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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.

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

QUASHING.
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.

QUESTIONS FOR JURY.
PROPERTY.

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

QUIET ENJOYMENT.

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

QUI TAM ACTIONS.

| 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-

riers."
PUBLICATION.

Restraining construction over street, see "In

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

PROOF.

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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.

RATIFICATION. (Sup.) 140.

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.

§ 1. Appointment, qualification, and 1 REFORMATION OF INSTRUMENTS

tenure. Removal of receiver on objection of majority Reformation of insurance policy, see "Insurbondholder, where receiver was contesting his

L ance," $ 1. right to the bonds, denied.-Townsend y. Oneonta, O. & R. S. Ry. Co. (Sup.) 119.

$ 1. Proceedings and relief.

Omission by mutual mistake to insert in deed

reservation of right of way, justifying reformaRECORDS.

tion, held not shown by the evidence. -Drachler

v. Foote (Sup.) 977.
Of judicial proceedings.
Transcript on appeal, see “Appeal," $ 5; "Crim-
inal Law," $ 4.

REFRESHING MEMORY.
Of particular instruments.

Of witness, see "Witnesses," $ 3.
Assignment of mortgage, see "Mortgages," $ 1.
Foreign wills, see "Wills," $ 3.

REGISTRATION.
REDIRECT EXAMINATION.

of voters, see "Elections,” $ 2. Of witnesses, zee "Witnesses," $ 3.

REHEARING.

See "New Trial.”
REFERENCE.

REINSTATEMENT.
Appealability of order for reference, see "Ap-
peal," $ 1.

Of mortgage, see "Mortgages," $ 2.
To determine compensation of attorney on sub-
stitution of other counsel, see "Attorney and
Client,” $ 2.

· RELEASE.
To take testimony as to violation of injunction,
see "Injunction," 8 5.

See “Accord and Satisfaction"; "Compositions

with Creditors"; "Compromise and Settle$ . Nature, grounds, and order of ref- ment"; "Payment." erence.

Of liability on bond on appeal in criminal prosThe subject of an alleged gift causa mortis ecution, see "Criminal Law," $ 4. is an apparent asset in the administrator's Of partnership liabilities, see "Partnership,” & hands, and, though there is no other property, a 5. reference may be had, under Code Civ. Proc.

OC.

, D

1. Pleading, evidence, trial, and re$ 2718.-Dickinson v. Hoes (Sup.) 152.

i .

view. Facts held to justify a compulsory reference In an action on an assigned claim, a finding of an action to recover attorney's fees under that a general release thereof was invalid held Code Civ. Proc. $ 1013, on the ground that it proper.-Muschel y. Austern (Sup.) 956. involved the examination of a long account.-Lewis v. Snook (Sup.) 634.

RELEVANCY. $ 2. Referees and proceedings.

In an action for referee's services, evidence of evidence in civil actions, see "Evidence,” as to what questions were involved held ad- $ 2. missible on the issue of the time necessary to determine them.-Goldzier v. Rosebault (Sup.)

REMAND. 240.

Of cause on appeal, see "Appeal,” s 15. Under Code Civ. Proc. $ 3296, a referee held not entitled to charge for time unnecessarily spent in the business of the reference.-Gold

REMOVAL. zier v. Rosebault (Sup.) 240. Under Code Civ. Proc. $ 3296, a referee held

Of firemen, see "Municipal Corporations," $ 1. entitled to charge for each day, without re

Of personal representatives, see "Executors and gard to the amount of time consumed in the

Administrators," $ 2. reference.-Goldzier v. Rosebault (Sup.) 240.

e Of policeman, see "Municipal Corporations," : Where referee's services are not paid by the Of receiver, see "Receivers," & 1. parties to a suit, he can sue therefor.-Goldzier v. Rosebault (Sup.) 240.

REMOVAL OF CAUSES. § 3. Report and findings.

a referee's report, containing no findings con- Change of venue or place of trial, see "Venue," cerning a counterclaim in issue, held insufficient $1. to sustain a judgment.--La Grange v. Merritt Transfer of causes in municipal courts, see (Sup.) 1092.

