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and 118 New York State Reporter Persons liable for rent, see "Landlord and two brothers named Castle carry on business Tenant,". $ 5.
under the name of "Castle Bros."-Castle Bros. Persons who may be examined before trial, see v. Graham (Sup.) 120.
"Discovery," $ 1. Rights and liabilities as to costs. see “Costs." | 8 2. Mutual rights, duties, and liabili.
ties of partners.
Partner having a loan account with his fir In actions by or against particular classes of held to have the right to draw from the business parties.
amount standing to his credit.-Brown v. Spobr See "Executors and Administrators," $ 9; (Sup.) 995. "Partnership,” $ 5.
$ 3. Rights and liabilities as to third In particular actions or proceedings.
persons. See "Prohibition," $ 1.
An assignment of a judgment in favor of a
person as surviving partner, for the payment Accounting by committee of insane person, see
of debts contracted to close up the firm bus "Insane Persons,” $ 1.
ness, held valid as against all claims of indivia. Accounting by personal representatives, see
ual creditors of the surviving member.-Bush “Executors and Administrators," $ 9. On appeal, see "Appeal,” $ 2.
Co. v. Gibbons (Sup.) 478. To set aside satisfaction of mortgages, see
Evidence in suit against partnership held in"Mortgages," 8 2.
sufficient to show membership of only contest
ing defendant, and to necessitate dismissal of To particular classes of conveyances, contracts, complaint.--Barrett v. Warren (Sup.) 578. or transactions.
In an action to recover installments due on See “Contracts," § 2; "Fraudulent Convey
bill of sale of partnership effects, evidence of ances," $ 2.
subsequent contract entered into by one partJoint interests, see "Joint Adventures."
ner with buyer held inadmissible.-Kinney F.
D. H. McBride & Co. (Sup.) 958. § 1. New parties and change of parties.
Under Code Civ. Proc. $ 453, where a com- $ 4. Death of partner, and surviving plaint was amended prior to the bringing in of
partners. an additional defendant, an order for the sery- A surviving partner has authority to borice of summons by publication, directing service row money to close up the affairs of the partof the amended complaint on such defendant, nership.-Rosenthal v. Hasberg (Sup.) 290. held proper.-Meeks v. Meeks (Sup.) 67.
Evidence held to show that the deceased mem2. Defects, objections, and amend ber of a firm had not, prior to his death, conment.
veyed his interest to the surviving member.Under Code Civ. Proc. $ 500, a misjoinder of | Bush Co. v. Gibbons (Sup.) 478. parties defendant cannot be taken advantage $ 5. Dissolution. settlement, and ac. of by answer.-Adams v. Slingerland (Sup.)
A complaint by a partner against his copartUnder Code Civ. Proc. § 488, misjoinder of ner and a third person, charging a conspiracy parties defendant held not a ground of demurrer to defraud him of his interest in the firm propto the complaint.--Adams v. Slingerland (Sup.) | erty, held to state a cause of action for an ac323.
counting.--Green v. Tuchner (Sup.) 345. PARTITION.
Facts held such that a legatee of a deceased
member of a firm should be allowed to interEnforcement of attorney's lien in partition suit, vene in an action for a partnership account; see "Attorney and Client," $ 4.
the surviving partner being the executor and f 1. Actions for partition.
hostile to him.-Mertens v. Mertens (Sup.) 352. Purchaser at partition sale compelled to take ! A legatee of a deceased member of a firm title on presumption of death of one who would held not strictly interested in a partnership have otherwise been the owner of the property. accounting, so as to be entitled as matter of -McNulty v. Mitchell (Sup.) 89.
right, under Code Civ. Proc. $452, to interEvidence held to show right of way by ad
vene.-Mertens v. Mertens (Sup.) 352. verse possession from land shut off from high
Evidence held not to show a release by a way and sold at partition.-Metzger v. Martin creditor of a retiring partner from partnership (Sup.) 494.
obligations.-Bronx Metal Bed Co. v. Waller
stein (Sup.) 924. PARTNERSHIP.
Individual partners on dissolution of firm are
liable for debts, unless released by valid agreeSee "Associations"; "Joint Adventures."
ment of creditor founded on new consideration. Contract for sale of partnership business, see-Bronx Metal Bed Co. v. Wallerstein (Sup.) "Contracts," $ 2.
