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II. ESTABLISHMENT, ORGANIZA Court, and the same was dismissed for bonapo saiast TION, AND PROCEDURE IN pearance of the parties, the court held authorGENERAL.

ized to open the default and vacate the judg. (A) Creation and Constitution, and Court ment.--- Goldstein v. Mason Seamon Transp. Co.

, 137 N, Y, S. 961.

200 8 57 (N.Y.Sup.) The court stenographer may

$ 190 (N.Y.Sup.) Where the agreed state. not, though on order of the court, furnish, at ment of facts submitted to the Municipal Court fepted expense of the county, to an attorney as

contains no affidavit in accordance with the lets 123 signed to defend a poor person charged with requirements of Municipal Court Act, § 241, faxza murder, a transcript of the minutes from day that court has no jurisdiction to render a judgivere to day during the trial.-In re Kenney, 137 ment. Parkes v. Whitney Opera Co., 137 N. Aques

? N. Y. S. 1097.

Y. S. 927. (D) Rules of Decision, Adjudications, Opin. V. COURTS OF PROBATE JURISDIC in ions, and Records.

TION. 890 (N.Y.Sup.) A former decision of anoth 8 200/4 (N.Y.Sur.) A Surrogate's Court may er judge as to the effect of a set of facts is apply equitable principles to subject matters not decisive or conclusive in a subsequent pro- within its jurisdiction, though it does not posceeding.-Wallace v. Wallace, 137 N. Y. S. 43. sess general equitable jurisdiction.—In re Arch

$ 99 (N.Y.Sup.) An interlocutory judgment er, 137 N. Y. S. 770. of foreclosure and sale providing that, if any

The Surrogate's Court has jurisdiction to de un deficiency should result, plaintiff should be en- termine whether, as between the beneficiaries

dan titled to a personal judzment against the de- of the will or those claiming under them, perfendant, the obligor on the bond, from which sonal property invested by the executors in real no appeal was taken, is conclusive that he ex- estate remains personalty.-Id. ecuted the bond and mortgage which precludes 201 (N.Y.Sur.) In a proceeding for the judi- cindi further litigation on that point, on motion for cial settlement of an executor's accounts, the entry of a deficiency judgment.-Davies v. Surrogate's Court has power to construe a will Freund, 137 N. Y. S. 735.

and to determine the validity of any of its pro- EA IV. COURTS OF LIMITED OR INFE- | Van Doren, 137 N. Y. S. 420.

visions, where the question is pertinent.-In re 720 RIOR JURISDICTION.

$ 202 (N.Y.Sup.) Under Code Civ. Proc. $ Tit at $ 188 (N.Y.Sup.) The City Court of New 2481, subd. 6, giving the Surrogate's Court s ind York has no jurisdiction of an action for an power to grant a new trial on newly discover- puper. accounting.–Carroll v. Depew, 137 N. Y. S. ed evidence, an order granting such trial can880.

not be sustained, where no case has been made, XIV, $ 188 (N.Y.Sup.) The City Court of the City and it does not appear that the motion was of New York has no jurisdiction of an action heard upon the pleadings and affidavits by conagainst the city of New York.-Gaines v. City of sent.-In re Rose, 137 N. Y. S. 1079. New York, 137 N. Y. S. 961. $ 189 (N.Y.Sup.) Judgment absolute against

COVENANTS. plaintiff for a failure of proof held erroneous, See Courts, $ 189; Landlord and Tenant, & ,12 under Municipal Court Act, $$ 248, 249, and to be modified, so as to dismiss the complaint

297; Vendor and Purchaser, $ 14. without prejudice.-Lesser v. Kivowitz, 137 N. Y. S. 859.

