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COUNTIES.

and 118 New York State Reporter

1. Property, contracts, and liabilities. Code Cr. Proc. § 308, authorizing the payment of a reasonable compensation to an attor: ney appointed to defend an indigent criminal in a capital case, held not in violation of Const. art. 8, § 10, as an appropriation of county funds to the aid of an individual.-People v. Grout (Sup.) 97.

COURTS.

Contempt of court, see "Contempt."
Judges, see "Judges."
Judicial power, see "Constitutional Law," § 2.
Justices' courts, see "Justices of the Peace."
Power to disbar attorney, see "Attorney and
Client," § 1.

Review of decisions, see "Appeal."
Right to trial by jury, see "Jury," § 1.
Trial by court without jury, see "Trial," § 8.
Jurisdiction of particular actions, proceedings,
or subjects.

Against personal representatives, see "Execu-
tors and Administrators," § 8.
Disputed claims against decedent's estate, see
"Executors and Administrators," § 5.

For breach of contract, see "Contracts," § 5.
For probate of will, see "Wills," § 3.

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§ 2.

Courts of limited or inferior juris-
diction.

An amendment of pleadings in the municipal court is demandable of right, though the amendment set up a new cause of action or defense. -Morton v. Lederer (Sup.) 132.

Under Laws 1902, p. 1542, c. 580, the Municipal Court of New York City has power to permit, at the beginning of a trial, the amendment of a complaint on an account stated to an action on the indorsement of a check.-Blake v. Malliet (Sup.) 161.

Under Municipal Court Act, Laws 1902, p. 1497. c. 580, § 25, subd. 4, demand for transfer, where action is brought in the wrong disfer is required.-Fischer v. Brooklyn Heights trict, must specify the district to which transR. Co. (Sup.) 254.

Action to recover cash deposited under a contract for sale of defendant's real estate, possession of which could not be given, held not to involve title to real estate, within Muricipal Court Act, Laws 1902, p. 1545, c. 580, 184.-Elinsky v. Berger (Sup.) 483.

General practice rule 9 of Supreme Court held not to authorize continuous applications for continuance of cause pending in the Municipal Court on the ground that counsel is otherwise engaged in the trial of causes.-O'Brien v. Kuntz (Sup.) 535.

§ 3. Courts of appellate jurisdiction.
Jurisdiction of the Appellate Term over ap-
peals from orders exists solely by force of stat-
ute.-Cohen v. Ridgewood Shirt Co. (Sup.) 188.
COVENANTS.

Against subletting leasehold, see "Landlord and
Tenant," § 3.

For quiet enjoyment, see "Landlord and Ten-
ant," § 4.

For renewal of lease, see "Landlord and Tenant," § 3.

§ 1. Construction and operation.

ing on property adjoining grantor's residence Covenant restricting grantee's right of buildheld not to be continued, after removal of building, as covenant for light and air.-Deeves v. Constable (Sup.) 592.

Covenant restricting grantee's right of building on adjoining property for protection of grantor's residence held abrogated by removal of dwelling, erection of other building, and changed conditions of neighborhood.-Deeves v. Constable (Sup.) 592.

§ 2. Performance or breach.

breach of warranty as to the amount due on a
A purchaser of property cannot recover as for
mortgage thereon; foreclosure not having been
attempted, and he not having been disturbed in
333.
his possession.-Inderlied v. Honeywell (Sup.)

COVERTURE.

Municipal Court Act, Laws 1902, p. 1542, c. 580, § 166, held to require the Municipal Court to allow an amendment to the answer by set- See "Husband and Wife." ting up the defense of usury.-Steinhardt v. Eisen (Sup.) 232.

Municipal Court Act, Laws 1902, p. 1563, c.

CREDIBILITY.

580, § 254. held not to empower the court to Of witness, see "Witnesses," § 4.
vacate a judgment in favor of one party and
give a judgment in favor of the other party.-
Insky v. Chatkoff (Sup.) 253.

Under Municipal Court Act, Laws 1902, p. 1497, c. 580, § 25, subd. 4, a demand for a transfer, where action is brought in the wrong district, held necessary on or before joinder of issue.-Fischer v. Brooklyn Heights R. Co. (Sup.) 254.

CREDITORS.

See "Bankruptcy"; "Compositions with Creditors"; "Creditors' Suit"; "Fraudulent Conveyances."

Rights and remedies of surety, see "Principal and Surety," § 2.

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See "Bribery"; "Contempt"; "Homicide";
"Rape"; "Threats."

Violation of injunction as criminal contempt,
see "Injunction," § 5.
Violation of ordinances, see "Municipal Corpora-
tions," $ 3.

