NONSUIT · Review on appeal of a nonsuit, granted after a verdict in favor
of the plaintiff.
See TRIAL.
NOTICE Contract for the sale of merchandise — indorsement changing its
terms, made by an agent of the vendor on the copy retained by the vendee - when
the vendee has notice that such indorsement is unauthorized by the vendor.
See FLOWER CITY PLANT FOOD CO. v. ROBERTS...
Injury from a fall on a sidewalk in the city of Syracuse occurring four
days before the charter of cities of the second class (applicable to such city) took
effect-time within which notice must be given to the city.
See SEHL v. CITY OF SYRACUSE...
notice of a claim must be given to the express company.
Application of a clause in an express receipt as to the time within which
See SECURITY TRUST CO. v. WELLS, FARGO & Co.....
The real party in interest in an action must have notice of a motion to
See BETTS v. DE SELDING..
make him a party thereto.
Of an application for a preference on the calendar in New York city.
See CALENDAR.
Judicial notice—when taken by the court.
See EVIDENCE.
Of lien.
See LIEN.
NUISANCE - Distinction between a technical and a substantial injury —
injunction causing great public or private mischief.] 1. A court of equity is
not bound to issue an injunction when it will produce great public or private
mischief merely for the purpose of protecting a technical or unsubstantial
right.
When, however, the damages are substantial the fact that an injunction
would interfere with great industries, the development of natural resources,
or with the plans of a great city for drainage, is not a sufficient reason for
relaxing the ordinary rules governing the rights of riparian owners of land.
Id.
2. When it is a matter of right in the abutting owner.] Where the
wrongful interference with waters of a stream causes substantial injury,
the person so substantially injured is entitled to an injunction restraining
such unlawful interference, as a matter of right. Id.
3. Presumption that title extends to the center of the canal.] The rule in
regard to lands bounded on a non-navigable stream applies also to lands
bounded upon an artificial watercourse, such as a canal or a ditch. In either
case the presumption is that the adjoining landowner has title to the center
of the watercourse, but this presumption may be rebutted by evidence. Id.
Negligence or nuisance - injury from the falling of material placed
in a tenement house hall by an independent contractor engaged in work on
the front of the building liability of the owner who neither consented nor
knew of such use of the hall. Boss v. JARMULOWSKY....
Injunction to prevent a city from discharging its sewage into an
artificial canal-when it is a matter of right in the abutting owner-
presumption that title extends to the center of the canal - distinction
between a technical and a substantial injury — injunction causing great
public or private mischief. WARREN v. CITY OF GLOVERSVILLE..
Injunction - defiling a creek nine miles above the premises of an
owner seeking an injunction - form of injunction granted.
SAMMONS v. CITY OF GLOVERSVILLE..
Board of health-its right to prohibit table refuse from a sanitarium
being brought into a village. PEOPLE v. VAN FRADENBURGH....
See MUNICIPAL CORPORATION.
OBSTRUCTION - Of a watercourse.
See WATERCOURSE.
OFFICER - Of a municipal corporation.
See MUNICIPAL CORPORATION.
ORAL EXAMINATION — Of a witness not within the State.
ORDER - Of arrest.
See ARREST.
ORDINANCE- Of a municipality, construction, etc., of.
See MUNICIPAL CORPORATION.
PARTNERSHIP — Real estate purchased with partnership money and the
title taken in the individual names of the partners.] 1. Where partners deal-
ing in books, stationery and fancy goods purchase real property with partner-
ship funds, take the title thereto in their individual names and carry the
account with reference to such real property in their partnership books,
although the property is not used in the copartnership business and there
is no agreement between the partners that it shall be held as partnership
property, upon the death of one of the partners the share of the real prop-
erty standing in his name descends as real estate to his heirs subject to
the equity of the surviving partner to have it appropriated for the payment
of the firm debts. SMITH v. CowLES.....
2. Right of the heirs of a deceased partner to maintain an action for the
partition thereof.] Where it appears that it is not necessary to resort to the
real estate for the payment of the firm debts or for the adjustment of any
balance between the partners, the heirs of the deceased partner may maintain
an action to partition the property. Id.
Liquor tax certificate false statement as to the applicants therefor
being copartners-it vitiates the certificate in the hands of a bona fide
assignee. PEOPLE EX REL. ОCHS v. HILLIARD
PARTY-Rule that the court cannot in an action at law compel the plain-
tiff to bring in other parties, enforced.] 1. In an action brought against the
indorser of a promissory note to recover thereon, the court has no power,
against the will of the plaintiff, to allow the maker of the note to intervene
in the action for the purpose of litigating the question whether there had
been a failure of the consideration for the note.
The rule that the plaintiff in an action at law cannot be compelled to
bring in any other parties than those he has chosen to bring in, is not limited
to those cases in which the merits of the controversy require that no further
parties shall be brought into the action.
WESTINGHOUSE, C., K. & Co. v. WYCKOFF.....