CREDITORS. $ 189 (N.Y.Sup.) Action on a contract to con- See Fraudulent Conveyances; Subrogation. vey certain premises, and action against defendant and another for breach of a covenant

CRIMINAL LAW. in a deed delivered by such defendants to plaintiss, affected different parties, and were im- | See Abduction; Bail; Contempt; False Pre- diana properly joined, under Municipal Court Act, & tenses; Gaming; Health; Highways; In146.--Friz v. Pfaff, 137 N. Y. S. 886.

dictment and Information, Perjury; Rape; $ 189 (N.Y.Sup.) By the express provisions

Receiving Stolen Goods; Theaters and at the of Code Civ. Proc. $ 3347, subd. 4, section

Shows. 484, relating to the joinder of causes of action in one complaint, is inapplicable to the

I. NATURE AND ELEMENTS OF Municipal Court of the City of New York.

CRIME AND DEFENSES IN Mackey v. Royal Bank of New York, 137 N. Y.

GENERAL S. 929.

$ 42 (N.Y.Co.Ct.) A motion by defendant to А

cause of action arising under Banking dismiss an indictment, on the ground that he Law, $ 74, relating to the recovery of double had gained immunity by testifying as to the

f the amount of excess interest paid, may be same transaction before a former grand jury, brought under Municipal Court Act, 146, will be denied, where it does not appear that subd. 6, which provides that the plaintiff may his testimony was used against him, or that unite in the same complaint two or more caus- nis constitutional rights were violated.-People es of action, where they are brought to re v. Elite Distributing Co., 137 N. Y. S. 235. cover for penalties incurred under the statute, $ 42 (N.Y.Co.Ct.) Perjury may be predicated

on testimony of witness, who, without claiming $ 189 (N.Y.Sup.) Where the parties had stip: privilege against self-incrimination, testifies beulated to adjourn a cause in the Municipal' fore grand jury in a proceeding Dot directly

1995

etc.-Id.

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ed for u against him.-People v. Webber, 137 N. Y. S.

DAMAGES.
Traces
VII. FORMER JEOPARDY.

See Contracts, 88 295, 319; Death, $ 99; Emi.

nent Domain, $$ 62, 85-150, 238, 245, 253, $ 200 (N.Y.CO.Ct.) An acquittal of a charge 300, 303; Gas; Municipal Corporations, &$ agreed of arson is not a bar to a prosecution for at 385-394; Pleading, $ 317; Principal and sugattempted robbery in the first degree, though the

Agent, § 81 ; Sales, $ 418; Shipping; Trade ne tik facts in the two cases are identical.- People v. Unions; Vendor and Purchaser, $ 334. 1 A, Grzesczak, 137 N. Y. S. 538. render as Where, on a trial for arson, the only litigat

VI. MEASURE OF DAMAGES. Con led question was the presence of the accused at the place of the offense, and he was acquitted,

(B) Injuries to Property. the question of his presence cannot be again $ 113 (N.Y.Sup.) In an action for injuries to JURISDI tried in a prosecution for attempted robbery in- plaintiff's oyster bed by defendant's dredging volving the same transaction.-Id.

operations, plaintiff's measure of damages was a's Court

the value of the oysters destroyed and the 215 XII. TRIAL.

usable value of the premises while its use was (A) Preliminary Proceedings.

unlawfully withheld from the owner.--Watts v. -Ion

Hewlett Bay Co., 137 N. Y. S. 288. $ 627/2 (N.Y.Co.Ct.) Where the affidavit on

motion for inspection of the minutes of the VII. INADEQUATE AND EXCESSIVE Action DC grand jury amounts simply to a statement of

DAMAGES. defendant that he does not know how the witjaribe

nesses before the grand jury could have any $ 132 (N.Y.Sup.) Recovery for $5,000 for 1 IOS a knowledge upon the subject, and that therefore personal injuries resulting in partial deafness,

there was no evidence justifying the finding of which would probably result in total deafness, o far the ji an indictment, the motion will be denied.--Peo- held not excessive.-Meyer v. Nassau Electric gan be ple v. Elite Distributing Co., 137 N. Y. S. 235. R. Co., 137 N. Y, S. 529.

$ 132 (N.Y.Sup.) A verdict for plaintiff of ud i (E) Arguments and Conduct of Counsel.

