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8+ NEW YORK SUPPLEMENT
and 118 New York State Reporter COUNTIES.
1 Under Municipal Court Act, Laws 1902, p.
1497. c. 580, $ 25, subd. 4, demand for transf 1. Property, contracts, and liabilities.
fer, where action is brought in the wrong dis
trict, must specify the district to which transCode Or. Proc. $ 308, authorizing the pay- I fer is required-Fischer Brooklyn ment of a reasonable compensation to an attor- 1 R. Co. (Süp.) 254. ney appointed to defend an indigent criminal in a capital case, held not in violation of Const.
Action to recover cash deposited under a art. 8, 10, as an appropriation of county funds
| contract for sale of defendant's real estate, to the aid of an individual.-People v. Grout
possession of which could not be given, hdd not (Sup.) 97.
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 Contempt of court, see "Contempt."
held not to authorize continuous applications Judges, see "Judges."
for continuance of cause pending in the MuniciJudicial power, see "Constitutional Law," § 2. pal Court on the ground that counsel is othJustices' courts, see "Justices of the Peace.” erwise engaged in the trial of causes.-O'Brien Power to disbar attorney, see "Attorney and v. Kuntz (Sup.) 535.
Client,” $ 1.
§ 3. Courts of appellate jurisdiction. Right to trial by jury, see “Jury," $ 1.
Jurisdiction of the Appellate Term over ap
peals from orders exists solely by force of stat. Trial by court without jury, see "Trial," $ 8.
ute.-Cohen v. Ridgewood Shirt Co. (Sup.) 188. Jurisdiction of particular actions, proceedings,
or subjects. Against personal representatives, see "Execu
COVENANTS. tors and Administrators," $ 8.
Against subletting leasehold, see "Landlord and Disputed claims against decedent's estate, see | Tenant usz
"Executors and Administrators," 8 5. For breach of contract, see “Contracts,” $ 5.
For quiet enjoyment, see "Landlord and Ten
ant," § 4. For probate of will, see "Wills,” $ 3.
For renewal of lease, see "Landlord and Ten§ 1. Establishment, organization, and ant," $ 3. procedure in general.
& 1. Construction and operation. Where the Appellate Division of one Depart- Covenant restricting grantee's right of buildment of the Supreme Court has decided a lawing on property adjoining grantor's residence constitutional, that decision will be followed held not to be continued, after removal of buildby the Appellate Term of that Department, ing, as covenant for light and air.-Deeves 7. though the Appelllate Division of another De- Constable (Sup.) 592. partment may have decided the law unconstitutional.-Charles v. Arthur (Sup.) 284. .
Covenant restricting grantee's right of build
ing on adjoining property for protection of $ 2. Courts of limited or inferior juris-grantor's residence held abrogated by removal of diction.
dwelling, erection of other building, and An amendment of pleadings in the municipal changed conditions of neighborhood.-Deeves court is demandable of right, though the amend-v. Constable (Sup.) 592. ment set up a new cause of action or defense. --Morton v. Lederer (Sup.) 132.
| $ 2. Performance or breach.
A purchaser of property cannot recover as for Under Laws 1902, p. 1542, c. 580, the Mu- | breach of warranty as to the amount doe on a nicipal Court of New York City has power to mortgage thereon; foreclosure not having been permit, at the beginning of a trial, the amend- I attempted, and he not having been disturbed in ment of a complaint on an account stated to an his possession.-Inderlied v. Honeywell (Sup.) action on the indorsement of a check.-Blake v. 333. Malliet (Sup.) 161. Municipal Court Act, Laws 1902, p. 1542, c.
COVERTURE. 580, $ 166, held to require the Municipal Court to allow an amendment to the answer by set
"Husband ting up the defense of usury.-Steinhardt v. Eisen (Sup.) 232.
CREDIBILITY, Municipal Court Act, Laws 1902, p. 1563, c. 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.
CREDITORS. Under Municipal Court Act, Laws 1902, p. 1497. c. 580. $ 25. subd. 4. a demand for a See "Bankruptcy"; "Compositions with Credtransfer, where action is brought in the wrong
itors"; "Creditors' Suit"; "Fraudulent Condistrict, held necessary on or before joinder of veyances." issue.-Fischer V. Brooklyn Heights R. Co. Rights and remedies of surety, see "Principal (Sup.) 254.
Land Surety," 8 2.
Const. U. 8. Amend. art 6, relating to rights
of defendants iu criminal prosecutions, does
People v. Welsh (Sup.) 703.
ance of the latter after affirmance did not re-
People v. Connolly (Sup.) 617.
Sureties on a defendaut's appeal bond held
only liable for the amount of his fine and inter-
est from the day it was demanded, where, aft-
v. Connolly (Sup.) 617.
On appeal in a criminal case, ruling of re-
of a certain wituess held conclusive.--People
v. Childs (Sup.) 853.
