raised in the court below and not presented by proper exceptions.-People v. Manfredi (Sup.) 84. (D) Record and Proceedings Not in Record. § 1110. On appeal to a Court of Special Sessions, an amended return may be required under Code Cr. Proc. §§ 758, 763, to show irreg ularities not appearing by the return.-People v. Fuchs (Co. Ĉt.) 1011. § 1128. On appeal to a Court of Special Sessions, affidavits will not be received to show irregularities not appearing by the return.-People v. Fuchs (Co. Ct.) 1011. § 1184. Under Code Cr. Proc. § 543, held, that the Appellate Division will correct a judgment erroneous only as to the punishment prescribed. People v. Bretton (Sup.) 247. XVII. PUNISHMENT AND PREVENTION OF CRIME. 1206. A statute prescribing a flat sentence of a given term for the offense held not unconstitutional.-People ex rel. Enright v. Meyers (Gen. Sess.) 1099. 1211. Where accused pleaded guilty to a second degree grand larceny as a first offense, held error to impose the sentence prescribed by statute for a fourth felony offense.-People v. Bretton (Sup.) 247. CROSS-EXAMINATION. See Evidence, § 558; Witnesses, §§ 268, 405. CROSSINGS. See Railroads, §§ 307-350. CUSTOMS AND USAGES. 15. Evidence of established custom held competent, in action by seller to recover the * price of goods.-Rhodesia Mfg. Co. v. Tombacher (Sup.) 420. DAMAGES. 6. Plaintiff, suing in equity for the value of corporate stock and bonds converted by defendant, held to have the burden of proving the loss sustained.-Central Trust Co. of New York v. Manhattan Trust Co. (Sup.) 730. directly from the seller's delay in delivery is § 6. A buyer's right to damages flowing exact amount.-Raymore Realty Co. v. Pfotennot defeated by impossibility of proving the hauer-Nesbit Co. (Sup.) 1002. DAMS. See Action, § 38; Appeal, § 1122; Brokers, § DEAD BODIES. § 6. A charge for the burial expenses of a one year old child held not excessive, when considered with the father's weekly income.-Gob I. NATURE AND GROUNDS IN GEN- ber v. Empting (Sup.) 4. ERAL. § 6. A plaintiff, suing in equity for the conversion of corporate stock and bonds wrongfully sold by defendant, held entitled to recover the amount of the successful bid at the sale.-Central Trust Co. of New York v. Manhattan Trust Co. (Sup.) 730. DEATH. See Abatement and Revival, §§ 63, 73, 77; At- For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER Death II. ACTIONS FOR CAUSING DEATH. DEGREES. Of crime, see Criminal Law, § 1211. DE JURE OFFICERS. (A) Right of Action and Defenses. § 11. An administratrix, appointed under the laws of New York and having a complete remedy under Code Civ. Proc. §§ 1902-1905, held not entitled to use Act Cong. April 22, 1908, See Municipal Corporations, § 162. as amended by Act April 5, 1910, giving a right of action for wrongful death, for the purpose of defeating the New York statute regulating the distribution of personal property.-In re Taylor (Sup.) 378. DECEIT. See Corporations, § 317; Fraud; Principal and Surety, § 41. DECLARATION. Of dividends, see Corporations, § 317. DEDICATION. I. NATURE AND REQUISITES. § 20. Evidence held not to show an intention by a railroad company to dedicate land about its depot for street_purposes.-New York Cent. & H. R. R. Co. v. Ryan (Sup.) 55. § 35. An act of a municipality held an acceptance of an offer to dedicate land for public streets.-Stillman v. City of Olean (Sup.) 515. § 35. A municipality held not prevented from accepting an offer of dedication of land for a street.-Stillman v. City of Olean (Sup.) 515. § 38. A revocation of a dedication of land for a street can only be made by the person making the dedication.-Stillman v. City of Olean (Sup.) 515. (A) General Rules of Construction. § 90. The court in construing a deed held required to give to every clause therein its appropriate meaning.-In re Hamilton St. in City of New York (Sup.) 317. DELAY. See Damages, §§ 6, 78; Sales, § 418. DELEGATION. 1172 Of master's duty, see Master and Servant, § 103. DELIVERY. See Deeds, § 194; Sales, § 418. DEMURRER. See Pleading, §§ 191-225. DENIALS. See Pleading, § 121. DEPOSITIONS. See Courts, § 190. 8. A commission will not issue to obtain evidence which will be inadmissible at the trial.