INDEX. ABATEMENT AND REVIVAL. ght of action by or against personal repre- 1. Death of party and revival of ac- Code Civ. Proc. § 757, held not to authorize ABUTTING OWNERS. ssessments for expenses of public improve- ights in highways in general, see "Highways," ights in streets in cities, see "Municipal Cor- ACCEPTANCE. f goods sold in general, see "Sales," § 3. ACCOMMODATION PAPER. ?e "Bills and Notes." ACCORD AND SATISFACTION. e "Compromise and Settlement"; "Nova- The acceptance by the creditor of a check Acceptance of check without objection held ACCOUNT. ccounting by corporate officers, see "Corpora- ccounting by executor or administrator, see 90 N.Y.S.-71 Discovery in actions for accounting, see "Dis- Examination of account as ground for compul- ACCRUAL. Of transfer tax, see "Taxation," § 4. ACKNOWLEDGMENT. As evidence of time of delivery of deed, see Of indebtedness barred by limitation, see "Lim- ACTION. Abatement, see "Abatement and Revival." Counterclaim, see "Set-Off and Counterclaim." Malicious actions, see "Malicious Prosecution." Actions between parties in particular relations. Co-tenants, see "Partition," § 1. Actions by or against particular classes of See "Brokers," § 3; "Carriers," §§ 1-3. 5; "Cor- Foreign corporations, see "Corporations," § 9. Particular causes or grounds of action. (1121) and 124 New York State Reporter ment," 11; "Libel and Slander," § 2; "Malicious Prosecution," § 1; "Money Lent"; "Negligence," § 3; "Trespass"; "Trover and Conversion," § 1. Breach of contract, see "Contracts," § 5; "Vendor and Purchaser," $ 2. Breach of contract to devise or bequeath, see "Wills," § 2. Breach of contract to furnish electricity, see Breach of covenant, see "Covenants," § 4. Civil damages for sale of liquors, see "Intoxi- Compensation of attorney, see "Attorney and Compensation of broker, see "Brokers," § 3. Foreign judgment, see "Judgment." § 11. Price of goods, see "Sales," § 5. Nonsuit, see "Trial," § 5. Proceedings in exercise of special jurisdictions. Criminal prosecutions, see "Criminal Law.” Review of proceedings. See "Appeal"; "Certiorari"; "Judgment,” § 5: "New Trial." § 1. Nature and form. Where complaint states cause of action in law or equity, its nature is determined by the prayers.-Zeiser v. Cohn (Sup.) 66. Allegations as to tortious conduct do not make action on contract one in tort.-Price v. Parker (Sup.) 98. Plaintiff may waive cause of action in tort and proceed in assumpsit, when facts authorize Price of land, see "Vendor and Purchaser."82 Recovery of payment, see "Payment," § 3. Services, see "Master and Servant," § 2. Wages, see "Master and Servant," § 2. Particular forms of action. See "Replevin"; "Trover and Conversion." Particular forms of special relief. See "Creditors' Suit"; "Divorce"; "Injunction"; "Interpleader"; "Partition," § 1; "Specific Performance." Abatement of nuisance, see "Nuisance," § 1. Admeasurement or assignment of dower, see "Dower," § 1. Alimony, see "Divorce," § 3. Under Code Civ. Proc. § 549, subd. 2, an allegation entitling plaintiff to an order for ar rest cannot be rejected as surplusage.-Frid v. Freudenthal (Sup.) 344. Although the prayer for judgment may be r sorted to, to ascertain the pleader's intention. it cannot control the nature of the action as against an expressed intention to the contrary. -Frick v. Freudenthal (Sup.) 344. Equitable principles held applicable in action for money had and received. Merino v. Munoz (Sup.) 985. § 2. Joinder, splitting, and severance. consolidation. Complaint in action by judgment creditor held one to set aside alleged fraudulent conveyances only.-Zeiser v. Cohn (Sup.) 66. In action to set aside fraudulent conveyances. Cancellation of written instrument, see "Can- allegations as to promises by grantee to pay cellation of Instruments.) Construction of will, see "Wills," § 5. Establishment of attorney's lien, see "Attor- Establishment of will, see "Wills." $ 4. grantor's debts held not to constitute a separate cause of action on contract.-Zeiser v. Coha (Sup.) 66. Code Civ. Proc. § 484, subd. 9, held not to authorize the joinder of a cause of action for converting plaintiff's horse and buggy with an action for a subsequent assault on plaintiff.Campbell v. Hallihan (Sup.) 432. § 3. Commencement, prosecution, and termination. Acts of plaintiff after the commencement of suit may preclude him from maintaining it, and be pleaded by the answer for that purpose.Wormser v. Metropolitan St. Ry. Co. (Sup.) 714. ADEQUATE REMEDY AT LAW. Effect on jurisdiction of equity, see "Injune tion," § 1. As evidence in civil actions, see "Evidence," AGREED CASE. Submission of controversy to court, see "Sub- AGREEMENT. See "Contracts." AGRICULTURE. Venue of action for penalty for unauthorized ALIENATION. Suspension of power of alienation of property, ALIMONY. See "Divorce," § 3. ALLOWANCE. Authority of attorney to make, see "Attorney Of claims against town, see "Towns," § 2. and Client," § 1. In particular proceedings. See "Arrest," § 1; "Injunction," § 