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It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests


See Divorce, $$ 37, 62; Husband and Wife, § 3;
Intoxicating Liquors, § 23; Landlord and
Tenant, § 134.



See Bills and Notes, §§ 75, 96, 371.

ACCORD AND SATISFACTION. See Novation; Payment; Release.

$7 (N.Y.Sup.) That the payment of an admitted liability on a judgment for rent was made II. ANOTHER ACTION PENDING. with money borrowed by the tenant did not $8 (N.Y.Sup.) An action at law on a note make it a payment by the lender, so as to renheld not a bar to a subsequent action to fore-der it an accord and satisfaction of the liability for close a trust instrument given by the maker to a trustee for the payee to secure the payment of the note and other indebtedness.Myers v. Stein, 139 N. Y. S. 762.

rent subsequently accruing.-Ivy Court Realty Co. v. Knapp, 139 N. Y. S. 918.

§8 (N.Y.Sup.) A tenant's payment of a judgment for one month's rent was not an accord and satisfaction of an independent liability for

VI. WAIVER OF GROUNDS OF ABATE- four months' rent.-Ivy Court Realty Co. v.



$79 (N.Y.Sup.) Stipulation by plaintiff in divorce that adjournment of hearing of motion to vacate judgment should not prejudice defendant's rights held to authorize the court, after plaintiff's death, to determine the motion to vacate, although there were no residents of the state who could be substituted as plaintiff.Hunt v. Hunt, 139 N. Y. S. 413.


See Death, § 2; Limitation of Actions, § 195.


See Street Railroads, § 13.


See Bills and Notes, $$ 70, 75; Dedication;
Sales, § 1682; Vendor and Purchaser, § 16.

See Fixtures.



See Indictment and Information, § 174.

Knapp, 139 N. Y. S. 918.


See Account Stated; Corporations, § 308; Courts, §§ 188, 202; Executors and Administrators, §§ 115, 311, 507, 509; Partnership, §§ 333, 336; Reference: Trusts, § 298.


§ 19 (N.Y.Sup.) In an action on an account stated, evidence held sufficient to make out a case for plaintiffs in the absence of any opposing proof, and hence a verdict for defendant was unwarranted.-Schultz v. Fitzgibbons, 139 N. Y. S. 608.


See Evidence, §§ 236-265.


See Abatement and Revival; Dismissal and
Nonsuit; Parties; States.


$25 (N.Y.Sup.) An action on a promissory note is a common-law action, and a defense involving the taking of an account does not change its character.-Oppenheimer v. Trebla Realty Co., 139 N. Y. S. 894.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 139 N.Y.S.-73






§ 47 (N.Y.Co.Ct.) A complaint for breach of See Carriers, § 382. contract held not objectionable for improper joinder of causes of action because of allegations of certain torts, intended merely as evidence of defendant's violation of the contract. -Owen v. Brown, 139 N. Y. S. 451.

$48 (N.Y.Sup.) Cause of action for libel by publication of a story of adventure, falsely represented to have been written by plaintiff, and a cause of action under Civil Rights Law, $ 51, giving a right of damages to one whose name has been used for trade purposes without his consent, and arising out of the same publication, held properly joined.-D'Altomonte v. New York Herald Co., 139 N. Y. S. 200.

See Appeal, § 564; Attachment; Depositions; Discovery; Judgment, § 161; New Trial, { 106; Taxation, § 708; Venue, § 68.


See Descent and Distribution, § 47; Wills. §

See Evidence, § 349; Insurance, §§ 723, 730.

$53 (N.Y.Sup.) Where goods are sold on in-
stallments, and all installments are due, the See Principal and Agent.
seller cannot maintain separate actions on the
various installments.-Simon v. Bierbauer, 139
N. Y. S. 327.

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See Contracts.

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See Corporations, § 522; Costs, §§ 227, 240, 264: Criminal Law. §§ 1023-1186; Justices of the Peace; New Trial; Trial, § 127.

III. DECISIONS REVIEWABLE. (D) Finality of Determination. $78 (N.Y.Sup.) A judgment entered upon the failure of defendants to act on the permission. granted in the order overruling their demur rer, to withdraw it and answer is a final not an interlocutory judgment.-Kramer v. Barth. 139 N. Y. S. 341.

(F) Mode of Rendition, Form, and Entry of Judgment or Order.

§ 127 (N.Y.Sup.) No appeal lies from a judgment by default.-Gersmann v. Walpole, 13 N. Y. S. 1.