924. § 1. The firm, its name, powers, and
PART PAYMENT. property. Pen. Code, $ 363b, requiring the filing of a See “Accord and Satisfaction." certificate where persons conduct business un- Within statute of limitations, see "Limitation der an assumed name, held not to apply where of Actions," $ 1.
Harmless error in admission of evidence, see
"Appeal," $ 12. See “Carriers," $ 2; "Street Railroads," $ 1. Impeachment of witness, see "Witnesses," $ 4.
Relevancy of evidence, see "Evidence," $ 2.
Right of defendant to bill of particulars as to PAYMENT.
injuries, see "Pleading," $ 4. See "Accord and Satisfaction"; "Compromise
To employé, see "Master and Servant,” $8 2–6.
To passenger, see “Carriers," $ 2. and Settlement."
To person on or near railroad tracks, see "RailOf judgment as affecting right to appeal, see roads," $ 3. . ***Appeal," $ 2.
To traveler on highway, see "Municipal CorpoPart payment as satisfaction, see "Accord and rations," $ 5. Satisfaction."
To traveler on highway crossing railroad, see Part payment within statute of limitations, see “Railroads." $ 3.
"Limitation of Actions," $ 1. Of particular classes of obligations or liabilities.
PETITION. See "Costs," $ 7; "Mortgages," $ 2.
| For recovery of possession by landlord, see Bill of exchange or promissory note, see "Bills |_"Landlord and Tenant," $ 6. and Notes," $ 6.
To revoke liquor tax certificate, see "IntoxicatClaims against estate of decedent, see "Execu- ing Liquors,” & 2.
tors and Administrators," $ 5. Price of land sold, see “Vendor and Purchaser," PHYSICIANS AND SURGEONS
$ 1, i 1. Application.
Competency to testify as experts, see "EviIn a suit on a building contract, held, that it I dence," 8 8. would be presumed that certain payments had | Privileged communications, see "Witnesses," extinguished plaintiff's claim.-Kloepfer v. Ma
& 2. her (Sup.) 138.
Verdict for defendant in an action by a sur§ 2. Pleading, evidence, trial, and re
donde trial and regeon for services held against the weight of eviview.
dence.--Abram Bros. v. Krakower (Sup.) 529. Where defendant, to prove payment, offers Evidence in an action by a physician for serychecks for a larger amount than the bill, plain- ices held sufficient to sustain the defense of tiff may show that the checks were in payment malpractice.-Brinkman V. Kursheedt (Sup.) of prior transactions.--Druss v. Rosen (Sup.) 575.
PLATE GLASS INSURANCE. The inference from repayment by plaintiff of loans made by defendant, without any deduction See "Insurance.” of plaintiff's claim, that such claim had been paid, is not cogent, where the repayment was
PLEA. in work.-Ran v. Torchiani (Sup.) 886.
In civil actions, see "Pleading," $ 1.
In criminal prosecutions, see "Criminal Law," PENALTIES.
$ 2. In bonds, see "Principal and Surety," & 1.
PLEADING. Obstruction of street, see "Municipal Corporations," $ 4.
Amendment of pleading in municipal court, see Violation of game laws, see "Game"; "Gam "Courts," & 2. ing," $ 1.
Amendment on appeal, see "Appeal," $ 8. Violation of laws relating to theaters, see "The Estoppel of infant by pleading, see "Infants," aters and Shows."
Objections for purpose of review, see "ApPENITENTIARIES.
Allegations as to particular facts, acts, or Partial invalidity of statutes, see “Statutes,"
transactions. $ 1.
Misjoinder of parties, see "Parties," $ 2. Restraining removal of penitentiary officers, see Objection to process, see “Process," "$ 2. "Injunction," & 2.
Statute of frauds, see "Frauds, Statute of," Subjects and titles of statutes, see “Statutes," $ 5. $ 2.
Waiver of breach of contract, see "Contracts,"
$ 5. PERSONAL INJURIES.
In actions by or against particular classes of See "Negligence."
parties. Argument and conduct of counsel at trial, see See "Carriers," & 2; "Executors and Adminis"Trial," $ 5.
trators," & 8; "Landlord and Tenant," & 6; Caused by dogs, see "Animals."
