NOTE. A star (*) indicates that the case referred to is annotated.
with the intention of leaving one of plain- tiffs in possession of the property. Held, that the stipulation was improvident and vived in the name of the executor for the protection of testatrix's estate.-Gueli v. Lennihan, 8 N. Y. S. 453.
Death of party, see Municipal Corporations, improper, and that the action should be re-
Objections to jurisdiction.
1. An objection by a non-resident to the jurisdiction of the court may be raised by a motion to vacate the order of publication. Following Bryan v. Publishing Co., 19 N. Of deed, see Deed, 5. E. 825.-Von Hesse v. Mackaye, 8 N. Y. S.
2. When the fact of want of jurisdiction first appears on a second trial, an objection See Insurance, 9–14.
then taken is in time.-Brooks v. Dins- more, 8 N. Y. S. 103.
Another action pending.
3. Where land is purchased by one part- ner with partnership funds, and, at his in- stance, conveyed to a third person, an ac- tion by the copartner to set aside the con- veyances not barred by the pendency of an action for a partnership accounting, but the accounting cannot be had until it is de- termined whether or not the land is part- nership assets. -Maloy v. Associated Lace- Makers' Co., 8 N. Y. S. 815.
4. Where a joint debtor remains liable for a debt at the time of his death, under Code Civil Proc. N. Y. § 1278, providing for confession of judgment by one or more joint debtors, and for an action against the others on the debt, the remedy survives to the creditor to proceed against his estate. -Harbeck v. Pupin, 8 N. Y. S. 695.
5. Where the affidavits in support of the motion to revive an action of replevin after the death of a defendant allege an illegal appropriation of the property by one of plaintiffs, and the order to show cause in- cludes the clause for "other and further relief in the premises as to this court may seem just and proper," the action may be revived against the executor, though that relief was not specifically requested.- Gueli v. Lennihan, 8 N. Y. S. 453.
6. Plaintiffs in replevin against a testa- trix and her lessee obtained possession of the property. After testatrix's death, plain- tiffs, without reviving the action, obtained a stipulation from her executor for the dis- continuance of the action, which was done!
Accommodation Paper.
See Negotiable Instruments, 2.
Between partners, see Partnership, 3. By bank cashier, see Banks and Banking, 2. Limitation of actions for, see Limitation of Actions, 2, 3, 5.
Of executors, etc., see Executors and Ad- ministrators, 6-10.
To toll statute of limitations, see Limitation | Misjoinder of causes. of Actions, 6.
On contracts, see Contracts, 8, 9.
foreign judgment, see Judgment, 11. notes, see Negotiable Instruments, 4. Particular forms, see Assumpsit; Ejectment; Partition; Replevin; Trespass; Trover and Conversion.
To set aside fraudulent conveyances, see Fraudulent Conveyances, 9-15. Splitting cause of action.
1. In an action against executors for "provisions and supplies furnished" testa- tor, it appeared that he died at plaintiff's house, where he had been sick some time; that, in a suit against defendants, plain- tiff's wife had recovered for nursing testa- tor, and for "preparing and administering food, nourishment, meals, and medicine to and for him," during the time for which plaintiff claimed on account of "provisions and supplies;" and that on the trial of the wife's suit plaintiff had testified that he had agreed with his wife that she should have the claim for board of testator. Held, that the demand, being a part of the same board for which the wife had recovered, could not be separated from it, and on a finding that plaintiff's wife was the owner of the account for board at the time of her suit, plaintiff cannot recover,-Bowers v. Smith, 8 N. Y. S. 226.
Joinder of causes.
2. Under Code Civil Proc. N. Y. § 484, permitting the union of causes of action on contracts, express or implied, where they affect all the parties to the action, a com- plaint may unite a cause of action against an insane debtor for money loaned, with one against his committee in lunacy who is alleged to be in possession of moneys on which the debt is an equitable lien; there being no equity of redemption to be barred, and the question being simply whether plaintiff is equitably entitled to have the money in the committee's hands applied to his debt.-Parmerter v. Baker, 8 N. Y. S. 69.
3. A complaint, in an action by the pledgees of bonds, which alleges that they had become such for full value. in good faith, and before maturity; that the exec- utors of an estate served notice on the makers that the bonds belonged to their testator's estate, from which they had been wrongfully abstracted by the pledgeor: and that by reason of the notice the maker refused to recognize the pledgees' interest: and which prays that the pledgees' title to the bonds may be adjudged, that the maker may be required to register the bonds in the name of the pledgees, and that the ex- ecutors may be adjudged to have no right or title against the pledgees.-is not bad for a misjoinder of causes of action, since the alleged facts are all parts of one con- tinuing transaction.-Newcombe v. Chica- go & N. W. Ry. Co., 8 N. Y. S. 366.
