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tive covenants, hela not burdened by an equita

EMINENT DOMAIN. ble easement restraining the construction of buildings otherwise than in accordance with Public improvements by municipalities, see the restrictive covenants to which the other

"Municipal Corporations," $ 2. lots were subject.-Gebhard v. Addison (Sup.) 418.

§ 1. Nature, extent, and delegation of Covenants restricting grantee's right of build

power. ing on adjoining property, for protection of 90 of the railroad law (Laws 1890, p. 1108,

Laws 1895, p. 791, c. 933, amending section of dwelling, erection of other building, and s. 565), held not to prohibit condemnation of an

abutting owner's property rights in the bed of changed conditions of neighborhood.-Deeves v. Constable (Sup.) 592.

a street.-Schenectady Ry. Co. v. Peck (Sup.)

759. EJECTMENT.

§ 2. Proceedings to take property and

assess compensation. $1. Right of action and defenses. Commissioners of estimate and assessment in

Laws 1885, p. 482, c. 283, § 9, giving the proceedings to acquire land for a street, and forest, fish, and game commission custody and under Laws 1895, p. 2051, c. 1006, $ 14, to decontrol of the forest preserve, limits such com- termine the compensation of property owners mission to lands owned or acquired by the on the discontinuance of a street, held required state; and, while it may be in possession of to make separate reports.-In re City of New the forest preserve, it cannot be in possession | York (Sup.) 18. of land claimed by plaintiff in ejectment unless it is admitted that such lands are owned by the state.-Raquette Falls Land Co. v. Middle

EMPLOYES. ton (Sup.) 1081.

See "Master and Servant." $ 2. Pleading and evidence. Forest, fish, and game commission held not in

ENTRY, WRIT OF.
possession of any land, so as to render it liable
to suit in ejectment.--Raquette Falls Land Co. See "Ejectment.”
v. Middleton (Sup.) 1081.

EQUITY.
ELECTION OF REMEDIES.

Particular subjects of equitable jurisdiction and Bringing an action against the personal representative of a co-payee in a draft, to recover See “Account"; "Creditors Suit”;. “Fraudu

equitable remedies. one's share of the proceeds, is not an election,

lent Conveyances"; "Injunction"; "Interand abandonment of a prior action against the co-payee's indorsee for the same relief.-Allen

pleader"; "Partition," $ 1; "Receivers" ; v. Corn Exch. Bank (Sup.) 1001.

**Reformation of Instruments"; "Specific Per

formance"; "Trusts." ELECTIONS.

ESTABLISHMENT. Local option elections, see “Intoxicating Liquors," 8 1.

Of railroads, see "Railroads," $ 1. Mandamus to election officers, see "Mandamus," $ 2.

ESTATES. $ 1. Ordering or calling election, and Decedents' estates, see “Descent and Distribu

notice. Under Laws 1896, p. 115, c. 183, $ 33, subd.

tion"; "Executors and Administrators." 22, and section 9 (page 106), relating to call Estates for years, see “Landlord and Tenant.” ing special elections for a village, the president and trustees held the proper authorities to call

ESTOPPEL. a special election to choose a new trustee, and not the village clerk.--In re Travis (Sup.) 534. By judgment, see "Judgment,” $ 5. § 2. Registration of voters.

To deny authority of agent, see "Principal and Under primary election law, enrollment in Agent," $ 3. New York City held permanent' for one year. - To deny contract of infant, see "Infants," § 1. People v. Voorhis (Sup.) 848.

To object to establishment of grade crossing,

see "Railroads," $ 1. ELECTRICITY.

EVIDENCE. Restraining interference with use of subway, see “Injunction," $ 4.

See “Discovery”; “Depositions"; "Witnesses."

Admissibility of contract made by corporate offiELEVATORS.

cer as determined by authority to execute, see

"Corporations," $ 4. See “Master and Servant,” $ 6.

Considered on review, see "Appeal," $ 7.

uns,". $ 5; 884.

1176

and 118 New York State Reporter
Order for examination of directors of cor-does not change form o
poration before trial set aside.-Hart v. Amer- title party to jury trip

· that the ican Cotton Co. (Sup.) 1065.

tain street To justify examination before trial, it must

(Sup.) 1090.

