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Particular remedies for torts.

See “Arrest," $. 1; "Trespass," $ 2; "Trover Of price of goods sold, see "Sales," $ 6.

and Conversion." TERMS.

Particular torts.

See "Fraud": "Libel and Slander"; "Malicious Of leases, see “Landlord and Tenant,” | 8.

Prosecution"; "Negligence"; "Nuisance";

"Trover and Conversion." TESTAMENT.

Abuse of process, see “Process," $ 8.
See "Wills."


See "Counties”; "Schools and School Districts,"

$ 1. Restrictions on power to devise or bequeath, Liability for repair of bridges, see “Bridges," see "Wills," 8 1.


TRADE UNIONS. Employment of actresses, see "Master and Restraining boycott, see “Injunction," $ 2 Servant," $ 1. The manager of a theater held liable for the

TRANSCRIPTS. penalty imposed by Laws 1897, pp. 263, 272, On appeal, see "Criminal Law." & 4. C. 378, $$ 762, 773, for permitting any person to occupy a passageway during a performance.

TRANSFER TAX. --Sturgis v. Hayman (Sup.) 126.

See "Taxation,” g 5.

TRESPASS. Letter held to be sent with intent to annoy, in violation of Pen. Code, $ 559, as amended by Liability of railroad for injuries to trespassers, Laws 1891, p. 288, c. 120.-People v. Loveless see "Railroads," $ 3. (Sp. Sess.) 1114.

8 1. Acts constituting trespass, and lia"Intent," as used in Pen. Code, § 559, as

A bility therefor, amended by Laws 1891, p. 288, c. 120, inhibit- | Where defendants committed a trespass on ing the sending of any letter "with intent to plaintiff's premises, they were liable for damcause annoyance," held to be gathered from ages caused thereby, independent of the queseffect and purpose of the letter.-People v. tion of negligence.-Wheeler 'y. Norton (Sup.) Loveless (Sp. Sess.) 1114.


2. Actions. TIME.

Where defendants committed a trespass on

plaintiff's premises by causing the bursting of For application to open default judgment, see a water pipe by a blast, that the city was neg"Judgment," $ 4.

ligent in laying the pipe on a rock did not reFor delivery of goods sold, see "Sales," $ 2.

lieve the defendants from liability.-Wheeler v. For distributing decedent's estate, see "Execu- Norton (Sup.) 524.

tors and Administrators," $ 6.
For taking supplementary proceedings, see "Ex-
ecution," $ 2.


See "Ejectment.”
Of statutes, see "Statutes," $ 2.

TRIAL. Tax titles, see "Taxation," $$ 3, 4.

See "New Trial"; "Reference"; "Witnesses." To goods sold, see "Sales," $ 4.

Harmless error in directing verdict, see "ApTo property insured, see "Insurance," 88 4, 6.

peal," $ 12.

Harmless misconduct of jurors, see "Appeal," TOOLS.

$ 12.

Ratification of acts of agent as question for Liability of employer for defects, see "Master jury, see "Principal and Agent," $ 3. and Servant," $ 3.

Waiver of rights under contract as question

for jury, see “Contracts," $ 3.

Proceedings incident to trials.
Measure of damages, see "Damages," $ 2. See "Continuance."
By particular classes of parties.

Entry of judgment after trial of issues, see

"Judgment," $ 2. See “Municipal Corporations," $ 5.

Place of trial, see "Venue," $ 1. Employés, see "Master and Servant," 7. Right to trial by jury, see "Jury," $ 1.

84 N.Y.S.-77


and 118 New York State Reporter Trial of particular civil actions or proceedings. Where some of the evidence of a witness was See "Divorce," $ 1; “Negligence," $ 3.

proper, a motion to strike out all of his eriDisputed claims against estate of decedent, see

dence was properly overruled.-Powell v. Hod"Executors and Administrators," $ 5.

son Valley Ry, Co. (Sup.) 337. For discharge from employment, see "Master

Objection that copy was not shown to be such and Servant," $ 1.

held to come too late after its reception in evi For personal injuries, see "Carriers," 8. 2; dence.-Dearman v. Marshall (Sup.) 705.

