CROSSINGS.

See Railroads, 94-99.

CUSTOMS AND USAGES.

See Sales, 418.

3 (N.Y.Sup.) A custom, to be considered as forming part of a contract, must be reasonable, uniform, and well-settled, not opposed to fixed rules of law, and not in contradiction of the terms of the contract.-P. J. Kennedy & Sons v. Perkins & Squier Co., 154 N. Y. S. 101.

17 (N.Y.Sup.) Where a contract granting a license to perform certain musical compositions was unambiguous, it could not be construed in the light of the custom of restaurants, so as to render it invalid, under Copyright Act 1909, § 1, subd. E, and section 25, as licensing the right to give performances not "for profit."Maxwell v. Faust Co., 154 N. Y. S. 224.

DAMAGES.

See Animals, 100; Appeal, 1062, 1171; Carriers, 218, 277; Death; Master and Servant, 65, 2504; Municipal Corporations, 402; New Trial, 75; Nuisance, 50; Principal and Surety, 82; Sales, 384, 418, 481.

III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES. (B) Aggravation, Mitigation, and Reduction of Loss.

62 (N.Y.Sup.) Damages for breach of a

157 (N.Y.Co.Ct.) In an action for damages to plaintiff's automobile in a collision with defendant's trolley car, evidence that the automobile was insured and that insurance had been paid on account of the damage sustained held inadmissible under the pleadings.-Allen & Arnink Auto Renting Co. v. United Traction Co., 154 N. Y. S. 934.

159 (N.Y.Sup.) In an action for damages for breach of contract, brought on September 11, 1913, in February, 1914, nor the damage therefrom, neither breach of contract was provable, as plaintiffs' right to recover must be tested by what occurred prior to the commencement of the action.-Kahn v. Mahler Co., 154 N. Y. S. 478.

DAMS.

contract of employment cannot be had, where See Waters and Water Courses, 154-176. the employer has made no effort to fill the employé's place, unless the services are of unique character.-Triangle Waist Co. v. Todd, 154 N. Y. S. 542.

IV. LIQUIDATED DAMAGES AND

PENALTIES.

77 (N.Y.Sup.) Whether a provision for liquidated damages shall be construed as providing for liquidated damages, and not for a penalty, depends on the intention of the parties and the nature of the transaction.-Stimpson v. Minsker Realty Co., 154 N. Y. S. 496.

DEATH.

See Evidence, 334; Trusts, 168.

II. ACTIONS FOR CAUSING DEATH. (D) Pleading and Evidence.

ceased, the amount of his salary, his expect60 (N.Y.Sup.) Evidence of the age of demissible to show the damage resulting from his ancy of life, and his manner of living, is addeath.-Meng v. Emigrant Industrial Savings Bank, 154 N. Y. S. 509.

81 (N.Y.Sup.) Under a stipulation of the lease and circumstances showing that damages (E) Damages, Forfeiture, or Fine. for breach of the lease were not ascertainable,99 (N.Y.Sup.) An award of $70,000 for the held, that the lessor, on breach of the tenant's death of a Supreme Court Justice, with a life covenant to pay rent, was entitled to retain expectancy of 14 years, held not excessive.as liquidated damages a sum deposited with Meng v. Emigrant Industrial Savings Bank, him.-Stimpson v. Minsker Realty Co., 154 N. 154 N. Y. S. 509. Y. S. 496.

Deposit of one year's rent held not so exces-99 (N.Y.Sup.) A verdict of $22,750, for the sive as to preclude it from being liquidated death of a foreman engaged in repairing elec damages, where the lease secured by the de- trical appliances on defendant's railroad, earnposit was for 10 years, with an option of 11 ing $105 a month, paying to his wife $90 to years more.-Id. $95 monthly, held excessive, and a reduction to $15,000 within the trial court's discretion.Millette v. New York, W. & B. Ry. Co., 154 N. Y. S. 792.

VI. MEASURE OF DAMAGES. (C) Breach of Contract.

DEBTOR AND CREDITOR.

120 (N.Y.Sup.) In action by plaintiff contractor against owner to recover remuneration for erecting a building, amount of an offset See Bankruptcy; Fraudulent Conveyances.

DEDICATION.

I. NATURE AND REQUISITES.

DEPOSITS.

