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THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABANDONMENT.

e Highways, 79; Parent and Child, 17; Wills, 229.

ABATEMENT AND REVIVAL.

. DEATH OF PARTY AND REVIVAL OF ACTION.

(A) Abatement or Survival of Action.

ACKNOWLEDGMENT.

II. TAKING AND CERTIFICATE.

33 (N.Y.Sur.) A document certified before a notary in Germany, without the "seal of the city or town in which the notary resides" appearing, as required by Real Property Law, § 301, subd. 8, held not of itself evidence, under Code Civ. Proc. § 937, of a person's right to receive from an administrator the estate due the person signing the document.-In re Kroog's Estate, 152 N. Y. S. 553.

67 (N.Y.Sup.) Death of defendant after deult judgment held to suspend all proceedings action, except revival in name of represen-36 (N.Y.Sur.) A document, signed by the itive, so that orders postponing argument on sole next of kin, authorizing an administraotion to open default judgment, and setting tor to pay over money, the signature of which side judgment and a review of such orders, was certified by a royal Prussian notary, held unauthorized.-Ullman-Einstein Co. not certified in compliance with Code Civ. Proc. § 935. requiring certification in conformity with Real Property Law, §§ 303, 306, and therefore not of itself evidence, under Code Civ. Proc. § 937, that the payment was authorized. In re Kroog's Estate, 152 N. Y. S. 553.

fere

rimmins, 152 N. Y. S. 251.

ABUSE OF PROCESS.

ee Process, 168.

ACCEPTANCE.

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V.

See Action, 48; Attorney and Client,
117; Courts, 201, 202; Executors and
Administrators, 283, 471-507;
Injunc-
tion, 28; Insane Persons, 42; Jury,
11; Trusts, 295, 313.

ACCOUNT STATED.

6 (N.Y.Sup.) Where defendant, who made advances to plaintiff, issued monthly statements in which interest was compounded, the statements which were accepted did not become accounts stated; it appearing that because of the relations between the parties plaintiff could not repudiate the contract.-Spain v. Talcott, 152 N. Y. S. 611.

ACTION.

See Abatement and Revival; Dismissal and
Nonsuit.

II. NATURE AND FORM.

27 (N.Y.Sup.) Complaint held to set out action of tort for conversion of stock against corporation, but no cause of action against individual defendants alleged to have assumed its liabilities.-Nicholson v. Sprague, 152 N. Y. S. 228.

III. JOINDER, SPLITTING, CONSOLI-
DATION, AND SEVERANCE.

48 (N.Y.Sup.) Under Code Civ. Proc. § 488, subd. 9, relating to joinder of causes of action, trust company, individually and as administrator, held entitled to maintain action for an accounting to determine amount due estate, though incidentally seeking adjustment of conflicting claims prerequisite to such determination.-Metropolitan Trust Co. of City of New York v. Stallo, 152 N. Y. S. 173.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER 152 N.Y.S.-73

(1153)

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Courts, 190; Criminal Law, 10561186; Homicide, 338; Municipal Corporations, 493.

III. DECISIONS REVIEWABLE. (E) Nature, Scope, and Effect of Decision. 87 (N.Y.Sup.) No appeal will, under Code Civ. Proc. § 793, lie from an order denying a preference in an ejectment suit.-Empire City Racing Ass'n v. National Fair & Exposition Ass'n, 152 N. Y. S. 833.

6 (N.Y.Sup.) Title to a manuscript drama, good against an infringer, as well as the orig-105 (N.Y.Sup.) No appeal lies from an inal owner, may be acquired by continuous, order denying a motion to dismiss a complaint. open, and notorious possession, with mainte-Pasinsky v. Metropolitan News Co., 152 N. Y. nance of exclusive right.-O'Neill v. General S. 232. Film Co., 152 N. Y. S. 599.

AFFIDAVITS.

See Attachment,

120 (N.Y.) In view of Code Civ. Proc. 1346, as amended by Laws 1914, c. 351, as to appeal to the Appellate Division, reversal by

97, 102; Criminal Law, it in a jury case, silent as to its grounds is reviewable on the assumption that it approved the 956; Pleading, 238. findings of fact.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499.

AGENCY.

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A decision by the Appellate Division that there was no evidence to sustain the verdict held not one which, if unanimous, is, under Const. art. 6, § 9, and Code Civ. Proc. § 191, subd. 4, not reviewable.-Id.

An original finding or decision by the Appellate Division under Code Civ. Proc. $ 1317. as amended by Laws 1912, c. 380, held not ene which, if unanimous, is under section 191, subd. 4, and Const. art. 6, § 9, not reviewable.-11.

Const. art. 6, § 9, and Code Civ. Proc. § 191. subd. 4, held not to deprive the Court of Ap peals of jurisdiction to review a judgment of the Appellate Division on its unanimous de cision, but merely to make the specific question of law not reviewable.-Id.