2. One cannot acquire title to land by adverse possession where he claims title under a deed which in fact does not in- clude such land in its description.-Casey v. Dunn, 8 N. Y. S. 305.
land sold under an execution on a judg 3. Possession under a sheriff's deed of ment of a competent court, though the sale may be irregular, and not pass a valid title. is sufficient to form the basis of a claim of title by adverse possession, under Code Civil Proc. N. Y. § 36, providing, inter alia, that a claim founded on a written in- strument, as being a conveyance of the premises, followed by continued occupa- tion for 20 years, under the same claim, will be deemed to have been held adverse- ly.-Davis v. Burroughs, 8 N. Y. S. 379.
For attachment, see Attachment, 3-10.
change of venue, see Venue in Civil Cases, 6.
continuance, see Continuance. Examination before trial, see Discovery, 1, 2. On
application for commission to take deposition, see Deposition, 2.
motion to dissolve attachment, see At- tachment, 11.
Of judgment, see Judgment, 13, 14. pleadings, see Executors and Adminis trators, 15; Fraudulent Conveyances, 14; Pleading, 5-8.
Vicious animals-Evidence. 1. In an action for damages for a bite by defendant's dog, evidence that plaintiff was bitten by defendant's dog, without the slightest warning, is sufficient proof of the vicious character of the dog to require de- fendant to keep him in subjection without further notice, and supports a verdict for plaintiff.-Webber v. Hoag, 8 N. Y. S. 76.
2. Evidence of the dog's treatment after the accident is admissible to show his pre- vious character.-Webber v. Hoag, 8 N. Y.
3. Evidence that the dog habitually as- sailed people on the street near defend- ant's premises before plaintiff was bitten; that he had attacked a driver on a wagon; that plaintiff's employer informed defend- ant of this habit of the dog; and that he was also informed that the dog had as- sailed another person, and torn his coat,- is sufficient to charge defendant with knowledge of the dog's viciousness.-Web- ber v. Hoag, 8 N. Y. S. 76.
See, also, Certiorari; New Trial. Costs on appeal, see Costs, 9. In condemnation proceedings, see Eminent Domain, 11.
Review, see Attachment, 12; Contempt. When lies, see Practice in Civil Cases, 3.
Appellate jurisdiction-When appeal
1. Where a bank pays over a deposit to the administrator of the depositor after ample notice of plaintiff's claim thereto, as donee of the fund, it will not be granted an appeal to the court of appeals from an adverse decision of the court of common pleas, for the purpose of having a question of law, with reference to the contractual force of its rules limiting its liability to de- positors, "definitely" decided.-Walsh v. Bowery Sav. Bank, 8 N. Y. S. 344.
Appellate jurisdiction — Appealable orders.
2. A petitioner applied to the surrogate's court to have an administrator removed. She also brought an action in the supreme court in aid of such proceeding. The sur- rogate dismissed her petition on the merits. The supreme court ordered her action there to be sent to the surrogate to hear and de- termine all questions therein, including costs, etc. No exception was taken to the order. Held, that an order of the surro- gate, opening the first decree, and allow- ing costs to the administrator, who was de- fendant in the supreme court, cannot be reviewed on appeal.-In re Gillingham's Estate, 8 N. Y. S. 385. Notice of appeal.
making it necessary for a party appealing 3. Under Code Civil Proc. N. Y. § 1301, from a final judgment who desires to re- view any intermediate order not already appealed from to state that intention in his notice of appeal, an order refusing a continuance, not referred to in the notice be reviewed.-Crouch v. Moll, 8 N. Y. S. of appeal from the final judgment, will not 183.
4. Where the record on appeal does not show the grounds on which a motion for a new trial on the minutes was based, the question whether the verdict was contrary to the evidence will not be considered.- Stedman v. Batchelor, 8 N. Y. S. 37.
5. Where the papers on an appeal to the general term are not certified as required by Code Civil Proc. N. Y. § 1353, the appeal will not be determined.-Dwight v. Elmira, C. & N. R. Co., 8 N. Y. S. 789.
6. When the record does not show that it contains all the evidence, an exception on the ground that the verdict is not sus- tained by the evidence will not be noticed. -Getty v. Town of Hamlin, 8 N. Y. S. 190. Review.
