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and 122 New York State Reporter ADVERSE POSSESSION.


See "Game."
See "Limitation of Actions."

Carriage of live stock, see "Carriers," $ 2

See "Depositions."
Making of false affidavit as contempt, see "Con. Of will, see "Wills," $ 2.

Of marriage, see “Marriage."
tempt," 8 1.
In particular proceedings.

See “Attachment," $82, 4.
Criminal proceedings, see “Criminal Law," § 1. In pleading, see "Pleading,” 3.
For new trial, see "New Trial," $ 3.
To set aside default judgment, see "Judgment,”
$ 2.


See "Husband and Wife," $ 2
See “Principal and Agent."


See "New Trial.”
See "Contracts."

Appeal from judgments of municipal courts, see

"Courts," $ 1. ALIENATION.

In summary proceedings for recorery of posses

sion by landlord, see “Landlord and Tenant," Suspension of power of alienation of property, in action for breach of contract, see "Codsee “Perpetuities."

tracts," $ 5.

In probate proceedings, see "Wills," $ 2.

i 1. Decisions reviewable. See “Divorce," $ 1.

An appeal lies from an inquest taken with

out jurisdiction, and brings up the entire pm ALTERATION OF INSTRUMENTS.

ceedings for review.-Horowitz v. Decker

(Sup.) 217. See "Reformation of Instruments."

Under the direct provisions of Code Civ. Proe.

$ 1294, a party cannot appeal from an order The addition of a word of description to the made on his default.—Title Guaranty & Trust name of an indorsee held not a material altera- Co. v. American Power & Const. Co. (Sop.) tion.-Birmingham Trust & Sav. Co. v. Whit-502. ney (Sup.) 570.

Under Code Civ. Proc. $8 1347, 1373, 1675. An indorsee of a draft held authorized to an order granting a writ of assistance brld write an abbreviation for the term "cashier" not to affect a substantial right, so as to be apafter his name in the indorsement. to show palable.-Title Guaranty & Trust Co. y. Amer. the capacity in which he became a party to the ican Power & Const. Co. (Sup.) 502. paper. - Birmingham Trust & Sav, Co. v. Whit

An order directing the resumption of certain ney (Sup.) 578.

payments by the guardian of an infant's propa

erty to the guardian of his person is not alAMENDMENT.

pealable, under Code Civ. Proc. $ 190, ani

Const. art. 6, § 9, to the Court of Appeals.-in Effect of amendment of pleading on right to re White (Sup.) 564.

costs, see "Costs," $ 1. Of by-laws of beneficial association, see “Ben- 371. c. 410, 88 1480, 1482–1484, a judgment en

Under Consolidation Act, Laws 1882, pp. 370, eficial Associations.".

tered on Of by-laws of mutual benefit insurance associa held to be by consent, and not appealable.

an order forfeiting a recognizance tion, see "Insurance," $ 4.

People v. Pernetti (Sup.) 714. Of interlocutory judgment for sale of dece.

dent's property, see "Executors and Admin An appeal will lie from a judgment bş deistrators," $ 5.

fault, though no motion was made to the jusOf pleading, see “Pleading," $ 5.

tice to open the default.-Potter F. Katzenbach Of statute, see "Statutes," $ 2.

(Sup.) 865.

Where no final order in summary proceedings AMOUNT IN CONTROVERSY.

to recover real property was entered, as required by Code Civ. Proc. $ 2249, an appeal could

not be taken from an order of dismissal.-Sipp Jurisdictional amount, see "Courts," $ 1. v. Reich (Sup.) 960.

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$ 2. Presentation and reservation in the trial, etc., he was not entitled to object to

lower court of grounds of review. such evidence on appeal.-Kupferberg v. CenAn objection that the motion papers of a tral Crosstowu R. Co. (Sup.) 366. party moving for the vacation of an attachment do not comply with general practice rule 37 the law of the case on a subsequent trial.

The decision of the Appellate Division held cannot be raised for the first time on ap- Union Nat. Bank v. Leary (Sup.) 652. peal. - Austrian Bentwood Furniture Co. 7. Wright (Sup.) 142.