“Courts," $ 2.

and 118 New York State Reporter RENEWAL.

may be maintained on the bond, notwithstand

ing Municipal Court Act, Laws 1902, p. 1531, Of lease, see "Landlord and Tenant," $ 3.

c. 580, $ 126.-Verra v. Costantino (Mun. Ot.) RENT.

REPORT. See "Landlord and Tenant," $ 5.

Of commissioners in condemnation proceedings, Authority of agent to collect, see "Principal see "Eminent Domain," $ 2. and Agent." $ 3.

On reference, see "Reference," $ 3.

223.

REOPENING CASE.

RESCISSION.
For further evidence, see “Trial,” $ 4. Of insurance policy, see "Insurance,” $ 3.
REPAIRS.

RES GESTÆ.
Of premises demised, see "Landlord and Ten- In civil actions, see "Evidence," $ 2.
ant," $ 4.
REPLEVIN.

RES JUDICATA.

See “Judgment," $ 5. Refreshing memory of witness, see "Witnesses,"

§ 3. To recover goods sold, see “Sales," 88 4, 6.

RESTAURANTS. $ 1. Pleading and evidence.

See “Innkeepers." A prima facie case of regularity of possession of goods by a marshal is made by admission that he holds them under an execution issued

RETAINER. on a judgment rendered.-Gruber v. Janns (Sup.) 882.

" Of attorney, see "Attorney and Client," $ 2. 8 2. Trial, judgment, enforcement of judgment, and review.

REVENUE. In replevin for “hoys' coats,” though it ap- See "Taxation." pears on the trial that the articles are merely pieces of cloth cut in the shape of coats, but

REVIEW. not made up, held, that the judgment for possession of "the property mentioned in the afli- I See “Appeal”: “Criminal Law.” & 4: davit and complaint" is so substantially correct

Jus

tices of the Peace," $ 2. as to require the marshal to take the cut goods tendered to him.-Monness v. Livingston (Sup.) 124.

REVOCATION. In replevin for a typewriter, held insufficient loe letters of administration, see “Executors and for plaintiff to show that its books recorded its

| Administrators," $ 2. receipt of the machine, but did not show that it of lim had ever sold, leased, or parted with possession

Of liquor tax certificate, see "Intoxicating Liqthereof.-Wagner Typewriter Co. v. Robinson lo

l uors," $ 2.

"Of order for goods, see “Sales," $$ 1, 2. (Sup.) 281,

In replevin, evidence of value held insufficient to authorize a judgment in the alternative.-

RIGHT OF WAY, Wagner Typewriter Co. v. Robinson (Sup.) 281.

See “Easements." § 3. Liabilities on bonds and undertakings.

RISKS. An action of replevin held discontinued, within an undertaking for the return of the prop- Assumed by employé, see “Master and Serv. erty, rendering the surety liable on failure to ant," $ 4. return.-Rogers v. United States Fidelity & Within insurance policy, see "Insurance," $ 7. Guarantee Co. (Sup.) 203. Municipal Court Act, Laws 1902, p. 1531,

ROADS. c. '580, &* 126, and Code Civ. Proc. & 1733, held not to aid a surety in an action on an undertak-See "Highways." ing for a return of property in replevin; no Streets in cities, see "Municipal Corporations, judgment having been rendered in the replevin

$$ 4, 5. suit.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203.

Where, in replevin, the property is seized, but plaintiff suffers the action to abate, suit | Orders, see "Motions."

RULES OF COURT.

Of CO

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SALES.

If 3. Performance of contract.

The fact that a buyer accepts that portion of See “Vendor and Purchaser."

the goods sold which conforms to the contract

does not preclude him from claiming damages Collateral agreements on sale of goods as affect for the failure of the rest of the goods to con

ed by statute of frauds, see “Frauds, Statute form thereto.-Gilbert v. Alton (Sup.) 682. of," "$ 1. Fraud as to creditors, see "Fraudulent Convey- 1 8 4. Operation and effect. ances," $ 1.

