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f 3. Police power and regulations. The fact that a city had macadamized the

Sanitary Code, $ 134, relating to smoke in surface of a street, and constructed catch-bascities, held a reasonable regulation.- People v. ins, etc., accelerating, the flow of drainage waHorton (Sp. Sess.) 912; Same v. Frisbie, Id. ter into a stream, held not to render it liable for

Under Laws 1901, p. 499, c. 466, § 1172, the an overflowing of the stream, unless the drainCourt of Special Sessions has exclusive juris- age had been increased to an extent beyond diction of charges of misdemeanor committed that which could be accommodated by the wain the city of New York. People v. Horton ter course in its natural condition.-Smith ř. (Sp. Sess.) 942; Same v. Frisbie, Id.

City of Auburn (Sup.) 725. { 4. Use and regulation of public pla- slight depression in the sidewalk.–Schall v.

A city held not liable for an injury from a ces, property, and works. Where, in an action for a penalty for main-City of New York (Sup.) 737. taining steps projecting on a street, there was no evidence showing the street line, it was er

MUNICIPAL COURTS. ror to permit a recovery on the assumption that the street line was the same as the house See “Courts," $ 2. line.-City of New York v. Childs (Sup.) 161. Default judgments, see "Judgment," § 1.

A sidewalk laid by a village held to become Effect of provisions of municipal court act op part of the lot owner's real property, so that,

actions on replevin bonds, see “Keplevin," the village having removed it merely because

$ 3. he would not pay an assessment therefor, it is liable to him.-Platt v. Village of Oneonta

NAMES. (Sup.) 699.

Of partnerships, see “Partnership," $ 1. § 5. Torts. Whether a rail extending over a crosswalk judgment against "Isaac F.”—Greenberg v.

Goods of “Israel F." cannot be seized on a constitutes a sufficient notice of danger to a pedestrian to make it her duty to avoid it is Angerman (Sup.) 244. à question of fact.-Gribben v. Metropolitan St. A judgment against "W. B. Gottleib" was enRy. Co. (Sup.) 196.

forceable against the defendant, though his In the absence of an appearance of danger,

name was "William B. Gottlieb," not being inpedestrians have the right to assume that side- valid on account of the use of the initials of the walks are safe.-Gribben o. Metropolitan St. Christian name, and surnames used being idem Ry. Co. (Sup.) 196.

sonans.-Gottlieb v. Alton Grain Co. (Sup.) 413. In an action for injuries received by falling into a trench left open by defendants across a

NAVIGABLE WATERS. city sidewalk, admission in evidence of a peri See “Waters and Water Courses.” mit from city, which was not pleaded, held error.-Hubbs v. Schwaneflugel (Šup.) 560. Where a municipal charter requires actual

NEGLIGENCE. notice to the officials of a defective sidewalk before action therefor, that an official casually Harmless error in admission of evidence, see passed along the sidewalk held insufficient to es

“Appeal," § 12. tablish the required notice.---McManus v. City of Watertown (Sup.) 638.

By particular classes of parties.

See “Carriers," 88 1, 2; “Innkeepers”; “MuUnder Laws 1897, p. 453, c. 414, § 322, a complaint in an action against a village for in; Charterer of vessel, see “Shipping," 1.

nicipal Corporations," $ 5. juries must allege that 30 days have elapsed Employers, see “Master and Servant," $$ 2-6. since a verified claim therefor was filed. Thrall v. Village of Cuba (Sup.) 661.

Railroad companies, see “Railroads,' § 3;

"Street Railroads.' Whether placing a sign on sidewalk in the Savings bank, see "Banks and Banking," $ 2. mauner and under conditions of weather in Telegraph or telephone companies, see "Telewhich it was done was for the jury.–Cunning graphs and Telephones," $ 1. ham v. Nilson (Sup.) 668.

Condition or use of particular species of property, In action against city for damages arising

works, or machinery. from the overtlowing of a stream into which it discharged sewage and surface waters, the judg. See “Railroads," $ 3; "Street Railroads,” 88 ment held erroneous because of having been

1, 2. tried and decided on a theory different from Automobiles, see "Highways," $ 1. that of the complaint.--Smith v. City of Au- | Demised premises, see “Landlord and Tenaut," burn (Sup.) 725.

$ 4. A city is not liable to a la ndowner for dam.

Contributory negligence. ages caused by the overflowing of a stream Of passenger, see "Carriers," $ 2. into which it drains sewage and surface water, Of person injured by defects in street, see “Muwhere the overflowing is the result of the land nicipal Corporations," $ 5. owner having unduly narrowed and obstructed Of person injured by operation of railroad, see the stream.-Smith v. City of Auburn (Sup.) "Railroads," $ 3; "Street Railroads," $$ 1, 2. 725.

