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SELF-SERVING DECLARATIONS.

and 118 New York State Reporter The complaint in an action for breach of to pass a by-law making deduction from teachcontract 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 repug. contract 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. 8 200. relative to 576.

vaccination of school children, held 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.

| New York City Charter, Laws 1897, p. 388, c. --Butler Bros. v. Hirzel (Sup.) 693.

378, § 1081, relative to eligible list of teachers

and those entitled to have their names placed In an action for goods sold and delivered, fail- l 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.

Where plaintiff sues on a claim for goods sold i 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,” g 5. 8 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 manufac

1 trial, see “Discovery," $ 1. ture in an unworkmanlike manner.-White Mfg. Lol Co. v. De La Vergne Refrigerating Mach. Co.

g. Of process, see “Process," $ 1. (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. i

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," 8 2.

"Appeal," $ 12.

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

$ 5.

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

A bailee of goods has a right to maintain a counterclaim for conversion thereof.-Langfel

der v. Renou SCHOOLS AND SCHOOL DISTRICTS. Department of education of city, see "Municipal

SETTLEMENT. Corporations," 1. Laws relating to vaccination of school children See Accord and. Satisfaction: Compi as denial of equal protection of law, see "Cont 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. 384, 394, 398, c. 378, $$ 1070, 1090, Under Laws 1890, p. 940, c. 523, § 17, as 1100, a borough school board 'held authorized amended by Laws 1892, p. 868, c. 418, relative

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to poundage, sheriff held entitled to recover from 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.) 864.
In an action against a city marshal for con-

STATEMENT. version of money accepted by him to release a oe

Of case or facts for purpose of review, see lery, facts held to justify a judgment for de "Appeal." & 5. fendant.-Café Union v. Reordan (Sup.) 994. SHIPPING.

STATES. § 1. Charters.

Attorney general, see "Attorney General."

i Courts, see "Courts." Evidence held to show that a gasket in a chartered 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- SS 1, 3; "Carriers," $ 2; “Corporations," $ 2; sel in as good condition as when received, his

"Costs,” $ 1; “Counties,” 8 1; “Descent and

costou, s 1. com liability does not extend to depreciation result- i Distribution": "Discovery." $ 1: “Eminent ing from unseaworthiness.-Auten v. Bennett Domain," 1; "Intoxicating Liquors"; "Me(Sup.) 689.

chauics' Liens”; “Partnership," $ 1; "Plead

ing," $ 1; "Railroads," § 1; "Replevin," $ 3; SHORT-CAUSE CALENDAR. “Schools and School Districts," 81; "Sheriffs

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

Statute of frauds, see "Frauds, Statute of."
§ 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

of his salary, held, as to the latter provision, Regulation by cities, see “Municipal Corpora

not repugnant to Const. art. 3, 8 16. providing tions," $ 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, § 16, relative to titles of f 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, recorery of money damages being inadequate.- it is not controlling.-People v. City of Buffalo Covert v. Brinkerhoff (Sup.) 4.

(Sup.) 434.

SHOWS.

and 118 New York State Reporter

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STATUTES CONSTRUED.
NEW YORK. 1 $ 2803 ............

213 Greater New York. Laws Š 2944

132 1897, p. 273, ch. 378, § OONSTITUTION. $$ 2959, 2960......

5518 779. Amended by laws $ 3064

1901, p. 321, ch. 466.... 403 Art. 3, § 16. Art. 6, š$ 11, 20.... § 3065

Greater New York. Laws $ 3066

1897, pp. 381, 394, 395, Art. 8, § 10... $ 31

399, ch. 378, 881070, Art. 9, § 1..........

199 1091, 1100, 1103........ 390 3229

551 Greater New York. Laws

..............199, CODE OF CIVIL PRO3251 .................:

1897, p. 388, ch. 378, § CEDURE.

3251, subd. 4. Amended 1081. Amended by Laws § 14, subd. 3............ 112 by Laws 1902, p. 1233, 1901, p. 469, ch. 466,

-.111,
ch. 515 ........

19 1089' ... 66 ... . *330, 831, 936, 1072

Greater New York. Laws $ 67 .....

§ 3296.

240 1897, p. 559, ch. 375, Š 432, subd. 3...... § 3412

1620 ... 8 439

Š 3417

356 | Greater New York. Laws . .............. Š 453 ..::....

1901, p. 122, ch. 166, $ ŠS 458, 459.......

.: 573 | CODE OF CRIMINAL PRO-1290 ........484, 565, 366 8 488

| Greater New York. Laws

CEDURE. $$ 498, 499..

97

1901, p. 129, ch. 466, $ $ 500

302 .....
...............323.
$$ 335, 356..