2. Substitution of the administrator of the plaintiff after the plaintif
in his lifetime has assigned the cause of action.] Where one Betts brings an
action upon a claim assigned to him by one Trimble and, during the pend-
ency of the action, Betts reassigns the claim to Trimble, the court is author-
ized, under section 757 of the Code of Civil Procedure, in the event of the
death of Betts while prosecuting the action for Trimble's benefit, to allow
the action to be continued in the name of Betts' administrator.
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3. Motion to make the real party in interest a party-notice.] Semble,
that the court might direct Trimble to be made a party to the action, but
that such direction could only be given upon notice to Trimble. Id.
An action by a receiver of a corporation against its directors for diver-
sion of property is in equity — what determines whether the action is at law
or in equity-what objections as to misjoinder of parties and causes of
action do not lie in such an action. MABON v. MILLER...
Liability of a town to an assignee of a claimant whose claim has been
audited and the money paid to the supervisor — right of action against the
town, the supervisor of which has died. BENNETT . TOWN OF OGDEN. ... 455
See TOWN.
Action by one heir at law to have a conveyance by another heir from
the common ancestor declared void - it lies altough the plaintiff is not in
possession of the land. LETSON . LETSON....
Sale of land of a cemetery association under mortgage foreclosure—
the holder of a certificate of indebtedness of a cemetery association is not a
necessary party thereto. Ross v. GLENWOOD CEMETERY ASSOCIATION...... 357
See MORTGAGE.
Undertaking given on obtaining the arrest of two defendants is enfor-
cible by one of them as to whom the order of arrest is vacated.
PASS- For life on a railroad.
PAYMENT — Accord and satisfaction—the use of a check sent "in full set-
tlement of all claims."] 1. Where a vendor has a claim against his vendee
for a balance due upon the purchase price of a certain lot of goods, and the
vendee, in good faith, asserts, as an offset thereto, a claim for a rebate because
of the alleged inferior quality of certain other goods purchased and paid for
by him, if the vendee sends to the vendor a check for the balance of
account, less the amount of the rebate claimed by the vendee, together with
the following notice, "If our settlement is not satisfactory in full payment
as marked on face of check, then please return same. The check is sent
in full settlement of all claims against us to date, and to be used by you
only under those conditions," and the vendor, without protest or communi-
cating with the vendee, indorses and uses the check, which is paid in due
course of business, the transaction constitutes an accord and satisfaction,
even though the vendee's claim for the rebate was invalid.
2. The rule that the acceptance of a sum less than a debt does not dis-
charge the debt is not favored.] Semble, that the rule that where a liquidated
sum is due the payment of part only, although accepted in satisfaction, is
not, for want of consideration, a discharge of the entire indebtedness, is not
looked upon with favor, and is confined strictly to cases falling within
it. Id.
Entries of payment of interest on a note by the maker in his books of
effect thereof on the Statute of Limitations.
KIRKPATRICK v. GOLDSMITH..
See LIMITATION OF ACTION.
PENAL CODE - § 322 - What information against the keeper of a bawdy
house is insufficient.
§ 342-No one is compelled to be a witness against himself in a criminal
how it is determined whether an answer will incriminate him — the
question whether he has been in a gambling house will — measure of immunity
from prosecution to which he is entitled.
See PEOPLE EX REL. LEWISOHN v. O'BRIEN
[See table of sections of the Penal Code cited, ante, in this volume.]
PENALTY — For refusing to shine the shoes of a colored man.
PERSONAL PROPERTY - An action by a receiver of a corporation against
its directors for diversion of property is in equity. what determines whether the
action is at law or in equity.
Pledge of.
See PLEDGE.
Sale of.
See SALE.
PHYSICIAN-He is not precluded from testifying as to the insured's
condition by an incidental statement of another witness that the physician
attended the insured - nor is he forbidden to disclose knowledge not acquired
in professional treatment. - the physician's statement as to whether a recovery
on the policy is proper is incompetent. JENNINGS v. SUPREME COUNCIL... 76
Evidence-reading from a medical work and asking a physician
whether the statements therein accord with his experience.
PAHL. TROY CITY RAILWAY Co.............
PLEADING — Bill of particulars—when it will not be granted on the affi-
davit of an attorney made on information and belief — what is not an excuse for
the failure to produce the affidavit of the moving party.] 1. In an action
brought by a brother, to set aside an assignment executed by him of all his
interest in the estate of his deceased sister upon the ground that such
assignment was procured by fraud, an order requiring the defendant, who
was the administratrix of the intestate's estate, to file a bill of particulars
of the property, debts and funeral expenses of the intestate and of the
expenses of administration, will not be granted upon an affidavit verified by
the plaintiff's attorney upon information and belief, where the sole reasons
assigned for the non-production of the affidavit of the plaintiff himself are
that the latter is a non-resident of the State of New York and that there
was not time to procure the affidavit of the plaintiff; it being further alleged
that the plaintiff did not have personal knowledge of the extent and value
of the intestate's estate. TOOMEY v. WHITNEY..