37 (N.Y.Sup.) A dedication of land for a village park held accepted, so that no subsequent conveyance could deprive the public of See Banks and Banking, the right to use the park.-Village of Port Dickinson v. Fish, 154 N. Y. S. 698.

II. OPERATION AND EFFECT. obtaining 63 (N.Y.Sup.) One permission from village authorities to camp in village park, and subsequently obtaining quitclaim deed from one having no title, held not to have acquired title as against the public.-Village of Port Dickinson v. Fish, 154 N. Y. S. 698.

DEEDS.

136, 139, 301, 317.

DEPOSITS IN COURT.

See Tender, 18.

DERRICKS.

See Master and Servant, ~117, 286.

DESCENT AND DISTRIBUTION.
See Escheat; Executors and Administrators;
Limitation of Actions, 172; Reformation
of Instruments, 17; Wills.

(C) Estates and Interests Created.

PERSONS ENTITLED AND THEIR
RESPECTIVE SHARES.

(A) Heirs and Next of Kin.

43 (N.Y.Sur.) Under the statute of distributions, where a testator dies leaving him surviving no next of kin nearer than cousins and children of deceased cousins, the cousins take the entire personal estate, to the exclusion of such children.-In re Polansky, 154 N. Y. S.

669.

133 (N.Y.Sup.) Conveyance of land in trust to pay a specified sum for the grantor's maintenance during his life, and upon his death to convey to his heirs, created an alienable vested remainder in his children.-Doctor v. Hughes, (C) Debts of Intestate and Incumbrances

154 N. Y. S. 985.

At common law and by Real Property Law (Consol. Laws 1909, c. 50) § 41, the existence of an unexecuted power of appointment will have no effect upon remainders limited to take effect in default of the exercise of such power, which will vest, subject to be divested by the appointment, if made.-Id.

Where a power of revocation attached to a conveyance of realty to a trustee, creating remainders in the grantor's heirs by directing conveyance to them upon his death, the remainders in favor of the grantors' children in were nevertheless vested and alienable.

esse

-Id.

(E) Conditions and Restrictions.

III. RIGHTS AND LIABILITIES OF
HEIRS AND DISTRIBUTEES.

on Property.

129 (N.Y.Sup.) Decedent's heirs and voluntary grantees held liable after his death to the enforcement of an equitable lien on the land for improvements placed thereon by plaintiff at the order of decedent's servant, in whose name the land temporarily stood for decedent's benefit.-Merrihew v. Parrott, 154 N. Y. S. 747.

138 (N.Y.Sup.) Action brought in decedent's lifetime against his grantees, who were also his heirs, to enforce a lien for improvements on the land, held, if the deed was invalid for mental incapacity of the grantor, sustainable after his death, against defendants as heirs, as one to collect decedent's debt, to avoid multiplicity of actions.-Merrihew v. Parrott, 154 N. Y. S. 747.

DESCRIPTION.

172 (N.Y.Sup.) Occupancy of premises by a dressmaking establishment held a violation of a covenant against the use of the premises for business.-Iselin v. Flynn, 154 N. Y. S. 133. A restrictive covenant, prohibiting the use of See Boundaries, 14. the lots for business, does not prohibit their use by a physician residing thereon.-Id.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

DISBARMENT.

See Attorney and Client, 38, 58.

DISCHARGE.

DIVORCE.

See Judgment, 650; Marriage.

IV. JURISDICTION, PROCEEDINGS,
AND RELIEF.

ceedings.

See Accord and Satisfaction; Bankruptcy, (B) Parties, Process, and Incidental Pro 435; Master and Servant, 73, 80; Principal and Surety, 100.

DISCOVERY.

II. UNDER STATUTORY PROVI-
SIONS.

(A) Interrogatories and Examination of
Parties and of Other Persons.

32 (N.Y.Sup.) Plaintiff, suing president of bank for false representations concerning its financial condition, held entitled to examine him before trial, though defendant denied allegations of complaint.-Schweinler v. Earl, 154 N. Y. S. 456.

76 (N.Y.Sup.) Code Civ. Proc. § 1774, relating to indorsement of nature of action in a divorce suit, does not apply where the summons and the complaint are personally served upon the defendant within the state.-Braham v. Braham, 154 N. Y. S. 1044.

(E) Dismissal, Trial or Hearing, and New Trial.

