quire land for a street, held not entitled to consider a fact in awarding damages, in view of article 3, § 1. In re Alexander Street in City of Yonkers (Sup.) 944. § 235. An objection to the report of commissioners of estimate in proceedings to acquire land for a street held sufficient. In re Alexander Street in City of Yonkers (Sup.) 944. $265. Order denying motion for new taxation of costs in proceedings to determine compensation for change of grade of street held not to affect petitioner's right to costs as awarded in order confirming report of commissioners.-In re Bradley (Sup.) 450. EMPLOYER'S LIABILITY ACTS. See Master and Servant, §§ 87, 107, 108, 252. § 237. Exclusion of evidence by commissioners to assess compensation for land taken for a public use held error for which their report might be set aside or recommitted.-Westchester County v. Wakefield Park Realty Co. (Sup.) 30. See Master and Servant; Municipal Corpora § 237. The mere reception of incompetent evidence by commissioners to assess compensation for land taken for a public use will not afford ground to set aside their award.-West tions, § 217. EMPLOYMENT. ENGINEERS. chester County v. Wakefield Park Realty Co. See Brokers, § 8. (Sup.) 30. § 237. Where defendants in condemnation proceedings were entitled to no more than nominal damages, held, that the report of condem- See Evidence, § 588. nation commissioners would not be resubmitted to the commissioners.-Westchester County v. Wakefield Park Realty Co. (Sup.) 156. ENTRY. Of judgment, see Judgment, § 271. EQUITABLE ASSIGNMENTS. § 237. Defendants in condemnation proceedings held entitled to a vacation of an order of confirmation entered without notice to them, though they were entitled to no more than nominal damages.-Westchester County v. Wake- See Assignments, § 15. field Park Realty Co. (Sup.) 156. § 237. Where the court refuses to confirm a report of commissioners of estimate and assessment on the ground that the damages awarded are excessive, new commissioners should be appointed. In re Collis (Sup.) 214. EQUITABLE DEFENSES. See Action, § 25. EQUITABLE ESTOPPEL. § 238. An award to an abutter under the See Estoppel, §§ 68-S3. street closing act held presumed to include interest on the amount of damages to the date of the commissioners' report.-Minzesheimer Prendergast (Sup.) 779. V. § 243. Condemnation commissioners held to possess no authority to determine questions of title, contrary to the terms of the judgment of condemnation.-Westchester County v. Wakefield Park Realty Co. (Sup.) 156. § 243. An abutter held precluded from claiming that interest on his damages was not included in an award under the street closing act.Minzesheimer v. Prendergast (Sup.) 779. $247. Right of an abutter to interest on award under the street closing act, determined. -Minzesheimer v. Prendergast (Sup.) 779. EQUITY. See Action, § 25; Banks and Banking, § 313: II. LACHES AND STALE DEMANDS. ERROR. § 265. Under Village Law, § 159, and Code Writ of, see Appeal. Civ. Proc. § 3240, costs in proceedings to determine a compensation for change of grade of street, prior to appointment of commissioners, held in the discretion of the court.-In re Bradley (Sup.) 450. § 265. Under Village Law, § 159, and Code Civ. Proc. § 3372, petitioner in proceedings to determine compensation for change of grade of street held entitled to costs at the same rate as is allowed of course to defendant when he is a prevailing party in an action in the Supreme Court. In re Bradley (Sup.) 450. ESTATES. See Dower; Executors and Administrators; ESTOPPEL. See Carriers, § 52: Eminent Domain, §§ 79, 80; Husband and Wife, § 129; Judgment, §§ 526, 951; Limitation of Actions, § 102. II. BY DEED. (A) Creation and Operation in General. § 26. Where it is not clear that defendant is not entitled to plead estoppel as against the state, such plea is not a nullity.-People v. Os trander (Sup.) 922. (B) Estates and Rights Subsequently Acquired. $38. Title acquired by one after making a warranty deed without title held to inure to the benefit of the grantee, though taken in the name of another.-Collins v. Buffalo, L. & R. Ry. Co. (Sup.) 139. wherein it exists.-City of Buffalo v. Stevenson (Sup.) 125. § 32. On an appeal from a Municipal Court, the appellate court will take judicial notice of ordinances of the municipality in which the Municipal Court exists.-City of Buffalo v. Stevenson (Sup.) 125. $ 50. The Supreme Court takes judicial notice that the Erie canal is operated.-Town of Ridgeway v. Treman (Sup.) 1081. II. PRESUMPTIONS. $67. There is no presumption that directors of a membership corporation named in the certificate of incorporation to conduct its business till the first annual meeting, not continuing in office under General Corporation Law, 28, continued in office after the first annual meeting, at which there was an election of directors.