IV. RIGHT OF REVIEW. (B) Estoppel, Waiver, or Agreements Alfecting Right.

$153 (N.Y.Sup.) By consenting to the submission of false issues to the jury, plaintif did not waive their right of appeal on the ground that the finding should be set aside on

any of the grounds stated in Code Civ. Proc. § 999.-Gerson v. Blanck, 139 N. Y. S. 47.


(A) Issues and Questions in Lower Court.

§ 171 (N.Y.Sup.) A case must be determined in the appellate court upon the same theory on which it was presented below.-Singer v. National Fire Ins. Co. of Hartford, Conn., 139 N. Y. S. 375.

$179 (N.Y.Sup.) Where a party did not request an instruction directing the jury to disregard certain testimony, the improper refusal of the court to strike it is not reversible error.Malcomson v. Monaton Realty Investing Corporation, 139 N. Y. S. 405.

(B) Objections and Motions, and Rulings Thereon.

§ 204 (N.Y.Sup.) A party may not complain of evidence received without objection.-Geiger v. Rapaport, 139 N. Y. S. 55.

§ 215 (N.Y.Sup.) In an action for ejection of a passenger for refusal to pay a second fare, the acquiescence by defendant in an instruction authorizing exemplary damages if the defendant authorized the ejection with malice was a concession that there was evidence from which the jury might find the facts suggested. -Daymon v. Westchester St. R. Co., 139 N. Y. S. 751.

§ 221 (N.Y.Sup.) Where incidental expenses in anticipation of performance of contract were recovered as damages, and no question was raised that the benefit to plaintiff from such expenses should have been deducted, the deduction will not be made on appeal.-Borough Development Co. v. Harmon, 139 N. Y. S. 362.

VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (D) Writ of Error, Citation, or Notice. $419 (N.Y.Sup.) There is no right of appeal from a paper, and an appeal purporting to be from a paper will be dismissed.-Kramer v. Barth, 139 N. Y. S. 341.

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§ 564 (N.Y.Sup.) Where appellant's attorney failed to comply with the court rules requiring him to print and seive the case and papers on appeal, and made a willfully false and misleading affidavit to excuse such default, appellant's motion to extend the time to have the case placed on the calendar for argument will be denied.-Callan v. Callan, 139 N. Y. S. 868.

$569 (N.Y.Sup.) The case on appeal should show the facts as they really happened on the trial, and where there are errors or omissions in the stenographer's minutes should not follow the minutes.-People v. Buccufurri, 139 N. Y. S. 305.

The responsibility of settling a case on appeal is on the trial judge, and his notes and recollection of what occurred must prevail, and while he may be aided by the stenographer's minutes he should not rely upon them alone.-Id.

§ 570 (N.Y.Suv.) While the Appellate Division cannot dictate as to how the trial judge should settle a case, where he has based the settlement entirely upon the stenographer's minutes, and not on his personal recollection, refreshed or aided by other means, it will order a resettlement.-People v. Buccufurri, 139 N. Y. S. 305.


(A) Scope and Extent in General. § 854 (N.Y.Sup.) Reasons, other than those stated by the trial court in the opinion on decision of a motion, existing for affirmance of the order thereon, its affirmance is not necessarily an adoption of such reasons.--Casey v. Auburn Telephone, Co., 139 N. Y. S. 579.

§ 867 (N.Y.Sup.) Where a verdict was set aside by the Municipal Court as contrary to law, and its order was affirmed by the Appellate Term, the facts found are taken as established. Barnard Realty Co. v. Bonwit, 139 N. Y. S. 1050.

(B) Interlocutory, Collateral, and Supplementary Proceedings and Questions.

$875 (N.Y.Sup.) An order directing defendant's punishment for contempt on failure to pay the costs of a reference held not reviewable on appeal from a subsequent order denying a motion to set aside the judgment.-Davidson v. Unger, 139 N. Y. S. 157.

(E) Presumptions.

§ 927 (N.Y.Sup.) On appeal from a judgment of nonsuit, plaintiff is entitled to the benefit of all reasonable inferences from the evidence.Judd v. Lake Shore & M. S. Ry. Co., 139 N. Y. S. 542.

(G) Questions of Fact, Verdicts, and Findings.

§ 1002 (N.Y.Sup.) A verdict on conflicting evidence will not be disturbed.-Jacobson v. Ebling Brewing Co., 139 N. Y. S. 319.

$1003 (N.Y.Sup.) Where the verdict is against the weight of evidence on questions of negligence and contributory negligence, a judgment for plaintiff will be reversed.-Wilund v. New York Cent. & H. R. R. Co., 139 N. Y. S. 1071.

(H) Harmless Error.