-Dwight v. Gibb (Sup.) 961, 965, 966. § 36. An affidavit supporting a motion for an open commission to take testimony of nonresident witnesses held insufficient, under Code Civ. Proc. §§ 887, 894.-Sullivan v. H. F. Taintor Mfg. Co. (Sup.) 598. DEPOSITS. See Banks and Banking, §§ 127-154; Taxation, § 893. DESCENDANTS. See Wills, § 511. DESCENT AND DISTRIBUTION. See Compromise and Settlement, §§ 6, 9: Executors and Administrators; Partnership, 255; Taxation, § 878; Wills. DILIGENCE. IV. PLEADING AND EVIDENCE. 194. A deed held, on the evidence, not to have been delivered.-Fogarty v. Stange (Sup.) See Specific Performance, § 92. 610. DE FACTO OFFICERS. DIRECTING VERDICT. See Corporations, § 289; Municipal Corpora- See Trial, § 169. tions, § 162. DEFAULT. See Judgment, §§ 140-169. DIRECTORS. See Corporations, § 340; Evidence, § 67. DISBARMENT. See Attorney and Client, § 52. DISCHARGE. rightfully in the state and properly in court.— Eclipse Silk Mfg. Co. v. Hiller (Sup.) 879. $75. Petition by widow, in proceedings on a citation for executors to show cause why annuity to her should not be paid, dismissed, under Code Civ. Proc. § 2722, as without the See Jury, § 149; Principal and Surety, §§ 104- jurisdiction of the surrogate, without prejudice 110. Sureties on appeal bond, see Appeal, § 1227. DISCOVERY. II. UNDER STATUTORY PROVI SIONS. (A) Interrogatories and Examination of Parties and of Other Persons. § 30. Defendant's examination before trial, in an action for damages for seduction, held properly refused.-Wessel v. Schwarzler (Sup.) 521, 522. § 31. Refusal of an examination before trial held not an abuse of discretion.-Dunfee v. Dunfee (Sup.) 142. § 36. Under Code Civ. Proc. § 872, subd. 5, an allegation that the testimony of a witness is necessary to prepare for trial, etc., held insufficient to warrant an order for his examination before trial.-Jacobsen, Wright & Bogen v. Arnstaedt & Co. (Sup.) 452. to an action by the widow.-In re Smith's Estate (Sur.) 911. DISOBEDIENCE. See Contempt, § 21. DISORDERLY CONDUCT. See Criminal Law, § 15. DISPOSSESSION. See Landlord and Tenant, § 318. See Judges, §§ 42-54. DISSOLUTION. See Attachment, § 272; Banks and Banking, § 77; Partnership, § 311. DIVIDENDS. § 61. The vacation of an order for the examination of defendant company's officers held improper.-Dennis v. Stock, Grain & Provision See Corporations, § 317. Co. of New York (Sup.) 760. (B) Production and Inspection of Writings and of Other Matters. $ 84. In a suit to set aside a conveyance of a partner's interest to his copartner, complainant held not entitled to an examination of the firm's books, papers, and accounts before trial.Gow v. Ward (Sup.) 466. DISCRETION OF COURT. 95. DISCRIMINATION. See Constitutional Law, § 225. DISMISSAL AND NONSUIT. See Appeal, $$ 173, 927, 1207: Costs. § 137; Courts, § 190; Execution, § 392: Indictment and Information, $$ 108, 196; Judgment, $$ 197. 570; Justices of the Peace, § 130; Landlord and Tenant, § 318; Mortgages, § 316; Parties, § 14; Pleading, § 349; Trial, §§ 165, 169. II. INVOLUNTARY. $58. Under Const. art. 8, § 3, Code Civ. Proc. $ 1779, and General Corporation Law, $15, hold, that a complaint, to which an answer was deemed to be controverted under Code Civ. Proc. § 522, did not judicially show that the plaintiff, a foreign corporation, was not DIVORCE. IV. JURISDICTION, PROCEEDINGS, (C) Pleading. § 99. In an action for divorce for adultery, an allegation in the answer as a partial defense that complainant by her willful abandonment of defendant had consented to the adultery charged held not to show a defense.--McNeir v. McNeir (Sup.) 481. (D) Evidence. § 124. Marriage should only be dissolved upon clear and convincing proof, and for the gravest and most satisfactory reasons.-Post v. Post (Sup.) 754. $ 129. In an action for divorce for adultery, evidence held sufficient to require a finding that defendant was guilty of the offense charged.McNeir v. McNeir (Sup.) 481. (F) Judgment or Decree. $165. Under Code Civ. Proc. §§ 1758, 1774, held, final judgment of divorce should be set aside, on the fact of the parties having cohabited after entry of interlocutory judgment, but before final judgment, being afterward shown to the court.