Reversal and granting of new trial by the Appellate Division, in a jury case, before amend ment of Code Civ. Proc. § 1346, by Laws 1914, c. 351, would not be reviewable, absent affirm

ative appearance of affirmance of the jury's findings.-Id.

Reversal and dismissal of the complaint by the Appellate Division, in a jury case, before amendment of Code Civ. Proc. § 1346, by Laws 1914, c. 351, is reviewable as to power to dismiss the complaint.-Id.

120 (N.Y.Sup.) A question of fact in action against city for salary held to only involve rights of parties under such peculiar state of facts, not likely to be repeated, as not to justify allowance of an appeal to Court of Appeals after unanimous affirmance by Appellate Division of dismissal of complaint.-Martin v. City of New York, 152 N. Y. S. 8.

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§ 191, subd. 2.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499.

(D) Writ of Error, Citation, or Notice.

420 (N.Y.) Notice of appeal from Appellate Division, affirming an order of the Special Term, stating that the intermediate order to be reviewed was the order of the Special Term, was a harmless irregularity. In re Heinsheimer, 108 N. E. 636, 214 N. Y. 361.

X. RECORD AND PROCEEDINGS NOT
IN RECORD.
(D) Contents, Making, and Settlement of

Case or Statement of Facts.

564 (N.Y.Sup.) An application for an order to extend the time to serve the case is not within the jurisdiction of the appellate court, since it must be made at Special Term.-McKeon v. Sherman, 152 N. Y. S. 435.

569 (N.Y.Sup.) Where a stenographer did not make a full report, as required by Judiciary Law, § 295, party held entitled to have the case on appeal settled according to the evidence as to what really occurred.-Weber v. Interborough Rapid Transit Co., 152 N. Y. S. 197.

XVI. REVIEW.

(A) Scope and Extent in General.

837 (N.Y.) The question of the sufficiency of the evidence to present a question of fact is to be decided on appeal by the evidence actually admitted.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499.

837 (N.Y.) Modification of surrogate's decree by Appellate Division held presumed made as a matter of law, and the question before the Court of Appeals was whether there was any evidence to support the surrogate's decree.-In re Phipps' Will, 108 N. E. 554, 214 N. Y. 378.

854 (N.Y.) Where the proceedings on the trial were governed by an erroneous conception of the relations of the parties, which yet resulted in a correct verdict the judgment would not be reversed.-Henry Phipps Estates v. Tong Phong, 108 N. E. 410, 214 N. Y. 308.

(B) Interlocutory, Collateral, and Supplementary Proceedings and

Questions.

193 (N.Y.Sup.) In an action on a fire policy, where the complaint set forth the facts which defendant would be expected to meet, defendant, not having pointed out any technical insufficiencies, cannot sustain a dismissal of the complaint because the proof did not correspond to the complaint as to defects which might have been cured.-Wilbisky v. German 874 (N.Y.Sup.) When the essential facts Alliance Ins. Co. of New York, 152 N. Y. S. are undisputed, and no question of discretion 1048. is involved, the court may consider the merits, even on appeal from order granting or refusing preliminary injunction.-Appleby V. City of New York, 152 N. Y. S. 357.

216 (N.Y.Sup.) An employer, when sued for injuries to an employé, cannot complain of the instructions submitting issue of negligence, where he failed to request any further instruction.-Dobler v. Conron Bros. Co., 152 N. Y. S. 266.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(B) Petition or Prayer, Allowance, and
Certificate or Affidavit.

358 (N.Y.) The judgment of the Appellate Division, though unanimous, being one of reversal, appeal lies to the Court of Appeals with out allowance of it, pursuant to Code Civ. Proc.

(C) Parties Entitled to Allege Error.

883 (N.Y.) Having consented that the equitable issues raised by the counterclaim should be tried at Trial Term, plaintiff, on appeal, cannot assert that they should have been sent to the Special Term for trial.-City of New York v. Matthews, 108 N. E. 80, 213 N. Y. 563. (D) Amendments, Additional Proofs, and

Trial of Cause Anew.

5887 (N.Y.Sup.) Under Act Pa. April 26, 1855 (P. L. 309) §§ 1, 2, giving joint action for

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

wrongful death to surviving parents, held that, where action was brought in New York within statutory period, complaint, omitting to name mother as joint plaintiff, might be amended on appeal.-Benyak v. Lehigh Coal & Navigation Co., 152 N. Y. S. 329.

(E) Presumptions.

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harmless error.-Levine v. Orentlich, 152 N. I. S. 962.

1073 (N.Y.Sup.) An order striking bedres from the judgment roll held harmless.-Sta v. Murray, 152 N. Y. S. 163.

(J) Decisions of Intermediate Courts.

1091 (N.Y.) Where the Appellate Divisio allowed an appeal by permission, it will be pre sumed the constitutional question involved determined, and not that the decision tard on a question of discretion.-Moot v. Moot, ite N. E. 424, 214 N. Y. 204.

