INDEX.

ABODE:

See DOMICILE.

ACADEMIES:

See SCHOOLS.

ACCEPTANCE Of dedication of highways.
See HIGHWAYS.

ACCIDENT- Resulting from negligence.
See NEGLIGENCE.

ACCOUNTING — Between attorney and client.
See ATTORNEY AND CLIENT.

Between partners.

See PARTNERSHIP.

ACKNOWLEDGMENTS — Generally.

See ADMISSION.

To take a case out of the Statute of Limitations.

See LIMITATION OF ACTION.

ACQUIESCENCE:

See LACHES.

ACTION- Complaint against a firm covering a period in which the member-
ship changed misjoinder of causes of action.

See BENTON c. WINNER.

Issuing of attachments in.

See ATTACHMENT.

PAGE.

494

ADDITIONAL ALLOWANCES:

See COSTS.

ADJUDICATIONS:

See JUDGMENTS.

ADMEASUREMENT — Of dower.

See DOWER.

ADMISSION - Confessions, as evidence on criminal trials-section 395 of
the Code of Criminal Procedure.] When the defendant in a criminal action
testifies that a confession, admitted in evidence against him, was made by
him by reason of threats, and all the persons to whom the confession was
made testify that no threats were employed, and the jury find the defendant
guilty, and the case on appeal does not contain the judge's charge, the Gen-
eral Term must assume that the charge correctly stated the rules of law
relating to confessions, and that the jury found the confession to have
been voluntary.

Under such circumstances, the conviction is not open to the objection
that evidence was admitted of a confession "made under the influence of
fear produced by threats," and, therefore, within the prohibition of section
395 of the Code of Criminal Procedure. PEOPLE . BISHOP...

Statute of Limitations Code Civ. Pro. § 395- the debtor's check as an
acknowledgment in writing.

PAGE.

105

See HEATON v. LEONARD...

423

In pleading.

See PLEADING.

ADOPTION - Of act of agents.

See PRINCIPAL AND AGENT.

AFFIDAVIT — Attachment — insufficiency of the affidavit.

See WESSELS v. BOETTCHER.

AGE-Evidence as to.

See EVIDENCE.

AGENCY- Generally.

See PRINCIPAL AND AGENT.

ALBANY CITY COURT- Personal tax-

place of business—jurisdiction of the City Court of Albany,

See BowE v. JENKINS.

306

-

different residences — principal

458

426

On a

ANIMAL-Vicious propensity of a horse-newly-discovered evidence.
motion, by the defendant, for a new trial on the ground of newly-discovered
evidence, in an action brought by an employee against his employer to
recover damages for an injury inflicted by a vicious horse furnished for the
former's use, the defendant submitted an affidavit made by a person who had
been shown on the trial to have been kicked by the horse to the defendant's
knowledge, that the horse, while fighting with another horse, did kick the
affiant, but that it was a slight kick and was attributable to the affiant's
carelessness.

Held, that the effect of this testimony would be to further show the
vicious disposition of the horse, and, therefore, it furnished no ground for
granting the defendant a new trial. HELMKE v. STETLER

109

Duty of an employer to warn an employee of the vicious propensity of a
horse furnished for the latter's use.

See HELMKE . STETLER..

APPEAL — Appeals from Courts of Special Sessions — review confined to
errors alleged in the affidavit for appeal -
-a valid conviction not affected by a
subsequent invalid act of the justice.] 1. On an appeal from a judgment of a
Court of General Sessions, rendered upon an appeal from a Court of Special
Sessions, the General Term will consider only the grounds of error alleged in
the affidavit for appeal presented under section 751 of the Code of Criminal
Procedure.

Upon the conviction of a defendant on a trial in a Court of Special Sessions,
concluded on Saturday evening, the justice who held the court pronounced a
valid sentence of fine and imprisonment and made out a certificate of convic-
tion in accordance therewith, but at the request of the defendant did not
deliver the certificate to an officer that night, and the defendant was per-
mitted to go at large for the time being. On the next day, Sunday, the
justice assumed to modify the sentence so as to impose a fine, which was in
excess of the limit of fifty dollars prescribed by section 717 of the Code of
Criminal Procedure, and made out what purported to be a new certificate of
conviction, and delivered it to a constable, but with a direction not to take
the defendant into custody until Monday afternoon. On Monday morning
the justice withdrew from the constable the certificate of conviction made on
Sunday and delivered to him the valid certificate which had been made out.
on Saturday, and the defendant was arrested. The defendant was allowed
an appeal on an affidavit which alleged as error that the sentence and certifi-
cate imposed and made on Sunday were void and of no effect.