-Dunn v. Neustadtl (Sup.) 161. 877. The rule as to presumptions from failure to call witnesses stated.-Eldridge v. Terry & Tench Co. (Sup.) 865. $ 80. In the absence of proof to the contrary, the presumption is that the common law obtains in other states.-Boston Dairy Co. v. J. H. Jones Corporation (Sup.) 70. § 81. In the absence of statute or rule to the contrary, the law governing probate of duplicate wills is presumed to be the same as the English laws, established prior to the independence of the state. In re Schofield's Will (Sur.) 190. § 83. Appropriations for the Erie Canal held presumed not to have been exhausted.Town of Ridgeway v. Treman (Sup.) 1081. call 87. Effect of presumption from failure to Tench Co. (Sup.) 865. witnesses stated.-Eldridge v. Terry & See Appeal. $$ 927, 1002-1024. 1050-1053, 1122: Attachment, $97: Attorney and Client, $166: Bailment, § 31; Banks and Banking, $49; Bastards: Bills and Notes, §§ 60. 496514; Brokers, §§ 8, 38, 85: Carriers. $$ 132134: Conspiracy. § 47: Contracts. $$ 48, 141, 287, 305, 322, 349, 350: Corporations. $$ 389. 396, 673; Courts, § 190; Criminal Law. §§ 427.945: Customs and Usages; Damages. §§ 6. 177; Dedication, § 20: Deeds, & 194: Dep. ositions; Discovery; Divorce, $$ 124-129; Eminent Domain. 237: Execution, $ 417; Executors and Administrators, § 287; Explo- IV. RELEVANCY, MATERIALITY, AND sives: Fraud, §§ 54-58: Frauds, Statute of, COMPETENCY IN GENERAL. $52; Husband and Wife, §§ 232, 319; Indictment and Information. § 10: Insurance, & (A) Facts in Issue and Relevant to Issues. 665: Judgment. $$ 19, 324. 951; Landlord § 113. In an action for loss of goods alleged and Tenant. §§ 80%, 159, 169, 308: Larceny: to have been stored in defendant's stable, the Malicious Prosecution, $$ 56, 59, 64; Master amount plaintiff was required to pay the ownand Servant. §§ 265, 276: Mechanics' Liens. er of the goods held inadmissible to show their $ 58: Money Lent: Municipal Corporations. value.-Crawford v. General Storage & Transfer $$ 661. 818; Negligence, § 134; New Trial, § Co. (Sup.) 34. 75; Officers, §§ 11, 14: Poisons; Reference, $ 45: Reformation of Instruments, § 45: Sales. §§ 178. 181, 454. 479: Street Railroads, 121; Taxation, $$ 697. 810, 893: Threats, $7: Trial. $$ 139, 169, 412: Vendor and Purchaser, $129; Warehousemen: Weights and Measures, § 11; Wills, §§ 53, 55, 164. 166, 290-306; Witnesses. I. JUDICIAL NOTICE. 18. Judicial notice taken of the value and currency of the Austrian coin known as a "Heller."-Czerney v. Haas (Sup.) 537. § 32. A Municipal Court takes judicial notice of the ordinances of the municipality (D) Materiality. $147. In actions for injuries at railroad crossings, negative evidence is admissible on question of whether the engine bell was ringing or the whistle blown.-Schuster v. Erie R. Co. (Sup.) 262. VII. ADMISSIONS. (A) Nature, Form, and Incidents in General. $ 205. A witness held properly allowed to testify to conversations heard over the telephone.-Rees v. Gair (Sup.) 213. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (A) Contradicting, Varying, or Adding to Terms of Written Instrument. § 420. In a suit for breach of a claimed agreement to lease, evidence held not inadmissible as tending to modify a written contract. Corn v. Bergmann (Sup.) 1049. § 420. Parol evidence to show that a writing was delivered under conditions not met is admissible.-Corn v. Bergmann (Sup.) 1049. § 422. Oral testimony is admissible to show that the note sued on was not intended to come into existence as a contract.-Equitable Trust Co. of New York v. Howe (Sup.) 112. (C) Separate or Subsequent Oral Agree ment. (D) Examination of Experts. § 556. A party calling an expert medical witness cannot read from medical works on inductive science, and ask his witness if he agrees with the statements of the author, or if it accords with his experience.-In re Hock's Will (Sur.) 196. § 558. On cross-examination of medical experts in a will contest, held, that authorities might be read, and the witnesses asked if they differed from such authorities, to test the weight of the witnesses' testimony. In re Hock's Will (Sur.) 196. (E) Comparison of Handwriting. § 562. Opinion evidence as to the genuinesible.-In re Corcoran's Will (Sup.) 165. ness of an ordinary mark signature is inadmis XIV. WEIGHT AND SUFFICIENCY. § 587. In an action against a tenement house owner for death of a child, who fell over a bannister, evidence held insufficient to show that the accident was caused by her heel catching on a nail on the stairway.