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Acts

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and 118 New York State Reporter
constituting

omissions negligence. Evidence in an action for injuries caused by the fall of a chimney held to support a verdict for plaintiff.-Travers v. Murray (Sup.) 558.

A manufacturer of a land roller held not liable for injuries to party between whom and himself there was no privity of contract, resulting from a defect so concealed as to prevent discovery.-Kuelling v. Roderick Lean Mfg. Co. (Sup.) 622.

In action for injuries from defendant's negligence, an instruction as to defendant's negligence held prejudicially erroneous, in view of evidence and other portions of charge.-McKeon v. Louis Weber Bldg. Co. (Sup.) 913.

§ 2. Contributory negligence.

The negligence of the driver of a wagon is chargeable to a fellow servant riding on the V. Interurban wagon with him.-Krintzman St. Ry. Co. (Sup.) 243.

§ 3. Actions.

Mere proof of defendant's negligence, without any evidence showing freedom from contributory negligence, will not sustain a recovery.Byrnes v. Interurban St. Ry. Co. (Sup.) 193.

A jury held not warranted in finding that the action of the machinery in a paper mill caused a mass of pulp in a drainer to fall.-Vykess v. Duncan Co. (Sup.) 398.

Only where contributory negligence clearly ap pears, or is proved by uncontroverted evidence, can the court determine the issue.-Benjamin v. Metropolitan St. Ry. Co. (Sup.) 458.

NEWLY-DISCOVERED EVIDENCE.

Ground for new trial in civil actions, see "New
Trial," § 1.

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10.

§ 1.

Grounds.

Newly discovered evidence held sufficient to entitle plaintiff to a new trial.-Conlon v. Mission of the Immaculate Virgin (Sup.) 49.

Motion for new trial on the ground that defendant had not been protected in his rights Trial court held not justified in setting aside held untenable.-Eustis v. Steinson (Sup.) 155. a verdict for plaintiff.-Eagan v. Hyde (Sup.) 540.

Dismissal of complaint, on setting aside a verdict for plaintiff, held error.-Eagan v. Hyde (Sup.) 540.

§ 2. Proceedings to procure new trial. Motion for new trial on account of newly gence in search for the evidence, if its existdiscovered evidence need not allege due dili ence was unknown.-Conlon v. Mission of the Immaculate Virgin (Sup.) 49.

Affidavit that jurors were heard to say they made inspection of a gate on one of defendant's street cars during the progress of the trial of an action for personal injuries held hearsay.Gans v. Metropolitan St. Ry. Co. (Sup.) 914. NEXT OF KIN.

On the issue whether the dresser or the dye of certain skins was responsible for spots in them, the verdict that the dyer was responsible therefor held against the weight of the evi- See "Descent and Distribution." dence.-Steinberg v. Schleshinger (Sup.) 522.

Fall of a chimney held sufficient to raise a presumption of negligence, which will sustain

NONSUIT.

a verdict for a person injured thereby.-Trav- Before trial, see "Dismissal and Nonsuit." ers v. Murray (Sup.) 558.

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 the driver of an insurance patrol wagon to a fellow employé, riding on the seat with him and ringing the bell, discussed.-Adler v. Metropolitan St. Ry. Co. (Sup.) 877.

Negligence of driver of wagon held not im-
a matter of law.-
putable to co-servant as
Ciuffi v. Metropolitan St. Ry. Co. (Sup.) 918.
On an issue whether injuries to the wall of a
building resulted from improper blasting, certain
evidence held competent.-Cebrelli v. Church
Const. Co. (Sup.) 919.

NEGOTIABLE INSTRUMENTS.
See "Bills and Notes."

NOTICE.

Appealability of order denying motion to compel acceptance of notice of appeal, see "Appeal," § 1.

Of particular facts, acts, or proceedings.
See "Motions"; "Trial,” § 1.

Action or process, see "Process," § 1.
Appeal, see "Appeal and Error," § 4.
Assignment of mortgage, see "Mortgages,” § 1.
Defects in streets, see "Municipal Corpora-
tions," § 5.

Discharge from employment, see "Master and
Servant," § 1.

Motion for dismissal of appeal, see "Appeal,"
§ 6.