"Master and Servant,” 8 6; "Municipal Cor A motion to strike from the record a written ‘poratious," $ 5; "Street Railroads," $ 2.

statement was properly denied, where the state For price of goods sold, see "Sales," '$ 6.

ment was properly admitted in evidence as bar For rescission of contract for insurance, see

ing on the credibility of a witness, --Deutsch "Insurance," $ 3.

mann y. Third Ave. R. Co. (Sup.) 887. For rent, see "Landlord and Tenant," 5. For wrongful acts of city marshal, see "Sheriffs

The statement of the court held not to authorand Constables," $ 2.

ize the jury to consider evidence received as On insurance policy, see "Insurance," $ 9.

bearing on the credibility of a witness for any To set aside fraudulent conveyances,

improper purpose.-Deutschmann v. Third Ave. "Fraudulent Conveyances," $ 3.

R. Co. (Sup.) 887.
Trial of criminal prosecutions.

§ 5. Arguments and conduct of counsel. See "Criminal Law," $ 3.

In an action for personal injuries, statements § 1. Notice of trial and preliminary

of plaintiff's counsel and the court relative to

Ty an insurance company being interested in deproceedings.

fending the action held prejudicial error.-LipWhere the consolidation of actions at the

schutz v. Ross (Sup.) 632. instance of defendants affects the condition of bonds given upon removal from the Municipal $ 6. Taking case or question from jury. to the City Court, to the prejudice of the plain

Where parol evidence was introduced without tiff, consolidation should not be ordered.Grayobiection to explain the terms of a letter. and Lithograph Co. v. Schulman (Sup.) 503.

such evidence was conflicting, the construction Where a complaint is amended after a case of the letter was for the jury.-Rochester & is on the trial calendar, plaintiff is not entitled P. Coal & Iron Co. v. Flint, Eddy & Co. (Sup.) to a trial without a new note of issue and a 269. new notice of trial, in the absence of an order Dismissal of plaintiff's complaint at the close dispensing therewith, under Code Civ. Proc. 8 of his case for failure of proof should be with723.-Miller v. Mestaniz (Sup.) 503.

out prejudice.-Soltz v. Newmark (Sup.) 283. $ 2. Dockets, lists, and calendars.

Where the evidence is conflicting, it is error Motion to strike a case from the calendar to direct a verdict.-Morel v. Stearns (Sup.) 521. held properly denied for insufficiency of moving! papers.--Bornstein v. Diskin (Sup.) 248.

Where plaintiff moved to advance the trial of An instruction as to the duty of defendant the case on the ground that it was a short to stop its car a sufficient length of time to cause, another motion to the same effect could allow a passenger to alight held not erroneous. not be granted while a first motion was pending. I in view of other instructions.-Day v. Union -McCaffrey y. Butler (Sup.) 776.

Ry. Co. (Sup.) 560. Where plaintiff moved to advance the date of

An instruction in an action in which there trial on the ground that the case was a short was conflicting evidence held erroneous, because cause he could not withdraw the motion by no-preventing the

from reconcilin

contice to that effect in the notice of a similar mo- | flict.-Beers v. Metropolitan St. Ry. Co. (Sup.) tion on the same ground.-McCaffrey y. Butler | 785. (Sup.) 776.

A requested instruction held properly refused $ 3. Course and conduct of trial in gen

because erroneous.-Deutschmann v. Third Ave. eral.

R. Co. (Sup.) 887. Where the parties to a suit in equity, and $ 8. Trial by court. the court, treated it as an action at law, the issues should go to the jury, as in actions at

On trial before a court, it can enter a judglaw.-Voss v. Smith (Sup.) 471.

ment based on a holding that certain evidence

received is incompetent, though there is no ob$ 4. Reception of evidence.

jection to the evidence.-Oppenheimer v. KruckWhere defendant failed to prove any damage

man (Sup.) 129. under its counterclaim, the denial of a motion Motion to dismiss for failure to show facts to reopen a case to present proof of damage constituting cause of action held sufficient to after the testimony was closed was not an raise question of sufficiency of evidence to supabuse of discretion.- Jarvis v. New York House port finding of value of animal injured.-Lee Wrecking Co. (Sup.) 191.

v. Callahan (Sup.) 167. Where no grounds are given for an objec- It is not error to refuse a negative conclusion tion to a question calling for material evidence, of law applicable to a situation not shown in though improper in form, it is error to sustain the evidence-Hayes y. Metropolitan St. Ry. sucho objection.-Gerry v. Seibrecht (Sup.) 250. Co. (Sup.) 271.

