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"Executors and Administrators," § 9. Condemnation proceedings, see "Eminent Domain," § 2.

A complaint held not subject to amendment, | Accounting by executor or administrator, see under Code Civ. Proc. § 546, to show the portion of a mine from which a rock fell; any remedy being by a bill of particulars, under section 158.-Dumar v. Witherbee, Sherman & Co. (Sup.) 669.

Where a judgment is set aside because plaintiff failed to make out a case, a judgment dismissing the complaint should not record that the dismissal was "on the merits."-Hackett v. Masterson (Sup.) 751.

§ 6. Defects and objections, waiver, and aider by verdict or judgment. Defendant held entitled, without demurrer, to take advantage of the failure of the complaint to state that 30 days elapsed after filing of verified claim before commencement of action. -Thrall v. Village of Cuba (Sup.) 661.

POLICE.

Particular proceedings in actions.

See "Abatement and Revival"; "Appearance"; "Continuance"; "Costs"; "Depositions" "Dismissal and Nonsuit"; "Evidence"; "Execution"; "Judgment"; "Judicial Sales" "Jury"; "Limitation of Actions"; "Motions" "Parties"; "Pleading"; "Process; "Reference"; "Stipulations"; "Trial"; "Venue." Particular remedies in or incident to actions. See "Arrest," § 1; "Attachment"; "Discovery"; "Injunction"; "Receivers."

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;

lice officer directing operation of street car, see "Street Railroads," § 1.

See "Municipal Corporations," § 1.

POLICE DEPARTMENT.

POLICE POWER.

"New Trial."

PREJUDICE.

Ground for reversal in civil actions, see "Appeal," § 12.

PRELIMINARY EXAMINATION.

Of municipality, see "Municipal Corporations," On criminal charge, see "Criminal Law," § 1. § 3.

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and 118 New York State Reporter

§ 3. Rights and liabilities as to third | Liabilities of sureties on bonds or undertak

persons.

Rules of stock exchange held in the nature of "private instructions" by a broker to his agent, so as not to bind client contracting with 8 agent in ignorance thereof.-Newman v. Lee (Sup.) 106.

Broker held precluded from contending that client, contracting with broker's agent, did so conformably to stock exchange rules, constituting custom of the business, whose effect was to invalidate contract.-Newman v. Lee (Sup.) 106. A partnership, by accepting the proceeds of a note executed by one as its agent, ratified the

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

A power of attorney, executed by a partnership to an agent, held to authorize him to make notes in the name of the firm.-Rosenthal v. Hasberg (Sup.) 290.

Where a subagent of a lessor received from a tenant a deposit on the rent, that the lessor subsequently accepted the tenant was not a ratification of the subagent's act in receiving the deposit.-McGowan v. Treacy (Sup.) 497.

Where a subagent of a lessor was authorized to procure prospective tenants, held, there was no implied power to collect rent for the landlord's account.-McGowan v. Treacy (Sup.)

497.

A judgment creditor held to have ratified the settlement of the claim made by his collecting agency with the debtor.-Cobb v. Edson (Sup.) 916.

An agent's authority to lease premises and collect rents does not imply authority to accept surrender of a lease.-Barkley v. Holt (Sup.) 957.

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 submission to the jury of the question of plaintiff's ratification of his co-payee's indorsement and personal realization of the proceeds.-Allen v. Corn Exch. Bank (Sup.) 1001.

ings in legal proceedings, see "Attachment," § 3; "Criminal Law," § 4; "Replevin," § 3. 1. Nature and extent of liability of

surety.

Where the only interest protected by a bond for the erection of a building was that of a mortgagee holding a purchase-money mortgage and building-loan mortgage, and the mortgagee purchased the premises at a foreclosure sale of the junior mortgage, such purchase held to operate as a payment entitling him to indemnity on the bond only in the amount of the deficiency judgment.-Westcott v. Fidelity & Deposit Co. (Sup.) 731.

Where a bond is conditioned for the erection

of a building, on a judgment for the full amount of the penalty interest cannot be allowed, as Westcott v. Fidelity & Deposit Co. (Sup.) 731. the judgment cannot exceed the penalty.

§ 2.