Nonpayment or protest of bill or note, see "Bills and Notes," § 5.

Personal injuries, see "Master and Servant," § 6.

To particular classes of parties. See "Municipal Corporations," § 5.

NUISANCE.

Res gestæ, see "Evidence," § 2. $1. Private nuisances.

In an action for damages by a nuisance, evidence of the amount paid for necessary additional labor held inadmissible, in the absence of any showing that that amount was reasonable.Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

OPENING.

Judgment, see "Judgment," §§ 1, 4.

OPINIONS.

Of courts, see "Courts," § 1.

OPTIONS.

To purchase or sell demised premises, see
To purchase or sell personal property, see
"Landlord and Tenant," § 3.
"Sales," § 2.

ORDER OF PROOF.

In an action by a boarding house keeper for a nuisance, certain evidence held to justify the At trial, see "Trial,” § 4. jury in finding the fair rental value of the premises.-Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

The fact that a tenant leases premises after the creation of a nuisance does not preclude him from recovering the damages caused thereby. Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

In an action by a tenant for a nuisance injuring the leased premises, plaintiff can elect whether to have his damages measured by the depreciation in the rental value or by the loss in the usable value thereof.-Hoffman v. Edison Electric Illuminating Co. (Sup.) 437.

OBJECTIONS.

To reception of evidence, see "Evidence," § 8; "Trial," § 4.

OBLIGATION OF CONTRACT. Laws impairing, see "Constitutional Law," § 3.

OBSTRUCTIONS.

Of street, see "Municipal Corporations," § 4.

OFFICERS.

Bribery, see "Bribery."

Injunctions affecting, see "Injunction," § 2. Liability for costs in actions in official capacity, see "Costs," § 2.

Mandamus, see "Mandamus," § 1.

Particular classes of officers.

See "Attorney General"; "Judges"; "Justices of the Peace"; "Receivers"; "Sheriffs and Constables."

Corporate officers, see "Corporations," $$ 3, 4. Municipal officers, see "Municipal Corporations," § 1.

1. Rights, powers, duties, and liabilities.

A public officer, acting under a salary prescribed by statute, held entitled to full pay until his removal.-People v. Howe (Sup.) 604.

ORDERS.

Directing payment of counsel fees in divorce
For examination of witness before trial, see
proceedings, see "Divorce," § 2.
"Discovery," § 1.

For opening of default judgment, see "Judg-
ment," § 1.

Of court, see "Motions."

On motion to vacate attachment, see "AttachReview of appealable orders, see "Appeal." ment," § 2.

ORDINANCES.

Municipal ordinances, see "Municipal Corporations," § 3.

PARENT AND CHILD.

See "Guardian and Ward"; "Infants."

PARKS.

Liability of lessee for injuries to servant, see "Master and Servant," § 3.

PAROL EVIDENCE.

In civil actions, see "Evidence," § 8

PARTICULARS.

Bill of, see "Pleading," §§ 4, 5.

PARTIES.

Appealability of order relating to parties, see "Appeal." § 1.

Interpleading, see "Interpleader."

Persons entitled to contest mechanic's lien
claim, see "Mechanics' Liens," § 2.
Persons entitled to enforce trust, see "Trusts,"
§ 3.

Persons entitled to require accounting by per-
sonal representative, see "Executors and Ad-
ministrators." § 9.

and 118 New York State Reporter "Landlord and Persons who may be examined before trial, see "Discovery," § 1.

Persons liable for rent, see Tenaut," § 5.

Rights and liabilities as to costs, see "Costs," § 2.

In actions by or against particular classes of parties.

See "Executors and Administrators," § 9: "Partnership," § 5.

In particular actions or proceedings. See "Prohibition," § 1.

Accounting by committee of insane person, see "Insane Persons," § 1.

Accounting by personal representatives, see "Executors and Administrators," § 9. On appeal, see "Appeal," § 2.

To set aside satisfaction of mortgages, see "Mortgages," § 2.

To particular classes of conveyances, contracts,

or transactions.

See "Contracts," § 2; "Fraudulent Conveyances," § 2.

Joint interests, see "Joint Adventures."