Under Code Civ. Proc. $ 531, the discretion of Where no objection was taken to the filing of not be interfered with on appeal.-Llewellyn v.

the court in ordering a bill of particulars will a verified answer in the Municipal Court after Froehlich (Sup.) 966. an adjournment had been had, the Appellate Term would, for the purpose of an appeal, 8 6. Scope and extent in general. treat the case as if issue had been properly Where defendant did not appear and was not joined on the day of filing the answer.- Hin- personally served, but moved to vacate an atrichs v. Interurban St. Ry, Co. (Sup.) 193. tachment for insufficiency of affidavits, and

Where no objection on that ground was made judgment was rendered under Municipal Court in the trial court, defendant was precluded on Act, Laws 1902, p. 1519, c. 580, $ 91, on appeal appeal from asking a reversal of a judgment the only question was the sufficiency of the a fiifor plaintiff on the ground of variance between davit.-Hill v. Martin (Sup.) 708. allegation and proof of demand.-Kemble v. Where, after issue joined, the complaint was National Bank of Rondout (Sup.) 246.

dismissed at the beginning of the trial for want Assumption of fact at trial held not open to order must be treated as though the question

of facts, the complaint on appeal from such objection for the first time on appeal. Fox v. had been presented by demurrer based on the New York Cen & H. R. R. Co. (Sup.) 519.

same grounds.-Hinds v. Fishkill & Matteawan Under Code Civ. Proc. $$ 992–994, no excep- Equitable Gas Co. (Sup.) 954. tion to findings of fact made by the court without a jury is necessary to the review of such fault, the court will examine the evidence to

On appeal from a judgment rendered on dequestions on appeal to the Appellate Division. -Henderson v. Dougherty (Sup.) 665.

see if it is sufficient to support the judgment.

Brooks v. Delaware, L. & W. R. Co. (Sup.) 961. In an action against a cityfor injuries, an objection that notice required by Laws 1886, P; of an extra allowance, the appellate court may

Where defendant duly excepted to the grant 801, c. 572, was not filed, not made in the trial modify the judgment by deducting such allowcourt, was not available on ppeal.-Seliger v. City of New York (Sup.) 1074.

ance. - Keuhner . Metropolitan St. Ry. Co.

(Sup.) 1055. § 3. Record and proceedings not in roo- $ 7.

Presumptions. ord.

Where it is contended on appeal that a part A claim on appeal that evidence of represen- of a judgment is not warranted by the facts tations was erroneously admitted, because not found, it cannot be assumed that the evidence pleaded, cannot be considered, where the com- would have warranted any findings that would plaint is not attached to or made part of the tend to support the judgment, other than those return.--Gottesman v. Heiden (Sup.) 957.

actually made.-Ingersoll v. Cunningham (Sup.) On appeal to the Appellate Term from the 711. City Court, the facts cannot be reviewed, where

On appeal from an order refusing to vacate there is no certificate that the case contains all a subpæna duces tecum, the court cainot prethe evidence.-Mayer v. Horenburger (Sup.) sume that the lower court will not perform its 966.

duty in limiting examination to subjects gerSettlement and signing of case by other than mane to the investigation.-Franklin v. Judthe trial judge, where none of the reasons set son (Sup.) 904. forth in Code Civ. Proc. $ 997, appear, held invalid.-Parks & Woolson Mach. Co. v. Levy dence as to the value of physician's services in

Where the justice refused to strike out evi(Sup.) 993.

an action by an infant for damages, it will be Where there is no stipulation nor certification presumed that the value was included in judgthat the case contains all the evidence, the Ap- ment.-Koehler v. Interurban St. Ry. Co. (Sup.). pellate Term will not interfere with the dis- 1056. missal of a complaint by a justice of the City 8 8. Questions of fact, verdicts, and Court.-Parks & Woolson Mach. Co. v. Levy

findings. (Sup.) 993.

The appellate court will be slow to reverse a $ 4. Dismissal, withdrawal, or

aban. judgment of the trial court for defendant, donment.

where the only evidence was the uncorroborated Where the affirmance of a default judgment testimony of the plaintiff.- Hartman y. Interin favor of defendant leaves no action pending, urban St. Ry. Co. (Sup.) 352. an appeal by plaintiff from an order previously A finding by the trial judge on a question of entered, granting defendant a new trial, should fact based on conflicting evidence will not be be dismissed.--Amorisia v. Rando (Sup.) 356. reversed on appeal.-Morgenthau v. Beaton § 5. Review.