-Cary v. Cary (Sup.) 444. § 172. A decree of annulment of marriage between a woman and her second husband held not conclusive as against the woman as to the va For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER lidity of a decree dissolving a first marriage in V. ALIMONY, ALLOWANCES, AND DRUGGISTS. See Damages, § 177; Evidence, § 443. DUPLICATE. § 243. Under Code Civ. Proc. §§ 1240, 1269, See Wills, §§ 175, 207, 290. VI. CUSTODY AND SUPPORT OF § 298. Facts held insufficient to justify a refusal to award minor female children to the custody of their mother on her obtaining a divorce for her husband's adultery.-McNeir v. McNeir (Sup.) 481. EASEMENTS. See Eminent Domain, §§ 50, 85, 119, 149; Judgment, § 250; Licenses, § 44. I. CREATION, EXISTENCE, AND TERMINATION. § 1. "Easement" defined.-Reeve v. Duryee (Sup.) 748. § 17. Grantees of lots holding under conveyances recognizing a map of a tract divided into lots and streets held to acquire a right to have a street defined on the map kept open.-Stillman § 298. Where a wife is entitled to a divorce VII. OPERATION AND EFFECT OF § 326. A decree of absolute divorce granted in Texas held valid in New York.-Post v. Post (Sup.) 754. DOCUMENTARY EVIDENCE. See Evidence, § 351. DOMICILE. § 4. An existing domicile continues until another is acquired, and is not lost by temporary absence, or even by abandonment, until a new one is intentionally established.-Post v. Post (Sup.) 754. DOWER. See Tenancy in Common, §§ 3, 28. III. RIGHTS AND REMEDIES OF § 95. In view of Code Civ. Proc. §§ 1625, 3253, 3254, the gross award of dower should, under the provisions of section 1624, be computed upon the net proceeds of the sale.-Woodbury v. Woodbury (Sup.) 686. § 105. Because of the action of a widow, damages for the withholding of dower in certain property should not be computed upon the ordinary rental value of the property.-Woodbury v. Woodbury (Sup.) 686. $105. An incompetent heir held not to have withheld dower.-Woodbury widow's a Woodbury (Sup.) 686. DRAINS. V. See Appeal, 1024; Eminent Domain, § 119 Highways, 120; Municipal Corporations, $$ 661, 864. § 26. A tenant held entitled to acquire an easement over adjoining lands which will run with the land.-Baird v. Erie R. Co. (Sup.) 329. § 30. A right of grantees of lots to have a strip kept open for a street cannot be destroyed by nonuser.-Stillman v. City of Olean (Sup.) 515. EJECTION. See Carriers, § 356. ELECTION. See Landlord and Tenant; Pleading, § 369; ELECTION OF REMEDIES. See Courts, § 190. §3. An action against a firm held not to constitute an election of remedies, precluding a subsequent suit to charge special partners with indebtedness as general partners by reason of a defective organization.-Patterson v. Youngs (Sup.) 673. § 10. Requisites of conclusive election of remedies defined.-Baird v. Erie R. Co. (Sup.) 329. ELECTIONS. See Injunction, § 204. III. ELECTION DISTRICTS OR PRE- § 47. Election Law, § 194, requiring commissioner of elections nominated under its provisions to be appointed to such office, held in violation of Const. art. 10, § 2.-In re Kane (Sup.) 990. 51. Under the Election Law, § 194, construed in view of sections 190, 191, 193, 195. and Const. art. 10, § 2, and article 2, § 6, the mayor of New York City held not bound to appoint as commissioner of elections one recom mended by the chairman of a county committee of Kings county. In re Kane (Sup.) 280. § 51. The mayor of New York, in appointing a commissioner of elections, cannot be confined to a single person nominated under Election Law, § 194.-In re Kane (Sup.) 990. § 51. Mayor of New York held entitled to appoint commissioner of an election without regard to a nomination for such office.-In re Kane (Sup.) 990. ELEVATORS. See Master and Servant, §§ 162, 216. EMINENT DOMAIN. I. NATURE, EXTENT, AND DELEGA- § 2. Buffalo Ordinances, c. 4, § 30, subd. 2, providing for fees for the opening of pavements, is not in conflict with Const. art. 1, 8, 6, prohibiting the taking of property for public use without compensation.