Schütté '(98 N¡" Y.* S. 1115) ............................... 918 886 57 890 783 912 915 898 72 903 922 Wabnich v. Dry Dock, E. B. & B. R. Co. (98 N. Y. S. 38)...................... 4 Wakley v. King (98 N. Y. S. 957)......... 765 Walker v. Newton Falls Paper Co, (97 N. Y. S. 1149)........................ 906 Walrath, People ex rel., v, O’Brien (97 N. Y. S. 1115)....................... 97 Walton, Matter of (98 N. Y. S. 42)...... 176 Ward v. Hawkins Iron Const. Co. (98 N. Y. S. 1116).......................... 911 Ward v. Metropolitan St. R. Co. (99 N. Y. S. 1150)............................. 915 Waterman’s Estate, Matter of (98 N. Y. S. 583).......... 313 Waters v. Horace Waters & Co. (96 N. Y. S. 1150)......... 898 Waters v. Horace Waters & Co. (98 N. Y. S. 1116)........ 910 Watertown, City of, v. Rodenbaugh (98 N. Y. S. 885)............................ 723

1238 101 NEW YORK SUPPLEMENT and 135 New York State Reporter 112 AFP. DIV.—Continued. Page Watt v. Feltman (97 N. X. S. 1150)....... 894 Watts v. Campbell (96 N. Y. S. 1150)..... 898 Weber v. Mereness (98 N. Y. S. 1116)..... 902 Weeks v. Coe (97 N. Y. S. 1150).......... 888 Weeks v. Coe (98 N. Y. S. 1116).......... 918 Weil v. Bauer (97 N. Y. S. 1150)......... 900 Weinstein v. Shapiro (98 N. Y. S. 1116)... 922 Weir v. Union R. Co. of New York City (98 N. Y. S. 268)..................... 109 Weisberg v. Weisberg (98 N. Y. S. 260).... 231 Weiss v. Bleier (98 N. Y. S. 539)......... 533 Weiss v. Rubinson (98 N. Y. S. 429)...... 276 Weizinger v. Erie R. Co. (98 N. Y. S. 1116) ........................ 911 Wells v. Metropolitan St. R. Co. (97 N. Y. S. 1150).......................... 890 Wells v. Metropolitan St. R. Co. (98 N. Y. S. 1116)............................. 919 West v. Woodruff (97 N. Y. S. 1054)...... 133 Whitaker, People ex rel., v. McAdoo (97 N. Y. d. 1145)........................ 886 White v. Davenport (97 N. Y. S. 1150).... 890 White v. White (97 N. Y. S. 1150)........ 904 White Plains Presbyterian Church, Matter of (98 N. Y. S. 63)....................130 Wickes, Matter of (99 N. Y. S. 1150).....915 Wickham v. Roberts (98 N. Y. S. 1092)... 742 Wilcox v. Fox (98 N. Y. S. 769)......... 560 Wilke v. Wright (97 N. Y. S. 1150)....... 890 Wilkenfeld v. Isaacson (99 N. Y. S. 1150).. 914 Wilkin, Matter of (98 N. Y. S. 1117).....902 Willard v. Martin (98 N. Y. S. 1117)......911 Williams v. City of New York (97 N. Y. S. 1150)............................. 893 Williamson v. Randolph (99 N. Y. S. 1151) ............................... 915 Willis Ave. Bridge, Matter of (98 N. Y. S. 1117) ............................... 913 Page Wilson v. Metropolitan St. R. Co. (98 N. Y. S. 1117)...........................908 Wilson v. Raymond (98 N. Y. S. 1118).. 923 Winter v. City of Niagara Falls (98 N. Y. S. 1118)............................. 902; Winter v. Winter (97 N. Y. S. 1151)...... 900 ■ Wise, Matter of (97 N. Y. S. 1128)....... 894 ’ Wisotzkey v. Hartford Fire Ins." Co. (98 N. Y. S. 763)........................ 596 Wisotzkey v. Niagara Fire Ins. Co. (98 N. Y. S. 760)......................... 599 Witmer v. Buffalo & N. F. Electric Light & Power Co. (98 N. Y. S. 781)........... 698 Wohlers v. Manhattan R. Co. (98 N. Y. S. 1118) ............................... 911 Wood v. Wood (97 N. X. S. 1151)........ 893 Woodruff, People ex rel., v. McAdoo (97 N. Y. S. 1145)........................... 886 Woods v. Erie R. Co. (97 N. Y. S. 1151)... 890 Worthington v. City of New York (99 N. Y. S. 1151)........................... 914 Wright, Matter of (97 N. Y. S. 1151)...... 907 Wright v. Glen Tel. Co. (99 N. X. S. 85)... 745 Wynkoop v. Ludlow Valve Mfg. Co. (98 N. Y. S. 1076).......................... 729 Young v. Equitable Life Assur. Soc. (98 N. Y. S. 1052).........................760 Xoung v. Tilyou (98 N. Y. S. 1118).......923 Youran v. Village of Ft Plain .(97 N. X. S. 1151)............................. 907 Zahler v. Arkin (98 N. X. S. 544)......... 327 Zapfe v. John Mullins & Sons (98 N. Y. S. 1118) ............................... 916 Zirinsky v. Post (98 N. X. S. 132)....... 74