2. Complaint against a foreign corporation, not alleging the plaintiff's
residence-it is not demurrable for that reason.] A complaint in an action
brought against a foreign corporation, which does not disclose whether or
not the plaintiff is a resident of the State of New York, is not demurrable
upon the ground that the plaintiff has not legal capacity to maintain the
action under section 1780 of the Code of Civil Procedure, as that fact does
not appear upon the face of the complaint.
The objection that the facts stated in the complaint do not constitute a
cause of action has no application to the question whether the plaintiff has
legal capacity to maintain the action. HERBERT v. MONTANA DIAMOND CO. 212
3. Complaint for procuring insurance for a foreign insurance company
it is not demurrable because it does not allege compliance by the defendant with
the Insurance Law.] A complaint in an action brought to recover for ser-
vices rendered by the plaintiff's assignor in placing insurance for the defend-
ant, a foreign insurance company, in the State of New York, is not demur-
rable on the ground that it does not state facts sufficient to constitute a cause
of action because it fails to allege affirmatively that the defendant had com-
plied with the provisions of the Insurance Law (Laws of 1892, chap. 690, as
amd. by Laws of 1893, chap 725) and that consequently the agreement of
the plaintiff's assignor to act as its agent was not unlawful under section 50
of the Insurance Law. CRICHTON . COLUMBIA INSURANCE CO.......
614
Allegations of an answer setting up a contract, although no reply
is served, are deemed to be traversed or avoided.] Where an action is brought
to recover upon an oral contract alleged to have been made between the
plaintiff and the defendant on October 16, 1900, and the defendant inter-
poses an answer setting up as a defense thereto the execution by the parties
on October 12, 1900, of a written contract relating to the same subject-mat-
ter, the allegations of the answer will, although no reply was served, be
deemed to be traversed or avoided, and the plaintiff is entitled to prove
fraud in avoidance of the written agreement. NESBIT v. JENCKS........... 140
5. Amendment of a pleading — what must be shown on an application
for leave to do 80.] Upon an application for leave to serve an amended plead-
ing, made after the expiration of the time when the amended pleading could
have been served as of course, the moving party must show some good and
sufficient ground for the exercise of the discretion of the court in his favor,
and, ordinarily, he will not be permitted to set up matters of which he had
full knowledge at the time when he interposed the original pleading.
MUTUAL LOAN ASSN. v. LESSER. (No. 1)..
The facts should be established by the client's, rather than the attor-
ney's, affidavit.] The material facts, excusing the failure or negligence neces-
sitating the amendment, so far as they are within the knowledge of the
client, must be shown by his affidavit, and the affidavit of the attorney
cannot be accepted in lieu thereof, at least until the necessity of making the
motion before the affidavit of the client can be procured is shown. Id.
7. Amendment of a complaint after the entry of an interlocutory
judgment.] The Special Term has power, after the entry of an interlocu-
tory judgment in an action and during the pendency of a reference directed
by such interlocutory judgment, to allow the plaintiff to serve an amended
complaint substantially enlarging his cause of action.
WILSON V. STANDARD ASPHALT Co.....
8. It necessarily involves a new trial.] In such a case the interlocu
tory judgment and the proceedings thereon will necessarily fall and a new
trial of the action under the amended pleadings becomes necessary. Id.
9. Costs imposed as a condition thereof.] The plaintiff should, as a
condition of being allowed to serve the amended complaint, be required to
pay to the defendant the taxable costs of the action and the referee's and
stenographer's fees incurred on the reference. Id.
10.
A fact cannot be fixed by concession on the argument of a demurrer.]
When the date on which an action was commenced is important upon the
determination of a demurrer to the complaint therein, such date cannot be
fixed by a concession made upon the argument of the demurrer.
KEENE v. NEWARK WATCH CASE MATERIAL CO.....
· Default in pleading motion to open it - the proposed pleading
should be served.] A motion to open a default in pleading should not be
granted unless the proposed pleading is annexed to the moving papers.
SCHUMPP v. INTERURBAN STREET R. Co.....
Life insurance policy - action of interpleader to determine the plain-
tiff's right to the policy as against a rival claimant party thereto - a com-
plaint may state inconsistent grounds for relief in the alternative-if uncer-
tain the remedy is by motion to make definite and certain.
Libel-application of, to the plaintiff — when the publication does not
bear out the innuendo allegation that articles were published concerning
the plaintiff-proof of facts showing it-answer alleging matter in justifica-
tion is not an admission of any fact. HAUPTNER v. WHITE.....
Mechanic's lien a complaint for its foreclosure alleging perform-
ance- rejection of evidence excusing non-performance-order amending
the complaint "without prejudice to proceedings already had" — terms
which should be imposed. LINBLAD v. LYNDE..
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