v. Brevoort, 40 Super. Ct. (J. & S.) In officer's action against muni-
cipal corporation for salary, denial
Denial of assignment, not aver- of employment does not admit
ment that it was illegal. Clark v. evidence that appointment was in
Geery, 40 Super. Ct. (J. & S.) 227. excess of legal limit. Brennan v.
Demurrer for insufficiency ad- Mayor, &c. of N. Y., 62 N. Y.
mits objection that the only rem- 365; rev'g 47 How. Pr. 178.
edy is a special proceeding. Eno Special damage by loss of ten-
v. Mayor, &c. of N. Y.,7 Hun, 320. ants by nuisance, not admissible
Demurrer, when facts alleged unless alleged. Jutte v. Hughes,
justify any relief, though not that 40 Super. Ct. (J. & S.) 126.
asked for, not sustained. Mackey Evidence that party was a mar-
v. Auer, 8 Hun, 180.
ried woman and could not con-
Effect of sustaining demurrer to tract, not admissible under denial
one of several defenses; and of contract. Westervelt v. Ack-
proper judgment thereon. Mur-ley, 62 N. Y. 505; affi'g 2 Hun,
phy . Allerton, 7 Hun, 650.
258; S. C., 4 Sup'm. Ct. (T. & C.)
One defendant cannot demur 444.
for insufficiency of complaint as Under general denial, even by
against other defendant. Littell infant, evidence which confesses
v. Sayre, 7 Hun, 485.
and avoids allgations of com-
Right to amend by serving an- plaint, not admissible.
swer in lieu of demurrer. Rob- Angevine, 7 Hun, 679.
ertson v. Bennett, Ante, 476.
Former adjudication admissible
What evidence is admissible though not pleaded. Krekeler v.
under general denial. Miller v. Ritter, 62 N. Y. 372.
Ins. Co. of North America, Ante, When plaintiff should apply for
leave to serve supplemental com-
Under general denial in action plaint. Wilson v. Lawrence, 8
for goods sold, evidence of spe- Hun, 593.
cial contract unperformed ad- Supplemental complaint after
missible. Manning v. Winter, 7 judgment. Robinson v. Brisbane,
Hun, 482.
7 Hun, 180.
Under complaint for breach of
Leave to set up, by supplemental
warranty, evidence of defendant's answer, newly discovered facts in
liability on subsequent promise to mitigation of conversion. Coth-
cure unsoundness, admissible. ran v. Hanover Nat. Bank of N.
Dennis v. Coman, 61 N. Y. 642. Y., 40 Super. Ct. (J. & S.)
See, also, as to evidence of 401.
new matter not pleaded,—Ante,
46, note.
Motion to make more definite
and certain, when the remedy.
Defense, not pleaded, to contro- Orvis v. Dana, Ante, 268.
vert matter set up in anawer, ad-
Complaint leaving it uncertain
missible. Coughlin v. N. Y. C. & whether action is to rescind or af-
H. R. R. Co., 8 Hun, 136.
firm sale, made definite by motion.
Faulks v. Kamp, 40 Super. Ct. (J. [verting note. Loomis . Mowry,
& S.) 70.
Verified denial not stricken out
Incorporation of national bank.
Mode of objecting that associa-
though disproved by examination Merchants' Nat. Bank . Mac-
before trial. Schultze v. Rode- Naughton, Ante, 293 n.
Striking out irrelevant matter tion cannot be sued as a corpora-
discretionary, but to be done with tion.
caution. Town of Essex v. N. Y.
White v. Miller, 7 Hun, 427.
Leave to plead discharge after
& Canada R. R. Co., 8 Hun, 361. long delay. Mutual Life Ins. Co.
Judgment for frivolousness not v. Cameron, Ante, 424.
given on answer raising material What particularity is requisite in
issue, nor where complaint is in- divorce, to admit evidence of
sufficient. Munger v. Shannon, adultery. Mitchell v. Mitchell, 61
61 N. Y. 251.
What is one cause of action for
In divorce, marriage must be
accounting. Skidmore v. Collier, proved as alleged. Klein .
8 Hun, 50.
Wolfsohn, Ante, 134.
Sufficiency of complaint in ac- Credit obtained by fraud.
tion against principal on promis- Claflin v. Taussig, 7 Hun, 223.
sory note made by agent. Moore Action for money paid on a
v. McClure, 8 Hun, 557.
What is instrument for payment
of money only. Peyser v. McCor-
mack, 7 Hun, 300.
contract, rescinded for fraud.
Freer v. Denton, 61 N. Y. 492.
Form of complaint to set aside
assignment in fraud of bankrupt
Action for money received by law. MacDonald v. Moore, Ante,
agent, though with allegation of 53.
conversion, is action on contract.
Greentree v. Rosenstock, 61 N. Y.
Answer claiming preference. Ib.
