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EMINENT DOMAIN.

tive covenants, held not burdened by an equitable easement restraining the construction of buildings otherwise than in accordance with Public improvements by municipalities, see the restrictive covenants to which the other lots were subject.-Gebhard v. Addison (Sup.) 418.

Covenants 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.

EJECTMENT.

1. Right of action and defenses. Laws 1885, p. 482, c. 283, § 9, giving the forest, fish, and game commission custody and control of the forest preserve, limits such commission to lands owned or acquired by the state; and, while it may be in possession of the forest preserve, it cannot be in possession | of land claimed by plaintiff in ejectment unless it is admitted that such lands are owned by the state.-Raquette Falls Land Co. v. Middleton (Sup.) 1081.

§ 2. Pleading and evidence.

Forest, fish, and game commission held not in possession of any land, so as to render it liable

"Municipal Corporations," § 2.

§ 1. Nature, extent, and delegation of power.

Laws 1895, p. 791, c. 933, amending section 90 of the railroad law (Laws 1890, p. 1108, abutting owner's property rights in the bed of c. 565), held not to prohibit condemnation of an a_street.-Schenectady Ry. Co. v. Peck (Sup.)

759.

§ 2. Proceedings to take property and
assess compensation.
Commissioners of estimate and assessment in
proceedings to acquire land for a street, and
under Laws 1895, p. 2051, c. 1006, § 14, to de-
termine the compensation of property owners
on the discontinuance of a street, held required
to make separate reports.-In re City of New
York (Sup.) 18.

EMPLOYES.

See "Master and Servant."

ENTRY, WRIT OF.

to suit in ejectment.-Raquette Falls Land Co. See "Ejectment." v. Middleton (Sup.) 1081.

ELECTION OF REMEDIES.

Bringing an action against the personal representative of a co-payee in a draft, to recover one's share of the proceeds, is not an election, and abandonment of a prior action against the co-payee's indorsee for the same relief.-Allen v. Corn Exch. Bank (Sup.) 1001.

ELECTIONS.

Local option elections, see "Intoxicating Liquors, § 1.

Mandamus to election officers, see "Mandamus," § 2.

§ 1. Ordering or calling election, and

notice.

Under Laws 1896, p. 115. c. 183, § 33, subd. 22, and section 9 (page 106), relating to calling special elections for a village, the president and trustees held the proper authorities to call a spécial election to choose a new trustee, and not the village clerk.-In re Travis (Sup.) 534. § 2. Registration of voters.

Under primary election law, enrollment in New York City held permanent for one year. People v. Voorhis (Sup.) 848.

ELECTRICITY.

Restraining interference with use of subway, see "Injunction," § 4.

ELEVATORS.

See "Master and Servant," § 6.

EQUITY.

Particular subjects of equitable jurisdiction and
equitable remedies.
See "Account"; "Creditors' Suit"; "Fraudu-
lent Conveyances"; "Injunction"; "Inter-
pleader"; "Partition," § 1; "Receivers";
"Reformation of Instruments"; "Specific Per-
formance"; "Trusts."

ESTABLISHMENT.

Of railroads, see "Railroads," § 1.

ESTATES.

Decedents' estates, see "Descent and Distribu tion"; "Executors and Administrators." Estates' for years, see "Landlord and Tenant."

ESTOPPEL.

By judgment, see "Judgment," § 5.

To deny authority of agent, see "Principal and
Agent," § 3.

To object to establishment of grade crossing,
To deny contract of infant, see "Infants," § 1.
see "Railroads," § 1.

EVIDENCE.

See "Discovery"; "Depositions"; "Witnesses." Admissibility of contract made by corporate officer as determined by authority to execute, see "Corporations," § 4.

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

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 see "Appeal," § 1.

At trial, see "Trial," § 6.

Dismissal of appeal, see "Appea

Costs on dismissal, see "Costs,"

Dismissal of supplementary "Execution," § 2.

Harmless error, see "Appeal
Review of discretion of co'

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ciality, and comLeral.

uages by a nuisance, in ed loss of boarders, conthese boarders and plaine as res gestæ.-Hoffman v. illuminating Co. (Sup.) 437.

s of opinion by the superintendent ce as to the legal rights of parties, Don an ex parte statement contained in r to him, are neither a judicial decision competent evidence in an action involving h rights.-Calandra v. Life Ass'n of America (Sup.) 498.