703 Š 516

319
$ 527, 530, 555, 556.....

Greater New York. Laws Š 535

764
$ 702 ...

1901, p. 154, ch. 466, $ Š 546 669

355

673 88 548–551 ...... 1009

Greater New York. Laws

PENAL CODE. $ 549 372

1901, p. 469, ch, 466, § Š 551 . 489 8 72 .... .........461, 462 1089.

......... 977 Š 553

..1009 8 363b ... Š 572 489 i $ 559. Amended by Laws

LAWS. 723

"503 749 1891, p. 288, ch. 120....1114 | 1787, p. 524. ch. 82..... Š 779 180, 1011 / $ 640d ..

1790, p. 162, ch. 38.. $$ 803–809 . 1066

1802, p. 16), ch. 105..::: SS $ 831

37 | HEYDECKER'S GENERAL 1810, ch. 85..........898,

LAWS. $ 870 .......

61891, p. 234, ch. 122. .... 280

100 1857, P. 259, ch. 132..... § 870 et seq..... 1688 | Page 2378, ch. 29, § 23... 492

1860, p. 61, ch. 51....... 8 872 ...........32, 280, 1065

1863, p. 802, ch. 464. 280 REVISED LAWS.

1875, p. 264, ch. 267.. $ 888, subd. 5........... 5683 1 1813. p. 212, ch. 60....... 684

1879, p. 305. ch. 229, $ 5.. 8 970

1882, p. 93, ch. 103. $ 1022 ........ 237 !

Amended by Laws 1983, Š 1290 .......

...1105 | BIRDSEYE'S REVISED p. 99, 8 60; Laws 1889,
... 457
STATUTES.

p. 178, ch. 151. ....... $ 1488 ..1009

1882. p. 335, ch. 410, § 8 1733 ..

203
Third Edition.

1367. Amended by Laws $8 1753, 1757 1090

1894, p. 1871, ch. 750.. 8 1769

1015
Volume 3.

604, 615 $ 1780.

135
Pages 3534, 3557......... 52

52 1882, p. 348, ch. 410, $ $ 1788 .. 306

1347 .. $ 1822 ..

640
CITY CHARTERS.

1885, p. 482, ch. 283, $ 9..1091 8 1824 926

1888, p. 99, ch. 60....... $ 1902

.1053 Buffalo, $$ 11, 283,397, 398 434 1888, p. 1007, ch. 583, tit . $$ 2231-2237

580 Greater New York. Laws 11, 8 42.......... $ 2235

1897, p. 99, ch. 378, 1889, p. 178, ch. 151...... 221 Š 2244 580

1890, p. 910, ch. 523, $ 17. $ 2217 .

144 Greater New York. Laws Amended by Laws 1892, $8 2336, 2344...

15 1897, p. 113, ch. 378, § p. 868, ch. 418........: $ 2135 ..

.....1094
315 ...................

305 1890, p. 1082, ch. 565. § $ 2454

916 Greater New York. Laws 60. Amended by Laws $ 2438.

276. 468 1897, p. 115, ch. 378, 8 1897, p. 794, ch. 751... S8 2172, 2552, 2555....... 329

329 320 ....::::::; $ 2643 ..

-.1102 Greater New York. Laws 1890, p. 1084, ch. 565, $ 6.709 $ 2661 ..

0.. 1102 1897, p. 257, ch. 378, 8 1890, p. 1096, ch. 565, $ $ 2087, subd. 1..........

934 $ 2604.

937 Greater New York. Laws 1890, p. 1108, ch. 565, s § 2713, subds, 14..... 220 1897, pp. 263, 272, ch. 90. Amended by Laws § 2743 ...... ......... 640 378, 88 762, 773........ 126! 1895, p. 791, ch. 933. ... 759

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1890, p. 1201, ch. 568, 8 1897, p. 273, ch. 378, 8 | 1901, p. 129, ch. 466, 8 302.

779. Greater New York Greater New York Char1891. p. 288, ch. 120.....1114 Charter. Amended by

ter ..... 1892, p. 808, ch. 418..... 878 Laws 1901, p. 321, ch. | 1901, p. 154, ch. 466, & 355. 1892, p. 1657, ch. 681, § 5 534 L 466 .................. 403 Greater New York Char1892, p. 1805, ch. 687,' s'15 38 1897, p. 384, ch. 378, ģ 1892, p. 1841, ch. 688, 8 54 810 1070. Greater New York 1901, p. 312, ch. 128..... 1892, p. 1841, ch. 688, $ 55 323

380 1901, p. 321, ch. 466...... 1892, p. 2014, ch. 691, 8 6 323 1897, p. 388, ch. 378, &

1901, p. 421, ch. 186. ...,

1081." Greater New York 1901, p. 469, ch. 466, 200 .... .......712.

