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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.
Liability of street railroad for injury to po-

See "Appeal”;, "Justices of the Peace," $ 2;

"New Trial.”
lice officer directing operation of street car,
see "Street Railroads," $ 1.


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.

Of insurance, see "Insurance."

See "Injunction," § 4.

Suffrage, see "Elections."

For insurance, see "Insurance," $ 2.

Of demised premises, see "Landlord and Ten-
ant," 8$ 4, 6.

On appeal, see "Appeal," $ 9.
Of land involved in ejectment proceedings, see
"Ejectment," 1..


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.

ings in legal proceedings, see "Attachment." Rules of stock exchauge held in the nature $ 3; “Criminal Law," § 4; “Replevin," $ 3. of "private instructions" by a broker to his agent, so as not to bind client contracting with $ 1. Nature and extent of liability of agent in ignorance thereof.-Newman v. Lee

surety. (Sup.) 106.

Where the only interest protected by a bond

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 to opinvalidate contract.-Newman v. Lee (Sup.) 106. erate as a payment entitling him to indemnity A partnership, by accepting the proceeds of a judgment.-Westcott v. Fidelity & Deposit Co.

on the bond only in the amount of the deficiency note executed by one as its agent, ratified the

(Sup.) 731. making of the note.-Rosenthal v. Hasberg (Sup.) 290.

Where a bond is conditioned for the erection

of A power of attorney, executed by, a partner of the penalty interest cannot be allowed, as

a building, on a judgment for the full amount 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. Westcott v. Fidelity & Deposit Co. (Sup.) 131. Hasberg (Sup.) 290. Where a subagent of a lessor received from

§ 2. Rights and remedies of surety. a tenant à deposit on the rent, that the lessor held not liable to the surety for costs which it

Undisclosed principal of the obligor in a bond subsequently accepted the tenant was not a incurred on appeal from a judgment in a suit ratification of the subagent's act in receiviug on the bond.-City Trust, Safe Deposit & Sure the deposit.--McGowan v. Treacy (Sup.) 497.

ty Co. v. American Brewing Co. (Sup.) 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 . 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-pa yee, 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 wilí, see "Wills," $ 3. drafts received for purchase price and made payable to both.-Allen v. Corn Exch. Bank

PROCESS. (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"; "Replerin.”

$ 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

made out of the state, will be set aside, not PUBLIC IMPROVEMENTS. being founded on papers showing that plaintiff is a resident of the state.--Haight v. Le Foncier | By municipalities, see "Municipal CorporaDe France et Des Colonies (Sup.) 135.

tions," $ 2. § 2. Defects, objections, and amendment.'

PUBLIC LANDS. An objection to the form or sufficiency of al suminons cannot be taken by answer. -Nellis $ 1. Colonial and proprietary grants. r. Rowles (Sup.) 753.

Colonial grant to the town of Southold held

not to convey title to the lands under water in $ 3. Abuse of process.

Peconic and Gardiner's Bays.-Town of SouthComplaint construed, and held to state a suffi- old v. Parks (Sup.) 1078. cient cause of action for abuse of process.-Foy v. Barry (Sup.) 335.

PUBLIC SCHOOLS. In an action for abuse of process, a complaint merely alleging that it was issued on an See "Schools and School Districts," § 1. affidavit of one of the defendants, but failing to connect him with wrongful use of such process, held insufficient.--Foy v. Barry (Sup.) 335.

PUBLIC USE. A complaint in an action for abuse of process Taking property for public use, see "Eminent held not required to state that the warrant was Domain." willfully taken out for an improper purpose, or was willfully used therefor.-Foy v. Barry

PUNISHMENT. (Sup.) 335.

For violation of injunction, see “Injunction," PROHIBITION.

$ 5. Of traffic in intoxicating liquors, see "Intoxi- |

PUPILS. cating Liquors."

See "Schools and School Districts," $ 1. f 1. Jurisdiction, proceedings, and re

lief. Alternative writ of prohibition denied to re

QUALIFICATION. strain a proceeding pending, on the ground that the information designates no crime, where the

Of personal representatives, see "Executors

and Administrators," $ 2.
writ was sought by one not a party to the pro-
ceedings.-People v. Mayer (Sup.) 71.

PROMISSORY NOTES. See "Work and Labor."
See "Bills and Notes."

Attachment, see "Attachment,” $ 2.

Indictment or information, see “Indictment and Of death, see "Death," $ 1.

Information," $ 1.
Taking additional proofs on appeal, see "Ap-
peal," $ 8.


In civil actions, see "Trial," $ 6.
Capacity of alien to hold, see "Aliens," 1.
Taking for public use, see "Eminent Domain."


See "Landlord and Tenant," $ 4.
Of bill or note, see "Bills and Notes," $ 5.


| For penalty for violation of game laws. so PROXIMATE CAUSE. Direct or remote consequences of injury, see

RAILROADS. "Damages," $ 1.