In an action for breach of a lessor's agreement to give possession, evidence of the rent paid by the lessee for other premises of a similar character is incompetent.-Rosenblum v. Riley (Sup.) 884.

In an action for personal injuries, evidence relating 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 inadmissible.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

In an action against a street railway com

raments," § 1; "Replev-pany for negligence, causing death, certain eviand Conversion"; "Work dence held inadmissible upon an issue as to

"Contracts," § 5;

warranty, see "Sales," § 7.
mission, see "Brokers," §§ 3, 4.
caused by automobile, see "High-

whether or not defendant's car jumped the track.--Perras v. United Traction Co. (Sup.)

992.

3. Best and secondary evidence. Where, in an action for premiums advanced on insurance policies, defendant fails to produce

s from nuisance, see "Nuisance," the policies on notice, the person claiming to

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For obstruction of water supply, see "Waters

and Water Courses," § 1.

have delivered them may state their contents.Hess-Mott Co. v. Brown (Sup.) 168.

§ 4. Admissions.

Record held to show that plaintiff in the acanother state in which garnishee process had

For personal injuries, see "Carriers," § 2: tion at bar was the defendant in an action in 5 Railroads." § 3; "Street Railroads," § 2. Alton Grain Co. (Sup.) 413. "Landlord and Tenant," § 4; "Master and Servant." $6; "Municipal Corporations," issued against defendant at bar.-Gottlieb v. For referee's fees, see "Reference," § 2. For price of goods sold, see "Sales," § 6. For rent, see "Landlord and Tenant," § 5. On insurance policy, see "Insurance," § 9. To recover goods sold, see "Sales," § 6. On note, see "Bills and Notes," § 7.

In criminal prosecutions.

See "Homicide," § 1; "Rape," § 1.
For offenses against game laws, see "Game."

§ 1.

Judicial notice.

In an action to recover a penalty for encroaching on a street by construction of steps,

In an action by a real estate agent for commissions, statements by defendant's husbaud held incompetent, in the absence of any proof that the husband was defendant's agent.Winans v. Demarest (Sup.) 504.

Admission of administrator held admissible against estate, though not conclusive.-Crouse v. Judson (Sup.) 755.

The statement of a motorman, after colliding with a delivery wagon, held not admissible against the railroad.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

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Written agreement to purchase a crop of tobacco held a complete contract which could not be varied by parol.-Gray v. Meyer (Sup.) 613.

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

Contract for installment payment for partnership effects held not variable by parol evidence of construction subsequently put on it by one he partner.-Kinney v. D. H. McBride & Co. (Sup.)

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958.

Extrinsic evidence held admissible to render description of premises, in lease giving lessee option to purchase, definite.- Heyward v. Willmarth (Sup.) 75.

§ 9. Opinion evidence.

In an action for personal injuries, held proper to refuse to strike certain evidence of a physician as too uncertain. Moritz v. Interurban St. Ry. Co. (Sup.) 162.

An expert on the value of property cannot properly state what he offered for the property. -Walker v. Farrell (Sup.) 182.

In action for negligence in dyeing skins, questions asked defendant as to his method held not objectionable as being immaterial.-Steinberg v. Schleshinger (Sup.) 522.

Evidence of what was said between the par

On the issue whether a foreign corporation was doing business in the state during a specified period, the conclusion of an agent of the corporation was not evidence.-M. S. Huey Co. v. Rothfeld (Sup.) 883.

EXAMINATION.

Of adverse party before trial, see "Discovery,"
§ 1.
Of expert witnesses, see "Evidence," & 9.
Of person accused of crime, see "Criminal
Law," § 1.

Of witnesses in general, see "Witnesses," § 3.

EXCEPTIONS.

ties 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 by written contract, parol evidence as to terms

EXCESSIVE DAMAGES.

of the contract held inadmissible. - Hess v. See "Damages," § 3. Liebmann (Sup.) 178.

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

Where a written contract required plaintiff to furnish defendant, free of cost, certain appliances, parol evidence of an oral agreement that the appliances should be paid for was inadmissible.-Rooney v. Thomson (Sup.) 263.

The word "plant," in a written contract, held not ambiguous, so as to render parol evidence admissible to explain its meaning.-Rooney v. Thomson (Sup.) 263.

Parol evidence held admissible to explain the uncertainty in a written contract.-Rooney v. Thomson (Sup.) 263.