7. An exception to a refusal to postpone a trial, when made part of the record, will be reviewed by the general term of the su- preme court.-Garfield Nat. Bank v. Col- well, 8 N. Y. S. 380.
8. An order of the special term denying a motion for leave to file a supplemental answer, showing that defendant was en- titled to and had removed the cause to the federal court, is not reviewable on appeal from the judgment, as it is not an order which necessarily affects the final judg. ment.-Ulster County Sav. Inst. v. Fourth Nat. Bank, 8 N. Y. S. 162.
9. Under Code Civil Proc. N. Y. § 1301, which provides that when an appeal is from a final judgment, and the appellant
16. A finding of fact by a referee, which is supported by sufficient evidence, will not be disturbed on appeal.-Bartlett v. Bunn, 8 N. Y. S. 155.
17. When there is some evidence to sup- port a verdict on all the questions of fact. the judgment will not be reversed on the ground of insufficiency of evidence. - Brumfield v. Hill, 8 N. Y. S. 143.
intends to bring up for review an interloc- | Review-Weight and sufficiency of utory judgment or intermediate order, he evidence. must distinctly specify in his notice of ap- peal the interlocutory judgment or inter- mediate order intended to be reviewed: and section 1316, providing that an appeal from a final judgment brings up for review an interlocutory judgment or intermediate or- der which is specified in the notice of ap- peal, and necessarily affects the final judg- ment, and which has not already been re- viewed on a separate appeal,-an order denying a new trial on the minutes, if specified in the notice of appeal as ap- pealed from, will be reviewed in connec- tion with the appeal from the final judg-proofs, the judgment will not be reversed. ment.-Brumfield v. Hill, 8 N. Y. S. 143. Review-Objections not raised be-
10. A question as to who are the proper parties plaintiff cannot be raised for the first time on appeal.-Torrey v. Willard, 8
11. Where it was not objected below that the court had not jurisdiction to re- duce an assessment, the objection cannot be raised on appeal.-In re Feust, 8 N. Y. S. 420.
12. Objection to a judgment roll as evi- dence, on the ground that there was no proof of its genuineness, cannot be raised for the first time on appeal.-Schrader v. Musical Mutual Protective Union, 8 N. Y. S. 706.
13. Plaintiff, in an action to recover money loaned, testified that before the suit was brought defendant insisted on his right to retain the money. No request was made for submission to the jury of the question of demand. Held, that defendant could not raise the question on appeal. Thorp v. Reily, 8 N. Y. S. 493.
14. Where, on direct examination, plain- tiff testifies that his earnings were about $600 a year, but, on cross-examination, it appears that this estimate included the earnings of himself, his family, and his horses, and defendant thereafter makes no motion to strike out the direct testimony, it cannot be objected to on appeal.—Mack- ey v. Town of Locke, 8 N. Y. S. 210.
Matters not apparent on rec-
15. In an action for the price of goods, where a credit which had not expired at the commencement of the action was given on one or two items, a verdict di- rected for plaintiff will not be disturbed, where the case does not show the amount of the items on which credit was given, as it will be presumed that the verdict in- cludes all that was due when the action was brought.-Livingston v. Negus, 8 N. Y. S. 682.
18. Where the evidence is conflicting. yet plaintiff's testimony is consistent with itself, and is not overcome by defendant's -Clark v. Livingstone, 8 N. Y. S. 102.
19. The jury may disbelieve the evidence of a party to an action, or his managing agent, though uncontradicted and unim- peached. Following Dean v. Van Nos- trand, 4 N. E. 134.-Brumfield v. Hill, 8 N. Y. S. 143.
20. Findings of facts by a judge, on a trial without a jury, will not be disturbed on appeal, where they are supported by the evidence.-Berry v. American Cent. Ins. Co., 8 N. Y. S. 762.
21. Where, in a trial by the court, the testimony is doubtful or conflicting, but the findings are within the evidence. the judgment will not be disturbed.-Jarrard v. Bissell, 8 N. Y. S. 92.
22. Where there is sufficient evidence to sustain the verdict, and the case has been properly submitted, the supreme court will not grant a new trial because the court might have arrived at a different conclu- sion.-Brennan v. New York Cent. & H. R. R. Co., 8 N. Y. S. 716.
23. The general term of the New York common pleas will not reverse a judg ment of the district court of the city of New York on a controverted question of fact, unless there is a clear preponderance of evidence against it.-Bannwart v. First Bohemian Brewing Co.. 8 N. Y. S. 335.
