Trial of particular civil actions or proceedings. "See "Divorce," § 1; "Negligence," § 3. Disputed claims against estate of decedent, see "Executors and Administrators," § 5.

For discharge from employment, see "Master and Servant," § 1.

For personal injuries, see "Carriers," § 2; "Master and Servant," § 6; "Municipal Corporations," § 5; "Street Railroads," § 2. For price of goods sold, see "Sales," § 6. For rescission of contract for insurance, see "Insurance," § 3.

For rent, see "Landlord and Tenant," § 5. For wrongful acts of city marshal, see "Sheriffs and Constables," § 2.

On insurance policy, see "Insurance," § 9. To set aside fraudulent conveyances, see "Fraudulent Conveyances," § 3.

Trial of criminal prosecutions.

See "Criminal Law," § 3.

1. Notice of trial and preliminary proceedings.

Where the consolidation of actions at the instance of defendants affects the condition of bonds given upon removal from the Municipal to the City Court, to the prejudice of the plaintiff, consolidation should not be ordered.-Gray Lithograph Co. v. Schulman (Sup.) 503.

Where a complaint is amended after a case is on the trial calendar, plaintiff is not entitled to a trial without a new note of issue and a new notice of trial, in the absence of an order dispensing therewith, under Code Civ. Proc. 8 723.-Miller v. Mestaniz (Sup.) 503.

§ 2. Dockets, lists, and calendars.

Motion to strike a case from the calendar held properly denied for insufficiency of moving papers.-Bornstein v. Diskin (Sup.) 248.

Where plaintiff moved to advance the trial of the case on the ground that it was a short cause, another motion to the same effect could not be granted while a first motion was pending. -McCaffrey v. Butler (Sup.) 776.

Where plaintiff moved to advance the date of trial on the ground that the case was a short cause, he could not withdraw the motion by notice to that effect in the notice of a similar motion on the same ground.—McCaffrey v. Butler (Sup.) 776.

Where some of the evidence of a witness was proper, a motion to strike out all of his evidence was properly overruled.-Powell v. Hudson Valley Ry. Co. (Sup.) 337.

Objection that copy was not shown to be such held to come too late after its reception in evidence.-Dearman v. Marshall (Sup.) 705.

A motion to strike from the record a written statement was properly denied, where the statement was properly admitted in evidence as bearing on the credibility of a witness.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

ize the jury to consider evidence received as bearing on the credibility of a witness for any improper purpose.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

The statement of the court held not to author

§ 5. Arguments and conduct of counsel. In an action for personal injuries, statements of plaintiff's counsel and the court relative to an insurance company being interested in deschutz v. Ross (Sup.) 632. fending the action held prejudicial error.-Lip

§ 6. Taking case or question from jury. Where parol evidence was introduced without objection to explain the terms of a letter, and such evidence was conflicting, the construction of the letter was for the jury.-Rochester & P. Coal & Iron Co. v. Flint, Eddy & Co. (Sup.) 269.

Dismissal of plaintiff's complaint at the close of his case for failure of proof should be without prejudice.-Soltz v. Newmark (Sup.) 283. Where the evidence is conflicting, it is error to direct a verdict.-Morel v. Stearns (Sup.) 521. 7. Instructions to jury.

An instruction as to the duty of defendant to stop its car a sufficient length of time to allow a passenger to alight held not erroneous. in view of other instructions.-Day v. Union Ry. Co. (Sup.) 560.

An instruction in an action in which there was conflicting evidence held erroneous, because preventing the jury from reconciling_the_conflict.-Beers v. Metropolitan St. Ry. Co. (Sup.) 785.

A requested instruction held properly refused because erroneous.-Deutschmann v. Third Ave.

eral.

Where the parties to a suit in equity, and the court, treated it as an action at law, the issues should go to the jury, as in actions at law.-Voss v. Smith (Sup.) 471.

4. Reception of evidence. Where defendant failed to prove any damage under its counterclaim, the denial of a motion to reopen a case to present proof of damage after the testimony was closed was not abuse of discretion.-Jarvis v. New York House Wrecking Co. (Sup.) 191.

an

Where no grounds are given for an objection to a question calling for material evidence, though improper in form, it is error to sustain such objection.-Gerry v. Seibrecht (Sup.) 250.

§ 8. Trial by court.

On trial before a court, it can enter a judgment based on a holding that certain evidence received is incompetent, though there is no objection to the evidence.-Oppenheimer v. Kruckman (Sup.) 129.

Motion to dismiss for failure to show facts constituting cause of action held sufficient to raise question of sufficiency of evidence to support finding of value of animal injured.-Lee v. Callahan (Sup.) 167.

It is not error to refuse a negative conclusion of law applicable to a situation not shown_in the evidence.-Hayes v. Metropolitan St. Ry. Co. (Sup.) 271.

§ 2. Remedies of purchaser. Plaintiff, in order to sue defendant for breach of his contract to convey land, need not offer to perform on the day stipulated in the contract.-Daly v. Bruen (Sup.) 971.

There is presumed to be some damage for breach of contract for sale of land from inability to give title.-Daly v. Bruen (Sup.) 971.

VENUE.

§ 1. Change of venue or place of trial. Change of venue for convenience of witnesses held not justified by facts disclosed.-Quinn v. Brooklyn Heights R. Co. (Sup.) 738.

Venue will not be changed to New York or Kings county solely for convenience of witnesses.-Quinn v. Brooklyn Heights R. Co. (Sup.) 738.

VERDICT.

Harmless error in directing, see "Appeal," § 12. Presentation of grounds of review in record, see "Appeal," § 5.

Review on appeal, see "Appeal," § 11.
Setting aside, see "New Trial," § 1.