The legal effect of a written lease under seal cannot be destroyed by testimony of an oral agreement.-Kaven v. Chrystie (Sup.) 470.

EXCHANGE OF PROPERTY.

See "Brokers," § 2.

EXCISE.

Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors."

EXECUTION.

See "Attachment"; "Judicial Sales."

1. Nature and essentials in general. Under Code Civ. Proc. § 779, and section 14, subd. 3. held that, on failure of clients to comply with order made on substitution of attor ney, the attorney might have an execution.Kane v. Rose (Sup.) 111.

and 118 New York State Reporter

Harmless error in admission or exclusion, see "Appeal," § 12.

Objections for purpose of review, see "Appeal." Questions of fact for jury, see "Trial," § 6. Reception at trial, see "Criminal Law," § 3; "Trial," §§ 4, 8.

Review on appeal, see "Appeal," § 11. Verdict or findings contrary to evidence, see "New Trial," § 1.

As to particular facts or issues. See "Damages," § 4; "Death," § 1; "Gifts," § 1; "Payment," § 2; "Release," § 1. Assignment of mortgage, see "Mortgages," § 1. Authority of broker, see "Brokers," § 3. Conduct of jurors as affecting right to new trial, see "New Trial," § 2.

Good faith of purchaser of note, see "Bills and Notes," § 7.

Mistake in compromise agreement, see "Compromise and Settlement."

Right to share in decedent's estate, see "Descent and Distribution," § 2. Undue influence, see "Wills," § 2.

In actions by or against particular classes of parties.

See "Carriers," §§ 1, 2: "Guardian and Ward," § 2: "Husband and Wife," § 4; "Landlord and Tenant," §§ 4, 5; "Master and Servant," S$ 1, 6, 7 Municipal Corporations," $ 5; "Partnership." § 3; "Railroads," 3; "Sheriffs and Constables," § 2; "Street Railroads," § 2.

Insurance company, see "Insurance," § 9.

In particular civil actions or proceedings. See "Creditors' Suit"; "Interpleader," § 2; "Malicious Prosecution"; "Negligence," § 3; "Reformation of Instruments," § 1; "Replevin," § 1; "Trover and Conversion"; "Work

and Labor."

For breach of contract, see "Contracts," § 5; "Sales," § 7.

For breach of warranty, see "Sales," § 7.
For broker's commission, see "Brokers," §§ 3, 4.
For damages caused by automobile, see "High-
ways," § 1.

For damages from nuisance, see "Nuisance,"

§ 1.

For discharge from employment, see "Master and Servant," § 1.

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

For personal injuries, see "Carriers," § 2;
"Landlord and Tenant," § 4; "Master and
Servant," § 6; "Municipal Corporations,"
5; "Railroads," § 3; "Street Railroads," § 2.
For price of goods sold, see "Sales," § 6.
For referee's fees, see "Reference," § 2.
For rent, see "Landlord and Tenant," § 5.
On insurance policy, see "Insurance," § 9.
On note, see "Bills and Notes." § 7.
To recover goods sold, see "Sales," § 6.
In criminal prosecutions.
See "Homicide," § 1; "Rape," § 1.
For offenses against game laws, see "Game."
§ 1. Judicial notice.

In an action to recover a penalty for encroaching on a street by construction of steps,

the court cannot take judicial notice that the street line and house line on a certain street are the same.-City of New York v. Childs (Sup.) 164.

The court will take judicial notice that methods of instruction have changed in the last 25 years, and that one who was competent to teach then would not necessarily be qualified now.-People v. Maxwell (Sup.) 947.

2. Relevancy, materiality, and competency in general.

which plaintiff claimed loss of boarders, conIn an action for damages by a nuisance, in versations between these boarders and plaintiff held admissible as res gestæ.-Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

Expressions of opinion by the superintendent of insurance as to the legal rights of parties, based upon an ex parte statement contained in a letter to him, are neither a judicial decision nor competent evidence in an action involving such rights.-Calandra v. Life Ass'n of America (Sup.) 498.

In an action for breach of a lessor's agreement to give possession, evidence of the rent paid by the lessee for other premises of a similar character is incompetent.-Rosenblum v. Riley (Sup.) 884.

In an action for personal injuries, evidence relating 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 inadmissible.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

In an action against a street railway company for negligence, causing death, certain evidence held inadmissible upon an issue as to whether or not defendant's car jumped the track.--Perras v. United Traction Co. (Sup.)