(Sup.) 359. Where defendant's attorney did not object to On appeal from an involuntary nonsuit, plainthe evidence of value of articles destroyed at | tiff is entitled to the most favorable view of

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and 122 New York State Reporter the evidence which the jury might have taken.

ARMY AND NAVY. -Dorff v. Brooklyn Heights R. Co. (Sup.) 463.

Under Code Civ. Proc. 88 993 (as amended Preference of veterans in employment by its by Laws 1903, p. 237, c. 85), 2586, the Ap

see “Municipal Corporations," i 1. pellate Division, on appeal from a surrogate's court, held empowered to supply omitted find

ARREST. ings of fact.-In re Snedeker (Sup.) 847.

A verdict on conflicting evidence will not be See “Bail"; "Prisons." disturbed.-Borgia v. Gauge (Sup.) 923.

Illegal arrest, see "False Imprisonment."

On execution, see "Execution," $ 2. Where a magistrate refused to grant a body execution for insufficiency of proof, his decision will be upheld, if the proof is defective in any ASSAULT AND BATTERY. respect.-Salsberg v. Tobias (Sup.) 967. A finding on conflicting evidence will not be Liability of carrier for assault on passen

"Carriers," $ 4. reversed.--Vogel v. Hawthorne (Sup.) 1016.

Taking case or question from jury, set "Tre 8 9. Harmless error.

8 4. The appellate court will not reverse a judgment affecting substantial justice for errors on

ASSESSMENT. issues not in dispute.—Roberge v. Bonner (Sup. Of compensation for property taken for et 91. The giving of an erroneous instruction as to of damages, see "Damages,

use, see "Eminent Domain," $ 2. the measure of damages, after a correct charge of expenses of public improvements, ser "*: on the subject, held prejudicial.-Lane v. Calby

nicipal Corporations,” $ 2. (Sup.) 465.

Of tax, see "Taxation," 2. Where plaintiff had previously brought out Validity of laws relating to assessments fat the only adverse information contained in a protection as denying due process of la hospital chart, its subsequent erroneous admis *Constitutional Law," $ 1. sion in evidence held harmless to plaintiff.Griebel v. Brooklyn Heights R. Co. (Sup.) 767.

ASSETS. 8 10. Determination and disposition of

Of estate of decedent, see "Executors and 1 The reversal of a final order dismissing sum ministrators," $ 2. mary proceedings carries with it the reversal of a judgment for costs thereafter entered.Simmons v. Pope (Sup.) 122.

ASSIGNMENTS. Where, after reversal, a second trial was Admissions by assiguor as evidence, se Es had without a material change in the proof, dence," $ 5. the decision on the first appeal constitutes the Cancellation of, see “Cancellation of Ints law of the case.-Globe & Rutgers Fire Ins.

ments," $ 1. Co. v. Robbins & Myers Co. (Sup.) 996. For benefit of creditors, see “Assignment f 11. Liabilities on bonds and under- Fraud as to creditors, see “Fraudulent Cart

Benefit of Creditors." takings.

ances." Where a judgment on appeal to the Court of Appeals was reversed, "with costs to abide the Operation and effect of champerty, see "The event," such reversal held to terminate all lia

erty and Maintenance." bility on the appeal bond, entitling the principal Transfers of particular species of proper to the immediate surrender of property pledged to secure the surety's liability thereon.-Jack

rights, or instruments. son v. Lawyers' Surety Co. (Sup.) 576.

See "Bills and Notes," $82, 3; "Judgment"

8; "Mortgages," $ 2.

Liquor tax certificate, see "Intoxicating List APPLIANCES.

uors," $ 2.

Money due under state contract, see "este Liability of employer for defects, see “Master $ 1. and Servant," $ 4.

8 1. Requisites and validity.

The penalty of $50 provided by Rain APPOINTMENT.

Law, Laws 1892, p. 1406, c. 676, $ 104,

fusal of a street railroad company to ot! Of executor or administrator, see “Executors transfer, held, under Code Civ. Proc $ and Administrators," $ 1.

not enforceable by an assignee. ---Cople i, de

terurban St. Ry. Co. (Sup.) 136. ARBITRATION AND AWARD. An instrument held not an assignment of

broker's commissions.- Donovan F. Vidüetras See "Reference."