"Master and Servant," & 1; "Municipal CorCaused by operation of street railroad, see porations," $ 5. "Street Railroads," 88 1, 2.
| Trustee in bankruptcy, see "Bankruptey," & 1. 84 N.Y.S.-76
and 118 New York State Reporter In particular actions or proceedings of each objection must be specified.-Nellis y. See "Ejectment," $ 2; "Fraud," $ 2: "Injunc- | Rowles (Sup.) 753. tion," $ 3; "Libel and Slander," § 1.
Objections to the sufficiency of an amended For abuse of process, see "Process," $ 3. complaint, taken under Code Civ. Proc. $ 498, For breach of contract, see “Contracts," $ 5. by answer, are subject to demurrer.-Nellis v. For discharge from employment, see “Master Rowles (Sup.) 753. and Servant," $ 1.
In an action by the assignee of a contract For personal injuries, see "Carriers," & 2; “Mu
made between attorney and client, defendant's _nicipal Corporations," 8 5.
right to amend held not lost by laches.-GoldFor price of goods sold, see “Sales," $ 6.
berg v. Goldstein (Sup.) 782. To recover possession of demised premises, see "Landlord and Tenant," $ 6.
$ 3. Signature and verification. For removal of personal representative, see
| The verification of a complaint, all the allega_"Executors and Administrators," $ 2.
tions of which are positive, held an unqualified For revocation of liquor tax certificate, see "In
verification that the allegations are true to toxicating Liquors.” 2.
affiant's knowledge.--Kieley v. Barron & Cooke Indictment or criminal information or com
Heating & Power Co. (Sup.) 306. plaint, see "Indictment and Information." On certified check, see "Banks and Banking," An affidavit of verification of a petition by $ 1.
an attorney held to sufficiently show why veriPleas in criminal prosecutions, see "Criminal fication was not by petitioner.-In re Mahoney's Law," $ 2.
Estate (Sup.) 329. To compel sale of decedent's estate, see "Executors and Administrators," § 7.
$ 4. Bill of particulars and copy of acTo recover interest, see “Interest," $ 1.
In an action against the officers of a corpora§ 1. Plea or answer, cross complaint, tion for conspiracy, defendant held entitled to and affidavit of defense.
the restatement of an allegation in the comUnder defense of another action pending, a plaint, so as to show whether the officers and copy of the complaint in such action, proved agents, alleged to have conspired, were the by defendant's attorney, held admissible.-Ro individual defendants, and, if not, whom plainmaine v. New York, N. H. & H. R. Co. (Sup.) tiff contended took part in the conspiracy.-491.
Riker v. Erlanger (Sup.) 69. Under Municipal Court Act, Laws 1902, p. Where it was alleged that fraudulent repre1538, $ 150, an answer held to constitute a de- |
sentations had been made to defendant or to nial.-Gilmour y, Kenny (Sup.) 502.
his agents, defendant held entitled to a bill of An answer in an action for work, labor, and particulars stating the names of such agents.materials held not an admission as to the num- / Riker v. Erlanger (Sup.) 69. ber of certain mirrors furnished which was In an action for broker's services, defendant put in issue by defendant's general denial.
held entitled to a bill of particulars stating Epstein v. Hankinson (Sup.) 583.
whether the contract was oral or in writing, In an action against the master for injuries the date when made, and whether made with to servant, an allegation of complaint held not defendant personally or through an agent.sufficient predicate to constitute its admission Treadwell v. Greene (Sup.) 354. by the answer an admission that defendant fur Defendant in personal injury action held ennished the implement, from the use of which the
titled to a bill of particulars as to permanency injury arose.-Hackett v. Masterson (Sup.) 751. of plaintiff's injuries and duration of her con8 2. Amended and supplemental plead
finement to her home.-O'Neill v. Interurban St. ings and repleader.
Ry. Co. (Sup.) 505. Where a complaint is amended, the amend- Want of ability on the part of the defendant ed complaint becomes the only complaint in the to furnish a further bill of particulars, because case, and is as effectual for all subsequent pur- his books were in hands of plaintiff, held a suffiposes as if it had been filed at the commence cient answer to the demand for such bill.ment of the action.- Meeks v. Meeks (Sup.) 67. Mendelson v. Frankel (Sup.) 586.