149 (N.Y.Sup.) Verdict in divorce, on the issues of adultery, consent, condonation, connivance, and procurement, is conclusive only as to adultery, and as to the others is only advisory to the court at Equity Term, by whom they must be determined, and cannot be decided by motion for judgment on the verdict at a Special Term for motions.-King v. King, 154 N. Y. S. 794.

(H) Fees and Costs.

37 (N.Y.Sup.) A motion for the examination of plaintiffs before trial to enable defendants to intelligently frame an answer will be denied, where the defendants' affidavits on the motion showed that defendants had sufficient information to enable them to intelligently197 (N.Y.Sup.) A husband is liable for servframe an answer.-Sothman v. Ward, 154 N. Y. ices rendered by an attorney in procuring an increase in the alimony given the wife, who had obtained a decree of separation.-Hauser Id. 1074. v. Hauser, 154 N. Y. S. 1072; Glaze v. Same,

S. 449.

49 (N.Y.Sup.) Order for the examination of defendant corporation by its president and its treasurer before trial held to be sustained, though the president was not such when the transaction occurred, and in spite of defendant's stipulation to produce its books and papers at the trial.-Kellogg v. Match Supply Co., 154 N. Y. S. 359.

of the alimony received, attorneys for their
A wife, after separation, who has paid, out
services in procuring an increase of alimony, is
not entitled to recover the amount paid from
her husband.-Id.

V. ALIMONY, ALLOWANCES, AND
DISPOSITION OF PROPERTY.

for separation was induced to marry plaintiff by his father-in-law's agreement to convey certain property, which he failed to do, does not constitute any reason why alimony and counsel fees should not be allowed the wife.-Peckerman v. Peckerman, 154 N. Y. S. 297.

61 (N.Y.Sup.) That order for examination before trial of defendant company and its treasurer sought testimony incriminating the treasur-238 (N.Y.Sup.) That defendant in a suit er, as to which he did not complain or set up his personal privilege, held not ground for vacation of the order on motion of the company.Kellogg v. Match Supply Co., 154 N. Y. S. 359. 79 (N.Y.Sup.) Where defendant in an tion for goods sold and delivered has read from the examination of one of the plaintiffs, he need not present the witness in person at the trial to submit him to plaintiff's cross-examination. -Van Ingen v. Max Marx, 154 N. Y. S. 112.

DISCRETION OF COURT.

See Appeal, 185, 984; Habeas Corpus, 90.

DISMISSAL AND NONSUIT.

ac

See Appeal, 927, 1080; Brokers, 88:
Costs, 8; Courts, 189; Mechanics'
Liens, 284; Railroads, 94.

DISORDERLY CONDUCT.

See Criminal Law, ~448.

DISTRIBUTION.

See Executors and Administrators, 314.

277 (N.Y.) Where the marriage status is dissolved by a divorce and the judgment provides for annual alimony, the wife's right to collect alimony due and unpaid at the time of her death may be enforced by her personal representatives.-Van Ness v. Ransom, 109 N. E. 593, 215 N. Y. 557.

quired a new residence in another election district more than six months prior to a primary 13. election could not vote in such new district, his name not having been stricken from the enrollment list in the old district, although on challenge he took the oath provided by section 72.In re Steinbrink, 154 N. Y. S. 870.

See Corporations, 197, 665; Mandamus, See Master and Servant, 243, 278.

121 (N.Y.Sup.) The court held to have no jurisdiction, under Election Law, § 56, to review proceedings of a Democratic county com-4 (N.Y.Sup.) To justify a conviction of larmittee in removing its chairman from office.In re Ganley, 154 N. Y. S. 773.

ceny of money, it is necessary to show that accused appropriated the money to uses other than that for which it was received, and that a criminal intent existed when the appropriation

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

was made.-People v. Wyckoff, 154 N. Y. S.
269.

44 (N.Y.Sup.) Evidence held not to sustain
a conviction for larceny.-People v. Wyckoff,
154 N. Y. S. 269.

EMINENT DOMAIN.

I. NATURE, EXTENT, AND DELEGA-
TION OF POWER.

1 (N.Y.Sup.) Power to take private proper-
ty for public use is not derived from Constitu-
tion.-New York Telephone Co. v. State, 154
N. Y. S. 1059.

ers.-Couch v. Armory Commission of Third
Brigade Dist. of New York, 154 N. Y. S. 945.

