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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.
Review of decisions, see "Appeal."

§ 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
Remedies in cases of fraudulent conveyances, not apply to prosecutions in state courts.-
see "Fraudulent Conveyances," § 3.

People v. Welsh (Sup.) 703.
In a creditors' action to obtain the applica- * 4. Appeal and error, and certiorari.
tion of a certain sum held by a bank to the Under Code Civ. Proc. $8 527, 530, 556,
payment of plaintiff's judgment, evidence held where a defendant, sentenced to five and im-
insufficient to support a finding that the name prisonment, gave a bond on appeal to pay the
of a payee to a check was added after the sig- tine and perform the imprisonmeut, a perform-
Dature. - Barranco v. Law (Sup.) 421.

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 defendaut's appeal bond held

only liable for the amount of his fine and inter-
Bail, see "Bail," § 1.

est from the day it was demanded, where, aft-
Costs in criminal prosecutions, see "Costs," 8. er the affirmance of the judgment, defendant
Indictment, information, or complaint, see "In- performed the imprisonment adjudged.-People
dictment and Information."

v. Connolly (Sup.) 617.
Payment by county of fees of attorney appoint-

On appeal in a criminal case, ruling of re-
ed to defend indigent person, see “Counties," corder as to the number of questions he asked
$ 1.

of a certain wituess held conclusive.--People
Prohibition to restrain criminal prosecution, see

v. Childs (Sup.) 853.
"Prohibition," $ 1.

The claim of appellant in a criminal case
Offenses by particular classes of parties. that the record should contain the testimony
Municipal officers, see "Municipal Corpora- by questions and answers, on the ground that

he was prejudiced by the examination of cer-
tions,” g 1.

tain witnesses by the recorder, cannot be con-
Particular offenscs.

sidered, uuless such facts are made to appear
See "Bribery"; "Contempt'; "Homicide"; by affidavit. People v. Childs (Sup.) 853.
"Rape"; "Threats.”

Where exceptions to the charge in a criminal
Violation of injunction as criminal contempt, case were inserted in the record, and thereafter
see "Injunction," $ 5.

appellant's attorney restated them in another
Violation of ordinances, see "Municipal Corpora- portion of the record, it was proper for the
tions," $ 3.

recorder to strike the repetition from the rec-

ord.—People v. Childs (Sup.) 853.
į 1. Preliminary complaint, affidavit,
warrant, examination,, commit- by the recorder in imposing sentence form no

On appeal in a criminal case, remarks made
ment, and summary trial.
A magistrate has jurisdiction to inquire into part of the record.—People v. Childs (Sup.)
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
& 2. Arraignment and pleas, and nolle must be set aside. People v. Halwig (Co. Ct.)
prosequi or discontinuance.

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,” 88 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- Accidents at street railroad crossings, ses
visions of Code Cr. Proc. $ 335, plead guilty.-
People v. Welsh (Sup.) 703.

"Street Railroads.". $ 1.

Establishment of railroad crossings, see “Rail-
| 3. Trial.

roads," § 1.
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-

Damages for particular injuries.
pointment at any time before, or during the See “Nuisance,” $ 1.
trial.- People v. Grout (Sup.) 97.

Breach by buyer of contract for sale of goods,
Under Code Cr. Proc. $ 356, trial of a mis see “Sales," $ 6.
demeanor may be had in the absence of the Breach by seller of contract for sale of goods,
defendant, if he appear by counsel, notwith see “Sales," $83, 7.
standing section 8, relating to rights of de- Breach of contract to give possession of lease-
fendants.-People v. Welsh (Sup.) 703.

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.
Conversion of mortgaged chattels, see "Chattel
Mortgages," $ 1.

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

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.
v. Murray (Sup.) 558.
8 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-
tion was the result of the accident held not
contrary to the weight of the evidence.-Powell

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.

Action for wrongful death of alien, see "Aliens,"
8 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.





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..

At trial, see "Trial," $ 6.
Costs on dismissal, see "Costs," $ 1.

Of causes for trial, see "Trial," $ 2.
Dismissal of appeal, see "Appeal," 8 6.
Dismissal of supplementary proceedings, see

"Execution," 8 2.
Harmless error, see "Appeal," 8 12.

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

See "Gifts."
of costs and fees of defendant's witnesses.-
Simon v. Borden's Condensed Milk Co. (Sup.)


Contracts relating to as affected by public poll

cy, see "Contracts," $ 1.
Of attachment, see "Attachment," $ 2.
Of partnership, see “Partnership," $ 5.


See “Bills and Notes,” $ 3.
Of estate of decedent, see "Descent and Dis-

DRUGGISTS. tribution"; "Executors and Administrators," $ 6.

Privileged communications, see "Witnesses," $ DIVIDENDS. On corporate stock, see “Corporations,” $ 1.


Criminal duress, see "Threats.”

Separate maintenance, see "Husband and
Wife," $5.

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

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