items were objected to and the ground of objection with respect to each. Thomas v. International Silver Co. (Sup.) 612.

An appellate court is bound by the record as to the entry of an order in the court below, and not by statements in briefs of counsel.Allen v. Becket (Sup.) 1012.

6. Dismissal, withdrawal, or abandonment.

A notice of motion to dismiss an appeal must specify the grounds on which it is made.-Albany Brass & Iron Co. v. Alton (Sup.) 180.

§ 7. Review-Scope and extent in general.

able, arise from facts shown by her evidence, only the favorable one can be considered.-Benjamin v. Metropolitan St. Ry. Co. (Sup.) 458.

Where the record on appeal shows that a certain person appeared at trial for one of the parties, it will be presumed that the person so appearing was authorized so to do.-Departcock (Sup.) 604. ment of Health of City of New York v. Bab

Where a judgment may have been rendered on either of two issues, one of which was insufficiently established, the court on appeal will not assume that it was based on the other issue.-M. S. Huey Co. v. Rothfeld (Sup.) 883. Discretion of court.

§ 10.

Whether escape of smoke and gas into premises constituted an eviction, and whether a lease was surrendered at landlord's request, held questions of fact, not reviewable on conflicting evidence.-Call v. Case (Sup.) 166.

A finding for plaintiff on a question of fact will not be disturbed. - Freedman v. Badanes (Sup.) 179.

No exceptions being taken to a decision in the short form, under Code Civ. Proc. § 1022, no questions of fact or law are reviewable on appeal. Forgotston v. Brafman (Sup.) 237.

On appeal from a judgment of the Municipal Court, in a case in which the pleadings have been oral, their scope must be determined by the evidence, rather than by the complaint. Greenberg v. Angerman (Sup.) 244.

Evidence admitted without objection held to be considered, though it might have been objected to as varying a written instrument.Union Bank v. Case (Sup.) 550.

Where both parties move for direction of a verdict, the questions of fact and the credibility of witnesses are for the court.-Dearman v. Marshall (Sup.) 705.

§ 8.

Amendments, additional proofs, and trial of cause anew. On appeal, where it was in issue which of two different names was on the truck which caused the injury, that question must be determined on the testimony, and not on affidavits. -Gubner v. Farrell (Sup.) 157.

In action against a city for damages arising from overflowing of a stream into which was discharged sewage and drainage water, held, that the complaint could not be amended on appeal so as to conform to the theory on which the case was tried and decided.-Smith v. City of Auburn (Sup.) 725.

An omission in proof of a matter of record may be supplied on appeal, to sustain a judgment, when the record cannot be answered or changed. Cullingworth v. Wilson (Sup.) 968. $ 9.

Presumptions.

If, on plaintiff's appeal from a nonsuit, two inferences, one favorable and the other unfavor

The granting of a motion to open a default, being in the exercise of judicial discretion, held not to be disturbed.-Kapner v. Samuels (Sup.) 195.

The exercise of the court's discretion in granting a stay of a trial is subject to review.-Hallenborg v. Greene (Sup.) 321.

Discretion of trial court in setting aside a verdict as against weight of evidence will not be reversed, unless clearly abused.-Lynch v. Metropolitan St. Ry. Co. (Sup.) 495.

An order granting a new trial for inadequacy of damages will not be reversed on appeal, in the absence of actual injustice. Starr V. Ritchie (Sup.) 917.

$11.

Questions of fact, verdicts, and findings.

A finding by the court in an action tried without a jury on conflicting evidence will not be disturbed on appeal, unless it has been improperly affected by the errors assigned by appellant.-Braun v. Hothan (Sup.) 8.

Where the allegations to which plaintiff's proof was directed were unproved in their entire scope and meaning, there is such a failure of proof as requires a reversal on appeal.-Moran v. Kent (Sup.) 17.

In proceedings by a landlord for possession and for rents, held, that final order on conflicting testimony will not be disturbed on appeal. -Levy v. Zasuly (Sup.) 126.

Plaintiff's testimony on a second trial being different from that on the first trial, and being contradicted, the finding against him will not be disturbed. Trenholm v. Provident Sav. Life Assur. Soc. (Sup.) 136.

Finding for plaintiff on conflicting evidence will not be disturbed. Ryan v. Swartwout (Sup.) 151.

ly because more witnesses testified the other A finding will not be disturbed on appeal mereway. Park & Tilford v. Metropolitan St. Ry. Co. (Sup.) 249.