See "Street Railroads."
Of personal injuries, see "Master and Serv-
ant," $ 5.

As employers, see "Master and Servant."
Carriage of goods and passengers, see "Car-


Restraining construction over street, see "In

junction," $ 1. Service of process, see “Process," $ 1. | Taxation of, see "Taxation," 1.


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and 118 New York State Reporter $ 1. Construction, maintenance, and Evidence in an action for injury to wagon in equipment.

collision with train held to warrant submitting A village cannot be estopped, by action of its question of driver's contributory negligence to trustees in approving a change of route of rail- the jury.-Reis v. Long Island R. Co. (Sup.) road, from objecting to the construction of the 881. road at grade, without authority of railroad Where a wagon is so injured in a collision commissioners, as required by section 60 of rail

with a railroad train as to be rendered useless, road law (Laws 1890, p. 1083, c. 565, as amend

its total value can be recovered.-Reis 7. Long ed by Laws 1897, p. 794, c. 754). --Village of

Island R. Co. (Sup.) 881. Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) 678.

Boy gathering coal in railroad yard held a Under section 60 of the railroad law (Laws trespasser, and not entitled to recover for in1890, p. 1082, c. 565, as amended by Laws 1897,

juries received, unless they are wanton and willp. 794, c. 754), a railroad crossing at grade

ful.-Riordan v. New York Cent. & H. R. R. cannot be consented to or ordered by trustees

ered by trustees Co. (Sup.) 1046. of a village or the court.-Village of Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) 678.

RAPE. Section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, 1 8 1. Prosecution and punishment. c. 754) necessitates a determination by railroad

ion bvrdilrondOn a prosecution for statutory rape, evidence commissioners that a crossing above or below

that prosecutrix had given birth to a child subgrade is impracticable before a road, though

sequent to the intercourse charged did not show already coustructed, can change its route, so

defendant's guilt.-People v. Robertson (Sup.) as to cross a village street at grade.-Village

401. of Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) On a prosecution for statutory rape, evidence

of acts of intercourse subsequent to the indict§ 2. Receivers.

ment was inadmissible.-People v. Robertson A receiver of a railway corporation held not

(Sup.) 401. authorized to issue certificates of indebtedness

An indictment for statutory rape held to for the purpose of paying past-due interest on sufficiently state the offense. -People v. Robthe first-mortgage bonds.-Townsend y. Oneon ertson (Sup.) 401. ta, C. & R. S. Ry, Co. (Sup.) 427.

On prosecution for statutory rape, certain § 3. Operation.

declarations of defendant held not corroborative Evidence in an action for damages from a l of prosecutrix.-People v. Robertson (Sup.) 401. fire set by an engine held insufficient to show negligence.-Polacsek v. Manhattan Ry. Co.


In an action for personal injuries by a licensee Of act of agent, see “Principal and Agent." $ 3. against a railroad, evidence held to support a Of assignment, see “Assignments," $ 1. verdict for plaintiff on theory of active negli- Of contract of broker, see “Brokers," 2. gence.-Meneo v. Central R. Co. of New Jersey Of contract of infant, see "Infants," š 1. (Sup.) 448. A licensee on the tracks of a railroad may

REAL ACTIONS. recover for a personal injury caused by an act

See "Ejectment." of commission or active negligence on the part of the railroad's servants.-Meneo v. Central R. Co. of New Jersey (Sup.) 448.

REAL-ESTATE AGENTS. In action against railroad for injuries sus- See "Brokers.” tained at a crossing, evidence held to warrant a finding that defendant was negligent.-McAu

REBATES. liffe v. New York Cent. & H. Ř. R. Co. (Sup.) 607

From insurance premiums, see "Insurance," In action against railroad for injuries at a § 2. crossing, evidence held to show that plaintiff On surrender of liquor tax certificate, see "Inwas guilty of contributory negligence.-McAu toxicating Liquors," $ 2. liffe v. New York Cent. & H. R. R. Co. (Sup.) 607.

RECEIPTS. Where a railroad company maintains a flagman at a street crossing, his duty held limited Baggage receipts, see "Carriers," 8 2. to warning persons crossing the tracks on that particular street.--Strickland v. New York Cent. & H. R. R. Co. (Sup.) 655.

RECEIVERS. In an action against a railroad for injuries Of corporations in general, see "Corporations," caused by the negligence of a flagman at a $ 5. street crossing, evidence held insufficient to of railroad companies, see “Railroads," $ 2. show that plaintiff was injured while upon the Right to appeal in proceedings for discharge, street at the crossing of which the flagman was see "Appeal," $ 2. stationed.-Strickland v. New York Cent. & Temporary receiver of corporation, see "CorH. R. R. Co. (Sup.) 655.

I porations," $ 4.

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