1. Preliminary complaint, affidavit,
warrant, examination, commit-
ment, and summary trial.

Const. U. S. Amend. art 6, relating to rights
of defendants in criminal prosecutions, does
not apply to prosecutions in state courts.-
People v. Welsh (Sup.) 703.

4. Appeal and error, and certiorari.
Under Code Civ. Proc. $$ 527, 530, 556,
where a defendant, sentenced to fine and im-
prisonment, gave a bond on appeal to pay the
fine and perform the imprisonment, a perform-
ance of the latter after affirmance did not re-
lieve his sureties from liability for the fine.-
People v. Connolly (Sup.) 617.

Sureties on a defendant's appeal bond held
only liable for the amount of his fine and inter-
est from the day it was demanded, where, aft-
er the affirmance of the judgment, defendant
performed the imprisonment adjudged.-People
v. Connolly (Sup.) 617.

On appeal in a criminal case, ruling of re-
corder as to the number of questions he asked
of a certain witness held conclusive.-People
v. Childs (Sup.) 853.

The claim of appellant in a criminal case
that the record should contain the testimony
by questions and answers, on the ground that
he was prejudiced by the examination of cer-
tain witnesses by the recorder, cannot be con-
sidered, unless such facts are made to appear
by affidavit.-People v. Childs (Sup.) 853.

Where exceptions to the charge in a criminal
case were inserted in the record, and thereafter
appellant's attorney restated them in another
portion of the record, it was proper for the
recorder to strike the repetition from the rec-
ord.-People v. Childs (Sup.) 853.

On appeal in a criminal case, remarks made
by the recorder in imposing sentence form uo
part of the record. People v. Childs (Sup.)

853.

A magistrate has jurisdiction to inquire into
a violation of Pen. Code, § 72, imposing a pen-
alty on any public officer receiving a bribe, and Where, on appeal from a conviction for as-
to hold a person to answer for the crime.-sault, the return fails to show that any evi-
People v. Van De Carr (Sup.) 461.
dence was given tending to prove defendant
committed the alleged offense, the conviction
must be set aside.-People v. Halwig (Co. Ct.)

2. Arraignment and pleas, and nolle
prosequi or discontinuance.

221.

CROSS-EXAMINATION.

Where counsel states that accused "is here
by counsel and declines to plead," it is not
necessary to state that counsel is present with
special authority to enter a refusal to plead. See "Witnesses," §§ 3, 4.
People v. Welsh (Sup.) 703.

One accused of a misdemeanor may appear
by counsel and refuse to plead, though he
could not in that way, under the express pro-
visions of Code Cr. Proc. § 335, plead guilty.—
People v. Welsh (Sup.) 703.

3. Trial.

Code Cr. Proc. § 308, held not to limit the
authority of the court to appoint counsel for au
indigent person, indicted for crime, to appoint-
ment on arraignment, but authorizes such ap-
pointment at any time before or during the
trial.-People v. Grout (Sup.) 97.

Under Code Cr. Proc. § 356, trial of a mis-
demeanor may be had in the absence of the
defendant, if he appear by counsel, notwith-
standing section 8, relating to rights of de-
fendants.-People v. Welsh (Sup.) 703.

CROSSINGS.

see

Accidents at street railroad crossings,
"Street Railroads," § 1.
Establishment of railroad crossings, see "Rail-
roads," § 1.

DAMAGES.

Damages for particular injuries.
See "Nuisance," § 1.

Breach by buyer of contract for sale of goods,
see "Sales," § 6.

Breach by seller of contract for sale of goods,
see "Sales," §§ 3, 7.

Breach of contract to give possession of lease-
hold, see "Landlord and Tenant," § 4.

and 118 New York State Reporter

death, and that he left no heirs surviving him. McNulty v. Mitchell (Sup.) 89.

Breach of covenant to repair demised premises, I cover him, if living, raises the presumption of see "Landlord and Tenant," § 4. Breach by vendor of contract for sale of land, see "Vendor and Purchaser," § 2. Conversion of mortgaged chattels, see "Chattel Mortgages," § 1.

Discharge from employment, see "Master and
Servant," § 1.

From negligence in transmission of telegram,
see "Telegraphs and Telephones," § 1.
Injuries caused by public improvements, see
"Municipal Corporations," § 2.

Injuries from operation of railroad, see "Rail-
roads," § 3.

Recovery in particular actions or proceedings.
See "Specific Performance," § 2.

§ 1. Grounds and subjects of compen-
satory damages.

The sum expended by the owner of a delivery wagon for the hiring of another wagon, while his own is being repaired, is a proper element of

DEBTOR AND CREDITOR.