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§ 4. Admissions.

Record held to show that plaintiff in the action at bar was the defendant in an action in another state in which garnishee process had issued against defendant at bar.-Gottlieb v. Alton Grain Co. (Sup.) 413.

In an action by a real estate agent for commissions, statements by defendant's husband held incompetent, in the absence of any proof that the husband was defendant's agent.Winans v. Demarest (Sup.) 504.

Admission of administrator held admissible against estate, though not conclusive.-Crouse v. Judson (Sup.) 755.

The statement of a motorman, after colliding with a delivery wagon, held not admissible against the railroad.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

§ 5.

Declarations.

A communication from a connecting carrier to a shipper that goods were in good condition when delivered by it to the delivering carrier is not evidence against the latter as to the con

dition of the goods.-Thyll v. New York & L. B. R. Co. (Sup.) 175.

In an action on a contract, statements and letters from defendant to plaintiff held inadmissible to explain defendant's breach of the contract, because admissions in its own favor. -Grant v. Pratt & Lambert (Sup.) 983.

Declarations of the person, to whom a note was given, that it was given as a mere memoranda and was not to be negotiated, held not admissible against his assignee.-Mitchell Baldwin (Sup.) 1043.

§ 6. Hearsay.

V.

Written agreement to purchase a crop of tobacco held a complete contract which could not be varied by parol.-Gray v. Meyer (Sup.) 613. Parol evidence held inadmissible to vary the terms of a written lease.-Liebeskind v. Moore Co. (Sup.) 850.

Contract for installment payment for partnership effects held not variable by parol evidence of construction subsequently put on it by one partner.-Kinney v. D. H. McBride & Co. (Sup.)

958.

$ 9.

Opinion evidence.

In an action for personal injuries, held proper to refuse to strike certain evidence of a physician as too uncertain.-Moritz v. Interurban St. Ry. Co. (Sup.) 162.

An expert on the value of property cannot 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 molder and who knew nothing about them, except as he came across them in his business, held to call for hearsay.-White Mfg. Co. v. De La Vergne Refrigerating Mach. Co. (Sup.) 192.

7. Documentary evidence.

A witness, on being shown a writing purporting to be signed by the treasurer of a corporation, may state whether the signature was that of the treasurer, over objection that it was not shown that he was authorized to execute the instrument.--Coney Island Automobile Race Co. v. Boyton (Sup.) 347.

8. Parol or extrinsic evidence affecting writings.

Extrinsic evidence held admissible to render description of premises, in lease giving lessee option to purchase, definite.- Heyward v. Willmarth (Sup.) 75.

In action for negligence in dyeing skins, questions asked defendant as to his method held not objectionable as being immaterial.-Steinberg v. Schleshinger (Sup.) 522.

On the issue whether a foreign corporation was doing business in the state during a specified period, the conclusion of an agent of the corporation was not evidence.-M. S. Huey Co. v. Rothfeld (Sup.) 883.

EXAMINATION.

Of adverse party before trial, see "Discovery,"
$ 1.
Of expert witnesses, see "Evidence," $ 9.
Of person accused of crime, see "Criminal
Law," § 1.

Of witnesses in general, see "Witnesses," § 3.

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 by written contract, parol evidence as to terms of the contract held inadmissible. - Hess v. Liebmann (Sup.) 178.

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

Where a written contract required plaintiff to furnish defendant, free of cost, certain appliances, parol evidence of an oral agreement that the appliances should be paid for was inadmissible.-Rooney v. Thomson (Sup.) 263.

The word "plant," in a written contract, held not ambiguous, so as to render parol evidence admissible to explain its meaning.-Rooney v. Thomson (Sup.) 263.

Parol evidence held admissible to explain the uncertainty in a written contract.-Rooney v. Thomson (Sup.) 263.

The legal effect of a written lease under seal cannot be destroyed by testimony of an oral agreement.-Kaven v. Chrystie (Sup.) 470.

EXCESSIVE DAMAGES.

See "Damages," § 3.

EXCHANGE OF PROPERTY.

See "Brokers," § 2.

EXCISE.

Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors."

EXECUTION.

See "Attachment"; "Judicial Sales."

1. Nature and essentials in general. Under Code Civ. Proc. § 779, and section 14, subd. 3. held that, on failure of clients to comply with order made on substitution of attor. ney, the attorney might have an execution.Kane v. Rose (Sup.) 111.

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