$14,000, where she had been earning $18 a $ 720 (N.Y.Sup.) In a prosecution for re week as a costumer, she being unconscious for

ceiving stolen goods, a statement by the diş- three days after the accident, both arms and Ct, Pre: trict attorney to the court with reference to one leg being broken, and her scalp injured, Top (the indictment of a state's witness held im- and the evidence being that the broken leg Entitat proper.—People v. Goldfarb, 137 N. Y. S. 284. will be a half inch short, and that the left

arm will be of little use, is not excessive.XIV. JUDGMENT, SENTENCE, AND

Hatch v. Terry, 137 N. Y. S. 1082.
FINAL COMMITMENT.
$ 995 (N.Y.Co.Ct.) Where accused was con-

DEATH. victed of keeping a disorderly house, judgment for a fine should be entered in favor of the See Master and Servant, $s 117, 129, 150, 278,

people, and not in favor of the excise com 289; Partnership, $ 244; Trial, $ 252. Tento missioner.-- People v. Manganaro, 137 N. Y. S. 82.

I. EVIDENCE OF DEATH AND OF

SURVIVORSHIP.
XV. APPEAL AND ERROR, AND
CERTIORARI.

§ 2 (N.Y.Sur.) The presumption of death aft

er seven years' absence is rebuttable expressly (A) Form of Remedy, Jurisdiction, andor by any inherent circumstance.--In re BenRight of Review.

jamin, 137 N. Y. S. 758. $ 1024 (N.Y.Sup.) An order dismissing an indictment or information as being insufficient is II. ACTIONS FOR CAUSING DEATH. not appealable, since it is not one of the orders from which Code Cr. Proc. $ 518, permits the

(D) Pleading and Evidence. people to appeal.-People v. Herbert, 137 N. Y. $75 (N.Y.Sup.) Where decedent died as the S. 409.

result of a fall through a defective bridge (G) Review.

across the Erie Canal, and there were no eye

witnesses, facts held to establish freedom from $1137 (N.Y.Sup.) Accused held not entitled contributory negligence.-Smith v. State, 137 N. 3

to complain of the use the jury were permit- | Y. S. 399.
ted to make of defendant's conviction of an-
other offense, where defendant's counsel ob-

(E) Damages, Forfeiture, or Fine. jected to a correction by the district attorney. -People v. Goldfarb, 137 N. Y. S. 284.

$ 99 (N.Y.Sup.) A verdict, in an action for

the negligent death of an employé, for $20,000, CROSS-EXAMINATION.

held excessive, and must be reduced to $10,000.

--Morton v. Smith Hoisting Co., 137 N. Y. S. See Witnesses, $ 275.

829. CRUELTY.

DEBTOR AND CREDITOR. See Husband and Wife, & 283.

See Frandulent Conveyances; Subrogation. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see some topic and section (8) NUMBER

137 N.Y.S.-74

IA

DECEDENTS.

$37 (N.Y.Sup.) Where a prima facie case 1: Ra

has been made, an order denying a motion for See Evidence, $ 278; Executors and Adminis- a commission to take testimony, without stattrators.

ing the grounds therefor, will be reversed.-DECEIT.

John J. Daly Iron, Steel & Metal Co. v. United

States Metal & Mfg. Co., 137 N. Y, S. 149.
See Fraud.
DECLARATIONS.

DEPOSITS.
See Evidence, $ 278; Principal and Agent, 8 See Banks and Banking, 88 145-154.
115.
DEDICATION.

DEPOSITS IN COURT.

84 (N.Y.Sup.) A deposit by a guardian ad liSee Injunction, $ 38.

tem of infants of proceeds of actions brought

for the infants in a savings bank, not a desig. DEEDS.

nated depository of funds of the court and not See Boundaries; Estoppel, & 19; Fraudulent made under any order of court, is not money

Conveyances; Mortgages, $ 280; Reforma- paid into court, within Code Civ. Proc. $ 744a, tion of Instruments; Trusts, $8 '11, 46, 59; and the court may not direct its transfer to Vendor and Purchaser, $ 232.

the city chamberlain.--Harris v. Broadway Savings Inst., 137 N. Y. S. 234.

tral III. CONSTRUCTION AND OPERATION.

