New Trial

NEW TRIAL.

II. GROUNDS.

215 NEW YORK SUPPLEMENT

(F) Verdict or Findings Contrary to Law or Evidence.

71 (N.Y.App.Div.) Where issues of fact depending on conflicting testimony are determined by jury, it is error to set aside verdict.-Rubin v. Pilgrim Costume Co., 215 N. Y. S. 761.

(G) Surprise, Accident, Inadvertence, or Mistake.

90 (N.Y.Sup.) New trial will be granted on ground of perjury only where perjury relating to competent and material fact is clearly established. O'Leary v. Atlantic Amusement Co., 215 N. Y. S. 303.

bility on particular one at end of his case (Civil Practice Act, § 213).-S. & C. Clothing Co. v. U. S. Trucking Corporation, 215 N. Y. S. 349.

27 (N.Y.App.Div.) Evidence that plaintiff delivered cases of merchandise to defendant trucking company for delivery to defendant warehouse company, and that when cases were subsequently opened some goods were missing, held to make out prima facie case against both defendants, entitling plaintiff to sue them in the alternative (Civil Practice Act, § 213).—S. & C. Clothing Co. v. U. S. Trucking Corporation, 215 N. Y. S. 349.

PARTITION.

II. ACTIONS FOR PARTITION.
(B) Proceedings and Relief.

In action for injury to patron of "whirlpool" in amusement park, based on claim of faulty construction, wherein defendant's witnesses de- 51 (N.Y.Sup.) In partition action where nied that similar accident had ever occurred, evidence of previous accident, caused by lack of repair, did not entitle plaintiff to new trial on ground of perjury.-Id.

(H) Newly Discovered Evidence. 100 (N.Y.Sup.) In action on $1,000 note defended on ground of usury evidence discovered by defendant, by inquiry at plaintiff's bank, that on date in question plaintiff gave defendant certified check for $800 entitled defendant to new trial on ground of newly discovered evidence.Dewey v. Fountaine, 215 N. Y. S. 321.

NONSUIT.

See Dismissal and Nonsuit.

NOTES.

See Bills and Notes.

NUISANCE.

See Automobiles, 265, 306(1), 395.

OFFICERS.

See Judges; Sheriffs and Constables.

PARENT AND CHILD.

See Infants.

3(1) (N.Y.Sup.) Child is not mere creature 6 (2) (N.Y.Sup.) Provision of trust deed, of state, but parents have right and duty to prepare him for additional obligations.-People ex rel. Lewis v. Graves, 215 N. Y. S. 632.

(N.Y.Sup.) Common-law rule that infant has no cause of action against father for tort continues in New York.-Ciani v. Ciani, 215 N. Y. S. 767.

17(1) (N.Y.App.Div.) Conviction of child abandonment, under indictment charging that accused was "father" of child, cannot be sustained, where his marriage to child's mother was bigamous, though he assumed care and custody of child (Penal Law, § 480).-People v. Wolf, 215 N. Y. S. 95.

PARTIES.

For parties on appeal and review of rulings as
to parties, see Appeal.
For parties to particular proceedings or instru-
ments, see also the various specific topics.

II. DEFENDANTS.

(B) Joinder.

executed in 1845, authorizing trustee, on life tenant's death, to rent premises and pay over proceeds to grantor's children, held void, as not fixing duration of trust. (1 Rev. St. [1st Ed.] pt. 2, c. 1, tit. 2, § 55, subd. 3).-Fish v. Deady, 215 N. Y. S. 374.

Provision of trust deed, executed in 1845, authorizing trustee to pay over rent of premises to grantor's children, if construed as limiting trust to lives of grantor's six children, held to violate statute against perpetuities (1 Rev. St. [1st Ed.] pt. 2, c. 1, tit. 2, § 15).-Id.

9(1) (N.Y.Sur.) Criteria for determining whether use of income is "accumulation" are prohibition of present enjoyment and adding thereof over period to principal (Personal Property Laws, § 16, as amended by Laws 1915, c. 670; Real Property Law, § 61, as amended by Laws 1915, c. 670).-In re Hartman's Es

tate, 215 N. Y. S. 802.