A judgment, supported by evidence allowed to go in generally, without objection and without

the taking of a tenable exception, will not be disturbed on appeal, though the evidence is slight.-Horwitz v. Reinert (Sup.) 254.

The Appellate Division held, on appeal from Trial Term, to have power to reverse because there was no evidence to go to the jury, though there was no motion for a nonsuit.-McGrath v. Home Ins. Co. (Sup.) 374.

Verdict as to terms of contract on conflicting evidence will not be disturbed.-Sulinski v. Leahy (Sup.) 928.

In an action on a written contract, the reception of a carbon copy in evidence, instead of the original, held harmless.-Braun v. Hothan (Sup.) 8.

Where, in an action on a contract, the only controversy was as to whether one item of work which had not been done should have been done, error in permitting an expert to testify that the work as finished was in all respects in accordance with the contract and design held harmless.-Braun v. Hothan (Sup.) 8. Holding that evidence improperly received did not establish defense held to preclude review of overruling of plaintiff's objection thereto.-Newman v. Lee (Sup.) 106.

Where a witness, testifying as to value, has stated that the cost price of goods was their fair value, defendant cannot complain that he gave the cost of the goods in several instances, when by his objection he subsequently excluded the testimony as to market value.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203.

In an action for injuries to a passenger on a street car, introduction of reports tending to show that a company consolidated with defendant corporation was operating the cars held harmless.-Powell v. Hudson Valley Ry. Co. (Sup.) 337.

Where the complaint should have been dismissed, or a verdict directed for defendant, plaintiff cannot object to verdict in his favor as being inadequate.-Masor v. Jacobus (Sup.) 589.

Order continuing a temporary injunction until final judgment, entered with interlocutory judgment containing the same injunction, held, even if unnecessary, harmless.-Corscadden v. Haswell (Sup.) 603.

On the issue of probable cause in an action for malicious prosecution, parol evidence as to testimony of witnesses in the criminal case against plaintiff held prejudicial error.-Tuffy v. Humphrey (Sup.) 616.

On appeal by plaintiff from judgment in his favor, a contention that defendant should have had judgment or plaintiff should have been awarded a larger sum held untenable.-Galef v. Finkelstein (Sup.) 856.

Any error in dismissing counterclaim held harmless; defendants having given evidence of the matters in defense, and the jury having found against them.-Schwarz v. Hirshfield (Sup.) 860.

In action against street railway for injuries resulting from collision with wagon, admission of certain evidence as to work done by plaintiff after accident held, in connection with Dunford v. Interurban St. Ry. Co. (Sup.) 865. charge of court, not prejudicial to defendant.

Misconduct of jurors in making inspection of a gate on one of defendant's street cars, during progress of the trial of an action for personal injuries, held harmless.-Gans v. Metropolitan St. Ry. Co. (Sup.) 914.

The statement of a motorman, after colliding with a delivery wagon, held not to show negligence, and its erroneous admission was not prejudicial error.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

Plaintiff held not prejudiced by an order dismissing a complaint to compel executors to sell, in effect directing a sale.-Levett v. Polhemus (Sup.) 1049. of intermediate

§ 13.

Decisions

courts.

On appeal from an order of affirmance by the General Term of the City Court only questions of law can be reviewed.-McGonigle v. Keating (Sup.) 477.

$ 14.

Subsequent appeals.

Where, on a former appeal, it was held that the evidence presented a question for the jury, and on the retrial the decision was in favor of defendant on substantially the same state of facts, such decision would not be disturbed on appeal.-Cunningham v. Nilson (Sup.) 669.

Determination by Appellate Division on former appeal that question was for jury concludes it from setting aside verdict on second appeal as against weight of evidence.-Kellegher v. Forty-Second St., M. & St. N. Ave. Ry. Co. (Sup.) 784.

§ 15. Determination and disposition of

cause.

Where the judgment for plaintiff must be affirmed, and has been satisfied, an order vacating the order approving the undertaking on appeal will be left undisturbed on appeal therefrom, without costs.-Horwitz v. Reinert (Sup.) 124.

A judgment for plaintiff for a nominal sum will be affirmed, he alone appealing, though it was for services illegally rendered, so that it would have been reversed had defendant appealed.-Adler v. Schaumberger (Sup.) 235.

The entry of a judgment without a decision to support it will be corrected by remitting the case to the trial court for decision and entry of judgment in conformity therewith.-Sommer v. Sommer (Sup.) 444.

An order requiring purchaser at judicial sale to take a deed as of a date subsequent to the time originally fixed for sale held erroneous.— Parish v. Parish (Sup.) 506.

