OFFICER Continued.

New York city.

--

the fire marshal of the city of Brooklyn is entitled to be
transferred to the Greater New York fire department — protected in his tenure of
office both by the veteran acts and the charter.

See PEOPLE EX REL, BRYMER . GRAY

-----

Compensation of a bridgetender on the Erie canai, employed by the Super-
intendent of Public Works at the expense of the city of Albany-a laborer not
requiring a civil service examination.

See WALSH v. CITY OF ALBANY,

New York city · the mayor has power to remove the commissioners of the
new East River bridge. -tenure of office of such commissioners it is not within
the protection of the veteran acts.

See PEOPLE EX REL. BAIRD . NIXON.

New York and Brooklyn Bridge trustees — power of, to appoint a police
surgeon-effect of the Greater New York charter, section 278 of chapter 378 of

1897.

See PEOPLE EX REL. RAE c. YORK

OFFSET:

PAGE.

458

128

513

57

See SET-OFF.

ORAL EVIDENCE:

See EVIDENCE.

ORDINANCE — Of municipalities, construction, etc., of

See MUNICIPAL CORPORATION.

PAPER:

See EVIDENCE.

PARENT AND CHILD-Infant - what form of adoption is necessary to
entitle it to inherit.] A testator, by the 3d clause of his will, gave to his
"adopted daughter" the sum of $10,000, and by the 8th clause thereof gave
the residue of his estate "to such person or persons as would be legally enti-
tled to succeed to and inherit the same in case I died intestate, and to their
heirs, executors, administrators and assigns forever."

There was no evidence of any written agreement or of any legal proceedings
for the adoption of the person referred to in the 3d clause of the will as his
"adopted daughter."

Held, that it was necessary in order that such person should share in the
residuary estate under the 8th clause of the will, that she should have
been legally adopted, i. e., in compliance with the Adoption Statute (Chap.
830 of the Laws of 1873, as amended by chap. 703 of the Laws of 1887);

That the fact that a charitable corporation with whom such person had
been placed consented to her adoption by the testator, under the authority of
section 7 of chapter 438 of the Laws of 1884, did not amount to an actual
adoption of the child by the testator. SMITH . ALLEN...

PAROL EVIDENCE:

See EVIDENCE.

PARTITION Answer alleging the existence of other lands held in common —
bill of particulars of such lands required.] Where, in an action for the par-
tition of lands, the defendants deny that the premises described in the
complaint were the only lands, real estate or interest therein, within the
State, owned in common by the parties to the action, and refuse to give
any information concerning such other lands, the court may properly require
such defendants to furnish a bill of particulars of the other lands of which
it is claimed that the parties were seized in common.

CROSSMAN v. WYCKOFF.....

PARTNERSHIP Not created by an agreement by which one party is to put
in his time and the other party is to pay expenses, sell the product and pay a
certain per cent of the proceeds to the former.] 1. A partnership is not created
between the parties to an agreement, under the terms of which the parties of
the first part are to "put in their time so much as may be necessary to the
management of harvesting, piling and housing ice," "and are to receive

374

32

therefor one fourth of the net profits realized on sale and settlement after
the ice is disposed of," and the parties of the second part "agree to furnish
the lumber and the money necessary to pay help and all other expenses in
harvesting and housing and selling such ice. To sell such ice, using their
best judgment as to time, price and persons, and after deducting all expenses
to which they have been put and all advances, to pay to said" parties of the
first part
one-fourth of the net profits of such ventures."

Under such an agreement the ice housed belongs to the parties of the second
part, and the parties of the first part have no interest in the profits as such,
the one-fourth thereof being simply the measure of the amount of compen
sation to be paid to them for their services.

MERCHANTS' NATIONAL BANK . BARNES

2. Admission of a partnership in an answer in another action.] The
fact that, in an answer in an action (prepared by counsel and verified by the
defendant therein, but withdrawn immediately after being served) a state-
ment is contained that the answering defendant was a member of a firm, is
insufficient, in the face of an uncontradicted and unmodified contract defin-
ing the relations of the parties, to support a finding in another action that
such defendant was a member of a firm composed of the parties to such
contract. Id.

A suit against a firm does not constitute an election of remedies between
its obligation and that of one of the partners executed as a substitute therefor.
See HENDERSON 2. BARTLETT.

PARTY - A mortgagee, whose claim is also secured by a second mortgage given
to a third party, is a necessary party to a foreclosure thereof.] 1. In an action
brought to foreclose a mortgage, given to the vendor of the mortgaged
property to secure the payment by the vendee of a portion of a prior mort-
gage existing thereon at the time of such sale, the holder of said last-
mentioned mortgage is a proper and necessary party defendant, and the ven-
dee is entitled to have the amount realized upon the sale of the mortgaged
premises applied in payment of the mortgage held by such third party.