Rights and remedies of surety. held not liable to the surety for costs which it Undisclosed principal of the obligor in a bond incurred on appeal from a judgment in a suit on the bond.-City Trust, Safe Deposit & Surety Co. v. American Brewing Co. (Sup.) 771.

PRIORITIES.

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

PRIVATE NUISANCE.

See "Nuisance," § 1.

PRIVATE ROADS.

Rights of way, see "Easements."

PRIVILEGED COMMUNICATIONS. Disclosure by witness, see "Witnesses," § 2

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 bank cashing purchase-money drafts payable to both on indorsement of co-vendor, to question such indorsements.-Allen v. Corn Exch. Bank (Sup.) 1001.

Vendor of realty held to have ratified co-vendor's indorsement of purchase-money drafts payable to both.-Allen v. Corn Exch. Bank (Sup.) 1001.

PRINCIPAL AND SURETY.

See "Bail."

PROCESS.

Effect of appearance, see "Appearance."
Service on new parties, see "Parties," § 1.
In actions against particular classes of parties.
Foreign corporation, see Corporations," § 6.

In particular actions or proceedings.
On appeal, see "Appeal," § 4.

Particular forms of writs or other process. See "Arrest": "Execution"; "Injunction"; "Mandamus"; "Prohibition"; "Replevin."

1. Service.

Under Code Civ. Proc. §§ 439, 1780, an order

Judgment on pleading in action against sure- for publication of summous, 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 being founded on papers showing that plaintiff

PUBLIC IMPROVEMENTS.

is a resident of the state. Haight v. Le Foncier By municipalities, see "Municipal CorporaDe France et Des Colonies (Sup.) 135.

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An objection to the form or sufficiency of a summons cannot be taken by answer.-Nellis v. Rowles (Sup.) 753.

§ 3. Abuse of process.

Complaint construed, and held to state a sufficient cause of action for abuse of process.Foy v. Barry (Sup.) 335.

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

A complaint in an action for abuse of process held not required to state that the warrant was willfully taken out for an improper purpose, or was wilfully used therefor.-Foy v. Barry (Sup.) 335.

PROHIBITION.

Of traffic in intoxicating liquors, see "Intoxicating Liquors."

§ 1. Jurisdiction, proceedings, and relief.

Alternative writ of prohibition denied to restrain a proceeding pending, on the ground that the information designates no crime, where the writ was sought by one not a party to the proceedings.-People v. Mayer (Sup.) 71.

PROMISSORY NOTES.

See "Bills and Notes."

PROOF.

Of death, see "Death," § 1.

Taking additional proofs on appeal, see "Appeal," § 8.

PROPERTY.

Capacity of alien to hold, see "Aliens," § 1. Taking for public use, see "Eminent Domain."

PROTEST.

Of bill or note, see "Bills and Notes," § 5.

PROXIMATE CAUSE.

Direct or remote consequences of injury, see "Damages," § 1.

Of personal injuries, see "Master and Servant," § 5.

PUBLICATION.

Service of process, see "Process," § 1.

tions," § 2.

PUBLIC LANDS.

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§ 1. Construction,

equipment.

and 118 New York State Reporter maintenance, and

A village cannot be estopped, by action of its trustees in approving a change of route of railroad, from objecting to the construction of the road at grade, without authority of railroad commissioners, as required by section 60 of railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754).-Village of Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) 678. Under section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754), a railroad crossing at grade cannot be consented to or ordered by trustees of a village or the court.-Village of Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) 678.

Section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754) necessitates a determination by railroad commissioners that a crossing above or below grade is impracticable before a road, though already constructed, can change its route, so as to cross a village street at grade.-Village of Bolivar v. Pittsburg, S. & N. R. Co. (Sup.) 678.

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Evidence in an action for injury to wagon in collision with train held to warrant submitting question of driver's contributory negligence to the jury.-Reis v. Long Island R. Co. (Sup.) 881.

Where a wagon is so injured in a collision with a railroad train as to be rendered useless, its total value can be recovered.-Reis v. Long Island R. Co. (Sup.) 881.

Boy gathering coal in railroad yard held a trespasser, and not entitled to recover for injuries received, unless they are wanton and willful.-Riordan v. New York Cent. & H. R. R. Co. (Sup.) 1046.