9(6) (N.Y.Sur.) Trust to pay premiums on life insurance policy on life of testator's sonin-law for benefit of insured's wife, held not void as providing for unlawful "accumulations" (Personal Property Law, § 16, as amended by Laws 1915, c. 670; Real Property Law, § 61, as amended by Laws 1915, c. 670).—In re Hart

25 (N.Y.App.Div.) Plaintiff, suing two defendants in the alternative, must make out prima facie showing that one or other is probably liable, but need not definitely fasten lia-man's Estate, 215 N. Y. S. 802.

INDEX-DIGEST

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

(N.Y.Sup.) It is improper to plead evi-354 (I) (N.Y.Sup.) Allegation of complaint
dentiary facts in affirmative defenses and coun- that defendant trust company concealed cor-
terclaims.-Raspaulo v. Ragona, 215 N. Y. S. poration's intent to incur obligations greatly
exceeding amount of its bonds offered for sale
held to raise triable issue in action for repay-
ment of purchase price on rescission of con-
tract.-Continental Ins. Co. v. Equitable Trust
Co. of New York, 215 N. Y. S. 281.

Complaint in action against trust company
for repayment of purchase price of corporation
bonds sold by it held to raise triable issue as
Statute authorizing alternative pleading. to its liability for false representations in cor-
where plaintiff is in doubt as to which defend-poration president's letter, notwithstanding
ant is liable, should be liberally construed (Civ-statement in advertisement of bonds that such
il Practice Act, §§ 211-213).-Id.

Pleading

215 NEW YORK SUPPLEMENT

and section 282, Rules of Civil Practice, Rule | nish conclusive evidence of facts relied on.-
109).-Wise v. Powell, 215 N. Y. S. 693.
Smith v. R. B. I. Bldg. Corporation, 215 N.
Y. S. 1.

360(3) (N.Y.App.Div.) Affidavits may not
be considered on motion to strike out reply
as sham (Rules of Civil Practice, rule 104).-
Lowe v. Plainfield Trust Co. of Plainfield, N. J.,
215 N. Y. S. 50.

360(4) (N.Y.Sup.) Right to assert lien on
fund by counterclaim against sovereign plaintiff
will not be determined on motion to strike out
counterclaim.-Irish Free State v. Guaranty
Safe Deposit Co., 215 N. Y. S. 255.

96(4) (N.Y.Sup.) Affidavit reciting infor-
mation discovered on inquiry "from relatives"
concerning decedent held to show inquiry suf-
ficient to sustain order for publication on de-
cedent's unknown heirs (Civil Practice Act, 8
232, subd. 1).-Smith v. R. B. I. Bldg. Corpora-
tion, 215 N. Y. S. 1.

PROMISSORY NOTES.

On plaintiff's motion to dismiss counterclaim,
court will not consider whether defendants' See Bills and Notes.
claims are unfounded.-Id.

360(4) (N.Y.Sup.) On motion to dismiss

PUBLIC IMPROVEMENTS.

complaint as insufficient in law, allegations of See Municipal Corporations, ~354–374.
complaint must be taken as true and liberally
construed.-Continental Ins. Co. v. Equitable
Trust Co. of New York, 215 N. Y. S. 281.

PUBLIC SERVICE CORPORATIONS.

RAPE.

360 (4) (N.Y.Sup.) On motion to strike out See Carriers.
defense as insufficient in law, allegations of de-
fense must be accepted as true (Rules of Civil
Practice, rules 103, 109).-American Bosch II. PROSECUTION AND
Magneto Corporation v. Robert Bosch Magneto
Co., 215 N. Y. S. 387.

se-

363 (N.Y.App.Div.) Order dismissing
lected issues of complaint containing single
cause of action, and directing trial of remain-
ing issues, is unauthorized (Civil Practice Act,
476). Valentine v. Perlman, 215 N. Y. S. 338
365(3) (N.Y.App.Div.) If complaint was
insufficient, it should have been dismissed, and
it was error to require plaintiff to accept de-
fendant's offer of judgment for specified sum.-
Valentine v. Perlman, 215 N. Y. S. 338.

(B) Evidence.

PUNISHMENT.

43 (2) (N.Y.App.Div.) Where accused, in
rape prosecution, tried to discredit complain-
ant's testimony admission of testimony of doc-
tor, who examined complainant nearly three
months after offense charged, to show that her
story was not wholly imaginary, held not error.
People v. Hop Sing, 215 N. Y. S. 301.

See Partition.

REAL ACTIONS.

RECORDS.

