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f 1. Appointmentqualification, and | REFORMATION OF INSTRUMENTS.

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

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

8 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.
Or witnesses, cee "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$ 1. Nature, grounds, and order of ref ment”; “Payment."

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

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 v. Austern (Sup.) 956. involved the examination of a long account.Lewis v. Snook (Sup.) 34.

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," $ 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 of policeman, see "Municipal Corporations,” $

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

1. Where referee's services are not paid by the Of receiver, see "Receivers," s 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.

erence.

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)

223. 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.
REOPENING CASE.

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

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REPAIRS.

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

RES JUDICATA.
REPLEVIN.

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 adinission that he holds them under an execution issued

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

Of attorney, see "Attorney and Client," $ 2 $ 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 atti: See “Appeal”; “Criminal Law," $ 4; "Jusdavit and complaint” is so substantially correct

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 Of letters of administration, see "Executors and for plaintiff to show that its books recorded its receipt of the machine, but did not show that it Of liquor tax certificate, see “Intoxicating Liq

Administrators," $ 2. had ever sold, leased, or parted with possession thereof.-Wagner Typewriter Co. v. Robinson of order for goods, see “Sales," ${ 1, 2.

uors," $ 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 Serverty, 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. $ 1133, 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

88 4, 5. suit.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203.

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

uors.

SALES.

$ 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- $ 4. Operation and effect. ances," $ 1.

Buyer of goods held to have obtained a perOf corporate stock, see "Corporations," § 1. fect title, preventing seller from maintaining Of decedent's estate by personal representa- / replevin.-Leavitt v. Rosenthal (Sup.) 530.

tive, see "Executors and Administrators," $ 3.8 5. Warranties. Of intoxicating liquors, see "Intoxicating Liq

Where the purchaser of a warranted machine

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,". ?. 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,” 88 1-3.

173. $ 1. Requisites and validity of

A warranty that a casting be made for a

contract.

certain purpose shall be free from defect held

to survive acceptance and payment a reasonable A statement in an order for the purchase of 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 a fixed 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 thereon, does not show accept Evidence held insufficient to show that cerance by publisher, where authority of saleman tain 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 salé, 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 finding of buyer's offer to returu 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

the difference between the market value and § 2. Construction of contract.

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

obtaining credit, evidence held to show that began (Sup.) 154.

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 amount.-A. B. Farquhar Co. v. New River not sufficiently identified.--Leavitt v. Rosen

In replevin, property taken under writ held Mineral Co. (Sup.) 802.

thal (Sup.) 530. The time stipulated in a contract 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. Farquhar sue for the price and hold the stock for the Co. v. New River Mineral Co. (Sup.) 802. purchaser.-Cowau v. De Hart (Sup.) 576.

and 118 New York State Reporter The complaint in an action for breach of to pass a by-law makiug deduction from tearb contract to purchase stock being consistent with er's salary for absence without leave; such de the seller's election to sue for the price and duction to be paid into the teacher's retire hold the stock for the purchaser, no tender is ment fund.-Murphy v. Board of Education necessary.-Cowan v. De Hart (Sup.) 576. of City of New York (Sup.) 380.

The mere denomination by plaintiff, in his Laws 1893, p. 1556, c. 661, $ 200, relative to testimony in an action for breach of a written vaccination of school children, held not repogcolitract to purchase, of the transaction leading nant to Const. art. 9, § 1, relative to free comto the agreement as a "loan,held not to con mon schools.–Viemeister v. White (Sup.) 712. stitute a variance.-Cowan v. De Hart (Sup.)

Laws 1893, p. 1556, c. 661, $ 200, relative to 576.

vaccination of school children, hell within police In an action for goods sold and delivered, the power of state.- Viemeister v. White (Sup.) 712. trial judge held not debarred by agreement of counsel from directing judgment for plaintiff. 378, & 1081, relative to eligible list of teachers

New York City Charter, Laws 1897. p. 368, c. --Butler Bros. v. Hirzel (Sup.) 693.

and those entitled to hare their names placed In an action for goods sold and delivered, fails thereon, construed, and held not to entitle relaure to prove a delivery held not a failure of

tor to such right.-People v. Maxwell (Sup.) proof under the pleadings.-Butler Bros. v. Hir- ! 947. zel (Sup.) 693. Variance between the pleadings and proof in

SECONDARY EVIDENCE. an action for goods sold and delivered held not material, in the absence of any showing that | In civil actions, see “Evidence," $ 3. the defendant was prejudiced.--Butler Bros. v. Hirzel (Sup.) 693.

SELF-SERVING DECLARATIONS. Where plaintiff sues on a claim for goods sold ; and delivered, he is not entitled to a recovery As evidence, see “Evidence," $ 5. on evidence tending to show a cause of action on an account stated.-Consolidated Car Heat

SEPARATION. ing Co. v. Kahn (Sup.) 919.

See "Husband and Wife," § 5. 7. Remedies of buyer. Evidence of history of a casting manufactured with warranty against defects held not neces

SERVICE. sary as foundation for testimony that it was of order for examination of witness before a shrinkage crack, coming through manufacture in an unworkmanlike manner.-White Mfg. Of process, see “Process," $ 1.

trial, see "Discovery," $ 1. Co. v. De La Vergne Refrigerating Mach. Co. (Sup.) 192.

SERVICES. In an action for the breach of a contract for the delivery of iron beams, evidence held to See “Work and Labor." fail to show that defendant did not deliver all the iron called for by the contract.—Masor v.

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SERVITUDES.
Jacobus (Sup.) 589.

See “Easements."
SATISFACTION.

