Gambar halaman
PDF
ePub

(179 N. Y.S.)

ber 26, 1919.) Judgment and order affirmed, | Order unanimously affirmed, without costs, on with costs. No opinion. Order filed.

Allen C. WOOD et al., respts., v. DOCK & MILL CO.. applt. (Supreme Court, Appellate Division, Fourth Department. January 14, 1920.) Motion granted, and order dismissing appeal vacated.

the ground that the justice presiding at the next Trial Term of the Supreme Court, to be held in Broome county, will have full power to dispose of this case under the order appealed from.

Donovan E. WORLEY and one, applts., v. Theodore B. CLEVENGER, respt. (Supreme Court, Appellate Division, Fourth Department. December 30, 1919.) Judgment affirmed, with costs. All concur.

Howard O. WOOD, appellant, v. RELLET AMUSEMENT COMPANY, Inc., respondent. (Supreme Court, Appellate Division, Second Department. December 12, 1919.) Order of Millard H. WRIGHT, respt., v. Isaac W. the Appellate Term affirmed, with costs. No DIETZ, applt. (Supreme Court, Appellate Diopinion. Rich, Putnam, Blackmar, and Jay-vision, Third Department. December 29, 1919.) cox, JJ., concur. Jenks, P. J., not voting. Judgment and order affirmed, with costs. All concur, except Woodward, J., who dissents.

[blocks in formation]

V.

Arthur E. WOODMANSEE, Globe & Rut- ZURICH GENERAL ACCIDENT & LIAgers Fire Insurance Company of the City of BILITY INSURANCE COMPANY, LIMITED, New York, and Northern Insurance Company OF ZURICH, SWITZERLAND, respt., of New York, respts., v. DELAWARE, LACK- KINGSTON SHIPBUILDING CORPORAAWANNA & WESTERN RAILROAD COM- TION, applt. (Supreme Court, Appellate DiPANY, applt. (Supreme Court, Appellate Division, Third Department. November 21, 1919.) vision, Third Department. January 9, 1920.) Judgment unanimously affirmed, with costs.

END OF CASES IN VOL. 179

[blocks in formation]

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABANDONMENT.

ACCRETION.

See Judgment, 622; Shipping, 108.

See Wills, 728.

ACTION.

ACCOMMODATION PAPER.

See Bills and Notes, 243.

ACCORD AND SATISFACTION. See Compromise and Settlement; Equity, 57.

8(1) (N.Y.Sup.) Part payment by a debtor of an undisputed judgment against him, on agreement to satisfy it, does not constitute an accord and satisfaction; the agreement being without consideration.-Beecroft v. Carey, 179 N. Y. S. 249.

See Dismissal and Nonsuit.

II. NATURE AND FORM. 25(3) (N.Y.Sup.) A count in a complaint on the equity side of the court alleged trespass on plaintiff's land in constructing a subway, setting forth that plaintiff, by reason of defendant's trespass, incurred additional expenses for the foundations of its building, then under construction, to protect the building, and demanding a money judgment for the amount of such expense, set forth a cause of action at law, which should be dismissed.-Brooklyn Trust Co. v. City of New York, 179 N. Y. S. 441.

10(1) (N.Y.Sup.) If employé, prior to his discharge, was paid in full both for wages and overtime under the contract, and thereafter demanded double time for overtime on account 35 (N.Y.) Where a right is given by statute of discharge, and compromised his claim at and a remedy provided in the same act, the one-half of his demand, the receipt of the right can be pursued in no other mode.-In re money would constitute an accord and satis- Meng, 125 N. E. 508, 227 N. Y. 264. faction.-Heiderwitz v. Goldstein, 179 N. Y. S.

814.

[blocks in formation]

ADMINISTRATION.

See Executors and Administrators.

115,

192;

ADMIRALTY.

See Shipping.

ADOPTION.

12 (N.Y.Sup.) In an action to rescind a contract for fraud, in which relief by way of See Courts, 2004; Divorce, accounting is only incidental, the accounting in itself does not constitute a ground for equitable relief.-Falk v. Hoffman, 179 N. Y. S. 428.

ACCOUNT STATED.

20(1) (N.Y.Sup.) In an action against brokers on an account stated in a so-called "regular" account, whether a subsequently opened "special account" was closed by plaintiff customer, when there was no deficit in it on which defendant brokers could counterclaim, held for the jury.-McConnell v. Hellwig, 179 N. Y. S. 882.

179 N.Y.S.-61

309.

(N.Y.Sur.) At common law, the adoption of children as now understood did not exist, and the status and rights of adopted children are purely statutory.-In re MacLean, 179 N. Y. S. 182.

stock-7 (N.Y.Sur.) Where a father deserted his wife and infant child, and concealed his whereabouts, he was guilty of an "abandonment," which means neglect and refusal to perform the natural and legal obligations of care and support, etc., a parent owes his child; and hence, under Domestic Relations Law, § 111, his consent was not necessary to the adoption of the (961)

infant, the mother's consent alone being sufficient. In re MacLean, 179 N. Y. S. 182.

