§ 27. In an action by a customer against his brokers for loss resulting from alleged unauthorized transactions, the complaint held to state a cause of action on contract and not in tort for conversion.-Barber v. Ellingwood (Sup.) 369. § 27. Where, even on the facts alleged, a cause of action in tort might be read into the pleading, every intendment is in favor of construing the counterclaim as being in contract.Carroll v. Sharp (Sup.) 694. § 28. Where a stockbroker sells his customer's securities without authority, the customer may sue either on contract or in tort, and in either case is entitled to the benefit of the highest price for the stock within a reasonable time after notice of the sale.-Barber v. Ellingwood (Sup.) 369. III. JOINDER, SPLITTING, CONSOLI- Demurrer for misjoinder of causes, see Plead- § 38. A complaint held not to allege a cause of action for damage to personalty, in addition to one for assault.-Vock v. Auterborn (Sup.) 233; Same v. Guthier (Sup.) 235. § 38. That a complaint attempting to set up two causes of action was unsuccessful as to one of them will not render the complaint good as against a demurrer on the ground of misjoinder. -Todaro v. Somerville Realty Co. (Sup.) 509. § 38. On demurrer for misjoinder of causes of action, a complaint may be searched to ascertain whether it sets forth two causes of action regardless of its form.-Todaro v. Somerville Realty Co. (Sup.) 509. 45. A complaint, in an action for personal injuries, with an allegation as to injuries to personal property, is demurrable for misjoinder of causes.-Vock v. Auterbourn (City Ct. N. Y.) 1023. 50. A complaint alleging fraud of several defendants held not demurrable for misjoinder under certain circumstances.-Todaro v. Somerville Realty Co. (Sup.) 509. § 50. A complaint held not demurrable by setting up two independent causes of action not affecting all the parties, in violation of Code Civ. Proc. § 484.-Todaro v. Somerville Realty Co. (Sup.) 509. § 69. Where, after the commencement of a special proceeding to compel trustees to count, one of them commenced an action there for, in which the special proceeding was stayed. an order requiring the accounting in special proceedings was erroneous.-In re Robinson's Es tate (Sup.) 1050. ACTION ON THE CASE. § 1. For the betrayal of a trade secret, confided to defendant on his promise to keep the secret, an action of tort in the nature of tres pass on the case lies.-Roystone v. John H. Woodbury Dermatological Institute (Sup.) 411. ACTS. See Statutes. ADJOINING LANDOWNERS. § 4. Under New York Building Code, § 22 an owner, having contracted for the construction of a building under specifications providing for a 10-foot excavation, held liable for injuries to an adjoining building, resulting from an inde pendent contractor excavating the ground to a greater depth.-Rosenstock v. Laue (Sup.) 525. ADJUDICATION. Decisions of courts in general, see Courts, # Operation and effect of former adjudication, see IV. COMMENCEMENT, PROSECUTION, To partnership, see Partnership, § 229. Stay until payment of costs, see Costs, § 276. § 69. A special proceeding held stayed until final judgment in another action in which all the persons claiming an interest in the matter in controversy are parties.-Brown v. Robinson (Sup.) 720. ADMISSIONS. See Stipulations. As evidence, see Evidence, § 236. ADOPTION. Of statutes, see Statutes, § 64. Injuries to animals from operation of railroads, see Railroads, § 413. Admissibility of photograph on question of age, Restraining killing of unlicensed dog, see Insee Evidence, § 359. junction, § 136. § 35. In an action to recover a penalty for violating an alleged quarantine notice promulgated under Agricultural Law (Laws 1893, c. 338) $$ 60, 61, a complaint failing to allege when the offense was committed, or that a notice had been issued, posted, or published, held fatally defective.-People v. Russ (Sup.) 790. ANNEXATION. Regulation of manufacture, use, and sale, see Of chattels to real property, see Fixtures. ALIENATION. Suspension of absolute power of alienation, see Perpetuities, § 6. ANNULMENT. Actions to annul written instruments, see Cancellation of Instruments. Of marriage, see Marriage, §§ 58, 60. ANSWER. In general, see Pleading, §§ 79-144, 409. V. PRESENTATION AND RESERVA- To writ of mandamus, see Mandamus, § 164. (B) Objections and Motions, and Ruliap APARTMENT HOUSES. Breach of covenant as to use of property, see APOTHECARIES. See Druggists. APPEAL. See Certiorari; New Trial. Appellate jurisdiction of particular state courts, see Courts, § 237. Costs on appeal in general, see Costs, §§ 226– 265. Remedy by appeal as affecting right to habeas Review of proceedings of municipal courts, see Review in special proceedings. See Mandamus, § 187. Condemnation proceedings, see Eminent Domain, §§ 238, 262. Probate proceedings, see Wills, § 391. Review of criminal prosecutions. See Criminal Law, §§ 1081, 1169. By habeas corpus, see Habeas Corpus. Thereon. Review of decision of intermediate appellat X. RECORD AND PROCEEDINGS NOT (D) Contents, Making, and Settlement of § 570. It is not within the province of the Appellate Division to suggest what evidenc Review of proceedings of justices of the peace. should be inserted in a settled case, or omitte See Justices of the Peace, § 183. Review of proceedings of nonjudicial officers or bodies. Order of public service commission for construction of viaducts, see Railroads, § 94. I. NATURE AND FORM OF REMEDY. § 9. Upon refusal to confirm a referee's report and a rereference to the same referee, the proper procedure of the party desiring a reference to a new referee was to move for a new trial before another referee to be named by the court, and not to appeal.