(Sup.) 607.






Absence of attorney as ground for continuance,

see “Continuance.'
§ 1. Liabilities on assignees' bonds. Allowance for counsel fees in divorce proceed-

Code Civ. Proc. $ 812, relative to petitions ings, see "Divorce," 1.
by sureties to be relieved from liability, held | Attorney's fees in action between infants, see
to authorize an ex parte petition for that pur "Infants," $ 2.
pose.-Siebert v. Milbank (Sup.) 993.

Attorneys in fact, see “Principal and Agent."
Champertous agreements, see “Champerty and


Counsel fees as element of damages in action

for breach of warranty of goods sold, see
Appealability of order granting, see "Appeal,” "Sales," $ 6.
8 1.

Liability of husband for fees of wife's attorney,

see "Husband and Wife," 1.

f 1. Duties and liabilities of attorney
See “Beneficial Associations"; "Building and

to client.
Loan Associations."

A motion to compel plaintiff's attorney to
pay over money collected denied, and plaintiff

remitted to action.-Arone V. Launders

$ 2. Compensation and lien of attor-
See "Account Stated"; "Work and Labor."


An order in an action for separation, requir-

ing a husband to pay $150 counsel fees for his
wife, conclusively fixed the measure of the hus-

band's liability for such fees.-Damman v. Ban-
Of risk by employé, see "Master and Servant,” croft (Sup.) 386.
$$ 6, 7.

Where there were several arguments of a

case on appeal, and one reargument, but such
arguments were mere restatements of the same

proposition, they should not be treated
See “Execution."

though services rendered in separate cases, in
Necessity of presentation of objections for re- determining the amount of compensation to be
view by motion, see “Appeal,” $ 2.

awarded an attorney engaged in such argu-

ments.-In re Kellogg (Sup.) 1033.
§ 1. Nature and grounds.

An affidavit for attachment held to show an
intent to defraud creditors.--Hill v. Martin

(Sup.) 708.
§ 2. Proceedings to procure.

Of agent, see “Principal and Agent," && 2, 3.
Plaintiff held to show by atfidavit, as re-
quired by Code Civ. Proc. $ 636, tó entitle

him to an attachment, that he was entitled
to recover a sum stated therein (section 3343, Negligence of operator of as imputable to
subd. 11).-Levenson v. Briggs (Sup.) 507. owner, see "Master and Servant," $ 8.

3. Proceedings to support or enforce. Use on public streets, see "Municipal Corpora-
Allegations of damages held insufficient to

tions, § 3.
sustain an attachment.-Austrian Bentwood
Furniture Co. v. Wright (Sup.) 142.

§ 4. Quashing, vacating, dissolution, or of passenger, see “Carriers," $ 6.

Of passenger on vessel, see "Shipping," § 1.
Where the motion papers of a party moving
to vacate an attachment do not comply with
general practice rule 37, the motion must be

denied.-Austrian Bentwood Furniture Co. v.
Wright (Sup.) 142.

§ 1. In criminal prosecutions.
An affidavit on which an order to show cause

Under Consolidation Act, Laws 1882, pp. 370,
was granted on motion to vacate an attach- 371, c. 410, 88 1480, 1482-1484, an order deny-
ment held insufficient under Gen. Prac. Rule 37. ing a motion to vacate a judgment entered upon
-Sanger v. Connor (Sup.) 1054.

an order forfeiting a recognizance and not ap-
pealed from, held binding on the surety.—Peo-

ple v. Pernetti (Sup.) 714.

Under Consolidation Act, Laws 1882, pp. 370,

371, c. 410, 88 1480, 1482–1484, principal and
Of witness, see "Witnesses,” 8 1.

surety in a recognizance held entitled to move

and 122 New York State Reporter to vacate an order forfeiting a recognizance and , 325, a bank held liable, on a certification of the judgment entered thereon.—People v. Per check to the owner thereof, though ignorart as netti (Sup.) 714.

to who was owner.-Meuer 1. Phænix Sat

Bank (Sup.) 83.