SET-OFF AND COUNTERCLAIM. See “Accord and Satisfaction"; "Compromise

and Settlement"'; “Payment"; "Release.Harmless error in dismissing counterclaim, see Of mortgage, see "Mortgages," $ 2.

"Appeal," 8 12.

In actiou for rent, see “Landlord and Tenant," SAVINGS BANKS.

§ 5.

$ 1. Subject-matter. See "Banks and Banking," $ 2.

A bailee of goods bas a right to maintain a

counterclaim for conversion thereof.-LangfelSCHOOLS AND SCHOOL DISTRICTS. der v. Renouf (Sup.) 236. Department of education of city, see “Municipal

SETTLEMENT. Corporations," $ 1. Laws relating to vaccination of school children See “Accord and Satisfaction"; "Compromise as denial of equal protection of law, see “Con

and Settlement"; "Payment"; "Release." stitutional Law," § 5.

By executor or administrator, see "Executors Laws relating to vaccination of school children and Administrators," $ 9.

as deprivation of privileges or immunities of citizens, see “Constitutional Law," 4.

SHERIFFS AND CONSTABLES. $1. Public schools.

Under Greater New York Charter, Laws $ 1. Compensation. 1897, pp. 381, 394, 398, c. 378, 88 1070, 1090, Under Law's 1890, p. 940, c. 523, § 17, as 1100, a borough school board 'held authorized amended by Laws 1892, p. 868, c. 418. relatire

19

to poundage, sheriff held entitled to recover from 1 8 2. Proceedings and relief. defendant poundage on value of property at In a suit for specific performance, the court tached, where attachment was discharged on de- held to have no power, after decree, to render fendant's undertaking.-B. P. Ducas Co. v. judgment for damages.-H. Koehler & Co. v. American Silk Dyeing & Finishing Co. (Sup.) Brady (Sup.) 457. 878. § 2. Powers, duties, and liabilities.

SPIRITUOUS LIQUORS. Certain evidence held properly admissible on issue as to ownership of property.-Café Central See “Intoxicating Liquors." v. Readon (Sup.) 863. In an action against a city marshal for re

STARE DECISIS. moving a tenant's property from a part of the building not authorized by the warrant, whether See "Courts," $ 1. the property was so removed held a question for the jury.-Moriarity v. Wagner (Sup.) 861. In an action against a city marshal for con

STATEMENT. version of money accepted by him to release a lery, facts held to justify a judgment for de Of case of facts for purpose of review, see

"Appeal," 5. fendant.-Café Union v. Reordan (Sup.) 994. SHIPPING

STATES. § 1. Charters.

Attorney general, see "Attorney General." Evidence held to show that a gasket in a char

Courts, see "Courts." tered vessel was defective, and rendered the vessel unseaworthy, at the time of chartering her.

STATUTES. -Auten v. Bennett (Sup.) 689.

The charterer of a vessel held not liable for Laws impairing obligation of contracts, see its depreciation resulting from negligence of a

"Constitutional Law," $ 3. crew furnished by the owner.-Auten v. Bennett

Provisions relating to particular subjects. (Sup.) 689.

See "Attorney and Client," 88 1, 4; “Brokers," Though a charterer agreed to return a ves

$$ 1, 3;. “Carriers,” $ 2; "Corporations," $ 2; sel in as good condition as when received, his

"Costs," § 1; “Counties,” 8 1; “Descent and liability does not extend to depreciation result

Distribution"; "Discovery," § 1; “Eminent ing from unseaworthiness.-Auten v. Bennett

Domain," § 1;. "Intoxicating Liquors”; “Me(Sup.) 689.

chanics Liens”; “Partnership;" $ 1;. "Plead

ing," § 1; "Railroads," $ 1; "Replevin," $ 3; SHORT-CAUSE CALENDAR. “Schools and School Districts," $ 1; "Sheriffs

and Constables,” § 1; "Street Railroads," $ 1. See “Trial," § 2

Statute of frauds, see "Frauds, Statute of.” SHOWS.

§ 1. Enactment, requisites, and validity

in general. See "Theaters and Shows."

Injunction restraining penitentiary commissioners from acting in any way under Laws

1902, p. 387, c. 127, relative to removal of penSLANDER.

itentiary superintendent, etc., held too broad.

Corscadden v. Haswell (Sup.) 597. See “Libel and Slander."

§ 2. Subjects and titles of acts.

Laws 1902, p. 387, c. 127, relative to removal SMOKE.

of penitentiary superintendent and reduction Regulation by cities, see “Municipal Corpora- not repugnant to Const. art. 3, § 16, providing

of his salary, held, as to the latter provision, tions," 8 3.

that object of special act shall be expressed in

title-Corscadden v. Haswell (Sup.) 597. SOCIETIES.

Laws 1902, p. 387, c. 127, relative to removal See "Associations."

of penitentiary superintendent and reduction of his salary and disposal of penitentiary proper

ty, held, as to first and last provisions, repug. SPECIFIC PERFORMANCE.

nant to Const art. 3, 8 16, relative to titles of $ 1. Nature and grounds of remedy in acts.—Corscadden v. Haswell (Sup.) 597. general.

$ 3. Construction and operation, A suit for specific performance of an agree Though long-continued practice of officers ment to purchase a long lease of a brickyard, whose duty it is to construe, execute, and apply buildings, and machinery held maintainable; the a statute is strong evidence of its meaning, recovery of money damages being inadequate.- it is not controlling.--People v. City of Buffalo Covert 1. Brinkerhoff (Sup.) 4.

(Sup.) 434.

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