Of servant, see "Master and Servant," 88 5, 6.

and 118 New York State Reporter $ 1. Acts or omissions constituting | NEWLY-DISCOVERED EVIDENCE.

negligence. Evidence in an action for injuries caused by Ground for new trial in civil actions, see "New the fall of a chimney held to support a verdict Trial," $ 1. for plaintiff.--Travers v. Murray (Sup.) 558. A manufacturer of a land roller held not lia

NEW TRIAL. ble for injuries to party between whom and himself there was no privity of contract, re- Opening or vacating judgment, see "Judgment," sulting from a defect so concealed as to prevent discovery.-Kuelling v. Roderick Lean Mfg. Co. Review of discretion of court, see "Appeal," $ (Sup.) 622.

10. In action for injuries from defendant's negli- 1. Grounds. gence, an instruction as to defendant's negli- Newly discovered evidence held sufficient to gence held prejudicially erroneous, in view of entitle plaintiff to a new trial.-Conlon v. Misevidence and other portions of charge.-McKeon sion of the Immaculate Virgin (Sup.) 49. v. Louis Weber Bldg. Co. (Sup.) 913.

| Motion for new trial on the ground that de & 2. Contributory negligence.

fendant had not been protected in his rights The negligence of the driver of a wagon is

held untenable.-Eustis v. Steinson (Sup.) 155. chargeable to a fellow servant riding on the Trial court held not justified in setting aside wagon with him.-Krintzman v. Interurban a verdict for plaintiff.--Eagan v. Hyde (Sup.) St. Ry. Co. (Sup.) 243.


Dismissal of complaint, on setting aside a 8 3. Actions.

| verdict for plaintiff, held error.-Eagan v. Hyde Mere proof of defendant's negligence, without (Sup.) 540. any evidence showing freedom from contributory negligence, will not sustain a recovery.-18 2Proceedings to procure new trial. Byrnes v. Interurban St. Ry. Co. (Sup.) 193. Motion for new trial on account of newly

discovered evidence need not allege due diliA jury held not warranted in finding that the

gence in search for the evidence, if its existaction of the machinery in a paper mill caused

ence was unknown.-Conlon y. Mission of the a mass of pulp in a drainer to fall.-Vykess v.

Immaculate Virgin (Sup.) 49. Duncan Co. (Sup.) 398.

Affidavit that jurors were heard to say they Only where contributory negligence clearly ap

ar apo made inspection of a gate on one of defendant's pears, or is proved by uncontroverted evidence,

street cars during the progress of the trial of can the court determine the issue.-Benjamin

an action for personal injuries held hearsay.v. Metropolitan St. Ry. Co. (Sup.) 458.

Gans v. Metropolitan St. Ry. Co. (Sup.) 914. On the issue whether the dresser or the dyei of certain skins was responsible for spots in

NEXT OF KIN. them, the verdict that the dyer was responsible therefor held against the weight of the evio | See "Descent and Distribution." dence.-Steinberg v. Schleshinger (Sup.) 522. Fall of a chimney held sufficient to raise a

NONSUIT. presumption of negligence, which will sustain a verdict for a person injured thereby.-Trayers v. Murray (Sup.) 558.

Before trial, see "Dismissal and Nonsuit." A finding that the negligence of the driver of an ice wagon, with which a street car collided,

NOTES. was not imputable to a helper riding on the Promissory notes, see "Bills and Notes." wagon, held not against the evidence.-Murray v. Metropolitan St. Ry. Co. (Sup.) 876. Question of the imputing of the negligence of

NOTICE. the driver of an insurance patrol wagon to a Appealability of order denying motion to comfellow employé, riding on the seat with him pel acceptance of notice of appeal, see "Apand ringing the bell, discussed.-Adler v. Metro- peal," $ 1. politan St. Ry. Co. (Sup.) 877.

of particular facts, acts, or proceedings. Negligence of driver of wagon held not im

| See "Motions"; "Trial," $ 1. putable to co-servant as a matter of law.Ciuffi v. Metropolitan St. Ry. Co. (Sup.) 918.

Action or process, see "Process," $ 1.

Appeal, see "Appeal and Error," $ 4. On an issue whether injuries to the wall of a | Assignment of mortgage, see "Mortgages," $ 1. building resulted from improper blasting, certain Defects in streets, see "Municipal Corporaevidence held competent.Cebrelli v. Church tions," $ 5. Const. Co. (Sup.) 919.

Discharge from employment, see "Master and


Motion for dismissal of appeal, see "Appeal,"

$ 6.

Nonpayment or protest of bill or note, see See "Bills and Notes."

"Bills and Notes," $ 5.