RAPE.

§ 1. Prosecution and punishment.

On a prosecution for statutory rape, evidence that prosecutrix had given birth to a child subsequent to the intercourse charged did not show defendant's guilt.-People v. Robertson (Sup.) 401.

On a prosecution for statutory rape, evidence of acts of intercourse subsequent to the indictment was inadmissible.-People v. Robertson (Sup.) 401.

An indictment for statutory rape held to sufficiently state the offense.-People v. Robertson (Sup.) 401.

On prosecution for statutory rape, certain declarations of defendant held not corroborative of prosecutrix.-People v. Robertson (Sup.) 401.

RATIFICATION.

Of act of agent, see "Principal and Agent," § 3.
Of assignment, see "Assignments," § 1.
Of contract of broker, see "Brokers," § 2.
Of contract of infant, see "Infants," § 1.

REAL ACTIONS.

A licensee on the tracks of a railroad may 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.-McAuliffe v. New York Cent. & H. R. R. Co. (Sup.) 607

In action against railroad for injuries at a crossing, evidence held to show that plaintiff was guilty of contributory negligence.-McAuliffe v. New York Cent. & H. R. R. Co. (Sup.) 607.

REBATES.

From insurance premiums, see "Insurance," § 2.

On surrender of liquor tax certificate, see "Intoxicating Liquors," § 2.

RECEIPTS.

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

In an action against a railroad for injuries caused by the negligence of a flagman at a street crossing, evidence held insufficient to show that plaintiff was injured while upon the street at the crossing of which the flagman was stationed.-Strickland v. New York Cent. & H. R. R. Co. (Sup.) 655.

RECEIVERS.

Of corporations in general, see "Corporations," § 5.

Of railroad companies, see "Railroads," § 2. Right to appeal in proceedings for discharge, see "Appeal," § 2.

Temporary receiver of corporation, see "Corporations," § 4.

§ 1. Appointment, qualification, and tenure.

Removal of receiver on objection of majority bondholder, where receiver was contesting his right to the bonds, denied.-Townsend v. Oneonta, C. & R. S. Ry. Co. (Sup.) 119.

RECORDS.

Of judicial proceedings.

Transcript on appeal, see "Appeal," § 5; "Criminal Law," § 4.

Of particular instruments. Assignment of mortgage, see "Mortgages," § 1. Foreign wills, see "Wills," § 3.

REDIRECT EXAMINATION.

Of witnesses, ree "Witnesses," § 3.

REFERENCE.

Appealability of order for reference, see "Appeal," § 1.

To determine compensation of attorney on substitution of other counsel, see "Attorney and Client," § 2.

To take testimony as to violation of injunction, see "Injunction," § 5.

1. Nature, grounds, and order of ref

erence.

The subject of an alleged gift causa mortis is an apparent asset in the administrator's hands, and, though there is no other property, a reference may be had, under Code Civ. Proc. § 2718.-Dickinson v. Hoes (Sup.) 152.

Facts held to justify a compulsory reference of an action to recover attorney's fees under Code Civ. Proc. § 1013, on the ground that it involved the examination of a long account.Lewis v. Snook (Sup.) 634.

2. Referees and proceedings.

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§ 2.

RELEVANCY.

In an action for referee's services, evidence Of evidence in civil actions, see "Evidence," as to what questions were involved held admissible on the issue of the time necessary to determine them.-Goldzier v. Rosebault (Sup.) 240.

Under Code Civ. Proc. § 3296, a referee held not entitled to charge for time unnecessarily spent in the business of the reference.-Goldzier v. Rosebault (Sup.) 240.

Under Code Civ. Proc. § 3296, a referee held entitled to charge for each day, without re

gard to the amount of time consumed in the reference.-Goldzier v. Rosebault (Sup.) 240. Where referee's services are not paid by the parties to a suit, he can sue therefor.-Goldzier V. Rosebault (Sup.) 240.

3. Report and findings.

A referee's report, containing no findings concerning a counterclaim in issue, held insufficient to sustain a judgment.-La Grange v. Merritt (Sup.) 1092.

REMAND.

Of cause on appeal, see "Appeal," § 15.

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