In an action against a bank to recover a

amount of money claimed to have been depositSee "Banks and Banking," § 1; "Carriers," ed, evidence held sufficient to authorize the jury $ 1; "Warehousemen.”

to find that plaintiff demanded the sum doe

Kemble v. National Bank of Rondout (Sup. Manufacturers, to whom cut garments are de- 246. livered to be sewed, are entitled to hold possession of them until their claim for labor is paid,

The fact that, within a short time of deprit or until an offer is made to pay the same.- depositor had received a bill similar to that Davidson y. Fankuchen (Sup.) 196.

which he claimed to have presented to the bank, held relevant to the issue as to whether

bill presented to the bank was of the deponitaBANKRUPTCY.

tion claimed.-Kemble v. National Bank of

Rondout (Sup.) 246. See “Assignments for Benefit of Creditors." A depositor is not bound to examine his bapt

book to discover whether the officer receiving § 1. Assignment, administration, and his deposit has blundered in counting the mos

distribution of bankrupt's estate. ey deposited.-Kemble v. National Bank of A bona fide transferee of certain of a bank- Rondout (Sup.) 246. rupt's property for value, the transfer being made more than four months prior to the filing

In an action by a bank to recover the amount of the bankrupt's petition, heid entitled to the of checks paid to another bank, on the ground property as against the bankrupt's trustee. - 1 of fraudulent indorsements, burden of estab Pratt v. Christie (Sup.) 585.

lishing fraudulent character of indorsements A grantee of property belonging to a bank- American Exch. Nat. Bank (Sup.) 271.

held to be on plaintiff. National Park Bank F. rupt more than four months prior to the filing of the petition in bankruptcy held a bona fide In an action by a bank to recover from anpurchaser for value, entitled to hold the convey- other bank the amount of checks paid by the ance as security for the bankrupt's debt.-Pratt former to the latter, on the ground of the v. Christie (Sup.) 585.

fraudulent character of indorsements, a verdict In an action by a trustee in bankruptcy to for plaintiff held against the weight of the eviset aside an alleged fraudulent chattel mort

dence.-National Park Bank v. American Exeh,

Nat. Bank (Sup.) 271. gage, a so-called separate answer of the bankrupt held properly considered as a demurrer Indorsement of checks for deposit by use of for a defect of parties.--Shanks v. National rubber stamps held valid.—Rosenberg 5. Ger Casket Co. (Sup.) 839.

mania Bank (Sup.) 952. In an action by trustee in bankruptcy to

Facts held insufficient to estop the paree of a set aside an alleged fraudulent chattel mort- check from denying the validity of an indorra gage, subsequent mortgagees held not necessary ment thereon by his clerk as against a bart parties, under Lien Law, Laws 1897, pp. 536- paying the same.-Rosenberg v. Germania Bank 538, c. 418, 88 90-95.-Shanks v. National Cask- (Sup.) 952. et Co. (Sup.) 839.

In an action against a bank by the paree of In an action by a trustee in bankruptcy to a note for its failure to potify an indorser of set aside an alleged fraudulent chattel mortgage, nonpayment, evidence held to justify a finding subsequent mortgagees of the same property that the payee was entitled to recover against the held not necessary parties, under Code Civ. bank the amount he would have been able to Proc. $ 452.-Shanks v. National Casket Co. collect from the indorser.-Howard v. Bank of (Sup.) 839.

Metropolis (Sup.) 1070. $ 2. Rights, remedies, and discharge of

In an action against a bank, by the payee of bankrupt.

a note held by the bank for collection, for its Bankr. Act July 1, 1898, c. 541, $ 17, subd. failure to notify an indorser of nonpayment, tes; 2, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3128], timony as to the indebtedness of the maker hrid expressly provides that by his discharge a competent.—Howard v. Bank of Metropolis bankrupt shall not be released from a judge (Sup.) 1070. ment for willful and malicious injuries to the In an action against a bank by the payee of property of another.-Stefanini v. Sroka (Sup.) | a note held by the bank for collection for its 167.

failure to notify an indorser of nonpayment the

amount of damages depended on the inability BANKS AND BANKING.

of plaintiff to collect from the maker.-Howard

v. Bank of Metropolis (Sup.) 1070. Estoppel to assert wrongfulness of entry in bankbook, see “Estoppel," $ 1.

BAR. § 1. Functions and dealings.

Under Negotiable Instrument Law, Laws of action by former adjudications, see "Judge 1897, pp. 731, 734, 756, c. 612, 8879, 112, 323– ment," $ 6.

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