Held, that while the sentence and certificate referred to in the affidavit for
appeal were void and of no effect, that fact did not affect the valid judgment
and certificate rendered and made on Saturday, which ended the jurisdiction
of the Court of Special Sesssions over the case. PEOPLE. JEWETT.

2.

Case remitted by the Court of Appeals for review upon the facts-
effect of a former examination of the evidence. change in members of the
General Term.] In an action of ejectment, all parties claimed title through
the same original owner, the plaintiff under deeds executed before the defend-
ant's deed, but recorded later; the defendant claimed that the plaintiff's
deeds were never delivered, and were obtained by fraud, and also that by
reason of not being recorded, they were invalid as against the defendant, a
purchaser in good faith and for value; the jury rendered a verdict for the
defendant, and the plaintiff appealed; the General Term held that the evi-
dence was insufficient to show that the plaintiff's deeds were not delivered,
or were obtained by fraud, but held, as matter of law, that those deeds were
invalid as against the defendant under the Recording Act, and affirmed the
judgment on the verdict on that ground. The plaintiff then appealed to the
Court of Appeals, which court decided that the defendant was not shown to
be a purchaser for a valuable consideration so as to avoid the effect of the plain-
tiff's prior conveyance, under the Recording Act, and remitted the case to
the General Term for a review on the facts.

Held, that while, in view of its former decision on the same evidence as
now before it, the General Term, although its members had changed, was not
called upon to again discuss the case, yet on a re-examination, it was confirmed
in its former opinion that the evidence was not sufficient to justify the jury
in finding that the plaintiff's deeds were obtained by fraud, and, therefore,
that a new trial should be granted on the ground of the trial judge's refusal
to charge, as requested by the plaintiff, that the evidence on that question
was insufficient. TEN EYCK & WHITBECK.

3.

Review of facts found by a surrogate - -case containing the evidence
necessary.] To entitle an appellant, on an appeal from a surrogate's decree,
to a review of the facts found by the surrogate, a case containing the evi-
dence must be made and settled by the surrogate, as prescribed by section
2576 of the Code of Civil Procedure.

On the final settlement of an administrator's accounts a claim to the prop-
erty of the decedent was presented, based upon an alleged agreement between
the decedent and the claimant that the claimant was to support the decedent,

PAGE.

107

550

450

and in consideration therefor should, after the death of the decedent, have
all her property.
The surrogate awarded the property to the decedent's
next of kin, and the claimant appealed from the decree, but no case contain-
ing the evidence was made, and the referee's findings of fact did not support
the claimant's theory of a contract.

Held, that, under these circumstances, the decree must be affirmed, with
leave, however, to the appellant, on payment of the costs of the appeal, to
make a case under section 2576 of the Code of Civil Procedure, and, on such
case, to have a reargument of the appeal. MATTER OF WALRATH.

4. A perfected appeal from a judgment for rent is a stay upon pre-
existing summary proceedings-section 1310 of the Code of Civil Procedure as
amended January 24, 1893.] The amendment of January 24, 1893, to section
1310 of the Code of Civil Procedure - When an appeal from a judgment
for rent has been perfected, and execution stayed as herein provided, the
appeal stays all summary proceedings, pending or otherwise, to recover the
possession of real property or dispossess tenants therefrom, based on the fail-
ure to pay the rent included in the judgment appealed from" - refers to
appeals perfected before, as well as after, the date of the amendment, and
makes such appeals a stay upon summary proceedings commenced before
and pending at the date of the amendment.

5.

PEOPLE EX REL DURANT LAND CO. . JEROLOMAN..

PAGE.

403

.. 301

Constitutional law.] This legislation does not violate the provis-
ion of the Constitution of the United States which forbids a State to pass
any law impairing the obligations of contracts. Id.

6.

Case on appeal must be settled and signed, and ordered filed · effect of
an omission.] When a case on appeal has neither been settled and signed
by the judge who tried the action, as required by section 997 of the Code of
Civil Procedure, nor been ordered to be filed with the clerk and annexed to
the judgment roll, as prescribed by rule 35 of the General Rules of Practice,
it forms no part of the judgment roll and is not brought up for review by
the General Term by a notice of appeal from the judgment and from an
order denying a motion for a new trial. WOODHULL v. MAYOR, ETC........ 210
7. What brought up for review.] Under such circumstances, a notice
of appeal from the judgment and from an order denying a motion for a new
trial made upon the minutes, brings up for review the judgment roll and
the order only, and when no error appears upon the face of either, the judg-
ment and order must be affirmed. Id.

