RENEWAL. and 118 New York State Reporter Of lease, see "Landlord and Tenant," § 3. RENT. See "Landlord and Tenant," § 5. Authority of agent to collect, see "Principal and Agent." § 3. REOPENING CASE. For further evidence, see "Trial," § 4. REPAIRS. may be maintained on the bond, notwithstanding Municipal Court Act, Laws 1902. p. 1531, c. 580, 126.-Verra v. Costantino (Mun. Ct.) 223. REPORT. Of commissioners in condemnation proceedings, see "Eminent Domain," § 2. On reference, see "Reference," § 3. RESCISSION. Of insurance policy, see "Insurance," § 3. RES GESTÆ. Of premises demised, see "Landlord and Ten- In civil actions, see "Evidence," § 2. ant," § 4. § 2. Trial, judgment, enforcement judgment, and review. RES JUDICATA. In replevin for "boys' 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 not made up, held, that the judgment for possession of "the property mentioned in the affidavit and complaint" is so substantially correct as to require the marshal to take the cut goods tendered to him.-Monness v. Livingston (Sup.) 124. In replevin for a typewriter, held insufficient for plaintiff to show that its books recorded its receipt of the machine, but did not show that it had ever sold, leased, or parted with possession thereof. Wagner Typewriter Co. v. Robinson (Sup.) 281. In replevin, evidence of value held insufficient to authorize a judgment in the alternative. Wagner Typewriter Co. v. Robinson (Sup.) 281. § 3. Liabilities on bonds and undertakings. An action of replevin held discontinued, within an undertaking for the return of the property, rendering the surety liable on failure to return.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203. Municipal Court Act, Laws 1902, p. 1531, c. 580, § 126, and Code Civ. Proc. § 1733, held not to aid a surety in an action on an undertaking for a return of property in replevin; no judgment having been rendered in the replevin suit.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203. REVENUE. REVIEW. See "Appeal"; "Criminal Law," 4; "Justices of the Peace," § 2. Streets in cities, see "Municipal Corporations," 88 4, 5. RULES OF COURT. Where, in replevin, the property is seized, but plaintiff suffers the action to abate, suit | Orders, see "Motions." SALES. See "Vendor and Purchaser." 3. Performance of contract. The fact that a buyer accepts that portion of the goods sold which conforms to the contract does not preclude him from claiming damages for the failure of the rest of the goods to conform thereto.-Gilbert v. Alton (Sup.) 682. Collateral agreements on sale of goods as affect- Of corporate stock, see "Corporations," § 1. Of property of decedent under order of court, Tax sales, see "Taxation," §§ 1-3. 1. Requisites and validity of contract. A statement in an order for the purchase of books that the purchaser understood "that this order is not to be countermanded" is without consideration.-Cary v. Appo (Sup.) 569. Statement as to payment to agent in order for purchase of books held, under circumstances, not to constitute an acceptance of the order by the publisher.-Cary v. Appo (Sup.) 569. Fact that a publisher incurs a liability to a book agent on every order taken does not render the maker of the order liable, in the absence of notice to him of that fact.-Cary v. Appo (Sup.) 569. Fact that a salesman affixed his name to an order for purchase of books, and marked a reduction of price thereon, does not show acceptance by publisher, where authority of saleman was not shown.-Cary v. Appo (Sup.) 569. Contract for purchase of books held a mere order, unilateral, without consideration, and unenforceable after revocation.-Cary v. Appo (Sup.) 569. Evidence in buyer's action for failure of goods to conform to contract held to warrant finding of buyer's offer to return goods.-Gilbert v. Alton (Sup.) 682. Sellers of goods had a right to rely upon statement of buyer in giving credit on future sales. -Goldsmith v. Stern (Sup.) 869. § 2. Construction of contract. A written order for goods, stipulating that it was not to be revoked, held not binding, where notice of revocation was given before acceptance.-Hallwood Cash Register Co. v. Finnegan (Sup.) 154. Acceptance of an order held to give the purchaser the right of election to order a certain amount.-A. B. Farquhar Co. v. New River Mineral Co. (Sup.) 802. The time stipulated in a contract for exercising option to order iron held extended, by the correspondence, the length of time the seller was unable to make deliveries.-A. B. Farquhar Co. v. New River Mineral Co. (Sup.) 802. Buyer of goods held to have obtained a perfect title, preventing seller from maintaining replevin.-Leavitt v. Rosenthal (Sup.) 530. § 5. Warranties. Where the purchaser of a warranted machine retained it after discovery of defects, and made payments on the price because the seller promised to make good the defects, which promise was not fulfilled, there was no waiver of the breach of warranty.-Huck v. Bischoff (Sup.) 173. A warranty that a casting to be made for a certain purpose shall be free from defect held to survive acceptance and payment a reasonable time, for discovery by use of a latent defect.White Mfg. Co. v. De La Vergne Refrigerating Mach. Co. (Sup.) 192. Statement, in a written offer for the sale of roses, that they were "very fine stock," held not to constitute an express warranty of quality.Stumpp & Walker Co. v. Lynber (Sup.) 912. 6. Remedies of seller. In an action for the price of a monument, a finding that plaintiff was not bound to furnish a monument similar to another one in the cemetery held proper.-Braun v. Hothan (Sup.) 8. Evidence in a suit for the price of goods held insufficient to sustain a finding as to market value.-Ampel v. Seifert (Sup.) 122. Evidence held insufficient to show that certain transaction was an absolute sale.-Ampel v. Seifert (Sup.) 122. The burden is on a seller, suing for the price of goods under an alleged absolute sale, to substantiate his version of the transaction.Ampel v. Seifert (Sup.) 122. A seller of whisky held not entitled to recover the difference between the cost of manufacture and the contract price of whisky sold, in the absence of proof that the goods had no market value.-Belle of Bourbon Co. v. Leffler (Sup.) 385. In action for breach of a contract to purchase certain whisky, the measure of damages held the difference between the market value and Leffler (Sup.) 385. the contract price.-Belle of Bourbon Co. v. In replevin to recover goods on the ground of fraudulent representations by the buyer in obtaining credit, evidence held to show that such representations were not relied on. Leavitt v. Rosenthal (Sup.) 530. not sufficiently identified.-Leavitt v. RosenIn replevin, property taken under writ held thal (Sup.) 530. The measure of damages for breach of contract to purchase stock at a certain time and price is the agreed price, the seller electing to sue for the price and hold the stock for the purchaser.-Cowan v. De Hart (Sup.) 576. and 118 New York State Reporter The complaint in an action for breach of contract to purchase stock being consistent with the seller's election to sue for the price and hold the stock for the purchaser, no tender is necessary.-Cowan v. De Hart (Sup.) 576. The mere denomination by plaintiff, in his testimony in an action for breach of a written contract to purchase, of the transaction leading to the agreement as a "loan," held not to constitute a variance.-Cowan v. De Hart (Sup.) 576. In an action for goods sold and delivered, the trial judge held not debarred by agreement of counsel from directing judgment for plaintiff. -Butler Bros. v. Hirzel (Sup.) 693. In an action for goods sold and delivered, failure to prove a delivery held not a failure of proof under the pleadings.-Butler Bros. v. Hirzel (Sup.) 693. Variance between the pleadings and proof in an action for goods sold and delivered held not material, in the absence of any showing that the defendant was prejudiced.-Butler Bros. v. Hirzel (Sup.) 693. Where plaintiff sues on a claim for goods sold and delivered, he is not entitled to a recovery on evidence tending to show a cause of action on an account stated.-Consolidated Car Heating Co. v. Kahn (Sup.) 919. § 7. Remedies of buyer. Evidence of history of a casting manufactured with warranty against defects held not necessary as foundation for testimony that it was a shrinkage crack, coming through manufacture in an unworkmanlike manner.-White Mfg. Co. v. De La Vergne Refrigerating Mach. Co. (Sup.) 192. to pass a by-law making deduction from teacher's salary for absence without leave; such de duction to be paid into the teacher's retire ment fund.-Murphy v. Board of Education of City of New York (Sup.) 380. Laws 1893, p. 1556, c. 661, § 200, relative to vaccination of school children, held not repugnant to Const. art. 9, § 1, relative to free common schools.-Viemeister v. White (Sup.) 712. Laws 1893, p. 1556, c. 661, § 200, relative to vaccination of school children, held within police power of state.-Viemeister v. White (Sup.) 712. New York City Charter, Laws 1897, p. 388, c. 378, § 1081, relative to eligible list of teachers and those entitled to have their names placed thereon, construed, and held not to entitle relator to such right.-People v. Maxwell (Sup.) 947. SECONDARY EVIDENCE. In civil actions, see "Evidence," § 3. SELF-SERVING DECLARATIONS. As evidence, see "Evidence," § 5. SEPARATION. See "Husband and Wife," § 5. SERVICE. Of order for examination of witness before 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. Jacobus (Sup.) 589. SATISFACTION. See "Accord and Satisfaction"; "Compromise SAVINGS BANKS. See "Banks and Banking," § 2. SERVITUDES. See "Easements." SET-OFF AND COUNTERCLAIM. Harmless error in dismissing counterclaim, see "Appeal," § 12. In action for rent, see "Landlord and Tenant," § 5. § 1. Subject-matter. A bailee of goods has a right to maintain a counterclaim for conversion thereof.-Langfel SCHOOLS AND SCHOOL DISTRICTS. der v. Renouf (Sup.) 236. Department of education of city, see "Municipal Laws relating to vaccination of school children Laws relating to vaccination of school children Under Greater New York Charter, Laws 1897, pp. 384, 394, 398, c. 378, §§ 1070, 1090, 1100, a borough school board held authorized SETTLEMENT. See "Accord and Satisfaction"; "Compromise SHERIFFS AND CONSTABLES. § 1. Compensation. Under Laws 1890, p. 940, c. 523, § 17, as amended by Laws 1892, p. 868, c. 418, relative to poundage, sheriff held entitled to recover from defendant poundage on value of property attached, where attachment was discharged on defendant's undertaking.-B. P. Ducas Co. v. American Silk Dyeing & Finishing Co. (Sup.) 878. § 2. Proceedings and relief. In a suit for specific performance, the court held to have no power, after decree, to render judgment for damages.-H. Koehler & Co. v. Brady (Sup.) 457. SPIRITUOUS LIQUORS. § 2. Powers, duties, and liabilities. In an action against a city marshal for removing a tenant's property from a part of the STARE DECISIS. building not authorized by the warrant, whether See "Courts," § 1. In an action against a city marshal for conversion of money accepted by him to release a levy, facts held to justify a judgment for defendant.-Café Union v. Reordan (Sup.) 994. 1. Charters. SHIPPING. STATEMENT. Of case or facts for purpose of review, see "Appeal," § 5. STATES. 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. -Auten v. Bennett (Sup.) 689. The charterer of a vessel held not liable for its depreciation resulting from negligence of a crew furnished by the owner.-Auten v. Bennett (Sup.) 689. Though a charterer agreed to return a vessel in as good condition as when received, his liability does not extend to depreciation resulting from unseaworthiness.-Auten v. Bennett (Sup.) 689. SHORT-CAUSE CALENDAR. See "Trial," § 2. SHOWS. See "Theaters and Shows." SLANDER. See "Libel and Slander." SMOKE. STATUTES. Laws impairing obligation of contracts, see "Constitutional Law," § 3. Provisions relating to particular subjects. See "Attorney and Client," §§ 1, 4; "Brokers," §§ 1, 3; "Carriers," § 2; "Corporations," § 2; "Costs," § 1; "Counties," § 1; "Descent and Distribution"; "Discovery," § 1; "Eminent Domain," § 1; "Intoxicating Liquors"; "Mechanics' Liens": "Partnership," § 1; "Pleading," § 1; "Railroads," § 1; "Replevin," § 3; "Schools and School Districts," § 1; "Sheriffs and Constables," § 1; "Street Railroads," § 1. Statute of frauds, see "Frauds, Statute of." 1. Enactment, requisites, and validity in general. Injunction restraining penitentiary commissioners from acting in any way under Laws 1902, p. 387, c. 127, relative to removal of penitentiary superintendent, etc., held too broad.Corscadden v. Haswell (Sup.) 597. 2. Subjects and titles of acts. Laws 1902, p. 387, c. 127, relative to removal of penitentiary superintendent and reduction of his salary, held, as to the latter provision, Regulation by cities, see "Municipal Corpora- not repugnant to Const. art. 3, § 16, providing tions," 3. SOCIETIES. See "Associations." SPECIFIC PERFORMANCE. 1. Nature and grounds of remedy in general. A suit for specific performance of an agreement to purchase a long lease of a brickyard, buildings, and machinery held maintainable; the recovery of money damages being inadequate.Covert v. Brinkerhoff (Sup.) 4. that object of special act shall be expressed in title Corscadden v. Haswell (Sup.) 597. Laws 1902, p. 387, c. 127, relative to removal of penitentiary superintendent and reduction of his salary and disposal of penitentiary property, held, as to first and last provisions, repugnant to Const art. 3, § 16, relative to titles of acts.-Corscadden v. Haswell (Sup.) 597. § 3. Construction and operation. Though long-continued practice of officers whose duty it is to construe, execute, and apply a statute is strong evidence of its meaning, it is not controlling.-People v. City of Buffalo (Sup.) 434. and 118 New York State Reporter STATUTES CONSTRUED. 132 $$ 2959, 2960. 518 Art. 3, § 16. 597 $ 3064 254 Art. 6, §§ 11, 20. .10253065 Art. 8, 10... 97 $ 3066 144 Art. 9, § 1. 712 $3189 3228 .270, 519 519 830, 831, 936, 1072 § 3271 331 $ 67 .1025 $ 3296 240 § 432, subd. 3. 30883412 439 135 $ 3417 356 213 | Greater New York. Laws 290 .484, 565, 566 Greater New York. Laws 1901, p. 129, ch. 466, § .323, 984 $$ 335, 356. 302 703 566 $$ 527, 530, 555, 556. Greater New York. Laws 617 § 702 221 1901, p. 154, ch. 466, § 546 669 355 673 Greater New York. Laws PENAL CODE. 551 489 $ 72 § 553 .1009 § 363b 120 489 8 559. Amended by Laws 1066 37 HEYDECKER'S GENERAL 888 280 1066 Page 2378, ch. 29, § 23... 492 1851, p. 234, ch. 122. 1813, p. 212, ch. 60....... 684 1879, p. 305, ch. 229, § 5.. 52 BIRDSEYE'S REVISED 103. 221 1882, p. 93, ch. LAWS. 235 1787, p. 524, ch. 82. 898 898 898 .898, 899 844 898 898 266 795 |