368 (N.Y.App.Div.) Motion to require de-
fendant to separately state and number causes
of action in counterclaim must be denied, where See Appeal, 653.
counterclaim, though improperly commingling
allegations, states but one cause of action.—
Call Hardware Corporation v. Duggan, 215 N.
Y. S. 581.

(C) Publication or Other Notice.

96 (2) (N.Y.Sup.) Affidavit supporting or-

der for publication of summons need not fur- See Navigable Waters, 39.

INDEX-DIGEST

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

See Highways.

ROADS.

SALES.

Sales

withstanding right of inspection and fact that
order bill of lading runs to consignor (Personal
Property Law, § 99).-Porter v. Pennsylvania
R. Co., 215 N. Y. S. 727.

See Automobiles, 6, 73; Vendor and Pur-202 (6) (N.Y.App.Div.) Sale

chaser.

I. REQUISITES AND VALIDITY OF CON-
TRACT,

36 (N.Y.App.Div.) Sale contract signed by
buyer was binding on buyer, whether she read
it or not.-Jenkins v. Blackstone Motor Co.,
215 N. Y. S. 694.

contract pro-

vision that acceptance of bill of lading should
constitute completion of sale held to imply in-
tent that payment and passing of title should
be_concurrent (Personal Property Law, § 99).
Porter v. Pennsylvania R. Co., 215 N. Y. S.
727.

Title to grapes shipped on order bills of lad-
ing, giving buyer right to inspect, under sale
contract providing that acceptance of bill of
lading should constitute completion of sale,
held to remain in seller (Personal Property
Law, § 99).-Id.

52(5) (N.Y.Sup.) Evidence held to show
that plaintiff accepted defendant's proposed
contract to purchase paintings, and that de-
fendant's cablegram was in response thereto
and had no relation to earlier option.-Yous-2182 (N.Y.App.Div.) Presumption
consignee is owner may be rebutted or over-
soupoff v. Widener, 215 N. Y. S. 24.
come.-Porter v. Pennsylvania R. Co., 215 N.
Y. S. 727.

II. CONSTRUCTION OF CONTRACT.
56 (N.Y.Sup.) Contract for transfer of
paintings from plaintiff to defendant, executed
in London, where price was paid and paintings
delivered, held English contract though signed
by defendant in Pennsylvania and permitting
repurchase in Pennsylvania.-Youssoupoff v.
Widener, 215 N. Y. S. 24.

VI. WARRANTIES.

that

255 (N.Y.App.Div.) Buyer of salad oil in
sealed containers from wholesaler is entitled
to recover from manufacturer for short weight
(Farms and Markets Law [Laws 1922, c. 48]
$$ 3, 39, 40, 41, 44, 45, 189, and sections 188
and 194, as amended by Laws 1922, c. 360).-
88 (N.Y.App.Div.) Provision of contract
that "sale price of" plaintiff's automobile "of Abounader v. Strohmeyer & Arpe Co., 215 N.
Y. S. 702.
not less than $750 is to be refunded" held not 275 (N.Y.App.Div.) Seller is liable on his
to require construction that plaintiff was en-
titled to $750 as purchase price as matter of
law. Gale v. Frost-Anderson Sales Co., 215 N.

Y. S. 267.

III. MODIFICATION OR RESCISSION OF
CONTRACT.

implied warranty that weight of canned goods
weighed and measured by him corresponds to
label.-Abounader v. Strohmeyer & Arpe Co.,
215 N. Y. S. 702.

VII. REMEDIES OF SELLER.
(E) Actions for price or value.
en-340 (N.Y.App.Div.) Plaintiff, who sold
bought and sold note under contract providing
that buyer's only recourse for breach should be
by arbitration with original sellers, held not
precluded from recovering price from buyer, be-
cause buyer was successful in such arbitration.
-Kraut v. Nordlinger, 215 N. Y. S. 496.

(A) By Agreement of Parties.
91 (N.Y.Sup.) Conditions of contract
titling buyer to repurchase paintings within 10
years after seller repurchased them, should
seller care to dispose of them, held valid under
English law governing its construction, and
must be strictly complied with.-Youssoupoff v.
Widener, 215 N. Y. S. 24.

Evidence held to show that seller was finan-
cially unable to repurchase paintings without
pledging them to secure purchase price.-Id.