TROVER AND CONVERSION. There was sufficient delivery of trust fund to

trustees, though settlor made check payable to
Counterclaim for wrongful conversion of goods, beneficiary, and beneficiary thereafter turned
see "Set-Off and Counterclaim," $ 1.

the money over to the trustee. --Brown v. Spohr
Wrongful conversion of goods by carrier, see (Sup.) 995.
"Carriers," $ 1.

It was immaterial, as against next of kin of
Wrongful conversion of, mortgaged chattels, settlor, that trust fund was not all delivered on
see "Chattel Mortgages," $ 1.

same day, or on day of execution of trust deed.
In an action for conversion, a receipt given

--Brown v. Spohr (Sup.) 995.
to plaintiff's assignor held not sufficient evidence Facts held to show a sufficient delivery of
of the trausfer of title.-Walker V. Farrell trust fund to trustees.--Brown v. Spohr (Sup.)
(Sup.) 182.


§ 2. Management and disposal of trust

Creation by will, see "Wills," $ 4.

Clause in a deed of trust held to empower
Trust deeds, see “Chattel Mortgages"'; “Mort- trustees to collect notes at any time, though

without consent of settlor.---Brown v. Spohr
$1. Creation, existence, and validity.

(Sup.) 995.
Personal Property Law, Laws 1897, c. 417, $ 3. Establishment and enforcement of
$ 3, providing that the trustee's estate shall

cease when the beneficiary, having a remainder Next of kin of administratrix held proper per-
subject to his beneficial estate, releases his in- son to compel administrator to carry out trust,
terest in the income, held not to apply to a under Code Civ. Proc. $ 2803.-In re Sill's Es-
trust created before passage of the law.-Met-tate (Sur.) 213.
calfe v. Union Trust Co. of New York (Sup.)

The court cannot, before expiration of the
term of a trust created before there was power Procuring making of will, see "Wills," i 2.
to terminate it, decree dissolution without con-
sent of the trustee.-Metcalfe v. Union Trust

Co. of New York (Sup.) 183.
Personal Property Law, Laws 1897, c. 417,

See "Colleges and Universities."
$ 3, providing for termination of a trust, held
not to apply where right to the income is con-

ditional, nor where the trust is to pay the in- loe

Of attachment, see "Attachment,” $ 2.
come to one for life or till she remarry, though

Of dismissal of action, see "Dismissal and Non-
the remaindermen assign to her their interest.
---Metcalfe v. Union Trust Co. of New York

suit," $ 1.

k Of judgment, see "Judgment," 88 1, 4.
(Sup.) 183.

Stipulation of the trustee, in a submission of
controversy on an agreed statement, that, if
the court decides that the trust has been ter-Laws relating to vaccination of school children
minated, judgment may be entered that the as deprivation of privileges or in

as deprivation of privileges or immunities of
fund be paid over to plaintiff, is not a consent citizens, see "Constitutional Law," $ 4.
to the destruction of the trust.--Metcalfe V.Laws relating to vaccination of school children
Union Trust Co. of New York (Sup.) 183. as denial of equal protection of law, see
Plaintiff held not entitled to maintain an ac-

"Constitutional Law," 8 5.
tion against defendant on the ground that he

Of school children, see "Schools and School Dis-
held trust funds payable to plaintiff; the trust

tricts," $ 1.
not being fully constituted.-Hayes v. Klock
(Sup.) 363.

Essentials of a valid trust of personalty are Negligence of driver imputable to fellow sery-
designated beneficiary, designated trustee, des- 1. ant occupant, see "Negligence," 8 2
ignated fund, and actual delivery to trustee.- Negligent use of automobiles, see "Highways."
Brown v. Spohr (Sup.) 995.

A revocable trust, passing legal title to trus VENDOR AND PURCHASER.
tees and present interest to beneficiaries, can-
not be construed to show an intention on part

See "Sales."
of settlor to prevent beneficiaries from receiv Requirements of statute of frauds, see "Frauds,
ing benefit during settlor's life, so as to inval Statute of," $ 3.
idate trust under statute of wills.-Brown v. Specific performance of contract, see "Specific
Spohr (Sup.) 995.