* v. Childs be shown that the parties to be examined can relative to annulm

Code Civ. Proc. !
testify as to material facts.-Hart v. Ameri- separation, and
can Cotton Co. (Sup.) 1065.

ice that methtrials, construe

in the last 25 A proceeding for the discovery of papers, an action for

competent to under Code Civ. Proc. $$ 803-809, is entirely ard v. Packs

rily be qualified distinct from that relating to the taking of $ 2. Ali

1.) 947.
depositions before trial, under section 870 et
seq.-Hart v. American Cotton Co. (Sup.) 1065.

riality, and comExamination before trial of co-defendants, and $:

Allow

seral. members of a syndicate, as to indirect profits child

uages by a nuisance, in from which they had excluded the moving plain- inco

ed loss of boarders, contiff, held proper.-Weidenfeld v. Hollins (Sup.) tip

these boarders and plain1084.

te as res gestae.-Hoffman y.

Illuminating Co. (Sup.) 437. DISCRETION OF COURT.

is of opinion by the superintendent As to assessment of costs, see "Costs,". $ 4.

ice as to the legal rights of parties, won an ex parte statement contained in r to him, are neither a judicial decision competent evidence in an action involving ch rights.-Calandra v. Life Ass'n of America (Sup.) 498.

In an action for breach of a lessor's agreement .cd,” to give possession, evidence of the rent paid by udlord the lessee for other premises of a similar char

ervant,” acter is incompetent.--Rosenblum v. Riley (Sup.) $ 3; "Sher

In an action for personal injuries, evidence reviteet Railroads," lating to other patients of the physician treating

plaintiff and testifying for her, and as to what

they did and as to what records he kept, held r proceedings. inadmissible.- Deutschmann v. Third Ave. R.

Co. (Sup.) 887.
Interpleader,”.. & 2;

"Negligence," $ 3;
Badruments," $ 1; "Replev- pany for negligence, causing death, certain eri-
Tipare and Conversion"; "Work dence held inadmissible upon an issue as to

whether or not defendant's car jumped the "Contracts,” $ 5; track.--Perras v. United Traction Co. (Sup.)

992.

Where, in an action for premiums advanced vs emission, see “Brokers," 88 3, 4. / 8 3. Best and secondary evidence.

on policiesdefendant fails ALE* from nuisance, see "Nuisance," the policies on notice, the person claiming to

have delivered them may state their contents.terse from employment, see "Master | Hess-Mott Co. v. Brown (Sup.) 168.

. Ari Sarrant.

§ 4. Admissions.

see "Waters
Fa", natruction of water supply,
1

Record held to show that plaintiff in the ac-
Formandlord and Tenant," $ 4; “Master and another state in which garnishee process bad

personal injuries, see “Carriers," $ 2: / tion at bar was the defendant in an action in Serrant," $ 6: “Municipal Corporations," s issued against defendant at bar.--Gottlieb F.

Railroads, $ 3; "Street Railroads,"'2. Alton Grain Co. (Sup.) 413.
For referee's fees, see "Reference," $ 2.
For price of goods sold, see “Sales,” $ 6.

In an action by a real estate agent for com,

missions, statements by defendant's husband For rent, see "Landlord and Tenant, § 5. in insurance policy, see "Insurance," $ 9.

held incompetent, in the absence of any proof To recover goods sold, see “Sales," $ 6. On note, see "Bills and Notes," $ 7.

that the husband was defendant's agent.-

Winans v. Demarest (Sup.) 504.
In criminal prosecutions.

Admission of administrator held admissible
See "Homicide,” $ 1; "Rape," $ 1.

against estate, though not conclusive.-Crouse For offenses against game laws, see “Game."

v. Judson (Sup.) 755. $1. Judicial notice.

The statement of a motorman, after colliding In an action to croaching on a street by construction of steps, I Ry. Co. (Sup.) 974.

with a delivery wagon, held not admissible recover

a penalty for en-against the railroad. Rogers v. Interurban St.

As to security for costs, see "Costs," $83, 8.
Review in civil actions, see "Appeal," 10

DISMISSAL AND NONSUIT
Appealability of orders relating to

see "Appeal," $ 1.
At trial, see "Trial," $ 6.
Costs on dismissal, see “Costs," $
Dismissal of appeal, see "Appes
Dismissal of,, supplementary

"Execution," $ 2.
Harmless error, see "Appeal
Review of discretion of co'

10.
1. Involuntary.
Motion to dismissa
prosecute held properl:
(Sup.) 156.

Though plaintiff' tiff may have a of costs and fr Simon v. Bord

jesurance," $ 9.

476.