Where the marriage of a father was bigamous, his consent is not necessary to the adoption of a child of such marriage by persons who were acting with consent of the mother.-Id.

APPEAL.

See Courts, 185, 189, 190; Criminal Law,
1167-1190; Justices of the Peace,
183.
For review of rulings in particular actions or
proceedings, see also the various specific top-

ics.

7 (N.Y.Co.Ct.) Where the father of an infant child was convicted and sentenced to the federal penitentiary, his consent to the adoption of the infant is unnecessary, and so, where the III. DECISIONS REVIEWABLE. mother of the child consented to adoption by the maternal grandparents, who were in all (E) Nature, Scope, and Effect of Decision. ways situated to give the child a good home, 103 (N.Y.Sup.) An order denying a motion held, that the grandparents' application for for judgment on the pleadings is not appealadoption would be granted, despite the father's able.-Evans v. Vogel, 179 N. Y. S. 498. protests, on the ground of the grandparents' church affiliations, etc.-In re Miller, 179 N. Y. S. 181.

[blocks in formation]

104 (N.Y.Sup.) Time of court should not be taken up with appeals from orders entered on objections to ruling on evidence in examination of adverse party before trial.-Harrison v. Miller, 179 N. Y. S. 331.

113(3) (N.Y.Sup.) No appeal lies from a default judgment.-Kass v. Phoenix Ribbon & Carbon Co., 179 N. Y. S. 316.

(F) Mode of Rendition, Form, and Entry. of Judgment or Order.

133 (N.Y.) Where the Appellate Division reversed the judgment dismissing the complaint on the merits, and numerous findings, and made new findings and conclusions of law favorable to plaintiff, and made an order providing for equitable relief and that plaintiff recover costs of both courts, and that judgment be entered accordingly, the Court of Appeals can pass on the questions involved only on appeal from judgment, entered as ordered and as required by Code Civ. Proc. §§ 1345, 1355, and not on appeal from the order or from such a judgment as was entered; one merely reciting the revers al of the judgment of the trial term and adjudging that plaintiff recover costs in a certain amount.-Hermann v. Ludwig, 125 N. E. 541.

134(1) (N.Y.Sup.) Where, on the same day, judgment was rendered on a verdict and memorandum was made by court setting aside verdict as against weight of evidence, no order being made, there can be no appeal from the memorandum.-Automatic Machine & Tool Co. v. Delano, 179 N. Y. S. 8.

IV. RIGHT OF REVIEW.

fecting Right.

62 (N.Y.Sup.) Where an alien coming to the United States in May, 1905, remained until May, 1907, when he entered government employment in Canal Zone, and while on vacation (B) Estoppel, Waiver, or Agreements Afin 1908 declared his intention, and on finding on his final return from Canal Zone in May, 1916, that his time to apply for second papers had expired, filed his declaration in that month to become a citizen, and in September filed a petition for second papers, to which there was an objection on ground of nonresidence for five years, Act Cong. May 9, 1918, § 1, subd. 7 (U. S. Comp. St. 1918, § 4352), relating to residence in Canal Zone did not apply. In re Rowland,

179 N. Y. S. 120.

AMENDMENT.

See Associations, 5.

ANIMALS.

See Carriers, 215-230.

162(1) (N.Y.Sup.) The plaintiff in a stockholder's action, after entering and collecting the judgment, retaining the proceeds, and paying part to another stockholder cannot complain that the judgment was in favor of the individual stockholders, not barred from recovering, instead of the corporation.-Harris v. Rogers, 179 N. Y. S. 799.

Plaintiff cannot appeal from a judgment in favor of one defendant, if he has collected the full amount of his damages from other defendants.-Id.

Though plaintiff has collected the judgment in his favor against part of the defendants. he may appeal from the judgment in favor of another defendant, whose claimed liability is greater than the sum recovered.-Id.

for cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

V. PRESENTATION AND RESERVA-, were made by defendant's counsel, who objected
TION IN LOWER COURT OF
GROUNDS OF REVIEW.

(A) Issues and Questions in Lower Court.

to the testimony, for withdrawal of a juror,
mistrial, or to strike out the evidence, or for
an instruction to the jury to disregard it.-
Pritz v. Carnot, 179 N. Y. S. 164.

(C) Exceptions.