2.

WAIT . GETMAN..

The president of an unincorporated association, and the members
thereof, charged with personal wrongdoing, may be joined as parties defendant.]
The president of an unincorporated association of more than seven members,
and the members thereof, may be joined as parties defendant, in an action to
recover damages for a conspiracy and combination to injure the plaintiffs,
where the individual defendants are charged with personal wrongdoing.

APRIL 2. BAIRD,

Contract for the future delivery of merchandise-effect of the vendee
being represented to be a firm instead of a corporation bearing the same name.
See CONSUMERS ICE Co. v. WEBSTER, SON & Co..

· Examination of, before trial.

See DEPOSITION.

PARTY WALL:

See REAL PROPERTY.

PENAL CODE:

[See table of sections of the Penal Code cited, ante, in this volume.]
PENALTY - Imposed for possession and use of milk cans without the consent
of the owner.

See CRIME.

PENSION - Master and servant — a pension fund established by a corporation
for the benefit of its employees — the employees have no vested interest in it until
it is paid to them.

See MCNEVIN . SOLVAY PROCESS Co... . . .

Taxation - property purchased with pension money was not, prior to
chapter 348 of 1897, exempt unless held by the pensioner.

See PEOPLE EX REL. JONES v. FEITNER..

PAGE.

PERSONAL PROPERTY - Title of a purchaser under execution without
notice of the fraud of the judgment debtor.] 1. A purchaser of personal prop-
erty under execution, at a fair price, without notice of any fraudulent pur-
pose on the part of the judgment debtor in allowing judgment to be tiken
against him, acquires a good title thereto which is valid in the hands of the
wife of the judgment debtor, to whom the property has been transferred by
such purchaser, where the wife has had knowledge of, but has not partici-
pated in, her huband's fraud. ADELBERG . HOROWITZ..

.....

2. An action for conversion is sustained by proof of actual possession.]
Proof of actual possession of personal property is sufficient to sustain an
action by such possessor for the conversion thereof, except as against the
true owner or some one connected in the title with him. Id.

Sale of

See SALE.

PHYSICIAN

Waiver by a patient of proof by a physician as to a privileged
communication.] What evidence of a physician given on behalf of his
patient, precludes the patient from insisting, upon the cross-examination of
the physician, that the testimony sought to be elicited thereon involves the
disclosure of a privileged communication and is incompetent under section
834 of the Code of Civil Procedure, considered.

LAWSON . MORNING JOURNAL ASSOCIATION

-

PLEADING — A bill of particulars of a general course of conduct, indicat-
ing adultery, refused.] 1. In an action for divorce on the ground of cruel
and inhuman treatment, the answer alleged as a counterclaim the adultery
of the plaintiff, charging "that on or about the 27th day of December, 1897,
at No. 690 Prospect place in the borough, then city, of Brooklyn, in the
county of Kings, the plaintiff committed adultery with one Ernest W.
Fleet, and that at various other times in the years 1897 and 1898, the plain-
tiff committed adultery with said Ernest W. Fleet, at certain other places
in said city and borough, to the defendant unknown."

In opposition to an application by the plaintiff that the defendant be
required to furnish a bill of particulars of the times and places when and
where it was claimed that the plaintiff committed adultery in the years 1897
and 1898, the defendant submitted an affidavit to the effect that he was igno-
rant of the particular times and places of the alleged adultery; that his
knowledge thereof consisted of admissions in the affidavits of the plaintiff
and her alleged paramour filed on an application for alimony and counsel
fee made in the action; that he did not expect to prove any specific
instance of misconduct against plaintiff except the one mentioned in the
answer, but intended to prove intimacy and conduct on the part of the parties,
and admissions and statements, which, while they would not indicate the
time and place of the commission of the offense, would establish the fact
that the plaintiff had been guilty of it.

Held, that the application for a bill of particulars should be denied.
A bill of particulars should not be ordered in such form as to exclude
evidence of a general course of conduct. KETCHAM . KETCHAM... . . . . . . .

PAGE.

2. Evidence of particular acts of adultery will not, after such refusal
of a bill of particulars, be admitted on the trial.] Semble, that if the defend-
ant on the trial should offer any evidence tending to show the commission
of a particular act of adultery other than that specified in his answer, such
evidence should, in view of the defendant's affidavit, be excluded. Id.