-Thompson v. Leon (Sup.) 765. $ 588. Engineers and firemen are interested witnesses in an action against a railroad for a crossing accident, and the jury is the judge of the credibility of their testimony as well as that of others testifying that no signals were given.-Schuster v. Erie R. Co. (Sup.) 262. EXAMINATION. See Discovery, $$ 30-61; Jury, § 131; Munic ipal Corporations, § 217; Witnesses, §§ 255. 268. Of experts, see Evidence, §§ 556-558. Of judgment debtor in supplementary proceedings, see Execution, §§ 380, 392. EXCEPTIONS. § 443. Defendants' agreement to pay a debt secured by a mortgage on a drug stock as a part of the price of the stock held collateral and provable by parol.-Ubert v. Schonger See Appeal, §§ 259-265; Courts, § 190. (Sup.) 545. § 471. In an action to establish a tax title, it was not a conclusion of law for a witness to testify that the lot was vacant.-Cary v. Given (Sup.) 35. (B) Subjects of Expert Testimony. § 505. An expert witness held not entitled to testify to his conclusion that a belt was unsafe and could not have been fit when it broke, injuring a servant.-Dittman v. Edison Electric Illuminating Co. (Sup.) 221. § 513. In an action against a warehouseman for damages to a piano player, expert evidence of the cost of putting the piano player in first-class condition held inadmissible.-Finsilver v. Manhattan Storage & Warehouse Co. (Sup.) 401. EXCESSIVE DAMAGES. See Damages, § 132. EXCHANGES. § 4. A membership corporation organized under laws of Illinois for the general welfare of commission merchants who were members held without authority to establish judicial tribunals to settle differences between members and nonmembers under penalty for expulsion for refusal to arbitrate or abide by the award. National League of Commission Merchants of United States v. Hornung (Sup.) 437. § 4. Though the by-laws of a membership corporation, providing for the trial of differ ences between members and nonmembers and for expulsion for failure to perform the award. are ultra vires, a member may nevertheles bind himself by the decision after a fair and impartial trial.-National League of Commis sion Merchants of United States v. Hornung | an order for his examination was an order, un(Sup.) 437. $5. A cotton exchange held to have power to investigate conduct of a member charged with selling cotton contrary to instructions and refusing to account.-Moyse v. New York Cotton Exchange (Sup.) 173. der Code Civ. Proc. § 767.-Consolidated Agency Co. v. Townsley (Sup.) 773. $393. Under General Rules of Practice, rule 79, an attorney holding an unsatisfied judgment against a judgment debtor should not be appointed referee to take evidence in supplemen§ 5. Member of exchange held not entitled to tary proceedings by another judgment creditor. enjoin his trial for violating by-laws, because-Higley v. Novark (Sup.) 759. not permitted to appear by counsel before committee.-Moyse v. New York Cotton Exchange (Sup.) 173. § 5. Defendant held not to have had a hearing to which he was entitled before an impartial executive committee on an appeal from an award by an arbitration committee of plaintiff corporation, and was therefore not subject to expulsion for refusal to perform the award. -National League of Commission Merchants of - United States v. Hornung (Sup.) 437. § 5. Where a member of a factors association was expelled for failure to perform an award after trial of a difference between him and a nonmember, his expulsion was not sustainable under other by-laws providing for expulsion after trial of charges.-National League of Commission Merchants of United States v. Hornung (Sup.) 437. held all that was necessary to be shown under § 417. Certain conduct of a judgment debtor Judiciary Law, § 770, and punishment as for a civil contempt was, conferred by Judiciary Law, § 753, subd. 8, formerly Code Civ. Proc. & 14, subd. 8.-Becker v. Gerlich (Sup.) 614. $ 417. Where a judgment debtor refuses to testify at all in supplementary proceedings. he may be punished for contempt.-Becker v. Gerlich (Sup.) 614. § 418. Under Judiciary Law, § 761, service on the attorney for a judgment debtor in supplementary proceedings of the affidavit and order to show cause to punish the judgment debtor for contempt held sufficient.-Twelfth Ward Bank of City of New York v. Luckes (Sup.) 227. § 418. The appearance of an attorney for a 12. By-laws of a factors association re-judgment debtor in a supplementary proceeding quiring arbitration between members and non- held to continue until steps are taken to dismembers held only to apply to disputed ac- miss him, or the proceeding is terminated, or counts between commission merchants and their causes specified in Code Civ. Proc. § 65, interprincipals arising out of an alleged breach of vene.