172(1) (N.Y.Sup.) Suggestion that defend-
ant railroad might be held liable for plaintiff's
injury because the passengers were moved from 273(6) (N.Y.Sup.) In an action for com-
the smoker to the day coach while the train mission earned by procuring sale of a farm, ex-
was in motion cannot be considered on appeal,
where the complaint does not contain any such ception to a portion of a charge held not suffi-
allegation, and no such suggestion was made ciently specific to call the attention of the trial
court to his remarks relative to the commission
upon the trial or in the charge to the jury.-
Hershey v. New York, O. & W. Ry. Co., 179

N. Y. S. 396.

of perjury by witnesses, so that no question of
error in such remarks was raised.-E. A. Strout
Farm Agency v. Gladstone, 179 N. Y. S. 350.
173(2) (N.Y.Sup.) In suit to recover money 280 (N.Y.) When the trial justice, in re-
paid under contract on protest, defense that
payment was voluntary cannot be made for first
time on appeal.-Goodwin Car Co. v. American
Steel Foundries, 179 N. Y. S. 34.
173(13) (N.Y.) The defense of assumption
of risk is not available on appeal where not
urged in lower court.-Nicholson v. Greeley
Square Hotel Co., 125 N. E. 541, 227 N. Y. 345.

(B) Objections and Motions, and Rulings
Thereon.

sponse to an exception, in an additional charge,
repeats in substance or effect the erroneous part
to which the exception was taken a renewal of
the exception is not required.-Gangi v. Fra-
dus, 125 N. E. 677, 227 N. Y. 452.
IX. SUPERSEDEAS OR STAY OF PRO-

CEEDINGS.

5485(1) (N.Y.Sur.) Under Code Civ. Proc.
§§ 1310, 2557, where a motion for leave to
193(2) (N.Y.Sup.) It cannot be complained appeal from a decision of the Appellate Divi-
sion, affirming a decree of the Surrogate's
for the first time on appeal that plaintiff im- Court admitting a will to probate and grant-
properly united two causes of action, in viewing letters testamentary to the executors, is
of Code Civ. Proc. $$ 488, 499.-Cott v. Erie accompanied by the filing of an undertaking
R. Co., 179 N. Y. S. 488.
with the Surrogate's Court, all proceedings are
stayed until the granting or refusal of such
leave to appeal to the Court of Appeals, in view
of section 2770, and the Surrogate's Court can-
not order the property in the hands of tempo-
rary administrators to be turned over to the
executors named by the testator.-In re Ken-
nedy's Estate, 179 N. Y. S. 765.

197(3) (N.Y.Sup.) The statute law of an-
other state having been received in evidence
without objection, the point made on appeal that
such law was not pleaded is untenable.-State
of Colorado v. Harbeck, 179 N. Y. S. 510.

XIII. DISMISSAL, WITHDRAWAL, OR

209(3) (N.Y.Sup.) In an action by an as-
signee, based on breach of warranty on the
sale of a power press, and for return of pur-
chase price and damages, it is too late on ap-
peal for defendant to question the sufficiency
of proof of the assignment of the purchaser's
cause of action to plaintiff.-Seligman v. Duff, 781(2) (N.Y.) In mandamus proceedings by

179 N. Y. S. 419.

ABANDONMENT.

patrolman whose detail as detective sergeant
has been revoked, involving question of the
221 (N.Y.Sup.) In an action by an employé right to revoke such detail without written
of an interstate carrier, where counsel did not
request special findings as to what sum the charges of misconduct, the retirement of pa-
jury deducted from plaintiff's recovery because trolman upon a pension on his own application
of contributory negligence, the verdict cannot be pending appeal does not render the question
not substantial, where the ruling of the court
reviewed as to the amount which should have will affect the salary to be paid him; the con-
been deducted because of the employe's controversy under such circumstances remaining
tributory negligence.-Gardner v. Hines, 179 N.
a real one.-People ex rel. O'Connor v. Girvin,
Y. S. 362.
125 N. E. 587.

231(1) (N.Y.) The essential function of an
exception is to direct the mind of the trial jus-
tice to the point in which it is supposed he has
erred in law, so that he may reconsider it and
change his ruling if convinced of error.-Gangi
v. Fradus, 125 N. E. 677, 227 N. Y. 452.

Appellate courts are not diligent in seeking
a way to deprive a party of the benefit of an ex-
ception pointing out error, where it appears that
the trial justice was fully apprised of the na-
ture of the objection.-Id.

XVI. REVIEW.

(A) Scope and Extent in General.

837(5) (N.Y.Sup.) Where, at the close of
plaintiff's case, each defendant moved to dis-
miss plaintiff for her contributory negligence
and failure to prove negligence, the appellate
court must consider the proof at such stage
of the case only, as against defendant, who
asked that it remain to sum up on the evidence
so far adduced, and for a note of record that
it took no part in the examination or cross-ex-
amination of the witnesses called by its co-de-
fendant.-Moshier v. City of New York, 179 N.
Y. S. 338.

237(1) (N.Y.Sup.) In an action against de-
fendant, whose motor car collided with plain-
tiff's taxicab, a judgment for plaintiff should
be reversed, where defendant, in response to a
competent question as to the amount he paid
for repairs, stated that the insurance company 856(4) (N.Y.Sup.) Where defect in petition
took care of that, notwithstanding no motions in summary proceedings to oust tenant is not

« SebelumnyaLanjutkan »