Buyer of goods held to have obtained a per

t title, preventing seller from maintaining Of decedent's estate by personal representa- / replevin.-Leavitt v. Rosenthal (Sup.) 530.

tive. see "Executors and Administrators," $ 3.18 5. Warranties. Of intoxicating liquors, see "Intoxicating Liq

Where the purchaser of a warranted machine uors."

retained it after discovery of defects, and made Of property of decedent under order of court,

payments on the price because the seller promsee "Executors and Administrators," $ 7. ised to make good the defects, which promise On order or judgment of court, see "Judicial was not fulfilled, there was no waiver of the Sales."

breach of warranty.-Huck v. Bischoff (Sup.) Tax sales, see "Taxation,” $8 1-3.

173. $ 1. Requisites and validity of con

A warranty that a casting to be made for a

certain purpose shall be free from defect held tract.

to survive acceptance and payment a reasonable A statement in an order for the purchase of

1 time. for discovery by use of a latent defect. books that the purchaser understood “that this

| White Mfg. Co. v. De La Vergne Refrigerating order is not to be countermanded" is without

Mach, Co. (Sup.) 192. consideration.-Cary v. Appo (Sup.) 569.

Statement, in a written offer for the sale of Statement as to payment to agent in order roses, that they were "very fine stock," held not for purchase of books held, under circumstan- to constitute an express warranty of' quality. ces, not to constitute an acceptance of the or-Stumpp & Walker Co. v. Lynber (Sup.) 912. der by the publisher.-Cary v. Appo (Sup.) 569.

& 6. Remedies of seller. Fact that a publisher incurs a liability to a In an action for the price of a monument, a book agent on every order taken does not ren- finding that plaintiff was not bound to furnish der the maker of the order liable, in the ab- a monument similar to another one in the cemsence of notice to him of that fact.-Cary v. etery held proper.--Braun v. Hothan (Sup.) 8. Appo (Sup.) 569.

Evidence in a suit for the price of goods Fact that a salesman affixed his name to an held insufficient to sustain a finding as to marorder for purchase of books, and marked a re-ket value.--Ampel v. Seifert (Sup.) 122. duction of price thereoni, does not show accept- Evidence held insufficient to show that cerance by publisher, where authority of salemantain transaction was an absolute sale.-Ampel was not shown.-Cary v. Appo (Sup.) 569. v. Seifert (Sup.) 122.

Contract for purchase of books held a mere The burden is on a seller, suing for the price order, unilateral, without consideration, and of goods under an alleged absolute sale, to unenforceable after revocation.-Cary v. Appo substantiate his version of the transaction, (Sup.) 569.

Ampel v. Seifert (Sup.) 122, Evidence in buyer's action for failure of A seller of whisky held not entitled to recover goods to conform to contract held to warrant the difference between the cost of manufacture tinding of buyer's offer to return goods.-Gil and the contract price of whisky sold, in the bert v. Alton (Sup.) 682.

absence of proof that the goods had no market

value.-Belle of Bourbon Co. v. Leffler (Sup.) Sellers of goods had a right to rely upon state 385. ment of buyer in giving credit on future sales. In action for breach of a contract to purchase -Goldsmith v. Stern (Sup.) 869.

certain whisky, the measure of damages held § 2. Construction of contract.

the difference between the market value and

the contract price.-Belle of Bourbon Co. v. · A written order for goods, stipulating that

Leffler (Sup.) 385. it was not to be revoked, held not binding, where notice of revocation was given before ac

In replevin to recover goods on the ground ceptance.-Hallwood Cash Register Co. v. Fin

of fraudulent representations by the buyer in negan (Sup.) 154.

obtaining credit, evidence held to show that

such representations were not relied on. Acceptance of an order held to give the pur | Leavitt v. Rosenthal (Sup.) 530. chaser the right of election to order a certain In replevin, property taken under writ held amount.-A. B. Farquhar Co. v. New River | not sufficiently identified. Leavitt v. RosenMineral Co. (Sup.) 802.

thal (Sup.) 530. The time stipulated in a contraet for exercis- The measure of damages for breach of coning option to order iron held extended, by the tract to purchase stock at a certain time and correspondence, the length of time the seller price is the agreed price, the seller electing to was unable to make deliveries.--A. B. Farquharsue for the price and hold the stock for the Co. v. New River Mineral Co. (Sup.) 802. I purchaser.--Cowan v. De Hart (Sup.) 576.

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