238 (N.Y.Sup.) Where a correct measure
of damages has been adopted by the Board of
Claims, an appellate court will not interfere
with the award, unless it is palpably unjust and
inadequate.-Danes v. State, 154 N. Y. S. 1089;
City of Amsterdam v. W. N. Carpenter Co., Id.
1092.

EMPLOYERS' LIABILITY ACTS.
See Commerce, 8; Master and Servant.

EMPLOYÉS.

2 (N.Y.Sup.) Laws 1897, c. 702, § 14,
abolishing building restrictions provided by See Master and Servant.
Laws 1868, c. 631, held not unconstitutional.-
Hall v. House of St. Giles the Cripple, 154 N.
Y. S. 96.

EQUITABLE ESTOPPEL.

EQUITABLE LIENS.

2 (N.Y.Sup.) State, acting under Barge See Estoppel, 75, 96.
Canal Act and amendments, held to have ap-
propriated franchise, rights, and property of
a telephone company, for which compensation
must be awarded.-New York Telephone Co. v.
State, 154 N. Y. S. 1059.

84 (N.Y.Sup.) The rights of riparian own-
ers to the waters of navigable streams, which
include the right to make a reasonable use of
the water, are property rights, of which they
cannot be deprived without just compensation.
-Western New York Water Co. v. City of
Niagara Falls, 154 N. Y. S. 1046.

86 (N.Y.Sup.) Franchise,

easements, and

See Liens, 7.

EQUITY.

See Constitutional Law, 68; Courts,
188; Divorce; Injunction; Interpleader;
Joint Adventures, 5; Landlord and Ten-
ant, 217; Limitation of Actions, 37,
172; Partition; Receivers; Reformation of
Instruments; Set-Off and Counterclaim; Spe-
cific Performance; Subrogation; Trusts.

I. JURISDICTION, PRINCIPLES, AND

MAXIMS.

physical structures of a telephone company held (A) Nature, Grounds, Subjects, and
tent of Jurisdiction in General.

property, of which it may not be deprived with-
out compensation.-New York Telephone Co. v.
State, 154 N. Y. S. 1059.

State, appropriating under Barge Canal Act
property of a telephone company operating
telephone lines on highways, held required to
make compensation therefor.-Id.

107 (N.Y.Sup.) State, acquiring property of
a telephone company under Barge Canal Act
and amendments, need not compensate it for
loss of business by destruction of a village in
acquiring land under the act.-New York Tele-
phone Co. v. State, 154 N. Y. S. 1059.

(C) Measure and Amount.

Ex-

(N.Y.Sup.) A court of equity need not
search for precedents or worry about the techni-
cal rules of law.-Merrihew v. Parrott, 154 N.
Y. S. 747.

(C) Principles and Maxims of Equity.

59 (N.Y.Sup.) The doctrine that, as be-
tween creditors, equality is equity, held to ad-
mit of no exception, except where a preferential
payment is demanded by equitable principles.-
Lebaudy v. Carnegie Trust Co., 154 N. Y. S.
900.

ESCAPE.

ESCHEAT.

126 (N.Y.Sup.) State, appropriating a tele- See Charities, 45; Extradition, 41.
phone line of a telephone company, held re-
quired to compensate it for the structural val-
ue of the line, the value of its easements, less
sum received from the sale of old poles.-New
York Telephone Co. v. State, 154 N. Y. S. 1059.
III. PROCEEDINGS TO TAKE PROP-
ERTY AND ASSESS COM-
PENSATION.

6 (N.Y.Sup) Affidavits averring that in the
opinion of the affiants a holder of record ti-
tle to land died without heirs at law held mere
conclusions, and not to justify a holding that
the property may be escheated.-Sherman v.
People, 154 N. Y. S. 484.

8 (N.Y.Sup.) A statute which releases any
interest which the state might have in premises
to an individual does not confer title in the
individual, where the holder of the record title
to the land left heirs at law.-Sherman v. Peo-

169 (N.Y.Sup.) Under Laws 1914, c. 273, it
was not necessary that the armory commission,
before applying for the appointment of commis-
sioners of appraisal to determine compensation
for land taken from petitioner, to have addi-
tional time to ascertain the names of other own-ple, 154 N. Y. S. 484.