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Written agreement to purchase a crop of to. connecting carrier bacco held a complete contract which could not in good condition be varied by parol.-Gray v. Meyer (Sup.) 613, livering carrier

Parol evidence held inadmissible to vary the as to the con- terms of a written lease. - Liebeskind v. Moore York & L. Co. (Sup.) 850.

Contract for installment payment for partnerts, and ship effects held not variable by parol evidence nad

of construction subsequently put on it by one he partner -Kinney v. D. H. McBride & Co. (Sup.)

958.
§ 9. Opinion evidence.

In an action for personal injuries, held prop

er to refuse to strike certain evidence of a ut not physician as too uncertain.-Moritz v. Interhell v. urban St. Ry. Co. (Sup.) 162.

An expert on the value of property cannot

properly state what he offered for the property. ge cracks in cast

-Walker v. Farrell (Sup.) 182. not a practical mold- In action for negligence in dyeing skins, ques ng about them, except tions asked defendant as to his method held not um in his business, held objectionable as being immaterial.-Steinberg v. ,.-White Mfg. Co. v. De Schleshinger (Sup.) 522. ,erating Mach. Co. (Sup.) 192.

On the issue whether a foreign corporation Dentary evidence.

was doing business in the state during a speci

fied period, the conclusion of an agent of the s8, on being shown a writing purport- corporation was not evidence.-M. S. Huey Co. je signed by the treasurer of a corpora- v. Rothfeld (Sup.) 883. may state whether the signature was that the treasurer, over objection that it was not shown that he was authorized to execute the

EXAMINATION. instrument.--Coney Island Automobile Race Co. v. Boyton (Sup.) 347.

Of adverse party before trial, see "Discovery,"

$ 1. $ 8. Parol or extrinsic evidence affect- of expert witnesses, see “Evidence,” $ 9. ing writings.

Of person accused of crime, see "Criminal Extrinsic evidence held admissible to render Law," $ 1. description of premises, in lease giving lessee Of witnesses in general, see "Witnesses,” $ 3. option to purchase, definite.- Heyward v. Willmarth (Sup.) 75.

EXCEPTIONS. Evidence of what was said between the parties to a note cannot be received to contradict Necessity for purpose of review, see “Appeal.” its terms.-Oppenheimer y. Kruckman (Sup.) 129. In an action for the price of goods ordered

EXCESSIVE DAMAGES. by written contract, parol evidence as to terms of the contract hela inadmissible. – Hess v. See “Damages,” $ 3. Liebmann (Sup.) 178.

The terms of a written contract cannot be EXCHANGE OF PROPERTY. varied or contradicted by parol evidence.Rooney v. Thomson (Sup.) 263.

See “Brokers,” 2. Where a written contract required plaintiff to furnish defendant, free of cost, certain appli

EXCISE. ances, parol evidence of an oral agreement that the appliances should be paid for was inad- Regulation of traffic in intoxicating liquors, see missible.-Rooney v. Thomson (Sup.) 263. "Intoxicating Liquors."

The word "plant," in a written contract, held not ambiguous, so as to render parol evidence

EXECUTION. admissible to explain its meaning.-Rooney v. Thomson (Sup.) 263.

See “Attachment”; “Judicial Sales." Parol evidence held admissible to explain the 1 1. Nature and essentials in general, uncertainty in a written contract.-Rooney v.

Under Code Civ. Proc. $ 779, and section 14, Thomson (Sup.) 263.

subd. 3, held that, on failure of clients to comThe legal effect of a written lease under seal ply with order made on substitution of attor. cannot be destroyed by testimony of an oral ney, the attorney might have an execution. agreement.--Kaven v. Chrystie (Sup.) 470. Kane v. Rose (Sup.) 111.

and 118 New York State Reporter Harmless error in admission or exclusion, see the court cannot take judicial notice that the "Appeal," § 12.

street line and house line on a certain street Objections for purpose of review, see "Appeal.” are the same.-City of New York y. Childs Questions of fact for jury, see "Trial," $ 6. (Sup.) 164. Reception at trial, see "Oriminal Law," $ 3; "Trial," $$ 4, 8.