§ 1. New parties and change of parties. Under Code Civ. Proc. § 453, where a complaint was amended prior to the bringing in of an additional defendant, an order for the service of summons by publication, directing service of the amended complaint on such defendant, held proper.-Meeks v. Meeks (Sup.) 67.

2. Defects, objections, and amend

ment.

Under Code Civ. Proc. § 500, a misjoinder of parties defendant cannot be taken advantage of by answer.-Adams v. Slingerland (Sup.) 323.

Under Code Civ. Proc. § 488, misjoinder of parties defendant held not a ground of demurrer to the complaint.-Adams v. Slingerland (Sup.) 323.

PARTITION.

Enforcement of attorney's lien in partition suit, see "Attorney and Client," § 4.

§ 1. Actions for partition.

Purchaser at partition sale compelled to take title on presumption of death of one who would have otherwise been the owner of the property. -McNulty v. Mitchell (Sup.) 89.

Evidence held to show right of way by adverse possession from land shut off from highway and sold at partition.-Metzger v. Martin (Sup.) 494.

PARTNERSHIP.'

See "Associations"; "Joint Adventures." Contract for sale of partnership business, see "Contracts," § 2.

§ 1. The firm, its name, powers, and property.

Pen. Code, § 363b, requiring the filing of a certificate where persons conduct business under an assumed name, held not to apply where

two brothers named Castle carry on business under the name of "Castle Bros."-Castle Bros. v. Graham (Sup.) 120.

2. Mutual rights, duties, and liabilities of partners.

Partner having a loan account with his firm held to have the right to draw from the business amount standing to his credit.-Brown v. Spohr (Sup.) 995.

§ 3. Rights and liabilities as to third persons.

An assignment of a judgment in favor of a person as surviving partner, for the payment of debts contracted to close up the firm bus ual creditors of the surviving member.-Bush ness, held valid as against all claims of indiviaCo. v. Gibbons (Sup.) 478.

Evidence in suit against partnership held insufficient to show membership of only contesting defendant, and to necessitate dismissal of complaint.-Barrett v. Warren (Sup.) 578.

In an action to recover installments due on bill of sale of partnership effects, evidence of subsequent contract entered into by one partner with buyer held inadmissible.-Kinney v. D. H. McBride & Co. (Sup.) 958.

§ 4. Death of partner, and surviving partners.

A surviving partner has authority to borrow money to close up the affairs of the partnership.-Rosenthal v. Hasberg (Sup.) 290.

Evidence held to show that the deceased member of a firm had not, prior to his death, conveyed his interest to the surviving member.Bush Co. v. Gibbons (Sup.) 478.

§ 5. Dissolution, settlement, and accounting.

A complaint by a partner against his copartner and a third person, charging a conspiracy to defraud him of his interest in the firm property, held to state a cause of action for an accounting.-Green v. Tuchner (Sup.) 345.

Facts held such that a legatee of a deceased member of a firm should be allowed to intervene in an action for a partnership account; the surviving partner being the executor and hostile to him.-Mertens v. Mertens (Sup.) 352.

A legatee of a deceased member of a firm held not strictly interested in a partnership accounting, so as to be entitled as matter of right, under Code Civ. Proc. § 452, to intervene.-Mertens v. Mertens (Sup.) 352.

Evidence held not to show a release by a creditor of a retiring partner from partnership obligations.-Bronx Metal Bed Co. v. Wallerstein (Sup.) 924.

Individual partners on dissolution of firm are liable for debts, unless released by valid agreement of creditor founded on new consideration. -Bronx Metal Bed Co. v. Wallerstein (Sup.) 924.

PART PAYMENT.

See "Accord and Satisfaction." Within statute of limitations, see "Limitation of Actions," § 1.

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Of judgment as affecting right to appeal, see
"Appeal," § 2.

Part payment as satisfaction, see "Accord and
Satisfaction."

Part payment within statute of limitations, see
"Limitation of Actions," § 1.

Of particular classes of obligations or liabilities.
See "Costs," § 7; "Mortgages," § 2.

Bill of exchange or promissory note, see "Bills
and Notes," § 6.

Claims against estate of decedent, see "Executors and Administrators," § 5.

Price of land sold, see "Vendor and Purchaser," $ 1.

1. Application.

In a suit on a building contract, held, that it would be presumed that certain payments had extinguished plaintiff's claim.-Kloepfer v. Maher (Sup.) 138.

§ 2. Pleading, evidence, trial, and review.

Harmless error in admission of evidence, see
"Appeal," § 12.

Impeachment of witness, see "Witnesses," § 4.
Relevancy of evidence, see "Evidence," § 2.
Right of defendant to bill of particulars as to
injuries, see "Pleading," § 4.

To passenger, see "Carriers," § 2.
To employé, see "Master and Servant," §§ 2-6.

To person on or near railroad tracks, see "Rail-
roads," § 3.

To traveler on highway, see "Municipal Corporations," § 5.

To traveler on highway crossing railroad, see "Railroads," § 3.

PETITION.

For recovery of possession by landlord, see "Landlord and Tenant," § 6.

To revoke liquor tax certificate, see "Intoxicating Liquors," § 2.

PHYSICIANS AND SURGEONS.

Competency to testify as experts, see "Evidence," 9.

Privileged communications, see "Witnesses," § 2.

Verdict for defendant in an action by a surgeon for services held against the weight of evidence.-Abram Bros. v. Krakower (Sup.) 529. Where defendant, to prove payment, offers Evidence in an action by a physician for servchecks 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 loans made by defendant, without any deduction of plaintiff's claim, that such claim had been paid, is not cogent, where the repayment was in work.-Ran v. Torchiani (Sup.) 886.

PENALTIES.

In bonds, see "Principal and Surety," § 1. Obstruction of street, see "Municipal Corporations." § 4.

Violation of game laws, see "Game"; "Gaming," § 1.

Violation of laws relating to theaters, see "The aters and Shows."

PENITENTIARIES.

Partial invalidity of statutes, see "Statutes," § 1.

Restraining removal of penitentiary officers, see "Injunction," § 2.

Subjects and titles of statutes, see "Statutes," § 2.

PERSONAL INJURIES.

See "Negligence."

PLATE GLASS INSURANCE. See "Insurance."

PLEA.

In civil actions, see "Pleading," § 1.
In criminal prosecutions, see "Criminal Law,"
§ 2.

PLEADING.

Amendment of pleading in municipal court, see "Courts," § 2.

Amendment on appeal, see "Appeal," § 8. Estoppel of infant by pleading, see "Infants," $ 1.

Objections for purpose of review, see "Appeal."

Allegations as to particular facts, acts, or
transactions.

Misjoinder of parties, see "Parties," § 2.
Objection to process, see "Process," § 2.
Statute of frauds, see "Frauds, Statute of,"
§ 5.

Waiver of breach of contract, see "Contracts,"
§ 5.

In actions by or against particular classes of parties.

Argument and conduct of counsel at trial, see See "Carriers," § 2; "Executors and Adminis"Trial," § 5.

Caused by dogs, see "Animals."

Caused by operation of street railroad, see "Street Railroads," §§ 1, 2.

84 N.Y.S.-76

trators," § 8; "Landlord and Tenant," § 6; "Master and Servant," § 1; "Municipal Corporations," § 5.

Trustee in bankruptcy, see "Bankruptcy," § 1.

and 118 New York State Reporter

In particular actions or proceedings. See "Ejectment," § 2; "Fraud," § 2; "Injunction," § 3; "Libel and Slander," § 1. For abuse of process, see "Process," § 3. For breach of contract, see "Contracts," § 5. For discharge from employment, see "Master and Servant," § 1.

For personal injuries, see "Carriers," § 2; "Municipal Corporations," § 5.

For price of goods sold, see "Sales," § 6. To recover possession of demised premises, see "Landlord and Tenant,' § 6.

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For removal of personal representative, see "Executors and Administrators," § 2. For revocation of liquor tax certificate, see "Intoxicating Liquors," $ 2.

Indictment or criminal information or complaint, see "Indictment and Information." On certified check, see "Banks and Banking," § 1.

Pleas in criminal prosecutions, see "Criminal Law," § 2.

To compel sale of decedent's estate, see "Executors and Administrators," $7. To recover interest, see "Interest," § 1.

§ 1. Plea or answer, cross complaint, and affidavit of defense.

Under defense of another action pending, a copy of the complaint in such action, proved by defendant's attorney, held admissible.-Romaine v. New York, N. H. & H. R. Co. (Sup.)

491.

Under Municipal Court Act, Laws 1902, p. 1538,150, an answer held to constitute a denial. Gilmour v. Kenny (Sup.) 502.

An answer in an action for work, labor, and materials held not an admission as to the number of certain mirrors furnished which was put in issue by defendant's general denial.Epstein v. Hankinson (Sup.) 583.

In an action against the master for injuries to servant, an allegation of complaint held not suflicient predicate to constitute its admission by the answer an admission that defendant furnished the implement, from the use of which the injury arose.-Hackett v. Masterson (Sup.) 751. § 2. Amended and supplemental pleadings and repleader.

Where a complaint is amended, the amended complaint becomes the only complaint in the case, and is as effectual for all subsequent purposes as if it had been filed at the commencement of the action.-Meeks v. Meeks (Sup.) 67. An application for permission to file a supplemental answer of accord and satisfaction, which arose after the case had been placed on the calendar for trial, should not be granted, except on payment of costs to the date of the motion, with leave to plaintiff to discontinue, without costs, at his election.-Pickrell v. Mendel (Sup.)

70.

An order requiring service of a reply to an amended answer held an abuse of discretion, under Code Civ. Proc. § 516.-Hallenborg v. Greene (Sup.) 319.

Under Code Civ. Proc. §§ 488, 499, the facts supporting objections to the sufficiency of an amended complaint and the particular grounds

of each objection must be specified.-Nellis v. Rowles (Sup.) 753.

Objections to the sufficiency of an amended complaint, taken under Code Civ. Proc. § 498, by answer, are subject to demurrer.-Nellis v. Rowles (Sup.) 753.

made between attorney and client, defendant's In an action by the assignee of a contract right to amend held not lost by laches.-Goldberg v. Goldstein (Sup.) 782.

§ 3. Signature and verification.

The verification of a complaint, all the allegaverification that the allegations are true to tions of which are positive, held an unqualified affiant's knowledge.-Kieley v. Barron & Cooke Heating & Power Co. (Sup.) 306.

An affidavit of verification of a petition by an attorney held to sufficiently show why verification was not by petitioner.-In re Mahoney's Estate (Sup.) 329.

§ 4. Bill of particulars and copy of ac

count.

In an action against the officers of a corporation for conspiracy, defendant held entitled to the restatement of an allegation in the complaint, so as to show whether the officers and agents, alleged to have conspired, were the individual defendants, and, if not, whom plaintiff contended took part in the conspiracy.Riker v. Erlanger (Sup.) 69.

Where it was alleged that fraudulent representations had been made to defendant or to his agents, defendant held entitled to a bill of particulars stating the names of such agents.— Kiker v. Erlanger (Sup.) 69.

In an action for broker's services, defendant held entitled to a bill of particulars stating whether the contract was oral or in writing. the date when made, and whether made with defendant personally or through an agent.Treadwell v. Greene (Sup.) 354.

titled to a bill of particulars as to permanency Defendant in personal injury action held enof plaintiff's injuries and duration of her confinement to her home.-O'Neill v. Interurban St. Ry. Co. (Sup.) 505.

Want of ability on the part of the defendant to furnish a further bill of particulars, because his books were in hands of plaintiff, held a sufficlent answer to the demand for such bill.Mendelson v. Frankel (Sup.) 586.

Plaintiff, who suffered an order for bill of particulars to go by default, must comply with the same, though it be merely to repeat the allegations of his complaint.-Quinn v. Fitzgerald (Sup.) 728.

bill of particulars in specified regards held inIn an action for personal injuries, order for (Sup.) 728. sufficiently complied with.-Quinn v. Fitzgerald

§ 5. Motions.

Answers of sureties in an action on a bond held to deny material allegations of the bond, so as to prevent judgment on the pleadings.Rosenberg v. Hyman (Sup.) 171.

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