What is entire cause of action
583; affi'g 34 Super. Ct. (J. & S.) for moneys fraudulently obtained:
general allegation of interest of a
Mode of stating written con- defendant, enough. People r.
tract. Alfaro v. Davidson, 40 Tweed, 63 N. Y. 294; confirming
Super. Ct. (J. & S.) 87.
5 Hun, 353.
Action on a warranty is on con- In an action alleging a warranty
tract, although complaint alleges falsely and fraudulently made, re-
scienter, concealment and false covery for fraud may be sustained.
representations. Ross v. Terry, Indianapolis, Peru & Chicago
63 N. Y. 613.
Railw. Co. v. Tyng, 63 N. Y. 653;
Complaint against bankers for affi'g 2 Hun, 311; 8. C., 4 Sup'm.
money paid and wrongfully de- Ct. (T. & C.) 524.
tained, is on contract, not in tort. Evidence that defendant made
Vilmar v. Schall, 61 N. Y. 564; false representations without
affi'g 35 Super. Ct. (J. & S.) 67. knowledge, not competent under
Sufficiency of complaint for con-lallegation that he knowingly
made false representations.
shall v. Fowler, 7 Hun, 237.
Form of complaint to reach sur-
plus trust fund. Miller v. Miller,
For abuse of process, and for Ante, 30.
scheme to defraud. Bebinger v.
limitation of action
against legatees, &c., for debt of
Mode of pleading short limita- decedent, need not be pleaded.
tion in insurance policy. De Selover v. Coe, 63 N. Y. 438.
Grove v. Metropolitan Ins. Co., 61 In action on gold exchange
N. Y. 594.
contract. Chatterton v. Fisk,
Effect of allegations of indorse- Ante, 88; Mills v. Gould, Id. 93.
ment duly made; of seaworthi- How to raise issues between de-
ness; and of excuse for not giving fendants. Newman v. Dickson,
Ins. Co., 61 N. Y. 650.
Complaint for libel: rules for
pleading in defamation. Wallace Construction and effect of pow-
v. Bennett, Ante, 478.
er of attorney to buy and sell
Complaint for malicious prose-stocks, &c., and give orders,
cution. Moulton v. Beecher, checks, &c. Wicks v. Hatch, 62
Ante, 193.
N. Y. 535; affi'g 38 Super. Ct. (J.
Action against married woman, & S.) 95.
to be as if sole. Smith v. Dun-
ning, 61 N. Y. 249.
Complaint by tax collector for
Mode of proof of contract be-
Miller v. Ins. Co. of North
money paid. Ward v. Richard- tween,
Mode of alleging joint negli- America, Ante, 470.
gence. Van Wagenen v. Kemp, Agency revoked by death of
7 Hun, 328.
principal. Helmer v. St. John, 8
Pleading in partition. Town- Hun, 166.
shend v. Townshend, Ante, 81. Agent authorized to pay, may
In action alleging partnership, bind principal by promise to pay.
and asking dissolution and ac- Remington v. Palmer, 62 N. Y.
counting, plaintiff cannot recover 31; rev'g 1 Hun, 619; S. C., 4
on proof of a loan payable with Sup'm. Ct. (T.& C.) 696.
share of profits; and if he could, Right to pass commissions, not
usury, though not pleaded, would necessarily forfeited by breach.
be available as a defense. Anold Fudickar v. Guardian Mut. Ins.
v. Angell, 62 N. Y. 508; rev'g 38 Co., 62 N. Y. 392; affi'g 37 Super.
Super. Ct. (J. & 8.) 27.
Ct. (J. & S.) 358; 45 How. Pr. 462.
When name of principal must
In trespass to land, superfluous
reference to statute giving treble appear in written contract.
damages, does not prejudice plain-chants' Bank v. Hayes, 7 Hun,
tiff. Starkweather v. Quigley, 7530.
Liability of undisclosed princi-
Misnomer in. Muldoon v. Pierz,
pal for goods bought. Inglehart
v. Thousand Isle Hotel Co., 7
Hun, 547.
Liability of agent for sale with- Ante, 309.
out regard to his principal's inter-
est although within terms of his
instructions. Price v. Keyes, 62
N. Y. 378; rev'g 1 Hun, 177: S.
C., 3 Sup'm. Ct. (T. & C.) 720.
One of two joint agents cannot
continue after incapacity of the
other. Salisbury . Brisbane, 61
N. Y. 617.
Service by trespass, vacated.
Mason v. Libbey, Ante, 354.
PROSECUTION.
What constitutes termination of.
Moulton v. Beecher, Ante, 193.
PROMISSORY NOTE.
Pledging separate estate. Toner
v. Mayor, &c. of N. Y., Ante, 302.
Principal, liable for refusal to
honor agent's draft. Levy v. Curtis, QUESTIONS OF LAW AND
Ante, 189.
What is usually a question of
fact. Snow v. Mercantile Mut.
