from the part not appealed from was not inconsistent with appellant's act in appealing from the balance.-Ziadi v. Interurban St. Ry. Co. (Sup.) 606.

3. Presentation and reservation in lower court of grounds of review. Objections to a provision for costs in a judgment and for an execution cannot be reviewed, when raised for the first time on appeal.-La Grange v. Merritt (Sup.) 32.

Under Code Civ. Proc. § 1346, an appeal from a judgment held to present for review all questions of law, including rulings of the court and exceptions, although no motion for a new trial was made.-Rollins v. Sidney B. Bowman Cycle Co. (Sup.) 289.

Error cannot be predicated of objectionable remarks of the court during a trial, concerning which no request was made or exception taken. -Diamond v. Planet Mills Mfg. Co. (Sup.) 635. Exception to portion of charge held sufficient to raise the question of its correctness on appeal.-Diamond v. Planet Mills Mfg. Co. (Sup.)

635.

An objection to a question on the ground that it involved a personal transaction with deceased held insufficient to present the admissibility of evidence given in answer thereto on appeal. In re Andrews (Sup.) 965.

§ 4. Requisites and proceedings for transfer of cause.

Undertaking given on appeal to the Court of Appeals, instead of the one required by Code Civ. Proc. § 1326, held to create no liability considered as a statutory undertaking.-Gein v. Little (Sup.) 488.

§ 5. Effect of transfer of cause or proceedings therefor.

After service of a notice of appeal from an order denying a motion for a bill of particulars in part, the Special Term was without power to set aside the order appealed from, or to make another order that the previous one stand. -Ziadi v. Interurban St. Ry. Co. (Sup.) 606. § 6. Record and proceedings not in reoord.

Under Code, § 1237, providing what papers shall constitute the judgment roll, and not specifying notices of trial as such, notices of trial cannot be included in the judgment roll, and must be stricken therefrom on motion.-Sweeny v. Kellogg (Sup.) 314.

An appeal book, showing that a motion for an amendment of an answer was granted and an exception taken, sufficiently shows that plaintiff duly excepted to such amendment.-Robinson v. Lampel (Sup.) 853.

87. Review.

Though a case has been tried three times with the same result, the appellate court will set aside the verdict where it has no evidence to support it. Sergent v. Liverpool & London & Globe Ins. Co. (Sup.) 35.

The Appellate Division has jurisdiction to reverse a judgment on a verdict, where the evi

| dence was insufficient to go to the jury, though defendant did not move for a nonsuit at the close of the evidence in the trial court.-Dickinson v. Oliver (Sup.) 52.

A contention on appeal that plaintiff should have been allowed to establish by parol a costract independent of one set out in his com plaint held inconsistent with a contention that he should have been allowed to explain the contract in the complaint by parol.-Thompson v. Erie R. Co. (Sup.) 92.

In an action for injuries to a servant, an instruction given by the court on assumed risk. not excepted to, held to constitute the law of the case on appeal on such issue.-Austin v. Fisher Tanning Co. (Sup.) 137.

The improper reception in evidence of a deposition of a party who testified on trial to the same facts that appeared in the deposition Acid not prejudicial.-Hetzel v. Easterly (Sup.) 154

A motion to strike out as inadmissible evidence

which has been offered and received without objection is addressed to the discretion of the court. Hetzel v. Easterly (Sup.) 154.

The admission of incompetent and prejudicial testimony is not cured by other proof, however strong, in support of the verdict.-Carpenter v. New York Evening Journal Pub. Co. (Sup.) 263.

On an issue as to whether defendant's testator had received from plaintiff certain shares of stock to sell at an agreed price, the admis sion of testator's books held prejudicial error.— Linden v. Thieriot (Sup.) 273.

Introduction of evidence of changes in the premises after the accident held reversible error, notwithstanding an instruction that it was not to be considered on the question of nestgence.-Russell v. New York Cent. & H. R. R. Co. (Sup.) 429.

Where, in an action for malicious prosecn tion, plaintiff had previously read the official record thereof, showing the decision in the manner and form prescribed by Code Cr. Proc § 207, he was not prejudiced by the court's exclusion of the decision of the judge in s charging plaintiff.-Parr v. Loder (Sup.) 823

Where an order granting a new trial under Code Civ. Proc. § 999, did not specify the ground, it would be presumed that it was based on an exception taken at the trial.-Robinson v. Lampel (Sup.) 853.

The fact that exceptions are not discussed in the brief of appellant does not prevent the court on appeal from considering them and basing a reversal thereon.-Purcell v. Hoffman House (Sup.) 975.

A party nonsuited is entitled to the most favorable inferences which a jury might have drawn from the evidence.-Coleman v. Robert Graves Co. (Sup.) 1040.

in the Supreme Court, a statement by the judge In an action for injuries, properly brought that the action should not have been brought in that court, because the injuries were not sufficiently serious, held prejudicial error.-Me Mahon v. Metropolitan St. Ry. Co. (Sup.) 1062.

§ 8. Determination and disposition of

cause.