Error in rendering judgment for an amount which under the evidence cannot be right held material on the question of costs.-R. E. Dietz & Co. v. Miller, Sears & Walling Co. (Sup.) 510.

insufficient, without proof of fraudulent intent, to justify an order for the debtor's arrest, under Code Civ. Proc. § 549, subd. 4.-Mann v. Chrestopulos (Sup.) 372.

The 10 days within which judgment must be entered, referred to in Code Civ. Proc. § 572, relative to discharge from arrest, are to be computed from date of entry or execution of order of arrest.-Wasserman v. Benjamin (Sup.) 489.

Affidavit for discharge from arrest, under Code Civ. Proc. § 572, held insufficient for failure to state date of entry of judgment.-Wasserman v. Benjamin (Sup.) 489.

Neglect to enter judgment for a year after verdict does not defeat plaintiff's right to an order of arrest, under Code Civ. Proc. § 551.Wasserman v. Benjamin (Sup.) 489.

Transfers of particular species of property, rights, or instruments.

See "Covenants," § 1; "Judgment," § 7; "Mortgages." § 1.

Partnership judgment, see "Partnership," § 3. § 1. Requisites and validity.

Evidence held insufficient to show ratification of assignment of contract, so as to estop a party making it from objecting thereto.-Hudson River Water Power Co. v. Glens Falls Portland Cement Co. (Sup.) 62.

Cement company, contracting for electric energy, held not authorized to assign such contract to a rival electric light company.-Hudson River Water Power Co. v. Glens Falls Portland Cement Co. (Sup.) 62.

ment, see "Attachment," § 3.

ASSUMPSIT, ACTION OF.

See "Work and Labor."

ASSUMPTION.

Attorneys in fact, see "Principal and Agent." Expenditures by personal representatives for counsel fees, see "Executors and Administrators," § 3.

Lien of attorney on decedent's estate, see "Executors and Administrators," § 5.

Payment by county of fees of attorney appointed to defend indigent person, see "Counties," § 1.

ATTACHMENT.

See "Execution."

"Reference," § 1.

Right of judge to practice law, see "Judges," § 1.

§ 1. The office of attorney.

To sustain an attachment, where unliquidated damages are claimed, the affidavits must contain sufficient proof to authorize the court to say prima facie that damage to the amount claimed has been sustained. Chazy Marble Lime Co. v. Deely (Sup.) 396.

In an action for breach of a contract to sell certain lime to plaintiff, affidavits to support an attachment held insufficient for failure to show damage from the breach.-Chazy Marble Lime Co. v. Deely (Sup.) 396.

Allegation of nonresidence in an attachment affidavit held sufficient.-Outerbridge v. Campbell (Sup.) 537.

§ 2. Quashing, vacating, dissolution, or abandonment.

Defendant held entitled to have the papers on which a motion to vacate an attachment was made recited in the order.-American Audit Co. v. Industrial Federation of America (Sup.) 369. In an action on a joint contract, the question of whether a cause of action against all the defendants was merged in a judgment recovered in another action held not determinable on a motion to vacate an attachment.-United Press v. A. S. Abell Co. (Sup.) 426.

Appellate Division of Supreme Court held, in view of Const. art. 6, §§ 11, 20, to be without inherent power to disbar surrogate, practicing as attorney, in violation of section 20.-In re Silkman (Sup.) 1025.

Code Civ. Proc. § 67, relative to suspension or disbarment of attorneys, held not to cover case of surrogate, who practices as attorney, in violation of Const. art. 6, § 20.-In re Silkman (Sup.) 1025.

§ 2. Retainer and authority.

Under Code Civ. Proc. § 66, on substitution of attorneys, court held to have authority to impose as condition payment of compensation of former attorney.-Kane v. Rose (Sup.) 111.

Under Code Civ. Proc. § 66, clients who had brought about substitution of attorneys held bound by the order of the court made thereon relative to enforcement of an attorney's lien.Kane v. Rose (Sup.) 111.

An order on a substitution of attorneys held not objectionable as threatening that on failure of the clients to pay the former attorney's compensation the court would proceed against them as for a contempt.-Kane v. Rose (Sup.) 111.

ATTORNEY AND CLIENT.

Allowance of counsel fees in divorce proceedings, see "Divorce," § 2.

Appointment of counsel for accused, see "Criminal Law," § 3.

Argument and conduct of counsel at trial in civil actions, see "Trial," § 5.

On substitution of attorneys under Code Civ. Proc. 66, court held to have authority to or former attorney.-Kane v. Rose (Sup.) 111. 3. Duties and liabilities of attorney

to client.