Rules of construction of the ob- Ins. Co., 61 N. Y. 160.
ligation. Belloni v. Freeborn, 63|
Knowledge of law of another
State, a question of fact, not of
Mere laches does not discharge law. Palmer v. Minar, 8 Hun,
surety. Supervisors of Monroe v. 342.
Otis, 62 N. Y. 88.
Valid inception of note, &
Surety discharged by death. question of fact.
Wood v. Fisk, 63 N. Y. 245; rev'g man, 7 Hun, 576.
4 Hun, 525.
Questions of law and fact, in
Co-surety entitled to preservation mal. pros. Fagan v. Knox, Ante,
and assignment of securities. 246; Thompson v. Lumley, Id.
Fielding v. Waterhouse, 40 Super. 254.
Ct. (J. & S.) 424.
Probable cause, when a question
for the jury in malicious prosecu-
tion. Heyne v. Blair, 62 N. Y.
The effect of laying out, by con- 19; rev'g 3 Sup'm. Ct. (T. & C.)
sent. Dempsey v. Kipp, 61 N. Y. 263.
462; rev'g 62 Barb. 311.
Question whether actual parti-
tion could be made, held, a ques-
tion of fact. Macy v. Nelson, 62
PROBABLE CAUSE.
What is, for criminal prosecu- N. Y. 638.
tion. Fagan v. Knox, Ante, 246;|
Thompson v. Lumley, Ante, 254.
Nature of proceedings as to.
Gaines v. Fuentes, Ante, 25 n.
Substantial performance and in-
tentional departure from contract,
questions of fact. Phillip v. Gal-
lant, 62 N. Y. 256; modify'g 3
Sup'm. Ct. (T. & C.) 618; mem. of
S. C., 1 Hun, 528.
When scienter in deceit is ques-coner v. Buffalo & Jamestown R.
tion for jury. Still v. Little, 63 R. Co., 7 Hun, 499.
N. Y. 427.
Rights of, as to snow in streets.
Liability on signature on margin Prime v. Twenty-third St. R. R.
of an agreement; a question for Co., Ante, 63.
QUO WARRANTO.
Attorney-general cannot be com-
pelled to bring action of. People
v. Fairchild, 8 Hun, 334.
Constructive possession. Thomp-
son v. Burhans, 61 N. Y. 52;
rev'g 61 Barb. 260.
Municipal street regulations as
to, construed. Long Island City
v. Long Island R. R. Co., 8 Hun, 58.
Effect of limitation of time on
When not necessary to allege or ticket. Hill v. Syracuse, B. & N.
prove any of contestants, in quo Y. R. R. Co., 63 N. Y. 101.
warranto proceedings, entitled to
office claimed. People v. Murray,
8 Hun, 577.
RAILROADS (AND R. R. CO.).
Acquisition of lands by.
ter of Rhinebeck & Conn.
Co., 8 Hun, 34.
Railroad ticket "good for this
day and train only." Gale v. Dela-
ware, L.& W. R. R. Co., 7 Hun, 670.
Passenger refusing to pay fare,
Mat- no right to be taken back on ten-
R. R. dering fare. Nelson v. Long Is-
land R. R. Co. 7 Hun, 140.
Limits of power to take lands,
Effect of baggage check, with
for purposes of use. N. Y. Cen- coupon ticket over several connect-
tral & H. R. R. R. Co. v. Metro- ing lines. Kessler v. N. Y. Cen-
politan Gas-light Co., 63 N. Y. tral & H. R. R. R. Co., 61 N. Y.
326; affi'g 5 Hun, 301.
538; affi'g 7 Lans. 62.
Duty of conductor of street car
When defeated party entitled to
entry of order awarding land to. to give opportunity to alight.
Matter of Rhinebeck & Conn. R. Poulin v. Broadway & Seventh
R. Co., 8 Hun, 34.
Ave. R. R. Co., 61 N. Y. 621; affi'g
Owner may move to confirm 34 Super. Ct. (J. & S.) 296.
commissioner's report of compen- Duty as to flagmen; ordinances
sation. Bloomfield Gas-light Co. as to speed; liability of company
v. Calkins, 62 N. Y. 386; affi'g 1 running trains over another's road.
Sup'm. Ct. (T. & C.) 549.
McGrath v. N. Y. Central & H. R.
Right of way an easement, or R. R. Co., 63 N. Y. 522.
fee. Washington Cemetery v. Ringing bell and sounding
Prospect Park & Coney Island R. whistle, not the entire duty of the
R. Co., 7 Hun, 655.
company. Zimmer v. N. Y. C. &
Notice to highway commission- H. R. R. R. Co., 7 Hun, 552.
ers to perfect defective title. Obligation to maintain farm
Matter of Prospect Park, 8 Hun, 30. crossings, not waived by absolute
Right of railroad company to conveyance. Smith v. N. Y. &
compel delivery of town bonds Oswego Midland R. R. Co., 63 N.
issued in aid of railroad. Fal-Y. 58.
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