Amendment of judgment being unauthorized,
because there was no decision filed, as required
by Code Civ. Proc. § 1022, order of amendment
should be reversed, and judgment vacated, on
appeal by plaintiff from part of order of amend-
ment, which could not be reversed without prej-
udice to defendant.-Electric Boat Co. v. Howey
(Sup.) 210.

Reversal of a judgment dismissing the com-
plaint held required, in order to establish cer-
tain rights of plaintiff, though it should be con-
ceded that he was entitled_to_only nominal
damages.-Rollins v. Sidney B. Bowman Cycle
Co. (Sup.) 289.

Where, in an action for breach of contract,
plaintiff is entitled to nominal damages only, a
judgment dismissing the complaint will not h
reversed.-Hopedale Electric Co. v. Electric
Storage Battery Co. (Sup.) 325.

§ 9. Liabilities on bonds and under-
takings.

An unnecessary undertaking on appeal from
Special Term held unenforceable, in the ab-
sence of an order to make it effectual as a stay,
under Code Civ. Proc. §§ 1351, 1352, or consid-
eration sufficient to make it a common-law ob-
ligation. Mossein v. Empire State Surety Co.
(Sup.) 843.

APPLIANCES.

Liability of employer for defects, see "Master
and Servant," §§ 2, 6.

APPOINTMENT.

Of executor or administrator, see "Executors
and Administrators," § 1.

Of guardian, see "Guardian and Ward," § 1.
Of judge, see "Judges," § 1.

Of justice of the peace, see "Justices of the
Peace," 1.

Of receiver, see "Receivers," § 2.

APPURTENANCES.

Included in contract for sale of land, see
"Vendor and Purchaser," § 1.

ARBITRATION AND AWARD.

See "Submission of Controversy."

ARCHITECTS.

Administration of assigned estate.
The Supreme Court has concurrent jurisdic-
tion with the County Court to punish an as-
signee for the benefit of creditors for contempt,

by Laws 1894, p. 269. c. 134, and Laws 1885,
p. 626, c. 380, for refusal of assignee to pay
over money under decree rendered.-In re Merk-
len (Sup.) 786.

ASSISTANCE, WRIT OF.

Recovery of possession of farm rented on
shares, see "Landlord and Tenant," § 5.

ASSOCIATIONS.

Associations";

See "Building and Loan "Clubs." Pleading in general in actions by or against, see "Pleading," § 3.

Removal of elected officers of association can be accomplished only by the body which elected them.-Tanner v. Ranken (Sup.) 770.

Persons claiming to be officers of association cannot restrain acting officers, where such persons have not been recognized by association.Tanner v. Ranken (Sup.) 770.

Members of an unincorporated political party organization held not personally liable to a member for services performed on a party newspaper, and hence an action therefor can

not be maintained against the treasurer thereof, under Code Civ. Proc. § 1919.-Lightbourne v. Walsh (Sup.) 856.

ASSUMPSIT, ACTION OF.

See "Work and Labor."

Change of form of action from tort to assumpsit, see "Action," § 1.

ASSUMPTION.

Of risk by employé, see "Master and Servant," § 5.

ATTACHMENT.

See "Execution"; "Garnishment."
Exemptions, see "Exemptions."
Jurisdiction of particular courts, see "Courts,"
§ 2.

Liability of attorney for compensation of sheriff, see "Attorney and Client," § 1.

§ 1. Nature and grounds.

ATTENDANCE.

Of witness, see "Witnesses," § 1.

ATTORNEY AND CLIENT.

Attorneys' fees in suit to annul marriage, see "Marriage."

Engagement of counsel as ground for continaance, see "Continuance." Privileged communications, see "Witnesses." § 2.

§ 1. The office of attorney.

sion to the bar required by Laws 1899, p. 406, c. Plaintiff, not having filed certificate of admis 225, held not an attorney, within Code Civ. Proc. $ 73, prohibiting an attorney from buying a chose in action with intent to sue thereonThompson v. Stiles (Sup.) 876.

On dissolution of attachment procured on counterclaim, attorney of defendant held liable to sheriff for poundage, under Laws 1892, p. 868, c. 418.-Gadski-Tauscher v. Graff (Sup) 1019.

§ 2. Retainer and authority.

In an action for divorce, plaintiff held entitled to a substitution of attorneys without payment of further fees to a former attorney.Cary v. Cary (Sup.) 1061.

§ 3. Compensation and lien of attor

ney.

Statement as to right of plaintiff to settle notwithstanding lien of his attorney, mer Code Civ. Proc. § 66, and of continuance of ea and right to foreclose, though the money is paid to plaintiff.-Morehouse V. Brooklyn Heights R. Co. (Sup.) 332.

amount of fee of attorney for plaintiff in a Defendant held not entitled to object to suit to foreclose the attorney's lien-Morehouse v. Brooklyn Heights R. Co. (Sup.) 332.

Mere fact that corporation was changing the location of its factory to a place outside the state held no indication of fraud, so as to form a basis for attachment.-Davis v. Reflex Camera Co. (Sup.) 587.

