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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

tive covenants, held not burdened by an equita- 1

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.

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


Laws 1895. D. 791. c. 933. amending section ing on adjoining property, for protection of i 90 of the railroad law (Laws 1890. D. 1108. grantor's, residence, held abrogated by removalc. 565), held not to prohibit condemnation of an of dwelling, erection of other building, and changed conditions of neighborhood.- Deeves

and abutting owner's property rights in the bed of

a street.-Schenectady Ry. Co. v. Peck (Sup.) v. Constable (Sup.) 592.


§ 2. Proceedings to take property and

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

Laws 1885. D. 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, 8 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

EMPLOYES. the state.-Raquette Falls Land Co. v. Middleton (Sup.) 1081.

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

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


Particular subjects of equitable jurisdiction and Bringing an action against the personal rep

equitable remedies. resentative of a co-payee in a draft, to recover

See "Account"; "Creditors' Suit"; "Frauduone's share of the proceeds, is not an election,

lent Conveyances"; "Injunction": "Interand abandonment of a prior action against the

pleader"; "Partition," $ 1; "Receivers" ; co-payee's indorsee for the same relief.-Allen

"Reformation of Instruments"; "Specific Perv. Corn Exch. Bank (Sup.) 1001.

formance"; "Trusts.” ELECTIONS. Local option elections, see "Intoxicating Liq-1 uors," 8 1.

119 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.

hation"; "Executors and Administrators.' 22, and section 9 (page 106), relating to call

u: 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.

To object to establishment of grade crossing, People v. Voorhis (Sup.) 848.

see "Railroads," $ 1.



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.

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 v. Childs Questions of fact for jury, see "Trial," $ 6. (Sup.) 164. Reception at trial, see “Criminal 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.

In an action for damages by a nuisance, in Authority of broker, see "Brokers," $ 3.

which plaintiff claimed loss of boarders, conConduct of jurors as affecting right to new tri

versations between these boarders and plainal, see "New Trial," $ 2.

tiff held admissible as res gestæ.-Hoffman v. 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 y. 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," $8 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.) 88 1, 6, 7; "Municipal Corporations," $ 5; 1 884. "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 v. Third Are. R.

Co. (Sup.) 887. See "Creditors' Suit"; "Interpleader," & 2;

“Malicious Prosecution" ; "Negligence," $ 3; In an action against a street railway com"Reformation of Instruments," si: "Replev- pany for negligence, causing death, certain eviin," $ 1; "Trover and Conversion": "Workdence 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.)

992. "Sales," $ 7. For breach of warranty, see "Sales," $ 7.

| $ 3. Best and secondary evidence. For broker's commission, see "Brokers," $$ 3, 4. 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

have delivered them may state their contents.$ 1. For discharge from employment, see "Master

Hess-Mott Co. v. Brown (Sup.) 168. and Servant," $ 1.

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

Record held to show that plaintiff in the ac For personal injuries, see “Carriers," $ 2;

tion at bar was the defendant in an action in "Landlord and Tenant," $ 4; "Master and

another state in which garnishee process had Servant," $ 6; "Municipal Corporations," $

issued against defendant at bar.-Gottlieb . 5; "Railroads," $ 3; "Street Railroads," '$ 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.

I Written agreement to purchase a crop of toA 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 Parol evidence held inadmissible to vary the is not evidence against the latter as to the con- tern

n terms of a written lease.--Liebeskind v. Moore 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. 1958. --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, ques. 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 8 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 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 Nocassity

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 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.

See “Brokers," $ 2. 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 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 y. Thomson (Sup.) 263.

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

1 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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