907 (N.Y.Sup.) Where the evidence was not returned with the appeal, it must be assumed that findings of fact by the trial court were correct.-Kamman v. Kamman, 152 N. Y. S. 579. 927 (N.Y.Sup.) On appeal from verdict directed for the defendant, the plaintiff is enti-1094 (N.Y.) On appeal from the Appella tled to the benefit of the most favorable infer- | Division, findings of fact unanimously arx ences that can be drawn from the testimony in by it, and having support in the evidence, are his behalf.-F. V. Smith Contracting Co. v. conclusive.-Lancaster Sea Beach Improvem City of New York, 152 N. Y. S. 658. Co. v. City of New York, 108 N. E. 90, 224 N. Y. 1.

1094 (N.Y.) Where there was no evi that ought reasonably to satisfy a jury, a ing affirmed by the Appellate Division 1 e set aside by the Court of Appeals.-In re Cast, 108 N. E. 408, 214 N. Y. 199.

927 (N.Y.Sup.) Where a cause is dismissed upon defendant's motion, on the case as made by plaintiff's evidence, the facts must be taken as detailed therein.-Radomski v. Consolidated Gas Co. of New York, 152 N. Y. S. 1050. C927 (N.Y.Sup.) Where a complaint is dismissed, plaintiff is entitled to the most favor-1094 (N.Y.) An exception to a refusa t able inferences fairly deducible from the testi- grant a nonsuit or dismissal of a complaints mony.-Huffmire v. General Electric Co., 152 reviewable in the Court of Appeals, after a N. Y. S. 1052. unanimous affirmance by the Appellate Divis Williams v. City of New York, 10s N. E. HS, 214 N. Y. 259.

930 (N.Y.Sup.) It must be presumed that the jury followed the instructions.-Dobler v. Conron Bros. Co., 152 N. Y. S. 266.

(F) Discretion of Lower Court. 964 (N.Y.Sup.) Granting of motion to place case on the short-cause calendar held not reviewable, being discretionary.-Polstein General Accident, Fire & Life Assur. Corporation, 152 N. Y. S. 906.

V.

(G) Questions of Fact, Verdicts, and Findings.

1003 (N.Y.Co.Ct.) That finding of a city court is sustained by testimony of one witness and contradicted by testimony of two witnesses does not call for reversal by the county court on appeal.-Sheldon v. Otsego & H. R. Co., 152 N. Y. S. 702.

(H) Harmless Error.

(K) Subsequent Appeals.

1097 (N.Y.Sup.) The decision on a former appeal is the law of the case on a subsequent appeal, where the material facts proven on the two trials are the same.-Powers v. Village of Mechanicville, 152 N. Y. S. 1077.

XVII. DETERMINATION AND DISPO
SITION OF CAUSE.

(A) Decision in General.
14 (N.Y.) Where Appellate Division re
dered judgment without considering the w
of the evidence, held that, in reversing, tet
Court of Appeals could not render final judg
ment, but could only remit the cause to the Ap
pellate Division.-Young v. United States Met
gage & Trust Co., 108 N. E. 418, 214 N. L
279.

(C) Modification.

1039 (N.Y.) Plaintiff's inaccurate allegation that agreement was partly written, and that written part was contained in resolutions form-1149 (N.Y. Sup.) Failure of verdict in ing no part of the contract, held to be disre- plevin to find value held an irregularity, whi garded, where defendant was not harmed there- might be corrected without a reversal.-Bup by.-Young v. United States Mortgage & Trust v. Hanigan, 152 N. Y. S. 966. Co., 108 N. E. 418, 214 N. Y. 279. ≈1151 (N.Y.Sup.) The Appellate Division hay no power to reduce the amount of a judge if the party plaintiff holding the judgment jects, in which case it can only order a trial.-Korn v. Freedlander, 152 N. Y. S.

1050 (N.Y.Sup.) Error in admitting testimony by the assistant cashier of a bank of facts of which he had no knowledge held prej udicial under the evidence.-Jennings v. Lincoln Nat. Bank, 152 N. Y. S. 1.

1050 (N.Y.Sup.) An appellate court will reverse a judgment for error in admitting evidence more readily, where the verdict was based on equally balanced conflicting evidence, and the objectionable testimony tended to prejudice the jury.-Hammer v. Eisner-Mendelson Co.,

152 N. Y. S. 1003.

1058 (N.Y.Sup.) Where the matter sought to be shown has been otherwise brought before the jury, exclusion of direct evidence thereof is

D

Where plaintiff, on defendant's appeal. Of sented to reduction of judgment, and judgment was modified accordingly and affirmed, defen could not attempt to reverse it on ground plaintiff's voluntary reduction as to part of 2 -Id.

1151 (N.Y.Sup.) Where the court charged that punitive damages for ejection from a te ater could not be recovered, in the absence evidence of defendant's wantonness, and the was no such evidence, a verdict including puck

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