3. Criminal prosecutions, see "Criminal Law," For commission to take testimony, see "Dep- Foreclosure, see "Mortgages," § 4. Verification of pleading, see "Pleading," § 5. AGENCY. See "Principal and Agent." ALTERATION. Of geographical or political divisions, see "Mu- Of highways, see "Highways," § 1. ALTERATION OF INSTRUMENTS. AMENDMENT. Of designation of parties to action, see "Par- Of judgment, see "Judgment," § 4. Of judgment by consent, affecting right of re- Of pleading, see "Pleading," §§ 4, 9. Of record on appeal or writ of error, see "Ap- ANCILLARY ADMINISTRATION. ANIMALS. Evidence in action involving ownership of ANNUITIES. Will construed, and annuities provided for 1124 ANSWER. In pleading, see "Pleading," § 2. and 124 New York State Reporter APOTHECARIES. See "Druggists." APPEAL. See "Certiorari"; "New Trial." riously affect the value of the land.-Scudder v. Watt (Sup.) 605. Trial of an action at a place in a county where the judge had no authority to try the same held a jurisdictional defect, which was not waived by failure to object thereto in the tria. court.-Armstrong v. Loveland (Sup.) 711. Objection to variance must be first raised be low. Stern v. Westchester Electric Ry. Co. (Sup.) 870. Submission of a wife's liability for goods de Denial of adjournment pending trial as preju- livered to her husband on the theory that she dicial error, see "Trial," § 2. Review in particular civil actions. See "Mandamus," § 3. Review in special proceedings. On claim against town, see "Towns," § 2. Review of criminal prosecutions. See "Criminal Law," § 4. § 1. Right of review. A plaintiff held not entitled to appeal from a judgment for defendant, amended on his motion, making it a judgment of dismissal. Reichenberg v. Interurban St. Ry. Co. (Sup.) 384. Appellee in the county court on appeal from a justice held not entitled to appeal from a judgment of reversal, which had been modified by consent by ordering a new trial.-Flewellin v. Lent (Sup.) 417. § 2. Presentation and reservation in lower court of grounds of review. Where the trial proceeded on the theory of nonacceptance of goods sold, plaintiff could not, on appeal, contend that defendant waived plaintiff's default in failing to make delivery within the required time.-Birkett v. Nichols (Sup.) 257. Criticism of the charge with regard to matters which should have been called to the attention of the justice on the trial, if prejudicial. cannot avail on appeal.-Vacca v. Martucci (Sup.) 356. The failure of the trial court to require preliminary proof of the genuineness of the record of a judgment admitted in evidence will not avail on appeal, where the only objection to its admission on the trial was its competency. Sampson v. Mayer (Sup.) 379. A party, on appeal from an order dismissing his complaint, held entitled to review only the matter raised below.-Eckes v. Stetler (Sup.) 473. Objection that an order allowing a preference in the trial of a case was in violation of a City Court rule could not be made for the first time on appeal.-Cohen v. Interurban St. Ry. Co. (Sup.) 479. Plaintiffs in action to enforce specific performance of contract for the purchase of real estate held to be in no position on appeal to urge that a certain agreement did not inju was his undisclosed principal, not objected to on the trial, cannot be urged for reversal on appeal.-Mollineaux v. Clapp (Sup.) 880. § 3. Requisites and proceedings for On an order denying a motion to resettle an order disapproving an undertaking on appeal, appellant was entitled to a full recital in the order of all papers used or read on the motion. -Davis v. Reflex Camera Co. (Sup.) 877. § 4. Record and proceedings not in record. Under the facts, held, that the record would be returned to the files to allow appellant to move that it be returned to the trial court for nicipal Court Act, Laws 1902, p. 1581, c. 580. § settlement of the case, in accordance with Ma318.-Hillman v. De Rosa (Sup.) 409. The sufliciency of a judgment roll to justify dismissal under a plea of former recovery candoes not appear in the case on appeal.-Muller not be determined, where the judgment roll v. Bendit (Sup.) 433. Where plaintiffs excepted to dismissal on the ground that a judgment roll showed a former rate the judgment roll in the case on appeal.— recovery, it was defendant's duty to incorpoMuller v. Bendit (Sup.) 433. On appeal from an order denying a motion to resettle an order disapproving an undertaking on appeal, appellant held not entitled to have the order amended by stating the specifie ground of disapproval.-Davis v. Reflex Camera Co. (Sup.) 877. Where a case on appeal from the City Court does not affirmatively show that it contains all the evidence, the Appellate Term will not review it.-Empire Trust Co. v. Devlin (Sup.) 1066. Where a case on appeal from the City Court does not affirmatively show that it contains all the evidence, the Appellate Term will not inquire into the weight of the evidence.-Hilgert v. Black (Sup.) 1067. |