See "Bankruptcy"; "Compositions with Creditors"; "Creditors' Suit"; "Fraudulent Conveyances."

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damages for injury done to his wagon by col- As evidence in civil actions, sce "Evidence," § 5. liding with a street car.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

§ 2. Measure of damages.

In an action for injuries to personal prop erty, evidence as to the value of the damaged goods to plaintiff held inadmissible.-Marcus v. Stein (Sup.) 970.

3. Inadequate and excessive damages. Verdict of $1,800 in action for personal injuries to a child held not excessive.-Travers v. Murray (Sup.) 558.

DEEDS.

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DEFAMATION.

§ 4. Pleading, evidence, and assessment.
Evidence in action for injury to animal held
insufficient to sustain finding as to its value. See "Libel and Slander."
Lee v. Callahan (Sup.) 167.

In an action for injuries to a passenger, a verdict finding that plaintiff's nervous prostra

DEFAULT.

tion was the result of the accident held not Judgment by, see "Judgment," § 1. contrary to the weight of the evidence.-Powell

v. Hudson Valley Ry. Co. (Sup.) 337.

A motion to vacate an assessment of damages may be based upon the stenographer's

DEFICIENCY.

minutes, if there is no question as to their On foreclosure, see "Mechanics' Liens," § 2. correctness; the case and exceptions not being absolutely indispensable.--City Trust, Safe Deposit & Surety Co. v. American Brewing Co. (Sup.) 771.

Evidence held insufficient to establish reasonableness of charge for hiring of a delivery wagon while plaintiff's wagon was being repaired, so as to form a basis for damages for injury to plaintiff's wagon.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

DEATH.

DELAY.

In performance of work under contract with city, see "Municipal Corporations," § 2.

DELEGATION OF POWER.

To condemn land for public use, see "Eminent
Domain," § 1.

DELIVERY.

Action for wrongful death of alien, see "Aliens," of goods by carrier, see "Carriers," § 1.

§ 1. Of partner, see "Partnership," § 4.

§ 1. Evidence of death and of survivorship.

An unexplained absence of a single man for

Of trust funds, see "Trusts," § 1.

DENIALS.

43 years, with evidence of an attempt to dis- In pleading, see "Pleading," § 1.

DEPOSITIONS.

See "Witnesses."

Under Code Civ. Proc. § 888, subd. 5, on an application for a commission to examine witnesses, held not necessary to show that the

action was at issue as to all of the defendants.-Boyes v. Bossard (Sup.) 563.

DISABILITIES.

Particular classes of persons.

See "Judges," § 1.
Aliens, see "Aliens," § 1.
Married women, see "Husband and Wife,” § 3.
DISBARMENT.

On an application for a commission to enable Of attorney, see "Attorney and Client," § 1. applicant to prove certain unwritten laws of a foreign country, held not an answer to show that the written statutes may be proved by printed copies and the unwritten laws by attorneys within the jurisdiction of the court.-Boyes v. Bossard (Sup.) 563.

Averments in an affidavit in opposition to an application for a commission to examine witnesses in a foreign country held not to warrant decision that plaintiff concedes the residence of defendants to be as stated.-Boyes v. Bossard (Sup.) 563.

DEPOSITS.

In bank, see "Banks and Banking," § 1.

DESCENT AND DISTRIBUTION.

See "Executors and Administrators"; "Wills." Inheritance and transfer taxes, see "Taxation," § 5.

1. Nature and course in general. Distribution of personalty held governed by the law of the domicile of decedent.-In re Barandon's Estate (Sur.) 937.

2. Rights and liabilities of heirs and distributees.

An unexplained absence of a single man for 43 years, with evidence of an attempt to discover him, if living, raises the presumption of death, and that he left no heirs surviving him. -McNulty v. Mitchell (Sup.) 89.

Action to enforce against heirs of a deceased mortgagee a foreclosure deficiency judgment held not maintainable without leave of court, and leave denied.—Rowley v. Nellis (Sup.) 841.

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DISCHARGE.

From arrest, see "Arrest," § 1.

From employment, see "Master and Servant," § 1.

From indebtedness, see "Accord and Satisfaction"; "Bankruptcy," $ 2; "Compositions with Creditors"; "Compromise and Settlement"; "Release."

DISCOVERY.

§ 1. Under statutory provisions.
An order, in an action against one as surviv-
ing partner of a firm, for examination of de-
fendant as a witness before trial, may not re-
quire him to produce the firm books to refresh
his memory, under Code Civ. Proc. § 872, subd.
7.-Gee v. Alvarez (Sup.) 32.