DESCENT AND DISTRIBUTION. (C) Estates and Interests Created. See Executors and Administrators; Taxation, 13 N f 123 (N.Y.Sur.) "To hold," when used in the

$S 860, 876; Wills. habendum clause of a deed, includes the twofold idea of actual possession of the thing and be

DESCRIPTION. ing invested with legal title.-In re Crofoot's see Wills, 88 564, 566. Will, 137 N. Y. S. 430.

1. U IV. PLEADING AND EVIDENCE.

DEVISES. § 207 (N.Y.Sup.) Evidence held to show à See Wills.

1 deed a forgery.-Caccioppoli v. Lemmo, 137 N. Y. S. 643.

DIRECTING VERDICT. Where the owner of property signed a deed through the artifice or trick of the third per- | See Trial, 88 141, 173.

D son, not deeming the instrument to be a conreyance, it is a forgery, and is invalid, though

DIRECTORS. acknowledged.-Id.

See Corporations, $ 282.
DEFAULT.

DISBARMENT.
See Judgment, $$ 109–167.

See Attorney and Client, $8 38-44.,
DELAY.

DISCHARGE.
See Shipping.
DEMAND.

See Bankruptcy; Bills and Notes. $ 437;

Compromise and Settlement; Master and See Action, $ 11; Electricity; Mandamus, §

Servant, $ 73; Principal and Surety. 14. DEMURRAGE.

DISCOVERY See Shipping.

II. UNDER STATUTORY PROVI. D

SIONS.
DEMURRER.

(A) Interrogatories and Examination of See Pleading, 88 193-225.

Parties and of Other Persons.

8 38 (N.Y.Sup.) Defendant's application to DE NOVO.

examine plaintiff before trial should have been See Executors and Administrators, § 454.

denied, where he did not show what evidence

he expected to extract from plaintiff, and the DEPOSITIONS.

apparent purpose was to discover plaintiff's evidence in advance of the trial.-Schulte v.

Petruzzi, 137 N. Y. S. 1103. See Affidavits.

$ 40 (N.Y.Sup.) In a suit to recover amount § 33 (N.Y.Sup.) Under Code Civ. Proc. 8 of checks which plaintiff claimed bore forged 889, laches was not of itself a sufficient rea- indorsement of his name, defendant held enson' to justify the denial of a motion for a titled to examine plaintiff before trial for the commission to take depositions.--Zeggio v. facts to aid it in preparing its defense solely Robinson, 137 N. Y. S. 1104.

in plaintiff's knowledge.-Schnabel v. Hanover

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Nat, Bank of City of New York, 137 N. Y. | fidelity, and the detective hired an assistant, S. 725.

who spent money to entertain the wife, and $40 (N.Y.Sup.) In an action for injuries to later took her to the house where the alleged plaintiff by alleged operation of defendant's au- adultery relied on was committed, the husband tomobile, plaintiff's right to examine defendant was not entitled to a divorce for adultery.before trial held limited to the question whether McAllister v. McAllister, 137 N. Y. S, 833. defendant was operating the automobile, and, if not, as to his relation to the person who was

IV. JURISDICTION, PROCEEDINGS, operating it.-Brichta v. Simon, 137 N. Y. S.

AND RELIEF. 751.

(D) Evidence. 841 (N.Y.Sup.) Examination of defendants 129 (N.Y.Sup.) In an action for divorce, evi. before trial should be denied, where it appears dence indicating infidelity held to authorize a that the examination is directed to facts which decree for adultery.-Davis v. Davis, 137 N. will only be material upon an accounting, if Y. S. 749. one is ordered.--Hirsh v. Blair, 137 N. Y, S. $ 136 (N.Y.Sup.) In an action for divorce, 753.

01.

evidence held not to authorize an inference of $ 49 (N.Y.Sup.) On an issue as to execution collusion.-Davis y. Davis, 137 N. Y. S. 749. of a contract by defendant business corporation, an order for examination of the president be

V. ALIMONY, ALLOWANCES, AND fore trial was proper; execution or nonexecu

DISPOSITION OF PROPERTY. tion being presumptively within his knowledge.