An application for permission to file a supple- Plaintiff, who suffered an order for bill of mental answer of accord and satisfaction, which particulars to go by default, must comply with arose after the case had been placed on the cal- the same, though it be merely to repeat the alendar for trial, should not be granted, except legations of his complaint.--Quinn v. Fitzgerald on payment of costs to the date of the motion, (Sup.) 728. with leave to plaintiff to discontinue, without costs, at his election.-Pickrell v. Mendel (Sup.)
In an action for personal injuries, order for
bill of particulars in specified regards held in70.
sufficiently complied with.--Quinn v. Fitzgerald An order requiring service of a reply to an
(Sup.) 728. amended answer held an abuse of discretion, under Code Civ. Proc. $ 516.-Hallenborg v. 5. Motions. Greene (Sup.) 319.
Answers of sureties in an action on a bond Under Code Civ. Proc. $$ 488, 499, the facts held to deny material allegations of the bond, supporting objections to the sufficiency of an so as to prevent judgment on the pleadings. amended complaint and the particular grounds Rosenberg v. Hyman (Sup.) 171.
A complaint held not subject to amendment, Accounting by executor or administrator, see under Code Civ. Proc. $ 546, to show the por- "Executors and Administrators," $ 9. tion of a mine from which a rock fell; any Condemnation proceedings, see "Eminent Doremedy being by a bill of particulars, under main," $ 2. section 158.-Dumar v. Witherbee, Sherman & Co. (Sup.) 669.
Particular proceedings in actions. Where a judgment is set aside because plain
See “Abatement and Revival"; "Appearance";
"Continuance"; tiff failed to make out a case, a judgment dis
"Costs"; "Depositions" ; missing the complaint should not record that
"Dismissal and Nonsuit"; "Evidence"; "Exethe dismissal was "on the merits."--Hackett v.
cution"; "Judgment"; ""Judicial Sales" ; Masterson (Sup.) 751.
"Jury" ; "Limitation of Actions"; "Motions" ;
"Parties"; "Pleading"; "Process; “Refer$ 6. Defects and objections, waiver, and ence"; "Stipulations"; "Trial”; “Venue."
aider by verdict or judgment. Defendant held entitled, without demurrer, to
Particular remedies in or incident to actions. take advantage of the failure of the complaint See "Arrest," $ 1; "Attachment”; “Discovery"; to state that 30 days elapsed after filing of "Injunction"; "Receivers." verified clai
m before commencement of action. I -Thrall v. Village of Cuba (Sup.) 661.
Procedure in criminal prosecutions.
See "Bail,” $ 1; "Criminal Law.”
Procedure on review.
See "Appeal”;, "Justices of the Peace," $ 2;
Ground for reversal in civil actions, see "ApSee "Municipal Corporations,” g 1.
peal," $ 12. POLICE POWER.
PRELIMINARY EXAMINATION. Or municipality, see "Municipal Corporations,"On criminal charge, see "Criminal Law," $ 1. $ 3.
See "Injunction," § 4.
For insurance, see "Insurance," $ 2.
On appeal, see "Appeal," $ 9.
PRINCIPAL AND AGENT.
See "Attorney and Client"; "Brokers"; "FacSee “Sheriffs and Constables,” $ 1.
tors." Admissions by agent, see "Evidence," $ 4.
Agency of wife for husband, see "Husband and POWERS.
Wife," $ 1. Of attorney, see “Principal and Agent.”
l. The relation. Contract for the sale of engines held not to constitu
ituto defendants plaintiffs' agents, but PRACTICE.
merely to give them the right to purchase at
certain discounts within specified localities.Of law, see "Attorney and Client."
Russell & Co. v. McSwegan (Sup.) 614. Procedure of particular courts, see "Courts."
i 2. Mutual rights, duties, and liabiliIn particular civil actions or proceedings.
ties. See "Account," $ 1; "Contempt," $ 1; "Di- A servant held not entitled to commissions for
vorce," $ 1; "Ejectment"; "Habeas Corpus," using his influence with his employer to in$ 1; "Interpleader"; "Mandamus," & 2; "Produce the latter to enter into a contract with ħibition"; "Replevin."
| tlefendant.-Labinsks v. Holst (Sup.) 991.
and 118 New York State Reporter § 3. Rights and liabilities as to third | Liabilities of sureties on bonds or undertakpersons.
lings in legal proceedings, see "Attachment." Rules of stock exchange held in the nature $ 3; "Criminal Law," $ 4; "Replevin," $ 3. of "private instructions" by a broker to his
18 1. Nature and extent of liability of agent, so as not to bind client contracting with agent in ignorance thereof.--Newman y. Lee
Where the only interest protected by a bond (Sup.) 106.
for the erection of a building was that of a Broker held precluded from contending that mortgagee holding a purchase-money mortgage client, contracting with broker's agent, did so and building-loan mortgage, and the mortgagee conformably to stock exchange rules, constitut- | purchased the premises at a foreclosure sale of ing custom of the business, whose effect was to the junior mortgage, such purchase held invalidate contract.--Newman v. Lee (Sup.) 106. erate as a payment entitling him to indemnity
on the bond only in the amount of the deficiency A partnership, by accepting the proceeds of a
judgment.-Westcott v. Fidelity & Deposit Co. note executed by one as its agent, ratified the making of the note.-Rosenthal v. Hasberg
(Sup.) 731. (Sup.) 290.
Where a bond is conditioned for the erection A power of attorney, executed by a partner
of a building, on a judgment for the full amount
of the penalty interest cannot be allowed, as ship to an agent, held to authorize him to make
the judgment cannot exceed the penalty.notes in the name of the firm.-Rosenthal v. Hasberg (Sup.) 290.
Westcott v. Fidelity & Deposit Co. (Sup.) 131.
§ 2. Rights and remedies of surety. Where a subagent of a lessor received from
I Undisclosed principal of the obligor in a bond a tenant a deposit on the rent, that the lessored
held not liable to the surety for costs which it subsequently accepted the tenant was not a incurred on appeal from a judgment in a suit ratification of the subagent's act in receiving on the hond
ying on the bond.-City Trust, Safe Deposit & Surethe deposit.-McGowan v. Treacy (Sup.) 497.
ty Co. V. American Brewing Co. (Šup.) 771. Where a subagent of a lessor was authorized to procure prospective tenants, held, there was
PRIORITIES. no implied power to collect rent for the landlord's account.---McGowan V. Treacy (Sup.) or claims against estate of decedent. see "Ex497.
ecutors and Administrators," $ 5. A judgment creditor held to have ratified the settlement of the claim made by his collecting agency with the debtor.-Cobb v. Edson (Sup.)
See “Nuisance," $ 1. An agent's authority to lease premises and collect rents does not imply authority to_accept surrender of a lease.-Barkley v. Holt
PRIVATE ROADS. (Sup.) 957.
Rights of way, see "Easements." Evidence in an action by one payee in a draft, against the indorsee of his co-payee, to recover his share of the proceeds, held to require sub
PRIVILEGED COMMUNICATIONS. mission to the jury of the question of plaintiff's ratification of his co-payee's indorsement Disclosure by witness, see "Witnesses," $ 2 and personal realization of the proceeds.--Allen v. Corn Exch. Bank (Sup.) 1001.
PROBATE. Vendor of realty held to have given authority to co-vendor to indorse, in the names of both, | Of will, see "Wills," $ 3. drafts received for purchase price and made payable to both.-Allen v. Corn Exch. Bank (Sup.) 1001.
Vendor of realty held estopped, as against Effect of appearance, see "Appearance." bank cashing purchase-money drafts payable to Service on new parties, see "Parties," $ 1. both on indorsement of co-vendor, to question such indorsements.-Allen v. Corn Exch. Bank
In actions against particular classes of parties. (Sup.) 1001.
Foreign corporation, see Corporations," $ 6. Vendor of realty held to have ratified co-ven
In particular actions or proceedings. dor's indorsement of purchase-money drafts payable to both.-Allen v. Corn Exch. Bank
On appeal, see "Appeal," $ 4. (Sup.) 1001.
Particular forms of writs or other process.
See “Arrest"; "Execution"; "Injunction", PRINCIPAL AND SURETY.
"Mandamus"; "Prohibition"; "Replevin."
§ 1. Service. See "Bail.”
Under Code Civ. Proc. $$ 439, 1780, an order Judgment on pleading in action against sure for publication of summons, in an action against ties, see "Pleading," $ 5.
. a foreign corporation for breach of a contract