Case held proper for examination of defendant as a witness before trial.-Gee v. Alvarez (Sup.) 32.

Code Civ. Proc. §§ 870, 872, 874, 875, contemplate personal service on the party of the order for his examination before trial.-Hall v. Redington (Sup.) 279.

Plaintiff, in an action against its agents to recover insurance money received by them for destruction of its property, shipped by them, held entitled to an examination, before trial, as to manner of shipment and companies insuring.-F. Garia Bro. & Co. v. Salomon (Sup.) 508.

An application for the examination of a witness before trial held not objectionable because the affidavits were made by defendant's attorney, instead of defendant.-Treadwell v. Greene (Sup.) 557.

A plaintiff is not entitled to an order for an inspection of defendant's books to discover the amount due him under a contract.-Martin v. New Trinidad Lake Asphalt Co. (Sup.) 711.

Code Civ. Proc. § 872, subd. 7, relating to the examination and inspection of books of a corporation, authorizes their production only in connection with the examination of a witness, who is able to testify from them.-Hart v. American Cotton Co. (Sup.) 1065.

An order for the examination of officers of a corporation before trial should not require the officers to produce the books of the corporation, where it is not necessary to refresh the memory of the witnesses, but only that the moving party may make extracts from the books.-Hart v. American Cotton Co. (Sup.) 1065.

and 118 New York State Reporter

Order for examination of directors of corporation before trial set aside.-Hart v. American Cotton Co. (Sup.) 1065.

To justify examination before trial, it must be shown that the parties to be examined can testify as to material facts.-Hart v. American Cotton Co. (Sup.) 1065.

A proceeding for the discovery of papers, under Code Civ. Proc. §§ 803-809, is entirely distinct from that relating to the taking of depositions before trial, under section 870 et seq.-Hart v. American Cotton Co. (Sup.) 1065. Examination before trial of co-defendants, members of a syndicate, as to indirect profits from which they had excluded the moving plaintiff, held proper.-Weidenfeld v. Hollins (Sup.) 1084.

DISCRETION OF COURT.

As to assessment of costs, see "Costs," § 4.
As to security for costs, see "Costs," §§ 3, 8.
Review in civil actions, see "Appeal," § 10.

DISMISSAL AND NONSUIT.

Appealability of orders relating to dismissal, see "Appeal," § 1.

At trial, see "Trial," § 6.

does not change form of action, so as to entitle party to jury trial.-Packard v. Packard (Sup.) 1090.

Code Civ. Proc. §§ 1753, 1757, 1762, art. 3, relative to annulment of marriage, divorce, and separation, and section 970, relative to jury trials, construed not to authorize a party to an action for separation to a jury trial.-Packard v. Packard (Sup.) 1090.

§ 2. Alimony, allowances, and disposition of property.

Allowance to plaintiff of $500 a year alimony and $300 a year for support of each of her two children, about half of defendant's conceded income, is not excessive.-Valentine v. Valentine (Sup.) 37.

An order, under Code Civ. Proc. § 1769, in a suit for separation, directing payment of wife's attorney's fees by husband, held not enforceable after his death.-Kellogg v. Stoddard (Sup.) 1015.

Under Code Civ. Proc. § 1769, the owner in a suit for separation should direct payment by the husband of counsel fees to the wife, not to her attorneys.-Kellogg v. Stoddard (Sup.) 1015.

DOCKETS.

Of causes for trial, see "Trial," § 2.

Costs on dismissal, see "Costs," § 1. Dismissal of appeal, see "Appeal," § 6.

Dismissal of supplementary proceedings, "Execution," § 2.

see

Harmless error, see "Appeal," § 12.

DOCUMENTS.

As evidence in civil actions, see "Evidence," § 7. Review of discretion of court, see "Appeal," § Production and inspection of writings, see "Dis10. covery," § 1.

1. Involuntary.

Motion to dismiss an action for neglect to prosecute held properly refused.-Stowe v. White See "Animals." (Sup.) 156.

Though plaintiff's attorney is negligent, plaintiff may have a dismissal set aside on payment of costs and fees of defendant's witnesses.Simon v. Borden's Condensed Milk Co. (Sup.) 476.

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See "Gifts."

DOGS.

DONATIONS.

DOWER.

Contracts relating to as affected by public pollcy, see "Contracts," § 1.

DRAFT.

See "Bills and Notes," § 3.

DRUGGISTS.

Privileged communications, see "Witnesses," 2.

DURESS.

Criminal duress, see "Threats."

EASEMENTS.

See "Highways."

§ 1. Creation, existence, and termination.

Certain lots located in a block, the other lots in which had been sold subject to certain restric

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