-Twelfth Ward Bank of City of New York contract for absolute sale.-National League of v. Luckes (Sup.) 227. Commission Merchants of United States v. Hornung (Sup.) 437. EXECUTION. See Banks and Banking, § 49: Bills and Notes, $60; Courts, § 189; Wills, §8 41, 55, 302, 303, 306. X. SUPPLEMENTARY PROCEEDINGS. $ 360. An execution, on revival of a judgment, under Code Civ. Proc. § 1252, as to specific real estate, will not support supplementary proceedings.-Belfer v. Ludlow (Sup.) 626. $380. A judgment creditor, disclosing that the debtor since his last examination has come into the possession of property, held entitled to a new order for the debtor's examination without vacating the former order.-Bendick v. Meyer (Sup.) 772. § 380. Proceedings under an order for the examination of a judgment debtor held properly consolidated with proceedings under a new order for such examination.-Bendick v. Meyer (Sup.) 772. return § 391. Vacation of an ex parte order for examination of a judgment debtor, on thereof, held not without jurisdiction, as an attempt of one justice to review the order of another justice.-Belfer v. Ludlow (Sup.) 626. $392. In a proceeding supplementary to execution, held, that endorsement of dismissal of § 418. By appearing generally a judgment debtor waives objection to service of copy of order to show cause, both as to date of service and that the facts constituting the contempt are not set forth in the order.-Becker v. Gerlich (Sup.) 614. XII. WRONGFUL EXECUTION. $455. The complaint in an action for damages for false return of process held to state a cause of action on the case for an injury to property.-Main Electric Co. v. Cohen (Sup.) 66. EXECUTORS AND ADMINISTRATORS. See Abatement and Revival, §§ 73, 77; Attachment, § 272; Costs, § 109; Death; Dismissal and Nonsuit, § 75; Eminent Domain, § 156; Master and Servant. §§ 286, 289; Taxation, § 416; Trusts, § 287; Wills. II. APPOINTMENT, QUALIFICATION, AND TENURE. § 24. Under article 17 of the treaty of May 8, 1878 (20 Stat. 732), between the United States and Italy, and article 9 of the treaty between the Argentine Republic and the United States ratified in July 27, 1853 (10 Stat. 1009). the Italian consul held entitled to letters of administration upon the estate of an Italian subject as against a creditor of decedent. In re Scutella's Estate (Sup.) 20. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER VI. ALLOWANCE AND PAYMENT OF tion being whether it was obtained by accused CLAIMS. from the individual threatened.-People v. Lee (Gen. Sess.) 185. (D) Priorities and Payment. § 287. Executors suing on a bond held not bound to strict proof of validity of a claim on which the bond was based.-Dunfee v. Dunfee (Sup.) 142. § 287. A bond to indemnify an estate against liability under a construction contract held to protect against a claim not specifically mentioned.-Dunfee v. Dunfee (Sup.) 142. XI. ACCOUNTING AND SETTLEMENT. (D) Compensation. § 13. An indictment for extortion held not insufficient in a certain particular.-People v. Lee (Gen. Sess.) 185. § 13. Sufficiency stated of an indictment for ple v. Lee (Gen. Sess.) 185. extortion of money from a copartnership.-Peo EXTRA ALLOWANCE. See Costs, §§ 55, 164. EXTRA WORK. § 490. Executors' compensation provided by See Municipal Corporations, § 360. XII. FOREIGN AND ANCILLARY AD- § 525. A domestic court cannot grant relief by following trust property belonging to a foreign testator which has its situs in a foreign state.-Williams v. Fischlein (Sup.) 129. § 525. An action for a breach of a contract to bequeath cannot be maintained against foreign executors of whom the domestic forum has no jurisdiction.-Williams v. Fischlein (Sup.) 129. EXEMPTIONS. Of offices under civil service law, see Mandamus, § 75; Officers, § 11. EXPERT TESTIMONY. See Evidence, §§ 505-513, 556–558. EXPLOSIVES. See Carriers, §§ 121, 177. § 12. A plaintiff, suing for injuries to a building by blasting, held required to show certain facts to show negligence.-Viele v. Mack Paving & Construction Co. (Sup.) 604. EXPRESS COMPANIES. See Carriers, § 152. EXPULSION. See Contracts, § 127. Of members of exchange, see Exchanges, §§ 4, 5. EXTENDED INSURANCE. See Insurance, § 367. EXTORTION. See Criminal Law, § 814; Threats, §§ 3, 7. See Brokers. FACTORS. § 42. A complaint against a factor for an a counting held bad for failure to show any funds in defendant's hands, or, if there were, that plaintiffs entitled thereto.-Koehler v. Wilson (Sup.) 532. were FEES. See Attorney and Client, §§ 144-166; Costs. FELLOW SERVANTS. See Master and Servant, §§ 162-190, 294. |