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santurrer-must specify which cause of action is insufficient......
Deposition-on commission to examine party who is non-resident.
Domicile-What constitutes..
Druly-Force of, in pleading.

PAOR

3

835
.78, note, 89

7

E
Equitable lien—when not enforced to prejudice of intervening claimants.. 152
Error of fact-determined on affidavit on appeal....

116
Evidence-Acts of one conspirator are, against others.
Requisites of record of inferior court offered as

269
What is cumulative......
Examination of Partyas witness, to be conducted as that of any other witness... 802
when may be by commission...

835

257

310

F.
Foreign Corporations—Jurisdiction of actions against
Form--of complaint on a railroad bond..
Praud Constructive, not a ground of arrest.

of agent, when ground of arrest of principal.

.243, 234

431

53
412

G.
Guardian ad litem-cannot be appointed for infant over fourteen, without consent 44

H.
Habeas corpus-when city jndge may not issue..

188
Hermeneutics-Principles of ...

239, 816
Husband and Wife_Husband's right of succession to personally not affected by
acts of 1848 and 1849.....

868

1.
Injunction—to stay proceedings in another court, when allowable.....
Injuries to character, What are...
Inquest-cannot be taken by plaintiff, who has not noticed the cause.
Insolvent Bank--Proceedings against.....
Interpleader-when order of may be granted..

289

8
43
192
854

8
225

J.
Joinder of Actions—for libel, slander, and malicious prosecution..

What, improper....
Joint Debtors–Proceedings against one after judgment against another, is not a
new action.....

305
Judgment-against several defendants in action for a tort...

.33, 69
for costs on dismissing action for want of jurisdiction

.284, 297
of justice's court for less than $25 may be docketed.

485
by default will not be reversed on appeal because the complaint states no
cause of action......

429
by confession. Requisites of statement for.

419
for damages may be given in action for spoo:fio performance.

414
of inferior court must show jurisdictiou ....

269
Judicial Sale-Order to vacate on grounds resting in discretion of the court, no
appealable.....

43
Jurisdiction-in actions against foreign corporations...

243
- of actions for wrongs committed without the State..

316
YOL VIIL-A*

1

PAOX
Jurisdiction of City Court of Brooklyn

269
of N. Y, Common Pleas......

284
of Surrogate to try disputed claims...

425
on what grounds to be collaterally questioned..

401
need not affirmatively appear in complaint.....

884
Want of, does not necessarily result from irregularity in appeal....

59
whether it should be put in issue by answer to allow judgment for
costs ?.

..284, 297
Jury-Why special, should not be ordered in New York city.

428
Justice's Court-Jurisdiction of....

116

L.
Laches-A ground of refusing leave to amend....

do not give jurisdiction..
Limitations of Action-between pledgor and pledgee

258
177
845

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M.
Mandamus to compel payment of officer's salary..

859
Married Woman's Act-Construction of......

868
Misbehavior of Jury-What is.

.182, 187, 141
Mistrial-in taking verdict, subject to the opinion of the court.

1
Motion-against irregularity, when must be made....

177
denial of, when does not prejudice another..

147
for new trial.

810
for new trial, before whom to be made....

141
to dissolve injunction, when may be opposed on fresh affidavits

68
to vacate attachment, in what cases counter-affidavits may be read in
behalf of.....

..note,
Municipal Corporation-Liability of, for salaries..

25

N.
New Trial—when may be granted for misbehavior of jury..

..182, 187, 141
when newly-discovered evidence is ground for...

810
Non-resident-Who is..

.64, 78, note, 89
Notice of Action pending-does not affect prior purchasers or incumbrancers not
made parties...

128
Notice--in summons. Form of..

878
of decision of judge is not notice of judgment....

810
of motion to vacate judgment by confession as void, need not specify
irregularity ....

419
to the judgment debtor of examination of third party in supplementary
proceedings, not necessary.

407

0.
Oficer—de facto, not entitled to compensation....
Order-denying motion on ground of laches, is appealablo ...

859
177

40
880

P.
Partres-executor, when to sue in his capacity as such....

in an action on lease......
the parent is not a proper party to a divorce suit against an infant

who are proper, in an action to declare void spurious stock
Partnership-property may be taken on attachment against one partner.
Place of Trialwhen may be changed........

239
120
147

PAOB

Pleading-Alternativo alegations in.
in actions for lands .......

889
Pleadings-Construction of......

284
denials which only go to mitigation of damages raise no issue ............ 87

distinction between what is ground of demurrer, and what of motion...... 5,7
Pledge-rights of parties under....

845
Proceedings-against one, after judgment against another joint debtor, not a now
....

805

action ..

884

R.
Rapo-Requisites of complaint in action for
Receiver-wben may be appointed in action for lands
Removal of causes-to federal courts....

806

S.
Security for costo-Non-resident plaintiff who afterwards becomes a resident not
thereby excused from giving.......

840
Service-who is a managing agent of a corporation upon whom it may be made... 427
by publication-how made...

183
Set-off-in proceedings against stockholders of insolvent corporations.

198
Special Jury-why should not be ordered in New York city

498
Statute Construction of......

198
Stipulation of assignor of judgment not to be vacated for fraud on motion of
assignee.......

851
Stockholders—Who are.
Substitution of parties defendant, when ordered ....

864
Summons-proper form of notice in....

878
Form of, on publication ...

.170, 177
Supplementary proceedings-cannot reach after-acquired property

843
may be had on justice's judgment for less than $25..

485
against debtor of the judgment debtor....

407
Surrogate-cannot award costs not specially authorized by statute

886
has no jurisdiction to try disputed claims....

425

198

T.
Taxation-Duty and power of...
Trial Place of, when may be changed

when verdict subject to opinion of the court is irregular........

25
147

1

U.
Undertaking—What is not defence to action on........

284

V.
Verification by attorney deemed an affidavit.....

when may be dispensed with in answer

68
482

W.
Haider-proceeding to new trial waives objection to order for it...
Witness-mode of impeaching ....

when may refer to books of account..
limits of his privileges from arrest...

59
802
895

.... 416

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ABBOTTS'

PRACTICE

REPORTS.

NEW-YORK.

HAVEMEYER a. CUNNINGHAM.

Supreme Court, First District; General Term, September, 1858.

MISTRIAL.—VERDICT SUBJECT TO THE OPINION OF THE COURT.

On the trial of an action upon a written contract, questions arose as to its con

struction—as to the admissibility of evidence—as to whether the acts of the parties did not amount to an abandonment of it—and as to the rule of damages if a recovery were allowed ; and a motion to dismiss the complaint was made, and denied. Exceptions were taken upon either side to the rulings of the court upon these points. The court directed a verdict for the plaintiff for the amount claimed, subject to the opinion of the court at general term.

Held, a mistrial, and that a new trial must be had.

Motion, at general term, for judgment on a verdict taken subject to the opinion of the court.

Charles O'Conor, for plaintiffs.
Daniel Lord, for defendants.

BY THE Court.*_HOGEBOOM, J.-This was an action to recover damages for not delivering a cargo of sugars, which it was alleged the defendants had agreed to sell and deliver to

* Present, DAVIES, P.J., and SUTHERLAND and HOGEBOOM, JJ. VOL VIII-1

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