IV. PERFORMANCE OF CONTRACT.
(C) Delivery and Acceptance of Goods.

VIII. REMEDIES OF BUYER.

(A) Recovery of Price.

396 (N.Y.Sup.) In action for repayment of
purchase price on rescission for misrepresenta-
tion, defendant's mala fides need not be al-
leged. Continental Ins. Co. v. Equitable Trust
Co. of New York, 215 N. Y. S. 281.

176(1)(N.Y.App.Div.) Buyer of bought
and sold note, who, on being informed of
breach relating to time and route of shipment,
elected to take goods, waived breach; "waiver."411 (N.Y.Sup.) Allegation in buyer's com-
-Kraut v. Nordlinger, 215 N. Y. S. 496.

181(11) (N.Y.App.Div.) Evidence held suf-
ficiently to show shipment of goods within con-
tract period.-London Produce Co. v. Poels &
Brewster, 215 N. Y. S. 485.

181(11) (N.Y.App.Div.) Evidence held to
warrant finding that buyer, after being notified
that goods had not been shipped at time, and on
route specified in contract, agreed to accept and
pay for goods.-Kraut v. Nordlinger, 215 N. Y.

S. 496.

V. OPERATION

AND EFFECT.

181(11) (N.Y.Sup.) That corporate seller
was dissolved and its agency canceled before
ultimate delivery date did not establish sell-442 (6, 7) (N.Y.App.Div.) Retail buyer from
er's breach of contract.-Robertson v. Heights wholesaler of canned goods is entitled to re-
Flint Co., 215 N. Y. S. 264.
cover from manufacturer value of shortage in
weight, penalties and fines imposed on him,
counsel fees in defending action against him for
such shortage, and his expenses in proving his
lack of personal guilt (Farms and Markets
Law [Laws 1922, c. 48] §§ 3, 39, 40, 41, 44, 45,
189, 196, and sections 188 and 194, as amended
(33)

(A) Transfer of Title as Between Parties.
201 (4) (N.Y.App.Div.) Title to goods sold
f. o. b. point of shipment passes on delivery to
carrier, and risk thereafter is on buyer, not-
215 N.Y.S.-66

Sales

215 NEW YORK SUPPLEMENT

by Laws 1922, c. 360).-Abounader v. Stroh-ed by Laws 1921, c. 386; section 623, as
meyer & Arpe Co., 215 N. Y. S. 702.

IX. CONDITIONAL SALES.

459 (N.Y.Sup.) Vendee under contract of
conditional sale is equitable owner of article
specified in contract.-Welch v. Hartnett, 215
N. Y. S. 540.

475 (N.Y.Sup.) In action on conditional
sale agreement by seller's assignee, exclusion
of evidence that agreement was abrogated for
new one with seller on different terms after as-
signment was error, in absence of evidence that
buyer was notified or knew of assignment.-
Hare & Chase v. Volansky, 215 N. Y. S. 168.

amended by Laws 1917, c. 563; section 888, as
added by Laws 1917, c. 786).-People ex rel.
Lewis v. Graves, 215 N. Y. S. 632.

(H) Pupils, and Conduct and Discipline of
Schools.

160 (N. Y. Sup.) Purpose of Compulsory
Education Law is to require instruction for
term of minimum school days and to enforce
attendance, and if attendance is had for requir-
ed time and instruction is adequately given
there is compliance with the law (Education
Law, §§ 632, 636; sections 620 and 621, as
amended by Laws 1921, c. 386; section 623, as
amended by Laws 1917, c. 563).-People ex rel.
Lewis v. Graves, 215 N. Y. S. 632.

477(1) (N.Y.App.Div.) Waiver of provision
of conditional sale contract, authorizing seller
to retake automobile if taken out of state with-172 (N.Y.Sup.) In excusing children from
out seller's written consent, could not be shown
by proof of oral consent.-Jenkins v. Black-
stone Motor Co., 215 N. Y. S. 694.