$ 228 (N.Y.Sup.) In an action by a husband --Goldowitz v. Henry Kupfer & Co., 137 N. Y. I against his wife for a divorce, an allowance to S. 690.

the wife for counsel fees is the limit of the $ 73 (N.Y.Sup.) In an action for goods sold husband's liability to the wife's attorney and and delivered, it was error to limit the scope of counsel.–Turner v. Woolworth, 137 N. Y. S. defendant's examination before trial to

the 1071. sole question of a delivery of the goods, and 8 266 (N.Y.Sup.) A corporation, which was excluding examination as to the sale and any ordered, in sequestration proceedings in divorce, promise to pay for them.-Browning, King & to pay certain interest coupons to plaintiff, bad Co. v. O'Brien, 137 N. Y. S. 697.

no right to demand security against its being

required to pay to another person.-Schreiber DISCRETION OF COURT. v. Schomacker Piano Forte Mfg. Co., 137 N. See Eminent Domain, g 172; Indictment and

Y. S. 747.
Information, 140; Judgment, $ 163.

8 269 (N.Y.Sup.) A defendant in divorce can

not be punished for contempt in failing to comDISMISSAL AND NONSUIT. ply with a decree for_alimony, in the absence

of proof of demand.-Donovan v. Donovan, 137 See Appeal, $$ 105, 1099; Courts, $ 189; N. Y. S. 1088. Criminal Law, 88 42, 1024; Judgment, $ 84; Usury, $ 117.

VII. OPERATION AND EFFECT OF

DIVORCE, AND RIGHTS OF
DISORDERLY HOUSE.

DIVORCED PERSONS.
See Criminal Law, $ 995.

8 332 (N.Y.Sup.) The "full faith and credit"

clause of the federal Constitution does not preDISSOLUTION.

vent the courts of one state awarding on the

then existing conditions the custody of minors, See Corporations, 8 610; Partnership, $8 244, then living in the state with their mother, to 301, 336, 343.

their father, though the decree of divorce of the

court of another state bad awarded custody to DISTRIBUTION.

their mother.-Ex parte Stewart, 137 N. Y.

S. 202.
See Executors and Administrators, $ 298.

DOCUMENTS.
DISTRICT AND PROSECUTING See Evidence, 8 377.
ATTORNEYS.

DOMICILE.
See Criminal Law, & 720.

See Wills, $ 249.
DIVIDENDS.

83 (N.Y.Sur.) The "domicile of origin" is de

fined as the primary domicile of every person See Life Estates, & 15.

subject to the common law.-In re McElwaine's

Will, 137 N. Y. S. 681.
DIVORCE.

DOUBLE TAXATION.
See Habeas Corpus; Husband and Wife, $8
283, 297.

See Taxation, & 47.
III. DEFENSES.
& 45 (N.Y.Sup.) Where the husband employed

DRAMSHOPS. a detective to procure evidence of his wife's in-. See Intoxicating Liquors.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

1172

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DURESS.

Jaws 1911, C. 649, $ 2, amending Election

Law, $ 123, forbidding independent nomination See Fraud.

of one already nominated, held not unconstituEASEMENTS.

tional for permitting the name of a candidate im

to be placed on the ballot but once.-Id. See Eminent Domain, $8 85, 149; Highways.

VI. NOMINATIONS AND PRIMARY EJECTMENT.

ELECTIONS. See Judgment, $ 747; Limitation of Actions, s

§ 126 (N.Y.Sup.! Under the rules of a party, 39.

whether specifically requiring 12 votes, or a ELECTIONS.

majority of all members of the committee, for See Constitutional Law, $ 70; Intoxicating designation by the county committee of candi

Liquors, § 38; Mandamus, 88 14, 74, 148; / dates to go on the official primary ballot, 12 DE Statutes, š 168.

votes are necessary; the committee consisting in

of 22 members.-In re Clark, 137 N. Y. S. 218. I. RIGHT OF SUFFRAGE AND REGU L’nder the rules of a party, held, proxies could LATION THEREOF IN GENERAL. not vote on designation by its county commit

tee of candidates to go on the official primary $ 21 (N.Y.Sup.) The Legislature may not

ballot.-Id. impose any unnecessary hindrance to the nomination of or voting for independent candidates.