Charter. Amended by 1089.* Greater New York 1894, p. 1871, ch. 750.... 604 Laws 1901, p. 469, ch. Charter ..... 1895, p. 377, ch. 570, 8 17 871 466, § 1089.........947, 948 | 1901, p. 499, ch.466, 189.), p. 791, ch. 933..... 759 | 1897, pp. 394, 395, 399, ch. 1172.... 1895, p. 2051, ch. 1006,

378,"$8 1091, 1100, 1103. 1902, p. 114, ch. 60, 83...

Greater New York Char 1902, p. 387, ch. 127..597, 598 1896, pp. 106, 115, ch, 183,

1902, p. 1233, ch. 515.... 519 $ 9, 33.......::::....

1897, p. 453, ch, 414, g 322 661 1902, p. 1249, ch. 528..... 1896, p. 220, ch. 272.... 1897, p. 468, ch. 415, $ 20. 1902, pp. 1487-1489, ch. 1896, p. 220, ch. 272, § 21 Amended by Laws 1899, 580, tit. 1, § i, subds. 11896, p. 616, ch. 547, $ 271 p. 351, ch. 192........ 1896, pp. 803, 826, ch. 908, 1897, p. 507, ch. 417, $ 3. 1902, p. 1489, ch. 580, tit.

1, s i, subd. 18. . . . .926, 1896, p. 856, ch. 908, 8.000

1897, p. 518, ch. 418, $ 9.: 326 1902, p. 1496, ch. 580, 20 536 182 .....:::::::: ::::

1897, p. 525, ch. 418, art. 1902, p. 1497, ch. 580, $ 25 255 1896, pp. 868, 869, 881, ch.

1902, p. 1531, ch. 580, 8 908, 38 220, 221, 242.... 1897, p. 533, ch. 418, art.

126 .

.....203, 1896, p. 883, ch. 908, $ 253 6, § 73. .....:::::: :

1902, p. 1538, ch. 580, $ 1896, pp. 965, 966, ch. 909, 1897, p. 535, ch. 378, s

150 S$ 111, 114............. 406

1902, p. 1542, ch. 180, 1896, p. 978, ch. 748..... 1897, p. 545, ch. 419. ::::

166 1897, p. 99, ch. 378, 8 290. 1897, p. 559, ch. 378, S 1902, p. 1545, ch. 580, 3 Greater New York Char 1620. Greater New York 184

1902, p. 1561, ch. 580, 8 1897, p. 113, ch. 378, § 315. 1897, pp. 720, 744, ch. 612, Greater New York Char

$$_2, 3, 200. ...........

1902, p. 1562, ch. 580, $ 305 1897, p. '731, ch. 612, s. 79 253. ...188, 247, 1897, p. 115, ch. 378, § 320. 1897, pp. 732, 733, ch. 612, 1902, p. 1563, ch. 580, Greater New York Char $8_94, 98....

1043

...188, 247, 565 1897, p. 734, ch. 612, § 116 666 | 1902, p. 1563, ch. 580, 8 1897, p. 220, ch. 312, $ 17, 1897, p. 739, ch. 612, 160 131

| 255 1897, p. 741, cha 612, & 176 976 | 1902, p. 1563, chế 580, 8 1897, p. 225, ch. 312, $ 25..1018 1897, p. 742, ch. 612, $8 257 1897, p. 229, ch. 312, $ 28, 179, 183...

131 1902, p. 1569, ch. 580, $ subd. 2. Amended by 1897, p. 756, ch. 612, & 323 321 | 274 Laws 1903, p. 1125, ch. 1897, p. 794, ch. 751..678, 679 1902, p. 1578, ch, 580, 3 486, $ 12... ...........1075 | 1899, p. 351, ch. 192.... 250

310 1897, p. 237, ch. 312, & 34..1018 1899, p. 968, ch. 473, & 1.. 848 1902, p. 1585, ch. 580, $ 1897, p. 257, ch. 378," $ 739. 1899, p. 1294, ch. 582... 509

332 Greater New York Char 1900, p. 22, ch, 20...... 257 | 1902, p. 1589, ch. 580, 88

403 1900, p. 855, ch, 367, 8 16..1024 341, 342 .... 1897, pp. 263, 272, ch. 378,

1901, p 122, ch. 466, § 290. 1902, p. 1590, ch. 580,88 762, 773.Greater Greater New York CharNew York Charter. . . . . 126 ter ...........484, 565, 566 1902, p. 1748, ch. 600, 8 2 239

1903, p. 1125, ch. 486, 8

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STENOGRAPHERS.

bor "

and 118 New York State Reporter STAY.