24. A party who makes no request of the trial court to find certain facts cannot review the court's adverse finding on those facts on the ground that they are against the weight of evidence, when there is evi- dence to support them.—Crouch v. Moll, 8 N. Y. S. 183.
25. An appeal from a judgment based on a verdict of a jury furnishes questions of law only for examination; but an appeal from an order denying a motion for a new trial on the minutes of the court brings up the whole case, and gives the general term jurisdiction to review the facts, and to as- certain and determine whether the verdict rendered has sufficient support from the evidence.-Martine v. Huyler, 8 N. Y. S.
26. Unless the evidence is so clear anc
indisputable that there could be no hesi | Thompson v. Manhattan Ry. Co., 8 N. Y. S. tancy in reaching the same conclusion if the incompetent evidence had not been in- troduced, its reception is reversible error: and especially should a referee's report be set aside when his written opinion is large- ly based on the objectionable testimony.- Doolittle v. Stone, 8 N. Y. S. 605.
29. Opinions of witnesses as to the causes which occasion the decrease of
rental value are improper; but error in their admission is harmless when the fact intended to be proved thereby is conclu sively established by other evidence, and expressly admitted by defendant's own witnesses.-Birch v. Metropolitan El. Ry. Co., 8 N. Y. S. 325.
30. Objections to a question asked a witness, and to his answer, are cured by the subsequent withdrawal of the evidence thereby elicited.-Morison v. Broadway & S. A. R. Co., 8 N. Y. S. 436.
31. Where defendants rely on a release, plaintiff may show that it was obtained by fraud or mistake, and, having failed so to do, they are not prejudiced by a refusal to allow an amendment praying to have the release set aside on account of fraud.- Bartlett v. Bunn, 8 N. Y. S. 155.
32. In an action by a wife against her husband to recover money received by him for her use, it was conceded that defendant received $600 to invest in a house, the title of which was taken in their joint names. Defendant was credited in plaintiff's bill of particulars with $1.700 as invested in such house, and the credit was allowed. Held, that he could not be heard to com- plain.-Fey v. Fey, 8 N. Y. S. 362.
34. It was admitted that plaintiff paid money to defendant. and his receipt showed that it was in the nature of a loan and the only question was whether plaintiff afterwards agreed to give the money to de- fendant for certain services. Held, that the admission of a note given by plaintiff to a third person, which was indorsed to the effect that the money was to be loaned to defendant, was harmless error.-Thorp v. Reily, 8 N. Y. S. 493.
35. Plaintiff, a passenger on defendant's steam-ship, applied through the stewardess for quinine, which was distributed gratis to passengers. Calomel was given instead, with serious results. Plaintiff was per- mitted to show, against defendant's objec- tion, that some days after the giving of the medicine the ship's doctor was seen intox- icated. Afterwards the court charged there could be no recovery for neglect of the doctor from any cause. Held, that the case would be considered on appeal as if the evidence of intoxication had been re- jected.-Allan v. State S. S. Co., 8 N. Y. S. 803.
Objections waived.
36. After plaintiff had testified, without objection, that he lent money to defend- ant, giving him an order on C., who owed plaintiff, and that C. paid it, and defend- ant, and C. in his behalf, had testified that no such order was given or paid, defend- ant moved to strike out plaintiff's evidence as secondary, and proving the contents of was properly denied. as, even if the evi- a writing by parol. Held, that the motion dence was improper, defendant had waived his right.-Daniels v. Smith, 8 N. Y.
Liabilities on appeal-bonds.
37. Judgment was rendered in proceed- ings to foreclose a mortgage, but no spe- cific sum of money recovered. other than from the sale of the mortgaged premises. Defendant appealed, and furnished sure- ties in compliance with Code Proc. N. Y. § 335, 338. The obligation of the sureties contained no express agreement on their part to pay any deficiency after sale of mortgaged premises. Held, that the sure- ties incurred no liability for said deficien- cy.-Knapp v. Van Etten. 8 N. Y. S. 415.
38. On an appeal to the general term from a judgment of foreclosure, defendant therein gave an undertaking by which his sureties bound themselves to pay any de- 33. Error in allowing witnesses for plain- ficiency which should occur on a sale of the tiffs to testify what, in their judgment, mortgaged premises. Pending an appeal would be the value of the premises if the from a judgment of affirmance by the gen- railroad had not been constructed, is not eral term, defendant obtained a stay of pro- prejudicial to defendant, where similar ceedings on giving an undertaking of like evidence was admitted in its behalf.-effect as the first, but for a larger amount.
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