Conditional seller's oral promise that buyer
could keep automobile so long as payments
were made did not waive other stipulations of
contract giving seller right to retake car for
specified reasons.-Id.

schools for religious instruction, consideration
may be given to propositions that parent has
right to direct training and nurture of child,
that obligations of citizenship require fostering
of moral and religious qualities, that right of
state to enforce school attendance does not
mean that education must be standardized, and
that regulation does not create union between
church and state, or teach sectarianism, or in-
vade religious freedom (Education Law, § 623,
as amended by Laws 1917, c. 563).-People ex
rel. Lewis v. Graves, 215 N. Y. S. 632.
Excusing children from public schools for re-
religious instruction half hour weekly held lawful
exercise of school board's discretion (Educa-
tion Law, §§ 94, 96, 632, 636; sections 620 and
621, as amended by Laws 1921, c. 386; section
623, as amended by Laws 1917, c. 563; section
868, as added by Laws 1917, c. 786).-Id.
SEAMEN.

479(2) (N.Y.App.Div.) Where conditional
buyer of automobile was not known by per-
sons she named as credit references, and took
car out of state without written permission,
and risk was refused by credit insurance com-
pany, conditional seller was justified in
taking car.-Jenkins v. Blackstone Motor Co.,
215 N. Y. S. 694.

479(12) (N.Y.App.Div.) On conditional
seller's retaking of automobile because it
deemed itself insecure, buyer's only remedy was
to redeem by paying balance of purchase price,
and she could not recover partial payment (Per-
sonal Property Law, §§ 76-80-e, as added by
Laws 1922, c. 642, § 2).-Jenkins v. Blackstone
Motor Co., 215 N. Y. S. 694.

481 (N.Y.App.Div.) In replevin to recover
property held under conditional sale contract,
defendant cannot counterclaim for breach of
warranty (Civil Practice Act, § 266).-Call
Hardware Corporation v. Duggan, 215 N. Y.
S. 581.

In replevin to recover furnace from buyer
under conditional sale contract, defendant may
counterclaim for damages caused by negligent
and unskillful installation of furnace (Civil
Practice Act, § 266).-Id.

481 (N. Y. App. Div.) Statute authorizing
buyer to rescind contract for seller's breach
of warranty applies to conditional sales (Per-
sonal Property Law, § 150).-Russo v. Laven-
der, 215 N. Y. S. 642.

SCHOOLS AND SCHOOL DISTRICTS.
II. PUBLIC SCHOOLS.

(A) Establishment, School Lands and
Funds, and Regulation in

General.

19(1) (N.Y.Sup.) Power of commissioner
of education to withhold public school moneys
from city or school district willfully failing to
enforce Compulsory Education Law can be ex-
ercised only after due notice, with opportunity
for hearing (Education Law, §§ 94, 96, 636)
People ex rel. Lewis v. Graves, 215 N. Y. S.
632.

29 (5) (N.Y.App.Div.) Merchant Marine
Act, § 33 (41 Stat. 1007 [U. S. Comp. St. Ann.
Supp. 1923, § 8337a]), does not deprive state
courts of jurisdiction of seamen's common-law
actions for personal injuries (Judiciary Act U.
S. 1789, § 9 [1 Stat. 76]).-Rodrigues v. Trans-
marine Corporation, 215 N. Y. S. 123.
SENTENCE.

See Criminal Law, 977.

SEPARATION.

See Husband and Wife, 278, 279.

SET-OFF AND COUNTERCLAIM.
II. SUBJECT-MATTER.

29(1) (N.Y.Sup.) Cause of action on disa-
bility clause of life insurance policy is not a
counterclaim to insurer's action to rescind pol-
icy for fraud (Civil Practice Act, § 266).—Eq-
uitable Life Assur. Soc. of U. S. v. Fillat, 215
N. Y. S. 277.

29(1) (N.Y.Sup.) Where complaint alleged
cause of action for services in common counts,
held that counterclaim alleging services were
rendered to defendant's nephew, and that plain-
tiff converted money turned over to plaintiff,
was proper counterclaim as being connected
with subject of action (Civil Practice Act, §
266, subd. 1).-Coppola v. Di Benedetto, 215 N.
Y. S. 722.

SHERIFFS AND CONSTABLES.

II. COMPENSATION.

20 (N.Y.Sup.) Determination of what con-
stitutes excusable absence by public school pu-
pils rests in sound discretion of school board,
subject to supervision of commissioner of edu-45 (N.Y.Sup.) Sheriff held entitled to
cation, and if discretion is not abused it will
not be interfered with (Education Law, §§ 94,
96, 632, 636; sections 620 and 621, as amend-

poundage on amount of city's debt to attach-
ment defendant before releasing levy after at-
tachment was discharged (Civil Practice Act, §