VERIFICATION.

Of pleading, see "Pleading," § 3. Of tax roll, see "Taxation," § 1.

VILLAGES.

See "Municipal Corporations." Authority of officers as to establishment of railroad crossing, see "Railroads," § 1. Restraining construction of railroad on village street, see "Injunction," § 1.

VOLUNTARY APPEARANCE.

See "Appearance."

VOLUNTARY PAYMENT.

Of transfer tax, see "Taxation."

VOTERS.

See "Elections."

WAIVER.

Of rights or remedies.

See "Insurance," § 6.

Allowance to surviving wife, see "Executors and Administrators," § 4.

Breach of contract, see "Contracts," § 5. Breach of warranty of goods sold, see "Sales," § 5.

Counterclaim for breach of contract, see "Contracts," § 4.

Right of arrest in civil actions, see “Arres § 1.

Rights under contract, see "Contracts," § &
Right to appeal, see "Appeal," $ 2.
Right to trial by jury, see "Jury," § 1.

WARDS.

See "Guardian and Ward.”

WAREHOUSEMEN.

A warehouse company held not to have a b on property stored as against a prior mor gee.-Allen v. Becket (Sup.) 1007.

WARRANTY.

Covenants of warranty, see "Covenants,"
On sale of goods, see "Sales," §§ 5, 7.

WATERS AND WATER COURSES. Grants of public lands under water, see "Pub lic Lands," § 1.

Water courses in cities, see "Municipal Cor porations," § 5.

§ 1. Artificial ponds, reservoirs, and channels, dams, and flowage.

An action for obstructing the water supply. by the grantee of a devisee against the other devisee, under a will allowing each a reasonable use of the water on the premises, held not sustained by the evidence.-Howard v. Howard (Sup.) 389.

WAYS.

Private rights of way, see "Easements." Public ways, see "Highways"; "Municipal Cor porations," §§ 4, 5.

WIDOWS.

Right to appointment as guardian of minor children, see "Guardian and Ward," § 1.

WILLS.

See "Descent and Distribution"; "Executors and Administrators.'

Construction and execution of trusts, see "Trusts."

Legacy and succession taxes, see "Taxation," $ 5. Operation of will of foreign testator, see "Aliens," § 1.

1. Nature and extent of testamentary

power.

Will construed, and held not to effect conversion of realty into personalty, so as to permit Columbia University to take the same, irre spective of charter limitations on power to hold

real estate.-Phoenix v. Trustees of Columbia College (Sup.) 897.

§ 2. Requisites and validity.

Will held lawfully executed. In re Burns' Will (Sup.) 551.

3. Probate, establishment, and annul

ment.

Surrogate court held to have jurisdiction to mit to probate will of foreign testator.-In re randon's Estate (Sur.) 937.

4. Construction.

Where testator devised his homestead to exutors, to maintain for his family from his eneral estate, the trust held an active, valid ust, entitling the executors to maintain the operty from the general estate.-In re Stewart Sup.) 719.

Where a testator directed his executors to aintain his homestead from his general estate, decree setting apart the income from a paricular fund until vacated is final, so far as to equire the executors to use the income only, ind not the principal of the particular fund.— En re Stewart (Sup.) 719.

Will construed, and a bequest "in trust" held not to create a trust, but an immediate gift. -In re Daniels' Estate (Sur.) 684.

WITNESSES.

See "Depositions"; "Evidence."

3. Examination.

In an action on an undertaking given in replevin, a witness may refresh his memory by reference to a memorandum containing a list made by him of the goods, and then state from memory what was taken.-Rogers v. United States Fidelity & Guarantee Co. (Sup.) 203.

It is not error to permit a witness to explain on his redirect what he said on his cross examination. Hayes v. Metropolitan St. Ry. Co. (Sup.) 271.

Exclusion on plaintiff's redirect of questions calling for testimony already given is not error.-Hayes v. Metropolitan St. Ry. Co. (Sup.)

271.

Questions relating to matters the existence of which the witness denies, and proof of which is essential as a basis for further inquiry, are properly excluded.-Bernstein v. Lester (Sup.) 496.

8 4. Credibility, impeachment, contradiction, and corroboration.

Where a plaintiff has been permitted to change the isues by an amendment at the beginning of the trial, defendant can expose plaintiff's inconsistency by cross-examination.-Blake v. Malliet (Sup.) 161.

Defendant held bound by certain testimony brought out by it on examination of a witness for plaintiff.-Goldberg v. Metropolitan St. Ry. Co. (Sup.) 211.

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 his bias.-H. E. Taylor & Co. v. Metropolitan St. Ry. Co. (Sup.) 282.

In an action for personal injuries, a written

Experts, see "Evidence," § 9.

§ 1. Attendance, production of ments, and compensation.

plaintiff, held admissible as bearing on his credibility.-Deutschmann v. Third Ave. R. Co.

An order directing a witness to deliver books to a commissioner to take evidence held improper.-In re Randall (Sup.) 294.

§ 2. Competency.

Certain testimony of a physician held not within the prohibition of Code Civ. Proc. § 834, prohibiting a physician from disclosing professional information.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

Code Civ. Proc. § 834, prohibiting a physician 1 from disclosing professional information, held not to include a druggist.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

Certain objections to a question asked a physician held not to raise the objection that the question was in violation of Code Civ. Proc. 8 834.-Deutschmann v. Third Ave. R. Co. (Sup.)

887.

The refusal of a patient to permit a physician to testify, notwithstanding Code Civ. Proc. § 834, held to authorize the jury to draw therefrom inferences warranted by the evidence.Deutschmann v. Third Ave. R. Co. (Sup.) 887.