§1033 (N.Y.Sup.) The refusal to charge that no inference could be drawn by the jury against a party because of his failure to call a witness present in court during the trial was not erroneous, where the court gave instructions more favorable to the party than he was entitled to.-Geiger v. Rapaport, 139 N. Y. S. 55.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 1041 (N.Y.Sup.) Complaint held sufficient to warrant a recovery either upon a contract or upon a quantum meruit, so that the allowing of an amendment on the trial stating the value of services rendered, if error, was harmless.-Morse v. Canaswacta Knitting Co., 139 N. Y. S. 634. § 1041 (N.Y.Sup.) Allowance of an amend ment to complaint by additional allegations as to the extent of plaintiff's personal injuries, where it did not appear that any new answer would be required, on payment of the costs of the motion only, held not prejudicial to defendant.-Kyle v. City of New York, 139 N. Y. S.


amended the complaint at the close of his case to allege that the offense charged by defendant was a violation of the hotel law, instead of larceny, arguments by plaintiff's counsel that defendant's charge on which the arrest was based was larceny, which meant, in plain English, that defendant was a thief, held prejudicial to defendant.-Norton v. Wilson, 139 N. Y. S. 1047. (K) Subsequent Appeals.

$1099 (N.Y.Sup.) The issue of negligence by work to be done before a skid was fastened a freight handler's foreman in requiring the was not adjudicated on former appeal, though counsel then urged liability on that ground, where the only issue submitted at the trial was that of negligence in failing to secure the skid as an appliance under the Employer's Liability Act, so that the question could be considered on subsequent appeal.-Nappa v. Erie R. Co., 139 N. Y. S. 547.

§ 1048 (N.Y.Sup.) The error in excluding an answer of a witness, on objection to the question made subsequent to the answer, while the remedy was by motion to strike out the answer, was harmless, where the witness was subsequently permitted to testify to the same fact, and the inquiry was not continued.-Kennedy v. John N. Robins Co., 139 N. Y. S. 745. $1050 (N.Y.Sup.) A party cannot complain of the reception of evidence over his objection, XVII. DETERMINATION AND DISPOwhere similar evidence is later admitted without objection.-Malcomson v. Monaton Realty Investing Corporation, 139 N. Y. S. 405.

$1050 (N.Y.Sup.) Error in admitting evidence that a sale of rice was by sample, and that the rice shipped did not correspond to the sample, which was the basis of the court's action in directing a verdict for defendants in an action for the purchase price, was prejudicial to plaintiff. Standard Milling Co. v. De Pass, 139 N. Y. S. 611.


(D) Reversal.

$1169 (N.Y.Sup.) Where the complaint should have been dismissed at the close of plaintiff's case, or a verdict directed for defendant at the close of the whole case, a judgment for plaintiff and an order denying a new trial must be reversed, and a new trial ordered.-Mendelson v. Irving, 139 N. Y. S. 1065.

§1170 (N.Y.Sup.) In view of the express pro§ 1050 (N.Y.Sur.) Where the attorney who visions of Code Civ. Proc. § 1317, as amended drew testator's will was also attorney of record by Laws 1912, c. 380, inconsistency in the conin a suit, the judgment of which showed that clusions of law of the trial court, not affecting persons other than the sole beneficiary had substantial rights, does not require a reversal claims upon the testator, knowledge of those-Cromwell v. Nichols, 139 N. Y. S. 1051. facts would be imputed to the attorney, and the improper allowance of questions as to whether he knew those facts was harmless.-In re Van Ness' Will, 139 N. Y. S. 485.

§ 1051 (N.Y.Sup.) Where fraud was charged, in that the applicant and the person examined were not the same, and the supposed applicant was examined by the company, proof by it as to prior medical attendance and illness, contrary to plaintiff's evidence, would not render harmless the erroneous admission of evidence by insured's physician of prior medical treatment, based on insured's statements to the physician.-Denaro v. Prudential Ins. Co. of America, 139 N. Y. S. 758.

§ 1052 (N.Y.Sup.) Where, in an action to recover money represented by certificates of deposit claimed to belong to plaintiff's intestate, defendant did not make out a prima facie case of ownership of the certificates or their proceeds, any error in admitting evidence would not require reversal of a judgment for plaintiff.-Sands v. Saltsman, 139 N. Y. S. 862.

§ 1057 (N.Y.Sup.) Exclusion of oral representations prior to written contract held harmless error where they were shown by other testimony, and the evidence showed that the contract had been performed in accordance with such representations.-Borough Development Co. v. Harmon, 139 N. Y. S. 362.