The court will take judicial notice that methReview on appeal, see "Appeal," § 11.

ods of instruction have changed in the last 25 Verdict or findings contrary to evidence, see

years, and that one who was competent to "New Trial," $ 1.

teach then would not necessarily be qualified

now.-People v. Maxwell (Sup.) 947. As to particular facts or issues. See "Damages," $ 4; “Death,” $ 1; “Gifts," 8 2. Relevancy, materiality, and com§ 1; “Payment,” $ 2; "Release," $ 1.

petency in general. Assignment of mortgage, see “Mortgages," $ 1. which plaintiff claimed loss of boarders, con

In an action for damages by a nuisance, in Authority of broker, see "Brokers," $ 3. Conduct of jurors as affecting right to new tri- versations between these boarders and plain

tiff held

admissible as res gestæ.-Hoffman T. al, see "New Trial," $ 2. Good faith of purchaser of note, see "Bills and Edison Electric Illuminating Co. (Sup.) 437. Notes," $ 7.

Expressions of opinion by the superintendent Mistake in compromise agreement, see "Compro- of insurance as to the legal rights of parties, mise and Settlement."

based upon an ex parte statement contained in Right to share in decedent's estate, see "De- a letter to him, are neither a judicial decision scent and Distribution," $.2.

nor competent evidence in an action involving Undue influence, see "Wills," $ 2.

such rights.-Calandra v. Life Ass'n of AmeriIn actions by or against particular classes of

ca (Sup.) 498. parties.

In an action for breach of a lessor's agreement See "Carriers," 88 1, 2; "Guardian and Ward,” | to give possession, evidence of the rent paid by

§ 2;_"Husband and Wife," § 4; “Landlord the lessee for other premises of a similar charand Tenant," $$ 4, 5; "Master and Servant,'

" acter is incompetent.-Rosenblum v. Riley (Sup.) $$ 1, 6, 7; Municipal Corporations," $ 5; 884. Partnership," $ 3; "Railroads," % 3; "Sher- In an action for personal injuries, evidence reiffs and Constables," $ 2; "Street Railroads," lating to other patients of the physician treating $ 2.

plaintiff and testifying for her, and as to what Insurance company, see "Insurance,” $ 9. they did and as to what records he kept, held In particular civil actions or proceedings.

inadmissible.—Deutschmann y. Third Ave. R.

Co. (Sup.) 887. See "Creditors' Suit”; “Interpleader,". $ 2; "Malicious Prosecution"; "Negligence," $ 3;

In an action against a street railway comReformation of Instruments," $ 1; "Replev- pany for negligence, causing death, certain eviin," 1; "Trover and Conversion"; "Work dence held inadmissible upon an issue as to and Labor."

whether or not defendant's car jumped the For breach of contract, see “Contracts," $ 5; track.--Perras v. United Traction Co. (Sup.) “Sales," & 7.

992.
For breach of warranty, see "Sales," $ 7.
For broker's commission, see “Brokers, $$ 3, 4. * 3, Best and secondary evidence.
For damages caused by automobile, see "High-

Where, in an action for premiums advanced ways," $ 1.

on insurance policies, defendant fails to produce For damages from nuisance, see “Nuisance,” the policies on, notice, the person claiming to § 1.

have delivered them may state their contents.For discharge from employment, see "Master Hess-Mott Co. v. Brown (Sup.) 168.

and Servant," § 1. For obstruction of water supply, see "Waters

§ 4. Admissions. and Water Courses," $ 1.

Record held to show that plaintiff in the acFor personal injuries, see "Carriers," $ 2; tion at bar was the defendant in an action in “Landlord and Tenant," $ 4; “Master aná another state in which garnishee process had Servant," $ 6;,, Municipal Corporations," $ issued against defendant, at bar.-Gottlieb v. 5; “Railroads." $ 3; “Street Railroads,"'s 2. Alton Grain Co. (Sup.) 413. For price of goods sold, see “Sales," $ 6.

In an action by a real estate agent for comFor referee's fees, see "Reference," $ 2.

missions, statements by defendant's husband For rent, see "Landlord and Tenant," $ 5. held incompetent, in the absence of any proof On insurance policy, see "Insurance," $ 9. that the husband was defendant's agent.-On note, see “Bills and Notes," $ 7.

Winans v. Demarest (Sup.) 504, To recover goods sold, see “Sales," $ 6.

Admission of administrator held admissible In criminal prosecutions.

against estate, though not conclusive.--Crouse See "Homicide," & 1; "Rape," $ 1.

v. Judson (Sup.) 755. For offenses against game laws, see “Game."

The statement of a motorman, after colliding $ 1. Judicial notice.

with a delivery wagon, held not admissible In an action to recover a penalty for en- against the railroad.-Rogers v. Interurban St. croaching on a street by construction of steps, I Ry. Co. (Sup.) 974.