1 Greater New York Charter, Laws 1897, p.

113, c. 378, 8 315, held not to authorize a Of proceedings pending payment of costs, see police officer to direct a street car motorman to "Costs," $ 7,

use his car to push a coal truck blocking traffic, so as to render the company liable for the motorman's negligence.-Connelly v. Metropoli

tan St. Ry. Co. (Sup.) 305. Liability for services of, see “Work and La

A traveler, injured while attempting to cross street car tracks, held precluded from recover

ing therefor.-Schroder v. Metropolitan St. Ry. STIPULATIONS.

Co. (Sup.) 371.

A motorman is not required to take any pre Where a stipulation authorizes the justice to caution against frightening a horse on a highrender any judgment he sees fit, an appeal will

way more than would be required by the drirer not lie.-Lipps v. Markowitz (Sup.) 172.

of any other vehicle.--Adsit v. Catskill Electrie

Ry. Co. (Sup.) 393.
STOCK.

Where a motorman, using ordinary prudence,

erred in a matter of judgment, it was not negliCorporate stock, see "Corporations,” $ 1.

gence for which plaintiff can recover in an

action for injuries by collision.-Adsit v. CatsSTOCKHOLDERS.

kill Electric Řy. Co. (Sup.) 393.

The measure of care toward persons rightOf corporations, see "Corporations," $ 2.

fully in a street, by a street railroad company,

is such reasonable care as an ordinarily pruSTORAGE.

dent person would exercise under the circum

stances.--Adsit v. Catskill Electric Ry. Co. Seo "Warehousemen.”

(Sup.) 393.

A street railway held bound to use reasonable STREET RAILROADS.

care to see that a passenger alighting from a

car is not injured by another car when crossCarriage of passengers, see "Carriers," 8 2. ing the street over the adjoining track.-Reed Harmless error in admission of evidence in ac- v. Metropolitan St. Ry. Co. (Sup.) 454. tion for injuries, see "Appeal," $ 12.

The driver of a covered wagon, who, without Relevancy of evidence in action for personall a light and when it

| a light and when it was nearly dark, stopped injuries, see "Evidence," $ 2.

two or three minutes on a street car track, till § 1. Regulation and operation.

struck by a street car, held guilty of contribuEvidence in an action for injuries to a pedes

tory negligence.--Watson v. Interurban St. Ry. trian in a collision with a street car held not

Co. (Sup.) 556. to establish contributory negligence on her part. One driving a milk wagon which collided with -Mauer v. Brooklyn Heights R. Co. (Sup.) 76. a street car held guilty of contributory negli

In an action for injuries by collision with a gence.-Cosgrove v. Interurban St. Řy. Co. street car, the place of the accident held to be a (Sup.) 885. street crossing.--Freeman v. Brooklyn Heights A street railroad company held bound to use R. Co. (Sup.) 108.

care that the whole car, and not merely the It is not negligence as a matter of law for one

front end, may pass obstructions safely.-Mardriving a wagon to attempt to cross street rail

tin v. Interurban St. Ry. Co. (Sup.) 92i. way tracks when an approaching car is about In an action against a street railway coma block distant.--Carter v. Interurban St. Ry. pany, instruction defining the measure of care Co. (Sup.) 134.

required of defendant while operating its car In an action for injuries sustained by being along a highway held erroneous.-Perras V. struck by a street car, evidence held to sustain

car evidence held to sustain | United Traction Co. (Sup.) 992. a judgment for plaintiff.-Hennessey v. FortySecond St., M. & St. N. Ave. Ry. Co. (Sup.)

8 2. Actions.

In an action for injuries to a pedestrian in

collision with a street car, an instruction perIn an action against a street railway for in

mitting the jury to find that plaintiff's act in juries arising from a crossing accident, plain

attempting to cross was a miscalculation or tiff held guilty of contributory negligence.

error of judgment as to the distance of the car Steinman v. Interurban St. Ry. Co. (Sup.) 231. held not erroneous, as not based on the evi

In an action against a street railway for in-dence.-Mauer V. Brooklyn Heights R. Co. juries arising from a crossing accident, plaintiff (Sup.) 76. held guilty of contributory negligence.-Krintz- / Where it was not disputed that a street car man v. Interurban St. Ry. Co. (Sup.) 243.

by which plaintiff was struck at a street interA traveler held guilty of contributory negli- section was operated at the rate of seven or gence, precluding a recovery for injuries to his eight miles an hour, whether its operation was horse and wagon by being struck by a street negligent held a question for the jury.-Mauer car.-Carvanio v. Union Řy. Co. (Sup.) 246. Tv. Brooklyn Heights R. Co. (Sup.) 76.

158.

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