Personal injuries, see "Master and Servant,"

OPENING. $ 6. To particular classes of parties.

Judgment, see "Judgment," $8 1, 4.
See "Municipal Corporations," $ 5.


Of courts, see "Courts," $ 1.
Res gestae, see "Evidence." § 2.

OPTIONS. $1. Private nuisances. In an action for damages by a nuisance, evi

| To purchase or sell demised premises, see dence of the amount paid for necessary addi

"Landlord and Tenant," $ 3. tional labor held inadmissible, in the absence of

To purchase or sell personal property, see any showing that that amount was reasonable.

"Sales," 8 2. Hoffman v. Edison Electric Illuminating Co. (Sup.) 437. In an action by a boarding house keeper for

ORDER OF PROOF. a nuisance, certain evidence held to justify the lat trie

At trial, see “Trial," 4. jury in finding the fair rental value of the premises.-Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

ORDERS. The fact that a tenant leases premises after

Directing payment of counsel fees in divorce the creation of a nuisance does not preclude him from recovering the damages caused thereby.

proceedings, see "Divorce," $ 2. Hoffman v. Edison Electric Illuminating Co.

For examination of witness before trial, see

"Discovery," $ 1. (Sup.) 437.

For opening of default judgment, see "JudgIn an action by a tenant for a nuisance injur ment," 8 1. ing the leased premises, plaintiff can elect Of court, see "Motions." whether to have his damages measured by the On motion to vacate attachment, see "Attachdepreciation in the rental value or by the loss ment," 8 2. in the usable value thereof.-Hoffman v. Edison Review of appealable orders, see "Appeal.” Electric Illuminating Co. (Sup.) 437.


e. Municipal ordinances, see "Municipal CorporaTo reception of evidence, see "Evidence," $ 8; tions," $ 3. “Trial," $ 4.


See "Guardian and Ward"; "Infants."
Laws impairing, see "Constitutional Law," $ 3.


Liability of lessee for injuries to servant, see
Of street, see "Municipal Corporations," $ 4. “Master and Servant," $ 3.

Bribery, see "Bribery."

In civil actions, see "Evidence," $ &
Injunctions affecting, see "Injunction," $ 2.
Liability for costs in actions in official capacity,

see "Costs," 2.
Mandamus, see "Mandamus," $ 1.

Bill of, see "Pleading,” $$ 4, 5.
Particular classes of officers.
See "Attorney General"; "Judges"; "Justices

of the Peace"; "Receivers"; "Sheriffs and

Appealability of order relating to parties, see Corporate officers, see “Corporations," $83, 4.

"Appeal," $ 1. Municipal officers, see "Municipal Corpora

Interpleading, see "Interpleader." tions," $ 1.

Persons entitled to contest mechanic's lien

claim, see "Mechanics' Liens," $ 2. f 1. Rights, powers, duties, and liabil- Persons entitled to enforce trust, see "Trusts,"

$ 3. A public officer, acting under a salary pre- Persons entitled to require accounting by perscribed by statute, held entitled to full pay un sonal representative, see "Executors and Adtil his removal.--People v. Howe (Sup.) 604. ministrators," $ 9.



8 2.

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.)

counting. 323.

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," 8 12. See “Carriers," $ 2; "Street Railroads," 1. Impeachment of witness, see "Witnesses," $ 4.

Relevancy of evidence, see "Evidence," $ 2. PAYMENT.

Right of defendant to bill of particulars as to

injuries, see “Pleading," § 4. See “Accord and Satisfaction"; "Compromise To passenger, see "Carriers," $ 2.

To employé, see “Master and Servant," 88 2–6. 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," 8 2.

tors and Administrators,” $ 5. Price of land sold, see "Vendor and Purchaser,"

PHYSICIANS AND SURGEONS. $1. ( 1. Application.

Competency to testify as experts, see “EviIn a suit on a building contract, held, that it

dence," Š 9. would be presumed that certain payments had Privileged communications, see "Witnesses,” extinguished plaintiff's clain.-Kloepfer v. Ma

§ 2. ber (Sup.) 138.

Verdict for defendant in an action by a sur§ 2. Pleading, evidence, trial, and re

geon 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 serv. checks 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. 174. The inference from repayment by plaintiff of

PLATE GLASS INSURANCE. 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,"

§ 2. In bouds, 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," 8 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."

8 1.

Objections for purpose of review, see “ApPENITENTIARIES.


Allegations as to particular facts, acts, or Partial invalidity of statutes, see “Statutes,"

transuctions. $ 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. 8 2.

Waiver of breach of contract, see “Contracts,"


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," $S 1, 2.

Trustee in bankruptcy, see "Bankruptcy," § 1. 84 N.Y.S.-76

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