Affidavits held insufficient to show that defendant was about to dispose of his property with intent to defeat or defraud his creditors, so as to warrant an attachment.-Durkin v. Paten (Sup.) 622.

Burden of proof of intent to defraud creditors is on the party applying for a writ of attachment.-Durkin v. Paten (Sup.) 622.

§ 2. Proceedings to procure.

Code Civ. Proc. § 723, relative to amendments, held not to authorize amendment of affidavit for attachment.-Davis v. Reflex Camera Co. (Sup.)

587.

Attorney's lien held not recoverable of de fendant, if plaintiff is solvent.-Gurley v. Gruenstein (Sup.) 887.

BAIL.

For attendance of witnesses, see "Witnesses," § 1. Furnishing fictitious bail as constituting contempt, see "Contempt," § 1.

§ 1. In criminal prosecutions.

A surety, not following the course prescribed by Code Cr. Proc. § 590, to exonerate himself. held to have the burden of proof that he had surrendered the prisoner into the custody of a proper officer.-People v. Mahoney (Sup.) 424.

Evidence held insufficient to show that a prisoner was properly surrendered, so as to exon

BAILMENT.

See "Carriers," § 2; "Pledges."

On defendant's breach of an agreement to re-
pair a bicycle and ship it to plaintiff, defend-
ant held not entitled to be paid for the repairs.
-Rolling v. Sidney B. Bowman Cycle Co.
(Sup.) 289.

On defendant's breach of a contract to re-
pair plaintiff's bicycle and ship it to him at a
certain point, plaintiff's measure of damage
stated. Rollins v. Sidney B. Bowman Cycle
Co. (Sup.) 289.

BANKRUPTCY.

See "Assignments for Benefit of Creditors."
§ 1. Assignment, administration, and
distribution of bankrupt's estate.
Where a chattel mortgage given by a bank-
rupt was void as to a judgment creditor for
failure to record the same until after the re-
covery of the judgment, it was void as against
the mortgagor's trustee in bankruptcy under
Bankr. Act July 1, 1898, c. 541, §§ 67a, 67b, 30
Stat. 564 [U. S. Comp. St. 1901, p. 3449].—
Gove v. Morton Trust Co. (Sup.) 247.

Under Bankr. Act July 1, 1898, c. 541, § 67d,
30 Stat. p. 564 [U. S. Comp. St. 1901. p. 3449].
mortgage lien acquired within four months of
bankruptcy of mortgagor held not affected by
the bankruptcy.-Phillips v. Kahn (Sup.) 250.

Facts held to establish that a conveyance be-
tween husband and wife was void as against a
husband's creditors.-Saxton v. Sebring (Sup.)
372.

A debtor's bankruptcy schedules held suffi-
cient to establish his insolvency, as against the
grantees of his property conveyed shortly be-
fore the commencement of the bankruptcy pro-
ceedings, who were not bona fide purchasers for
value. Saxton v. Sebring (Sup.) 372.

§ 2. Rights, remedies, and discharge of
bankrupt.

The discharge of a bankrupt is not conclu-

sive evidence that he accounted for all his prop-
erty.-Rand v. Iowa Cent. Ry. Co. (Sup.) 212.

bank officer, see "Evidence," § 5.
Gift of deposit, see "Gifts," § 1.

Interpleader in action for deposit, see "Inter-
pleader."

Legality of object of contract of bank, see "Con-
tracts."

Negotiability and transfer of instrument issued
by, see "Bills and Notes," § 2.

Right of bank to recover costs in action on
check from indorser, see "Bills and Notes,"
§ 3.
Testamentary disposition by deposit of money
in savings bank, to order of third person, see
"Wills," § 3.

§ 1. Functions and dealings.

Bank wrongfully refusing to pay check held
liable for interest from date of demand.-
Helene v. Corn Exch. Bank (Sup.) 310.

Contract of banking company held not pro-
hibited by Banking Law, Laws 1892. p. 1911,
c. 689, § 159, as a contract for the holding of
stock in a private corporation in excess of the
amount it permitted.-Guase v. Commonwealth
Trust Co. (Sup.) 723.

BAR.

Of action by former adjudication, see "Judg-
ment," § 3.

BASEBALL.

Playing on Sunday, see "Sunday."
Restraining use of park on Sunday, see "In-
junction," § 1.

BENEFICIAL ASSOCIATIONS.

See "Associations."

Building or loan associations, see "Building
and Loan Associations."

BENEFITS.

Acceptance of, affecting right to appeal, see
"Appeal," § 2.

Acceptance of, as ground of estoppel, see “Es-
toppel," § 3.

BANKS AND BANKING.

Breach of contract by, see "Contracts," § 4.

BEQUESTS.

BIAS.

Of witness, see "Witnesses," § 4.

BILL OF EXCHANGE.

§ 1.

Demand for payment of certificate of deposit,
see "Bills and Notes," § 4.

BILL OF PARTICULARS.

See "Pleading," § 7.