The claim of appellant in a criminal case
he was prejudiced by the examination of cer-
tain witnesses by the recorder, cannot be con-
sidered, uuless such facts are made to appear
Where exceptions to the charge in a criminal
appellant's attorney restated them in another
recorder to strike the repetition from the rec-
ord.—People v. Childs (Sup.) 853.
On appeal in a criminal case, remarks made
dence was given tending to prove defendant
committed the alleged offense, the conviction
"Street Railroads.". $ 1.
Establishment of railroad crossings, see “Rail-
roads," § 1.
Damages for particular injuries.
Breach by buyer of contract for sale of goods,
hold, see “Landlord and Tenant," $ 4.
and 118 New York State Reporter Breach of covenant to repair demised premises, cover him, if living, raises the presumption of see "Landlord and Tenant," $ 4.
death, and that he left no heirs surviving him. Breach by vendor of contract for sale of land, 1-McNulty v. Mitchell (Sup.) 89.
see "Vendor and Purchaser," $ 2.
DEBTOR AND CREDITOR.
See "Bankruptcy"; "Compositions with CredFrom negligence in transmission of telegram, itors"; "Creditors' Suit"; "Fraudulent Consee "Telegraphs and Telephones,” $ 1.
veyances." Injuries caused by public improvements, see "Municipal Corporations," $ 2.
DECEDENTS. Injuries from operation of railroad, see "Railroads," $ 3.
Estates, see “Descent and Distribution"; "ExRecovery in particular actions or proceedings. ecutors and Administrators," See "Specific Performance," $ 2. § 1. Grounds and subjects of compen
DECEIT. satory damages.
See “Fraud.” The sum expended by the owner of a delivery wagon for the hiring of another wagon, while
DECLARATIONS. his own is being repaired, is a proper element of 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.
DEEDS. § 2. Measure of damages.
Covenants in deeds, see "Covenants." In an action for injuries to personal property, evidence as to the value of the damaged
In fraud of creditors, see "Fraudulent Convey
ances." goods to plaintiff held inadmissible.-Marcus y. Stein (Sup.) 970.
In trust, see "Trusts," $ 1.
Reformation, see "Reformation of Instru$ 3. Inadequate and excessive damages.
ments." Verdict of $1,800 in action for personal in- 1 Of trust, see "Mortgages." juries to a child held not excessive.-Travers
Tax deeds, see "Taxation," $ 4.
Judgment by, see "Judgment," $ 1. v. Hudson Valley Ry. Co. (Sup.) 337. A motion to vacate an assessment of dam
DEFICIENCY. ages may be based upon the stenographer's 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 De posit & Surety Co. v. American Brewing Co.
DELAY. (Sup.) 771.
In performance of work under contract with Evidence held insufficient to establish reason city, see "Municipal Corporations," $ 2. ableness of charge for hiring of a delivery wag. on 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.
To condemn land for public use, see "Eminent
Domain," § 1.
Of goods by carrier, see "Carriers," $ 1. of partner, see "Partnership,” $ 4.
Of trust funds, see "Trusts," $ 1. f 1. Evidence of death and of survivorship.
DENIALS. An unexplained absence of a single man for 43 years, with evidence of an attempt to dis- / In pleading, see "Pleading," $ 1.
DELEGATION OF POWER.
DISABILITIES. See "Witnesses."
Particular classes of persons.
See "Judges," $ 1. Under Code Civ. Proc. $ 888, subd. 5, on an
Aliens, see “Aliens," $ 1. application for a commission to examine wit
What Married women, see "Husband and Wife," $ 3. nesses, held not necessary to show that the action was at issue as to all of the defendants.-Boyes v. Bossard (Sup.) 563.
DISBARMENT. On an application for a commission to enable applicant to prove certain unwritten laws of a
Of attorney, see "Attorney and Client," $ 1. 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. From arrest seo "Arrest 181 Bossard (Sup.) 563.
From employment, see "Master and Servant," Averments in an affidavit in opposition to an application for a commission to examine wit- From indebtedness, see “Accord and Satisfacnesses in a foreign country held not to warrant tion"; "Bankruptcy," $ 2; "Compositions with decision that plaintiff concedes the residence of Creditors"; "Compromise and Settlement": defendants to be as stated.-Boyes v. Bossard
"Release." (Sup.) 563.
§ 1. Under statutory provisions.
An order, in an action against one as survivIn bank, see "Banks and Banking," § 1.
ing partner of a firm, for examination of defendant as a witness before trial, may not re
quire him to produce the firm books to refresh DESCENT AND DISTRIBUTION.
his memory, under Code Civ. Proc. $ 872, subd.