$ 141 (N.Y.Sup.) The voters of a party could - People ex rel. Hotchkiss v. Smith, 137 N. Y. nominate a candidate for Justice of the SuS. 177.

preme Court by petition on independent certifThe provision of Election Law, $ 122, as icate of nomination, though such candidate was amended by Laws 1911, c. 891, which requires also the candidate of another party for the

de to 1,500 signatures to an independent nominating same office.-In re O'Brien, 137 N. Y. S. 718, petition for county officers, is invalid, as av

1106. unreasonable and unjust discrimination $141 (N.Y.Sup.) Nomination by the certifiagainst independent political parties.-Id. cate method of a Justice of the Supreme Court,

The regulations governing the making of in- whose name should appear under a party emdependent nominations for public office must blem as the nominee of a party“ not within / $154 be reasonable to be valid.--Id. The provision of Election Law 1890 requir- nomination for that office in any other way,

Election Law, 8 2, which failed to make the ing 1,000 signatures to an independent nominat. I held valid.-In re O'Brien, 137 N. Y. S. 1008.

DepED ing petition for county officers is not invalid, but controls, because of the invalidity of Elec- pendent 'noininations must be the same as the

$ 143 (N.Y.Sup.) The rule regulating indetion Law, $ 122, as amended by Laws 1911, rule governing other nominations, and the nom, c. 891.-Id. The provision of Election Law, 123, as the nominations, duly qualified electors and en

inators must be, at the time of the making of .. amended by Laws 1911, c. 649, which strikes titled to register and vote. People ex rel.

Cool from an independent nominating petition the Hotchkiss v. Smith, 137 N. Y. S. 177. name of an enrolled member of a political party nominating a candidate, is invalid, as unreason

$ 143 (N.Y.Sup.) The failure of a signer of able and as unnecessa rily obstructing the mak- an independent certificate of nomination to ofing of independent nominations.-Id.

fice to register held not to make such a name The provision of Election Law, $ 123, as subject to be considered as fraudulent, under amended by Laws 1911, c. 619, if construed as Election Law, $ 123, so as to authorize the reprohibiting an elector participating in a party jection of the sheet if 5 per cent. of the names caucus from thereafter signing an independent thereon are fraudulent.-In re Objections to nominating certificate, is invalid.-Id.

Nomination Certificate of Bailee for Mayor of The provision in Election Law, 123, as City of Cohoes, 137 N. Y. S. 957. amended by Laws 1911, c. 649, that names of The duplication of names whether intentional persons signing an independent nomination shall or not upon the sheets filed for an independent not be counted unless they registered, is invalid. certificate of nomination is fraudulent within -Id.

Election Law, $ 123, and such names cannot be The provision of Election Law, $ 122, as counted in either place in which they appear. amended by Laws 1911, c. 891, requiring 800-Id. signatures to an independent nominating petition to nominate an assemblyman, will not be held void because containing names of persons

$ 143 (N.Y.Sun.) A certificate of nomination adjudged invalid as unreasonable.-Id. $21 (N.Y.Sup.) Laws 1911, c. 891, .$ 62, tions to Nomipation Certificate of Archibald

not registered and duplications.-In re Objec; amending Election Law, $ 122, requiring a cer. for Assessor of City of Cohoes, 137 N. Y. S. tain number of signatures to make an inde- 959. pendent nomination, held unconstitutional as in effect prohibiting such nominations in some dis

$ 144 (NRY.Sup.) Laws 1911, c, 649, 8 2,

bos tricts, and embarrassing a voter's freedom of amending Election Law, $ 123, held to prohibit choice. People ex rel. Hotchkiss v. Smith, 137 the same person from signing two or more inN. X. S. 387; People ex rel. Woodruff v. Britt, dependent certificates of nomination for the Id. 393.

same office.-People ex rel. Hotchkiss r. Smith, Laws 1911, c. 649. $ 2, which amends Elec. 137 N. Y. s. 387; People ex rel. Woodruff 5.

Britt, Id. 393. tion Law, $ 123, held not invalid for requiring citizens desiring to sign a nominating petition $ 144 (N.Y.Sup.) It would be improper to 1 to be registered voters.-Id.

include in a petition nominating a Justice of

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