-City of Buffalo v. Stevenson (Sup.) 125. $2. Agricultural Law, § 106, authorizing seizure and destruction of calves under four weeks old exposed for sale for food, held not to contravene the inhibition of the Constitution against taking private property for public use without compensation.-Williams v. Rivenburg (Sup.) 473. § 50. Lands under water adjacent to uplands are "appurtenant" to the uplands, within the condemnation law.-New York Cent. & H. R. R. Co. v. Mathews (Sup.) 828. $ 50. "Real property," within the condemnation law, includes any right, interest, or easement therein or appurtenance thereto.-New York Cent. & H. R. R. Co. v. Mathews (Sup.) 828. $ 63. An official map laying out streets held not in itself an appropriation of the land to public use. In re Hamilton St. in City of New York (Sup.) 317. II. COMPENSATION. (A) Necessity and Sufficiency in General. $$ 79, 80. One held not to waive his right to file claim for damages for the taking of land under Laws 1905, c. 724.-In re Bensel (Sup.) 682. (B) Taking or Injuring Property Ground for Compensation. as $85. Street easements are "property" within the protection of the state and federal Constitutions.-Minzesheimer v. Prendergast (Sup.) 779. $119. The owners of an easement in a strip of land which has in effect been dedicated to the public as a public street held not entitled to substantial damages for the construction of a sewer in such strip of land.-Westchester County v. Wakefield Park Realty Co. (Sup.) 156. (C) Measure and Amount. § 131. Commissioners of estimate and assessment held required to determine the present value of land sought to be taken for a public use.-In re Collis (Sup.) 214. $134. The owner of land taken for a public use is entitled to have it valued for the most valuable available use for which it is then marketable.-Westchester County v. Wakefield Park Realty Co. (Sup.) 30. $149. The owners of an easement in a private street held entitled to no more than nominal damages on condemnation of the strip as a public highway.-Westchester County v. Wakefield Park Realty Co. (Sup.) 156. (D) Persons Entitled and Payment. § 152. Holders of certificates issued by a cemetery corporation incorporated under Act April 27, 1847 (Laws 1847, c. 133), and recognized by Laws 1895, c. 559, and Membership Laws 1905, c. 724, providing for the taking of Corporation Law, art. 4, $ 70, held within land for a water supply for the city of New York.-In re Bensel (Sup.) 682. § 152. "Owner," as used in condemnation proceedings, defined.-New York Cent. & H. R. R. Co. v. Mathews (Sup.) 828. § 153. An award to be made by a city for land taken for a street held a chose in action of the owner of the land taken, and not to pass by deed of the land. In re Hamilton St. in City of New York (Sup.) 317. § 153. An owner conveying land by warranty deed, after proceedings by a city to condemn a part of it for a street, held entitled to the award subsequently made.-In re Hamilton St. in City of New York (Sup.) 317. § 156. Will held to vest the residue of a trust fund absolutely in specified beneficiaries on the death of persons on whose lives the trust was limited, so that benefits awarded thereafter for land taken for a public use should be made to them, and not to the administrator and trustee. In re Bridge Over Spuyten Duyvil & P. M. R. R. in City of New York (Sup.) 446. § 158. Under Code Civ. Proc. § 3378, disputed title to land held not subject to determination in a condemnation proceeding.-New York Cent. & H. R. R. Co. v. Mathews (Sup.) 828. III. PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION. § 177. Under Public Lands Law, § 75, upland owners held necessary parties to a proceeding to condemn_adjacent submerged lands.-New York Cent. & H. R. R. Co. v. Mathews (Sup.) 828. § 231. Under Code Civ. Proc. § 3370, and General Construction Law (Consol. Laws 1909, c. 21) § 41, held, that two surviving commissioners in condemnation proceedings could continue the work of the commission after the death of one of them pending the hearing.-Lake Shore & M. S. Ry. Co. v. Mahle (Sup.) 288. § 233. Commissioners appointed in proceedings by a city under Laws 1908, c. 452, to ac For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER |