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Of estate of decedent, see "Executors and Ad-

Of estate of ward, see "Guardian and Ward," Of by-laws of mutual benefit insurance asso-

ciations, see "Insurance,” $ 9.
Of trust property, see "Trusts," $ 3.

Of statute, see “Statutes," $ 3.

of particular legal proceedings.

See "Judgment," $ 2; “Pleading," $ 5.
See "Salvage"; "Shipping.”

Statement of case submitted to court, see "Sub-

mission of Controversy."

See "Food."

See “Executors and Administrators," § 10.

See “Wills,” g 9.

Injuries from operation of railroads, see "Rail.

roads," § 4.

Rules of carriers relating to see “Carriers,"

§ 3.
To real property, see “Quieting Title."

Statutes regulating shipment of carcasses as

violations of interstate commerce clause of

constitution, see "Commerce," $ 1.
See "Limitation of Actions."

Establishment of streets by, see “Municipal In pleading, see “Pleading," $$ 1, 3, 7, 9.
Corporations," $ 6.

See "Depositions.”

To devise or bequeath, see “Wills," 8 2.
In particular proceedings.

See “Arrest," $ 1; "Attachment," $8 1, 2; “In-
junction," $ 3.

See "Certiorari"; "New Trial."
For change of venue, see "Venue," 8 2.

Appeal from city auditor to county board of
Verification of pleading, see "Pleading," § 6.

supervisors, as special proceeding, see "Ac-

tion,” $ 1.

Furnishing infant as sole surety on undertaking

on appeal, as contempt, see “Contempt,” $ 1.
Submission of controversy to court, see “Sub- 1 Operation of statute of frauds on undertaking
mission of Controversy."

on appeal, see "Frauds, Statute of," $ 2.
Requisites and validity of bond on appeal, see

"Bonds,” 8 1.

Review in particular civil actions.
See "Contracts."

For dissolution of partnership, see “Partner-

ship," $ 3.

Foreclosure, see “Mortgages,”: $ 5.

For nuisance, see "Nuisauce,!' $ 1.
See "Food."

To construe will, see "Wills,” g 9.

Review in special proceedings.

See “Mandamus," $ 2.
To surviving wife, husband, or children of de-

Review of criminal prosecutions.
cedent, see “Executors and Administrators,"
§ 4.

See "Criminal Law," $ 5.

$ 1. Nature and form of remedy.

Although separate actions involving the same
Of geographical or political divisions, see “Mu- questions were tried together, separate records
nicipal Corporations," $ 1.

should have been prepared for the purpose of
appeal.-O'Gorman v. New York & Q. C. Ry.

Co. (Sup.) 589; Bell v. Same, Id.

§ 2. Decisions reviewable.
Authority to receive payments from decedents' Under Code Civ. Proc. $ 1300, an appeal
estates of money due to nonresident heirs, see might be properly taken from a part of an or-
"Executors and Administrators,” $ 6.

der, where the acceptance of the benefits derived

and 123 New York State Reporter from the part not appealed from was not incon- 1 dence was insufficient to go to the jury, though sistent with appellant's act in appealing from defendant did not move for a ponsuit at the the balance.--Ziadi v. Interurban St. Ry. Co. close of the evidence in the trial court-Dick. (Sup.) 606.

inson v. Oliver (Sup.) 52. $ 3. Presentation and reservation in A contention on appeal that plaintiff should

lower court of grounds of review. have been allowed to establish by parol a conObjections to a provision for costs in a judg- tract independent of one set out in his CEment and for an execution cannot be reviewed, plaint held inconsistent with a contention that when raised for the first time on appeal.-La he should have been allowed to explain the conGrange v. Merritt (Sup.) 32.

tract in the complaint by parol.—Thompson v.

Erie R. Co. (Sup.) 92. Under Code Civ. Proc. 1346, an appeal from a judgment held to present for review all ques

In an action for injuries to a servant, an intions of law, including rulings of the court struction given by the court on assumed risk. and exceptions, although no motion for a new

not excepted to, held to constitute the law of trial was made.-Rollins v. Sidney B. Bowman the case on appeal on such issue.-Austin . Cycle Co. (Sup.) 289.

Fisher Tanning Co. (Sup.) 137. Error cannot be predicated of objectionable

The improper reception in evidence of a demoremarks of the court during a trial, concerning sition of a party who testified on trial to the which no request was made or exception taken. same facts that appeared in the deposition held - Diamond v. Planet Mills Mfg. Co. (Sup.) 635. not prejudicial.--Hetzel v. Easterly (Sup.) 154 Exception to portion of charge held sufficient

A motion to strike out as inadmissible evidence to raise the question of its correctness on ap- which has been offered and received without obpeal.—Diamond v. Planet Mills Mfg. Co. (Sup.) jection is addressed to the discretion of the 635.

court.—Hetzel v. Easterly (Sup.) 154. An objection to a question on the ground that

The admission of incompetent and prejudicial it involved a personal transaction with deceased testimony is not cured by other proof, howerer held insufficient to present the admissibility of strong, in support of the verdict. - Carpenter 1. evidence given in answer thereto on appeal. New York Evening Journal Pub. Co. (Sup.) 2 In re Andrews (Sup.) 965.

On an issue as to whether defendant's testa$ 4. Requisites and proceedings for of stock to sell at an agreed price, the admis

tor had received from plaintiff certain shares transfer of cause. Undertaking given on appeal to the Court of Linden v. Thieriot (Sup.) 273.

sion of testator's books held prejudicial error.Appeals, instead of the one required by Code Civ. Proc. $ 1326, held to create no liability con- Introduction of evidence of changes in the sidered as a statutory undertaking.-Gein v. premises after the accident held reversible er Little (Sup.) 488.

ror, notwithstanding an instruction that it was

not to be considered on the question of negli§ 5. Effect of transfer of cause or pro- gence.-Russell v. New York Cent. & H. R. R. ceedings therefor.

Co. (Sup.) 429. After service of a notice of appeal from an order denying a motion for a bill of particulars

Where. in an action for malicious prosecu in part, the Special Term was without power tion, plaintiff had previously read the official to set aside the order appealed from, or to record thereof, showing the decision in the make another order that the previous one stand. I manner and form prescribed by Code Cr. Proc. -Ziadi v. Interurban St. Ry. Co. (Sup.) 606.

8 207, he was not prejudiced by the court's es

clusion of the decision of the judge in die § 6. Record and proceedings not in reor charging plaintiff.—Parr v. Loder (Sup.) 823 ord.

Where an order granting a new trial under Under Code, & 1237, providing what papers | Code Civ. Proc. 8° 999, did not specify the shall constitute the judgment roll, and not spec, ground, it would be presumed that it was based ifying notices of trial as such, notices of trial on an exception taken at the trial.-Robinson cannot be included in the judgment roll, and v. Lampel (Sup.). 853. must be stricken therefrom on motion.-Sweeny v. Kellogg (Sup.) 314.

The fact that exceptions are not discussed in

the brief of appellant does not prevent the court An appeal book, showing that a motion for an on appeal from considering them and basing amendment of an answer was granted and an a reversal thereon.-Purcell v. Hoffman Horse exception taken, sufficiently shows that plain- (Sup.) 975. tiff duly excepted to such amendment.--Robinson v. Lampel (Sup.) 853.

A party nonsuited is entitled to the most fa

vorable inferences which a jury might have § 7. Review.

drawn from the evidence.Coleman V. Robert Though a case has been tried three times with Graves Co. (Sup.) 1040. the same result, the appellate court will set aside the verdict where it has no evidence to in the

Supreme Court, a statement by the judge

In an action for injuries, properly brought support it.—Sergent v. Liverpool & London & that the action should not have been brought Globe Ins. Co. (Šup.) 35.

in that court, because the injuries were not The Appellate Division has jurisdiction to re- sufficiently serious, held prejudicial error.-M verse a judgment on a verdict, where the evi- Mahon v. Metropolitan St. Řy. Co. (Sup.) 1062

§ 8. Determination and disposition of Motion to vacate arrest under Code Civ. Proc.

$ 572, for unreasonable delay, denied.—Goff v.
Amendment of judgment being unauthorized, Charlier (Sup.) 722.
because there was no decision filed, as required
by Code Civ. Proc. $ 1022, order of amendment $ 2. On criminal charges.
should be reversed, and judgment vacated, on Arrest of employés of telegraph and tele-
appeal by plaintiff from part of order of amend-phone company, collecting news of horse races,
ment, which could not be reversed without prej- held a violation of constitutional liberty.-Peo-
udice to defendant.--Electric Boat Co. v. Howey ple v. Breen (Sup.) 998.
(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 By carrier, see "Carriers," $ 3.
damages.-Rollins v. Sidney B. Bowman Cycle Conviction of assault under indictment for
Co. (Sup.) 289.

homicide, see “Indictment and Information,”
Where, in an action for breach of contract,

$ 3.
plaintiff is entitled to nominal damages only, a
judgment dismissing the complaint will not

reversed.—Hopedale Electric Co. v. Electric
Storage Battery Co. (Sup.) 325.

Due process of law in imposing, see “Constitu-

tional Law," $ 3.
$ 9. Liabilities on bonds and under- of compensation for property taken for public

An unnecessary undertaking on appeal froin of expenses of public improvements, see "Mu-

use, see “Eminent Domain," $ 3.
Special Term held unenforceable, in the ab-
sence of an order to make it effectual as a stay, I of tax, see "Taxation," 8 2.

nicipal Corporations,". $ 4.
under Code Civ. Proc. $$ 1331, 1352, or consid-
eration sufficient to make it a common-law ob-
ligation.—Mossein v. Empire State Surety Co.

(Sup.) 843.

Of estate of decedent, see "Executors and Ad-

ministrators," $ 2.
Liability of employer for defects, see “Master
and Servant," 88 2, 6.


For benefit of creditors, see "Assignments for

Benefit of Creditors.'
Of executor or administrator, see "Executors Fraud as to creditors, see "Fraudulent Convey-
and Administrators," 1.

Of guardian, see "Guardian and Ward," $ 1.

Persons entitled to sue on assigned judgment,
Of judge, see "Judges," § 1.

see "Parties," $ 1.
Of justice of the peace, see “Justices of the
Peace," § 1.

Transfers of particular species of property,
Of receiver, see "Receivers,” | 2.

rights, or instruments.

See "Bills and Notes," $ 2; “Mortgages," $ 3.

Corporate shares, see "Corporations," $ 2.
Included in contract for sale of land, see
"Vendor and Purchaser," $ 1.



See "Bankruptcy," $ 1.
See "Submission of Controversy."

$ 1. 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,
Recovery for services in action for work and under Laws 1877, p. 547, c. 466, as amended
labor, see “Work and Labor."

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.
See “Bail."
§ 1. In civil actions.

Affidavit of plaintiff on which an order of ar-

was based held insufficient.—Brown v. Recovery of possession of farm rented
Coleman (Sup.) 427.

shares, see "Landlord and Tenant," $ 5.



and 123 New York State Reporter ASSOCIATIONS.

ATTENDANCE. See "Building and Loan Associations"; Of witness, see "Witnesses," g 1.

"Clubs." Pleading in general in actions by or against, see

ATTORNEY AND CLIENT. "Pleading," $ 3. Removal of elected officers of association can Attorneys' fees in suit to annul marriage, see be accomplished only by the body which elect

"Marriage." ed them.-Tanner v. Ranken (Sup.) 770.

Engagement of counsel as ground for continu Persons claiming to be officers of association Privileged communications, see "Witnesses,"

ance, see "Continuance." cannot restrain acting officers, where such per

$ 2. sons have not been recognized by association.Tanner v. Ranken (Sup.) 770.

§ 1. The office of attorney: Members of an unincorporated political par- sion to the bar required by Laws 1899, p. 406, e.

Plaintiff, not having filed certificate of admis ty organization held not personally liable to a 225, held not an attorney, within Code Civ. Proc. member for services performed on newspaper, and hence an action therefor can $ 73, prohibiting an attorney from buying a not be maintained against the treasurer thereof, chose in action with intent to sue thereon.under Code Civ. Proc. $ 1919.-Lightbourne v.

Thompson v. Stiles (Sup.) 876. Walsh (Sup.) 856.

On dissolution of attachment procured on counterclaim, attorney of defendant held liable

to sheriff for poundage, under Laws 1892, R. ASSUMPSIT, ACTION OF. 868, c. 418.—Gadski-Tauscher v. Graff (Sup.)

1019. See "Work and Labor."

§ 2. Retainer and authority. Change of form of action from tort to assump- In an action for divorce, plaintiff held en sit, see “Action," $ 1.

titled to a substitution of attorneys without

payment of further fees to a former attorney ASSUMPTION.

Cary v. Cary (Sup.) 1061.

§ 3. Compensation and lien of attorOf risk by employé, see “Master and Servant,"

ney. 8 5.

Statement as to right of plaintiff to settle.

notwithstanding lien of his attorney, under ATTACHMENT.

Code Civ. Proc. $ 66, and of continuance of lien

and right to foreclose, though the money is See "Execution”; “Garnishment."

paid to plaintiff.-Morehouse v. Brooklyn

Heights R. Co. (Sup.) 332.
Exemptions, see "Exemptions."
Jurisdiction of particular courts, see "Courts,"

Defendant held not entitled to object $ 2.

amount of fee of attorney for plaintiff in 3 Liability of attorney for compensation of sher- suit to foreclose the attorney's lien.—More iff, see "Attorney and Client," $ 1.

house v. Brooklyn Heights R. Co. (Sup.) 332

An attorney, who prosecuted an appeal from 1. Nature and grounds.

a city auditing board to a county board of soStatement of agent of corporation about to re-pervisors for a constable for the adjustment of move its property out of the state held to have the latter's claim for services, held entitled to no reference to fraud on creditors, so as to a lien on the award, under Code Civ. Proc. $ form basis of attachment.—Davis v. Reflex 66, as amended by Laws 1899, p. 80, c. 61Camera Co. (Sup.) 587.

Perry v. Myer (Sup.) 347. Mere fact that corporation was changing the Attorney's lien held not recoverable of de location of its factory to a place outside the fendant, if plaintiff is solvent.–Gurley F. state held no indication of fraud, so as to form Gruenstein (Sup.) 887. a basis for attachment.-Davis v. Reflex Camera Co. (Sup.) 587.

BAIL. Affidavits held insufficient to show that defendant was about to dispose of his property For attendance of witnesses, see "Witnesses." with intent to defeat or defraud his creditors,

$ 1. so as to warrant an attachment.—Durkin v. Furnishing fictitious bail as constituting cosPaten (Sup.) 622.

tempt, see "Contempt," $ 1. Burden of proof of intent to defraud credit- 1. In criminal prosecutions. ors is on the party applying for a writ of attachment.-Durkin v. Paten (Sup.) 622.

A surety, not following the course prescribed

by Code Cr. Proc. $ 590, to exonerate himself, § 2. Proceedings to procure.

held to have the burden of proof that he had Code Civ. Proc. $ 723, relative to amendments, surrendered the prisoner into the custody of a held not to authorize amendment of affidavit for proper officer.—People v. Mahoney (Sup.) 424. attachment.—Davis v. Reflex Camera Co. (Sup.) Evidence held insufficient to show that a pris 587.

ouer was properly surrendered, so as to exor

erate the surety on a recognizance.—People v. Documentary evidence in action on bond of
Mahoney (Sup.) 424.

bank officer, see "Evidence," $ 5.

Gift of deposit, see “Gifts," 8 1.

Interpleader in action for deposit, see “Inter-


Legality of object of contract of bank, see “Con-
See “Carriers," § 2; "Pledges."

În defendant's breach of an agreement to re- Negotiability and transfer of instrument issued
pair a bicycle and ship it to plaintiff, defend-

by, see "Bills and Notes," $ 2.
ant held not entitled to be paid for the repairs. Right of bank to recover costs in action on

-Rollins v. Siduey B. Bowman Cycle Co. check from indorser, see "Bills and Notes,"
(Sup.) 289.

$ 3.

Testamentary disposition by deposit of money
On defendant's breach of a contract to re-

in savings bank, to order of third person, see
pair plaintiff's bicycle and ship it to him at a

"Wills," $ 3.
certain point, plaintiff's measure of damage
stated.-Rollins v. Sidney B. Bowman Cycle s 1. Functions and dealings.
Co. (Sup.) 289.

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,
See "Assignments for Benefit of Creditors.” C. 689, 8 159, as a contract for the holding of

stock in a private corporation in excess of the
$ 1. Assignment, administration, and
distribution of bankrupt's estate. Trust Co. (Sup.) 723.

amount it permitted.-Guase v. Commonwealth
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 of action by former adjudication, see "Judg-
Bankr. Act July 1, 1898, c. 541, $$ 67a, 67b, 30 ment,” 8 3.
Stat. 564 (U. S. Comp. St. 1901, p. 3449].—
Gove v. Morton Trust Co. (Sup.) 247.

Under Bankr. Act July 1, 1898, c. 541, $ 670,
30 Stat. p. 564 (U. S. Comp. St. 1901. p. 3449): Playing on Sunday, see "Sunday.".
mortgage lien acquired within four months of Restraining use of park on Sunday, see "In-
bankruptcy of mortgagor held not affected by junction, $ 1.
the bankruptcy.-Phillips v. Kahn (Sup.) 250.

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

See “Associations."
A debtor's bankruptcy schedules held suffi- Building or loan associations, see "Building
cient to establish his insolvency, as against the

and Loan Associations."
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.

Acceptance of, affecting right to appeal, see
§ 2. Rights, remedies, and discharge of "Appeal,” $ 2.

The discharge of a bankrupt is not conclu- Acceptance of, as ground of estoppel, see “Es-

toppel," 8 3.
sive evidence that he accounted for all his prop-
erty.-Rand v. Iowa Cent. Ry. Co. (Sup.) 212.
A bankrupt, for whom no trustee had been

appointed and who had been discharged, held | See “Wills."
not entitled to maintain suit for his own benefit
on a claim not disclosed in his schedules.-Rand

v. Iowa Cent. Ry. Co. (Sup.) 212.

Of witness, see "Witnesses," $ 4.

Breach of contract by, see “Contracts," $ 4.
Breach of contract by, to sell stock of corpora- See "Bills and Notes."

tion, see "Corporations,” $ 2.
Creation of trust in bank stock, see "Trusts,"
8 1.

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

See “Pleading," $ 7.

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