$ 5. Declarations.

Written agreement to purchase a crop of to. A communication from a connecting carrier bacco held a complete contract which could not to a shipper that goods were in good condition be varied by parol.-Gray v. Meyer (Sup.) 613. when delivered by it to the delivering carrier is not evidence against the latter as to the con- terms of a written lease. --Liebeskind v. Moore

Parol evidence held inadmissible to vary the dition of the goods.-Thyll v. New York & L. Co. (Sup.) 850. B. R. Co. (Sup.) 175.

Contract for installment payment for partnerIn an action on a contract, statements and ship effects held not variable by parol evidence letters from defendant to plaintiff held inad- of construction subsequently put on it by one missible to explain defendant's breach of the partner.-Kinney v. D. H. McBride & Co. (Sup.) contract, because admissions in its own favor. 958. --Grant v. Pratt & Lambert (Sup.) 983.

$ 9. Opinion evidence. Declarations of the person, to whom a note In an action for personal injuries, held propwas given, that it was given as a mere mem- er to refuse to strike certain evidence of a oranda and was not to be negotiated, held not physician as too uncertain.-Moritz v. Interadmissible against his assignee.-Mitchell v. urban St. Ry, Co. (Sup.) 162. Baldwin (Sup.) 1043.

An expert on the value of property cannot $ 6. Hearsay.

properly state what he offered for the property. The question when shrinkage cracks in cast-|--Walker v. Farrell (Sup.) 182. ings appear, asked of one not a practical mold- In action for negligence in dyeing skins, quest er and who knew nothing about them, except tions asked defendant as to his method held not as he came across them in his business, held objectionable as being immaterial.-Steinberg v. to call for hearsay.-White Mfg. Co. v. De Schleshinger (Sup.) 522, La Vergne Refrigerating Mach. Co. (Sup.) 192.

On the issue whether a foreign corporation § 7. Documentary evidence.

was doing business in the state during a speci

fied period, the conclusion of an agent of the A witness, on being shown a writing purport- corporation was not evidence.-M. S. Huey Co. ing to be signed by the treasurer of a corpora- v. Rothfeld (Sup.) 883. tion, may state whether the signature was that of the treasurer, over objection that it was not shown that he was authorized to execute the

EXAMINATION. instrument.--Coney Island Automobile Race Co. v. Boyton (Sup.) 347.

Of adverse party before trial, see “Discovery,"

$ 1. $ 8. Parol or extrinsic evidence affect- of expert witnesses, see “Evidence,” $ 9. ing writings.

Of person accused of crime, see "Criminal Extrinsic evidence held admissible to render Law," $ 1. description of premises, in lease giving lessee of witnesses in general, see "Witnesses," $ 3. option to purchase, definite.- Heyward v. Willmarth (Sup.) 75.

EXCEPTIONS. Evidence of what was said between the parties to a note cannot be received to contradict Necessity for purpose of review, see "Appeal.” its terms.-Oppenheimer v. Kruckman (Sup.) 129. In an action for the price of goods ordered

EXCESSIVE DAMAGES. by written contract, parol evidence as to terms of the contract held inadmissible. – Hess v. See “Damages," $ 3. Liebmann (Sup.) 178.

The terms of a written contract cannot be EXCHANGE OF PROPERTY. varied or contradicted by parol evidence.Rooney v. Thomson (Sup.) 263.

See "Brokers," $ 2. Where a written contract required plaintiff to furnish defendant, free of cost, certain appli

EXCISE. ances, parol evidence of an oral agreement that the appliances should be paid

for was inad- Regulation of traffic in intoxicating liquors, see missible.-- Rooney v. Thomson (Sup.) 263. "Intoxicating Liquors."

The word "plant," in a written contract, held not ambiguous, so as to render parol evidence

EXECUTION. admissible to explain its meaning.-Rooney v. Thomson (Sup.) 263.

See "Attachment"; "Judicial Sales." Parol evidence held admissible to explain the 1 1. Nature and essentials in general, uncertainty in a written contract.-Rooney v. Thomson (Sup.) 263.

Under Code Civ. Proc. $ 779, and section 14,

subd. 3, held that, on failure of clients to comThe legal effect of a written lease under seal ply with order made on substitution of attor. cannot be destroyed by testimony of an oral ney, the attorney might have an execution.agreement.–Kaven v. Chrystie (Sup.) 470. Kane v. Rose (Sup.) 111.

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