-White v. White (Sup.) 885. III. DECISIONS REVIEWABLE. therefrom; that being solely the function of the trial justice.-Trumbley v. New York Cent & H. R. R. Co. (Sup.) 1071. (I) Defects, Objections, Amendment, and Correction. § 657. The court on appeal held authorized to return a case to the court below for the insertion in the return of evidence offered in t court below.-Firestone v. Ætna Indemnity Co (Sup.) 235. XVI. REVIEW. Condemnation proceedings, see Eminent Do (A) Scope and Extent in General. § 837. Notwithstanding the erroneous denial (E) Nature, Scope, and Effect of Decision. of a motion to dismiss at the close of plaintifs In municipal courts, see Courts, § 190. case, plaintiff is entitled to the advantage of any Opening default judgment in municipal court, proof supplied by defendant.-Cannon v. Farg see Courts, § 190. (Sup.) 576. § 113. An order which is a resettlement of an original order is the only appealable order, and an appeal from the original order will be dismissed.-Corbet v. Union Dime Savings Inst. (Sup.) 268. § 837. New matter, proved, but not pleaded held not proper for consideration on appeal.Blixt v. Eltoma Realty Co. (Sup.) 861. $839. The court on appeal from an order continuing a temporary injunction held not re quired to determine the issues on the merits.-| been ground for reversal.-Kampsky v. Hayunga § 866. Statement of question for considera- (E) Presumptions. § 911. Court of general jurisdiction held (F) Discretion of Lower Court. § 954. An order continuing a temporary in- § 1052. The erroneous admission of evidence § 1061. The error in dismissing a complaint § 1069. Facts held to show that the action of (J) Decisions of Intermediate Courts. XVII. DETERMINATION AND DISPO- § 954. Right of appellate court to review § 954. Merits of controversy held not to be $ 962. The discretion exercised by the Su- (G) Questions of Fact, Verdicts, and Find- ings. 391. damages, an adverse judgment will not be re- judgment for plaintiff held ground for reversal § 1175. Where an action was submitted to a versal of a justice's judgment because against (F) Mandate and Proceedings in Lower Court. APPRAISERS. § 1194. Where an order reversing a final In condemnation proceedings to assess compenorder for petitioner in summary proceedings sation, see Eminent Domain, §§ 232-238. against a tenant did not purport to give judg ment for defendant upon the merits, it was not conclusive of the right of the parties so that APPROPRIATION. the landlord could begin a new action.-Liedtke Of property to public use, see Eminent Domain. v. Meyer (Sup.) 95. § 1207. Supreme Court held bound by the remittitur from the Court of Appeals on appeal from an order in certiorari to review assessments on special franchises.-People v. State Board of Tax Com'rs (Sup.) 366. APPEARANCE. In suit for divorce, see Divorce, § 65. Effect of defects in process or service on right to amend pleading to show want of jurisdiction or lack of personal service, see Pleading, § 258. Effect of failure to file appearance in judgment roll, see Judgment, § 279. § 19. A defendant foreign insurance corporation held to have waived any defect in obtaining jurisdiction over its person, and to have consented to the court's jurisdiction.-Tierney v. Helvetia Swiss Fire Ins. Co. (Sup.) 869. APPLIANCES. Defective and dangerous appliances, liability of master for injuries to servant, see Master and Servant, §§ 107-124, 209, 234-236. APPLICATION. For particular remedies or forms of relief. See Mandamus, § 154; Motions. Election between causes of action, counts, or defenses, see Pleading, § 369. Examination of party before trial, see Discovery, $$ 53, 55. Judgment on pleadings, see Pleading, § 350. Making pleading more definite and certain, see Pleading, § 367. New trial, see New Trial, §§ 131-163. APPOINTMENT. Of committee of incompetent, see Insane Persons, § 19. Of executors or administrators, see Executors and Administrators, §§ 18-29. Of guardian ad litem, see Infants, § 80. Of guardians or committees for insane person, see Insane Persons, § 32. Of officers in general, see Officers, § 11. APPORTIONMENT. APPURTENANCES. Easements in general, see Easements. ARBITRATION AND AWARD. See Reference. ARCHITECTS. Employment by municipal officers, see Municipal Corporations, § 70. See Bail. ARREST. For nonpayment of alimony, see Divorce, § 263. Illegal arrest, see False Imprisonment. I. IN CIVIL ACTIONS. Abuse of order of arrest as ground for avoidance of deed, see Deeds, § 71. For nonpayment of alimony, see Divorce, § 269. § 28. Order of arrest reversed under Code Civ. Proc. § 558, on the ground that the complaint fails to state a cause of action, as required by Code Civ. Proc. § 549.-Vock v. Auterbourn (City Ct. N. Y.) 1023. Of compensation for property taken for public use, see Eminent Domain, §§ 202-265. Of damages in general, see Damages, § 206. Of expenses and losses of trust estate, see Of damages from public improvements, see MuTrusts, & 274. APPRAISAL. Of property for assessment of legacy, inheritance, and transfer taxes, see Taxation, § 895. nicipal Corporations, $ 402. Of expenses of public improvements, see Municipal Corporations, $$ 497-513. Of taxes, see Taxation, § 496. On insurance premium or deposit note, see Insurance, § 192. |