Neither the reservation in the settlor of a $1. Performance of contract.
power of revocation or modification of a trust, One held entitled to recover earnest money
nor a recital that the beneficiary took through from a party who prevented performance of the
the settlor's bounty, rendered the trust illegal. - contract at the appointed time and refused to
Brown v. Spohr (Sup.) 995.

| perform thereafter.-Wright v. Levy (Sup.) 885.



and 118 New York State Reporter § 2. Remedies of purchaser.

| Right of arrest in civil actions, see “Arred Plaintiff, in order to sue defendant for breach $1. of his contract to convey land, need not offer Rights under contract, see “Contracts," to perform on the day stipulated in the con- Right to appeal, see "Appeal," $ 2. tract.-Daly v. Bruen (Sup.) 971.

Right to trial by jury, see "Jury," 8 1. There is presumed to be some damage for breach of contract for sale of land from ina

WARDS. bility to give title.-Daly v. Bruen (Sup.) 971.

See "Guardian and Ward." VENUE. $ 1. Change of venue or place of trial.

Change of venue for convenience of witnesses A warehouse company held not to have a held not justified by facts disclosed.-Quinn v. on property stored as against a prior more Brooklyn Heights Ř. Co. (Sup.) 738.

gee.-Allen v. Becket (Sup.) 1007. Venue will not be changed to New York or Kings county solely for convenience of wit

WARRANTY. nesses.-Quinn V. Brooklyn Heights R. Co. (Sup.) 738.

Covenants of warranty, see "Covenants," 12 VERDICT.

On sale of goods, see Sales," $8 5, 7. Harmless error in directing, see "Appeal," $ 12. WATERS AND WATER COURSES Presentation of grounds of review in record, see "Appeal," $ 5.

Grants of public lands under water, see "Putin Review on appeal, see "Appeal," $ 11,

lic Lands," $ 1. Setting aside, see "New Trial," '$ 1.

Water courses in cities, see "Municipal Cor

porations," $ 5. VERIFICATION.

§ 1. Artificial ponds, reservoirs, and Of pleading, see "Pleading,". $ 3.

channels, dams, and flowage.. Of tax roll, see "Taxation," $ 1.

An action for obstructing the water supply. by the grantee of a devisee against the other

devisee, under a will allowing each a reasonVILLAGES.

able use of the water on the premises, held not

sustained by the evidence.-Howard v. Howard See "Municipal Corporations."

(Sup.) 389. Authority of officers as to establishment of railroad crossing, see "Railroads," $ 1.

WAYS. Restraining construction of railroad on village street, see "Injunction," $ 1.

Private rights of way, see "Easements.".

Public ways, see "Highways"; "Municipal Cor VOLUNTARY APPEARANCE.

porations," 88 4, 5. See "Appearance.”


Right to appointment as guardian of minor VOLUNTARY PAYMENT, children, see "Guardian and Ward," $ 1. Of transfer tax, see "Taxation."


See "Descent and Distribution"; "Executors

and Administrators." See "Elections."

Construction and execution of trusts, see

"Trusts." WAIVER.

Legacy and succession taxes, see "Taxation," of objections to particular acts or proceedings. Operation of will of foreign testator, see

$ 5. See "Appearance"; "Pleading," $ 6.

*Aliens," $ 1. Trial of member of corporation, see "Corpora-18 1. Nature and extent of testamentary tions," $ 2.

power. of rights or remedies.

Will construed, and held not to effect converSee "Insurance," $ 6.

sion of realty into personalty, so as to permit

Columbia University to take the same, irreAllowance to surviving wife, see "Executors

spective of charter limitations on power to hold and Administrators," $ 4.

real estate.--Phoenix Y. Trustees of Columbia Breach of contract, see "Contracts," 8 5. Breach of warranty of goods sold, see "Sales,"

College (Sup.) 897.

§ 2. Requisitos and validity. Counterclaim for breach of contract, see "Con- Will held lawfully executed.-In re Burns' tracts," 8 4.

| Will (Sup.) 554.