7.-Gee v. Alvarez (Sup.) 32. See "Executors and Administrators"; "Wills." Inheritance and transfer taxes, see "Taxation,"
Case held proper for examination of defendant $ 5.
as a witness before trial.-Gee v. Alvarez (Sup.) $ 1. Nature and course in general. Code Civ. Proc. $$ 870, 872, 874, 875, con
Distribution of personalty held governed by template personal service on the party of the the law of the domicile of decedent.-In re order for his examination before trial.-Hall v. Barandon's Estate (Sur.) 937.
Redington (Sup.) 279.
Plaintiff, in an action against its agents to $ 2. Rights and liabilities of heirs and
recover insurance money received by them for distributees.
destruction of its property, shipped by them, An unexplained absence of a single man for held entitled to an examination, before trial, 43 years, with evidence of an attempt to dis- as to manner of shipment and companies incover him, if living, raises the presumption of suring.-F. Garia Bro, & Co. v. Salomon (Sup.) death, and that he left no heirs surviving him. 508. --MeŃulty v. Mitchell (Sup.) 89.
An application for the examination of a witAction to enforce against heirs of a deceased ness before trial held not objectionable because mortgagee a foreclosure deficiency judgment the affidavits were made by defendant's attorheld not maintainable without leave of court, ney, instead of defendant.--Treadwell v. Greene and leave denied.-Rowley v. Nellis (Sup.) 841. (Sup.) 557.
A plaintiff is not entitled to an order for an DESCRIPTION.
inspection of defendant's books to discover the
amount due him under a contract.-Martin v. Names of individuals, see "Names."
New Trinidad Lake Asphalt Co. (Sup.) 711.
Code Civ. Proc. $ 872, subd. 7, relating to
the examination and inspection of books of a DETINUE.
corporation, authorizes their production only in
connection with the examination of a witness, See "Repleyin."
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 See "Wills."
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 DILATORY PLEAS.
moving party may make extracts from the
books.-Hart v. American Cotton Co. (Sup.) See "Pleading," $ 1.
and 118 New York State Reporter Order for examination of directors of cor- does not change form of action, so as to enporation before trial set aside.-Hart v. Amer-title party to jury trial.-Packard v. Packard ican Cotton Co. (Sup.) 1065.
(Sup.) 1090. To justify examination before trial, it must Code Civ. Proc. $8 1753, 1757, 1762, art. 3, be shown that the parties to be examined can relative to annulment of marriage, divorce, and testify as to material facts.-Hart v. Ameri- separation, and section 970, relative to jury can Cotton Co. (Sup.) 1065.
trials, construed not to authorize a party to A proceeding for the discovery of papers,
an action for separation to a jury trial.-Packunder Code Civ. Proc. $S 803-809, is entirely
ard v. Packard (Sup.) 1090. distinct from that relating to the taking of $ 2. Alimony, allowances, and disposidepositions before trial, under section 870 et
tion of property. seq.-Hart v. American Cotton Co. (Sup.) 1065. Allowance to plaintiff of $500 a year alimony
Examination before trial of co-defendants, and $300 a year for support of each of her two members of a syndicate, as to indirect profits
children, about half of defendant's conceded from which they had excluded the moving plain
income, is not excessive.- Valentine v. Valentiff, held proper.-Weidenfeld v. Hollins (Sup.)
tine (Sup.) 37. 1084.
An order, under Code Civ. Proc. $ 1769, in a
suit for separation, directing payment of wife's DISCRETION OF COURT.
attorney's fees by husband, held not enforce
able after his death.-Kellogg v. Stoddard As to assessment of costs, see “Costs," $ 4. (Sup.) 1015. As to security for costs, see "Costs," $83, 8. Review in civil actions, see "Appeal," $ 10.
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 DISMISSAL AND NONSUIT.
her attorneys.-Kellogg v. Stoddard (Sup.) 1015. Appealability of orders relating to dismissal, see "Appeal," $ 1..
Of causes for trial, see "Trial," $ 2.
As evidence in civil actions, see "Evidence," $ 7. Review of discretion of court, see "Appeal," 8 Production and inspection of writings, see “Dis10.
covery," $ 1. f 1. Involuntary. Motion to dismiss an action for neglect to
DOGS. prosecute held properly refused.-Stowe v. White See "Animals." (Sup.) 156. Though plaintiff's attorney is negligent, plain
DONATIONS. tiff may have a dismissal set aside on payment
Contracts relating to as affected by public poll
cy, see "Contracts," $ 1.
See “Bills and Notes,” $ 3.
DRUGGISTS. tribution"; "Executors and Administrators," $ 6.
Privileged communications, see "Witnesses," $ DIVIDENDS. On corporate stock, see “Corporations,” $ 1.
Criminal duress, see "Threats.”
See "Highways." $1. Jurisdiction, proceedings, and re-$1. Creation, existence, and termina. lief.
tion. The fact that validity of marriage may be Certain lots located in a block, the other lots drawn in question in an action for separation in which had been sold subject to certain restric