8. Amendment of a case on appeal.] When the statement: "The
foregoing contains all the evidence upon the trial," has been omitted from a
case on appeal through inadvertence, it is proper for the court at Special
Term to permit its insertion for the purposes of a pending appeal to the
Court of Appeals. BARNARD 7. GANTZ

9. Power to grant a new trial on appeal from a Justice's Court.] The
General Term has no power to grant a new trial in the case of an appeal
from a judgment of a County Court rendered on an appeal in which a new
trial is not asked for, from a judgment of a Justice's Court.
RICHARDSON . LEVI...

Condemnation of real property under chapter 23, title 1, of the Code of
Civil Procedure — appeal from an intermediate order — defective notice of the
presentation of the petition.

104

432

See MATTER OF BROADWAY AND SEVENTH AVENUE R. R. Co....... 275
Dismissal of a complaint - what objections are available at General

Term.

See BROOKE v. TRADESMEN'S NAT. BANK..

202

Decisions of a judge of the Albany City Court upon questions of fact.
See BOOM. READ....

426

-

See MATTER OF HODGMAN..

APPLICATION - Of payments.
See PAYMENT.

From a surrogate's decree — party aggrieved.

484

ARMY-"Inspector of regulating and grading streets" in New York city-
not a public officer - discharge of, from employment — application of chapter 119
of the Laws of 1888, in reference to veteran soldiers and sailors.

See MEYERS v. MAYOR, ETC...

-

ASSAULT — Criminal charge of assault — form of the complaint — payment
to the justice, on aljournment, of money for the complainant's counsel.
See PEOPLE v. PARKER

Committed by throwing vitriol identification of the defendant.
See PEOPLE v. BRACCO..

-

ASSIGNMENT Of a fund by an order drawn against it liability of
the drawee his right to a lien upon security held by him, is independent of the
time of payment of the order.] When an order drawn upon a particular fund
named therein, has the effect pro tanto of an assignment of the fund, it
binds the fund in the hands of the drawee from the date of the presentation
or notice of such assignment, and this is so whether the fund is in the hands
of the drawee at the time of the notice of the order or comes into his hands
thereafter; in either case, the drawee becomes primarily liable to the payee
for the amount of the order as in the case of an acceptance, and it is imma-
terial at what time the order is actually paid; and the drawee will be entitled
to maintain his lien by virtue of any security he holds therefor, from the date
when the indebtedness becomes his own.

A loan association, on making a loan to be used in building operations on
certain premises, placed the money in the hands of its attorney to be advanced
by him to the borrower; the attorney taking a mortgage from the borrower,
on other premises, to secure whatever sums might become due him from the
borrower. Subsequent to the execution and recording of this mortgage, a
person who had furnished materials for a building on the mortgaged prem-
ises, filed a mechanic's lien thereon, notwithstanding which lien an order
which had been drawn by the borrower, on the mortgagee, against the loan
from the association, before the filing of the mechanic's lien, was paid by the
drawee after such notice of lien had been filed.

In a proceeding for the distribution of surplus moneys arising upon the
foreclosure of a prior mortgage, the holder of the mechanic's lien claimed
that his lien was prior to that of the drawee of such order.

Held, that the drawee of the order was entitled to a lien in preference to
that of the mechanic's lienor. HIRSHFIELD v. LUDWIG..

Of a policy of life insurance, "as interest may appear" - right to
redeem - burden of proof — subsequent assignment by the original owner.
See BOHLEBER. WAELDIN.

ASSOCIATION - Incorporated benefit association — eligibility to membership
limited — an ineligible person admitted to membership not entitled to payment
of benefits.

-

See FITZGERALD . BURDEN BENEVOLENT ASSN
ATTACHMENT — Insufficiency of the affidavit.] 1. To obtain an attachment,
the plaintiff must set out in the affidavit therefor a good cause of action,
unless a complaint accompanying the summons, in which a good cause of
action is set forth, is made a part of the affidavit.

An affidavit for an attachment, which only alleges an indebtedness upon
an account current, and which, while stating that the items of such account

PAGE.

291

130

206

554

79

532