3. Sufficiency of allegations made upon information and belief, the grounds
of which are not stated.] An allegation in a complaint, in an action in equity
brought to prevent an excavation upon land adjoining that of the plaintiff, as
to the intention of the defendant to make such excavation, made upon
information and belief, the source of the information or the ground of the
belief not being disclosed, is sufficient on a motion for an injunction pen-
dente lite where there is no denial in the opposing affidavits of such alleged
intention to make such excavation. FINEGAN . ECKERSON

APP. DIV.-VOL. XXXII. 86

408

71

26

233

PLEADING- Continued.

4. Conclusion of law.] An averment in an answer in an action upon a
promissory note " that said plaintiff took the said note, subject to the said
offset or counterclaim," is an averment of a conclusion of law and not a
statement of fact, and, therefore, is not admitted by a demurrer to the
BINGHAMTON TRUST Co. v. CLARK..

answer.

PAGE.

151

5. A denial of "the third paragraph of the complaint" denies the allega-
tions thereof.] A statement in an answer to the effect that the defendant
"denies the third paragraph of the complaint" constitutes an effective denial
of the allegations of that paragraph. FLEMING . SUPREME COUNCIL ...... 231
Leave to discontinue an action-condition imposed that the Statute of
Frauds shall not be interposed to the defendant's counterclaim in any new action.
See YELLOW PINE Co. v. LEHIGH VALLEY CO....

— bill of particulars of such lands required.
See CROSSMAN v. WYCKOFF..

injuries is admissible.

51

Partition- — answer alleging the existence of other lands held in common

32

Under what allegations evidence as to the probable future consequences of

See KOEHNE . N. Y. & QUEENS COUNTY R. Co.....
Libel-when the defendant will be required to make his answer more
definite and certain.

419

See ROLKER . Gonzalez.

224

A demurrable answer is not necessarily frivolous.
See WAIT v. GETMAN.

168

POISON IVY - Cemetery association — it is not liable to one injured by poison
iry.

See NEGLIGENCE.

POLICE JUSTICE:

See JUSTICE OF THE PEACE.

POLICE SURGEON - New York and Brooklyn Bridge trustees-power of,
to appoint a police surgeon - effect of the Greater New York charter, section 278
of chapter 378 of 1897.

See BRIDGE.

POND

-

·Agreement by adjoining owners creating a pond — a release by one
party, of his rights therein, construed.

PRACTICE - Leare to discontinue an action · -condition imposed that the
Statute of Frauds shall not be interposed to the defendant's counterclaim in any
new action.] Leave to discontinue an action upon the payment of the costs
thereof will not be granted to a plaintiff who has already been refused per-
mission to amend his reply in order to set up the Statute of Frauds as a
defense to the defendant's counterclaim, unless the plaintiff stipulates that he
will not plead the Statute of Frauds in any new action which he may bring
in which the contract constituting the basis of the defendant's counterclaim
is involved. YELLOW PINE Co. v. LEHIGH VALLEY CO....

Where it appears that an appellant has been prejudiced by a ruling, the
Appellate Division will grant relief on an appeal from an order denying the
appellant's motion for a new trial.

See O'ROURKE . YONKERS RAILROAD Co....

Surplus money proceedings-notice of application to confirm the report
of the referee therein it must be given to all claimants, although no exceptions
to the report have been filed.

See VAN VOAST v. CUSHING

51

116

PRACTICE - Continued.

-

Examination before trial· when the moving affidavit does not show that
it is necessary or that the applicant has done all that he could to secure the
information.

PAGE.

See NAAB v. STEWART.

478

Supplementary proceedings

the application to examine a third party

must state the residence of the judgment debtor.
See MATTER OF GAGNON...

22

Habeas corpus proceedings- the testimony in such cases should be taken

before the judge.

See MATTER OF TEESE..

46

-

PRINCIPAL AND AGENT An agent is entitled to commissions on orders
obtained although the employer could not fill them.] Under a written contract
for services to be rendered in securing orders for goods, by which the employer
agrees to pay the agent a certain percentage on all sums which shall be
collected from the sales made by him," the employer is bound to pay the
agent such percentage upon orders obtained under the provisions of the
contract although the same have been unproductive because of the employer
not having had the goods to fill such orders in the usual course of business."

STONE. ARGERSINGER......

208

Libel― the dictation of a letter by the manager of a corporation to its

stenographer is not a publication thereof.

See OWEN v. OGILVIE PUBLISHING CO......

465

Banking an employee of a customer altering checks is not the customer's

agent in respect thereto.

See CLARK . NATIONAL SHOE & LEATHER BANK....

316