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ctione evidence held sufficient to show that the will $ 3. Examination.

the decedent was her free and voluntary act. In an action on an undertaking given in reCon re Brugh's Will (Sur.) 41.

plevin, a witness may refresh his memory by bea!," : Xvidence held insufficient to show that a will

reference to a memorandum containing a list "Jury," . ting off minor children was executed under

made by him of the goods, and then state from lue influence.-In re Eddy's Will (Sur.) 218.

memory what was taken.-Rogers v. United

States Fidelity & Guarantee Co. (Sup.) 203. provision in a will, defeating the legacies rein if the will is contested, is valid.-In re

It is not error to permit a witness to explain randon's Estate (Sur.) 937.

on his redirect what he said on his cross exam

ination.-Hayes v. Metropolitan St. Ry. Co. MEN 3. Probate, establishment, and annul- | (Sup.) 271. ment.

Exclusion on plaintiff's redirect of questions et to Surrogate court held to have jurisdiction to calling for testimony already given is not ertax mit to probate will of foreign testator.-In re ror.-Hayes v. Metropolitan St. Ry. Co. (Sup.) Wi.irandon's Estate (Sur.) 937.

Questions relating to matters the existence 4. Construction.

of which the witness denies, and proof of which Where testator devised his homestead to ex- is essential as a basis for further inquiry, are utors, to maintain for his family from his

properly excluded.-Bernstein v. Lester (Sup.) Corenar "neral estate, the trust held an active, valid

496. 15. ust, entitling the executors to maintain the

coperty from the general estate.--In re Stewart 8 4. Credibility, impeachment, contramissup.) 719.

diction, and corroboration.

Where a plaintiff has been permitted to WW* Where a testator directed his executors to change the isues by an amendment at the beateraintain his homestead from his general estate, | ginning of the trial, defendant can expose plain

decree setting apart the income from a par- | tiff's inconsistency by cross-examination.-Blake picular fund until vacated is final, so far as to

v. Malliet (Sup.) 161. equire the executors to use the income only,

ind not the principal of the particular fund.-1. Defendant held bound by certain testimony rren in re Stewart (Sup.) 719.

brought out by it on examination of a witness

for plaintiff.-Goldberg v. Metropolitan St. Ry. Will construed, and a bequest "in trust” held

Co. (Sup.) 211. aot to create a trust, but an immediate gift. -In re Daniels' Estate (Sur.) 684.

A witness may be cross-examined as to facts showing his favor toward the party calling him,

the extent of his own interest in the case, and WITNESSES.

his bias.-H. E. Taylor & Co. v. Metropolitan

St. Ry. Co. (Sup.) 282. See "Depositions"; "Evidence."

In an action for personal injuries, a written Convenience of, as ground for change of venue, statement, signed by a physician testifying for see "Venue,"1.

plaintiff, held admissible as bearing on his crediExperts, see "Evidence," $ 9.

bility.-Deutschmann v. Third Ave. R. Co. $ 1. Attendance, production of docu- /

(Sup.) 887. ments, and compensation.

WORK AND LABOR. An order directing a witness to deliver books to a commissioner to take evidence held improp Liens for work and materials, see "Mechanics' er.-In re Randall (Sup.) 294. $ 2. Competency.

A judgment for plaintiff in the full amount, Certain testimony of a physician held not in an action for work done in the manufacture within the prohibition of Code Civ. Proc. $ 834, of coats, reversed as contrary to evidence.prohibiting a physician from disclosing profes- Long v. Gingold (Sup.) 194. sional information.-Deutschmann v. Third Ave.

| Parties to proceeding before a referee held liaR. Co. (Sup.) 887.

ble for stenographer's services.-McReynolds v. Code Civ. Proc. $ 834, prohibiting a physician Manger (Sup.) 982. from disclosing professional information, held not to include a druggist.-Deutschmann v.

WRITS. Third Ave. R. Co. (Sup.) 887.

See “Process.” Certain objections to a question asked a physi

Particular writs. cian held not to raise the objection that the question was in violation of Code Civ. Proc. 8 See "Execution"; "Habeas Corpus"; "Injunc834.-Deutschmann v. Third Ave. R. Co. (Sup.) tion"; "Mandamus"; "Prohibition"; "Replev887. The refusal of a patient to permit a physician

YEAR. to testify, notwithstanding Code Civ. Proc. $ 834, held to authorize the jury to draw there Agreements not to be performed within one from inferences warranted by the evidence.- year, see "Frauds, Statute of," 8 2. Deutschmann v. Third Ave. R. Co. (Sup.) 887. Estates for years, see "Landlord and Tenant."


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