§ 1060 (N.Y.Sup.) In an action for malicious prosecution and false arrest after plaintiff

$1171 (N.Y.Sup.) On appeal from a judgment for profits on a contract, where it appeared that plaintiff's profits were necessarily reduced because of the subcontractor's poor work, a judgment which did not make that reduction must be reversed, and the cause remanded, where the amount of the loss does not appear upon the record. Cole v. Lutz & Sheinkman, 139 N. Y. S. 323.

§ 1175 (N.Y.Sup.) Where, on plaintiff's appeal, it appears that he is entitled to recover, and the findings of fact show, without dispute, the amount, the judgment will be reversed and final judgment rendered without new trial under authority of Code Civ. Proc. § 1317, as amended by Laws 1912, c. 380, authorizing rendition of judgment without a new trial when a new trial is unnecessary.-Crowe v. Liquid Carbonic Co., 139 N. Y. S. 587.

§ 1177 (N.Y.Sup.) In a subcontractor's action to foreclose a mechanic's lien, upon reversal of a personal judgment against the owner, where facts may be shown upon another trial making him personally liable, a new trial will be granted, instead of dismissing the complaint.—Tradesman's Nat. Bank of Conshohocken v. Boldt, 139 N. Y. S. 531.

$1180 (N.Y.Sup.) Where an order denying a motion to examine defendant before trial is reversed, an order denying a stay of proceedings until such examination is taken will also be reversed.-Ewen v. Hoefer, 139 N. Y. S. 1055.

(F) Mandate and Proceedings in Lower


§1195 (N.Y.Sup.) A prior determination of the Court of Appeals on reversing a judgment is the law of the case on retrial, unless it appears that the evidence introduced on retrial shows that the premise on which the conclusion of the Court of Appeals was founded is untrue. Title Guarantee & Trust Co. v. Haven, 139 N. Y. S. 207.


See Courts, § 189; Judgment, § 677.

II. CRIMINAL RESPONSIBILITY. (B) Prosecution and Punishment. $82 (N.Y.Sup.) The failure of accused, testifying in his own behalf on his trial for assault by cutting complainant with a razor, to deny that he had a razor at the time, or that he cut complainant, raised of itself a strong presumption of guilt.-People v. Longebodi, 139 N. Y. S. 721.

891 (N.Y.Sup.) Evidence held to support a conviction of assault in the second degree.People v. Longebodi, 139 N. Y. S. 721.


See Taxation, § 496.

$26 (N.Y.Sup.) Where defendant moved to open his default and to permit him to answer, upon proof that there had been no service of the summons, the court erred in dismissing the complaint; defendant having waived the jurisdictional defect and submitted himself to the See Executors and Administrators, § 51. court's jurisdiction.-B. Crystal & Son v. Ohmer, 139 N. Y. S. 841.


See Master and Servant, §§ 107, 121, 125, 126.




See Bills and Notes, § 316; Insurance, $$ 579, 648; Landlord and Tenant, § 44; Wills, § 72.


See Executors and Administrators, § 24; (A) Property, Estates, and Rights AssignGuardian and Ward, §§ 8, 10.

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§ 14 (N.Y.Sup.) The right of a receiver to his fees is inchoate, and upon the grounds of public policy unassignable until liquidated.Colonial Bank v. Sutton, 139 N. Y. S. 1002.


$131 (N.Y.Sup.) In an action for receiver's fees by an assignee thereof, the issue of the validity of the assignment is raised by a denial of the allegation of due assignment; the defense that unearned receiver's fees are not assignable not being personal to the receiver.Colonial Bank v. Sutton, 139 N. Y. S. 1002.


§ 64 (N.Y.Sup.) An arrest without a warrant See Bankruptcy. by a private person for misdemeanor is lawful only where a misdemeanor was actually committed in his presence.-Reisler_v. Interborough Rapid Transit Co., 139 N. Y. S. 335.


See Criminal Law, § 968.


See Criminal Law, § 406; Witnesses, § 367.
$28 (N.Y.Sup.) In a prosecution for arson,
it was not error to introduce in evidence books
and papers showing business relations between
the defendant and the record owner of the
premises burned.-People v. Schneider, 139 N.
Y. S. 104.


See New Trial, § 74; Witnesses, § 140.


See Work and Labor.


Of risk, see Master and Servant, §§ 217, 220, 265, 288.


See Bankruptcy, §§ 156, 195; Execution.
(B) Affidavits.

$ 102 (N.Y.CityCt.) Conclusion of an attachment affidavit that plaintiff was damaged in a specified sum by breach of contract, the damages being unliquidated, held insufficient show

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

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