PLEADING― Continued.

Promissory note-evidence of a right to enforce payment thereof by an
indorsee - a defense that the plaintiff is not the real party in interest must be
pleaded.

See FOURTH NATIONAL BANK v. MAHON

198

A stipulation extending the time to answer, signed by an attorney as
defendant's attorney," does not prevent the service of the answer by another
attorney.

See ATTORNEY AND CLIENT.

A defendant, under a general denial, has the right to show any facts tend-
ing to defeat the plaintiff's recovery, either in whole or in part.

See SCHWARZLER v. MCCLENAHAN.

525

Husband and wife living apart - the husband is liable only where it is
alleged and proved that articles sold to the wife are necessaries.

See HATCH . LEONARD.

Defect of parties in a creditor's suit

the death of the judgment debtor
does not prevent the hearing of a demurrer alleging it.
See FIRST NATIONAL BANK 2. WRIGHT..

POLICY Of insurance.

See INSURANCE.

PAGE.

-

-

Action in forma pauperis - an agreement by the plaintiff to pay his
attorney is fatal to the right to continue it.

See CAHILL . MANHATTAN R. Co......

314

Allegations in a negligence case which warrant proof of all the effects of
the injury.

See BOLTE . THIRD AVENUE R. R. Co......

A bill of particulars is an extension of the pleading.
See RAFF . KOSTER, BIAL & Co...

POOR PERSON Action in forma pauperis — an agreement by the plaintiff
to pay his attorney is fatal to the right to continue it.

See ATTORNEY AND CLIENT.

POSSESSION - Conversion — what possession is sufficient to sustain an action
for, by a husband against his wife.

See PERSONAL PROPERTY.

POWER Of sale- given to executors.

―

POUGHKEEPSIE - Power to ordain "fixed penalties' - it requires that a
definite sum, not a sum less than one nor more than another sum, be prescribed.
See CITY OF POUGHKEEPSIE v. KING.

See EXECUTOR AND ADMINISTRATOR.
In trust.
See TRUST.

128

2

234

336

610

PRACTICE - Amendment of the record nunc pro tunc on an application to
the Supreme Court, after a final decision in the Court of Appeals, not allowed.]
1. After the Court of Appeals has dismissed an appeal taken to it from a
judgment of aflirmance rendered by the General Term, upon the ground
that the appeal being taken on the judgment roll alone and no case being
made containing the evidence, exceptions to the findings of fact by the trial
court present no questions for review the Court of Appeals, the Supreme
Court will not grant an order allowing the defeated party to file, nune pro
tune, conclusions of law proposed by it and refused by the trial justice, and
to annex the same to the judgment roll as of the date of the entry thereof,
four years previously; nor will it allow such party to file and serve amended
exceptions to such decision, nunc pro tune, as of the date of the trial.

71

Qure, whether any power exists in the Supreme Court to authorize an
amendment of its record after the final determination or disposition of the
case by the Court of Appeals. DRAKE &. NEW YORK IRON MINE.....
Examination of a witness before trial- the order therefor must be a
judge's order.] The Supreme Court has no power to make a court order for

2.

PRACTICE - Continued.

the examination of the plaintiff in an action as a witness before trial, upon
a contested motion, brought on to be heard pursuant to a formal notice
thereof. The proper practice, under section 873 of the Code of Civil Pro-
cedure, regulating applications of this character, is to apply ex parte to a
judge who, if the papers are sufficient, must make the order.

WIECHERS. NEW HOME SEWING MACHINE CO.

3.

Where a motion to resettle a case is made on a private stenographer's
minutes the order must recite, although the court rejects, them.] Where a
motion to resettle a case upon appeal is made upon an order to show cause,
reciting that it is made upon the affidavit of one Frank F. Wood, a private
stenographer, “and those portions of the stenographer's minutes taken upon
the trial by said Wood," applicable to certain amendments, the moving party
is entitled to have the order disposing of such motion recite such minutes as
a part of the motion papers, although the court which decided the motion
held that the minutes of the official stenographer were the only standard aside
from the recollection of the trial judge. DEUTERMANN v. POLLOCK..............

......

46

Appearance —a stipulation extending the time to answer, signed by one
attorney as defendant's attorney," does not prevent the service of the answer by
another attorney its effect as a waiver of irregularities and of objections to
jurisdiction.

See PAINE LUMBER CO. . GALBRAITH......

Issue-joined by an answer returned because unverified, and subsequently
verified and re-served — when the cause can be put on the calendar — stipulation
as to the date of the issue.

See PRITCHARD . NEDERLAND LIFE INS. Co. (No. 1).

....

Costs —an attorney receiving them from a partner who is afterwards
obliged to pay them to his client will not be ordered to repay them on a summary
application.

See TAYLOR v. LONG ISLAND R. R. Co.

Pourer to appoint a guardian ad litem-practice in a special proceeding —
an appointment of a guardian nominated by the adverse party will be vacated.
See MATTER OF CUTTING. (No. 1)..

The appointment of a guardian ad litem on the nomination of the adverse
party-proceedings in which such guardian appears will be vacated.
See MATTER OF CUTTING. (No. 2).....

Action in forma pauperisan agreement by the plaintiff to pay his
attorney is fatal to the right to continue it.

See CAHILL . MANHATTAN R. Co..........

Irregularity in continuing an action under a fictitious name, with
knowledge of a defendant's true name—how taken advantage of.
See PEOPLE EX REL. MAIBACH 7. DUNN..

Amendment of a complaint — the order must direct its service on a defend-
ant who is in default.

See PALMER . SALISBURY..

Relating to attachments.

See ATTACHMENT.

Motion for judgment upon an order striking out an answer as frivolous –
when it may be made.

See LEE . JACOB....

PAGE.

Change of venue for the convenience of witnesses — personal inconvenience
to the plaintiff will not defeat it.

See HEDGES . BEMIS..

Bill of particulars—not granted on the affidavit of the plaintiff's
attorney.

See STEVENS . SMITH.

As to making a case and exceptions on appeal.
See APPEAL.

1

493

68

109

595

247

252

314

112

139

531

349

119

PRACTICE - Continued.

As to allowance and recovery of costs.

See COSTS.

In relation to an examination before trial — in relation to a discovery.
See DISCOVERY.

Relating to injunctions.

See INJUNCTION.

Relating to proceedings by mandamus.
See MANDAMUS.

Relating to the granting of new trials.
See NEW TRIAL.

Relating to pleadings.

See PLEADING.

Relating to the trial of actions.
See TRIAL.

PREFERENCE In a general assignment.

See ASSIGNMENT.

Giren by a corporation in contemplation of insolvency · - accounts assigned
to replace other assigned accounts collected by the debtor.

See CORPORATION.

PRESCRIPTION:

PREMIUM — Trust fund amount to be retained by the trustee from the
income of securities purchased at a premium — estoppel of beneficiary — when
a trustee is chargeable with knowledge of his predecessor's investments.

See TRUST

PAGE

See ADVERSE POSSESSION.

PRINCIPAL AND AGENT - Real estate broker's commissions — when not
earned.] 1. An owner of premises who had evinced no desire to dispose of
them, upon being approached by an employee of a real estate broker on behalf
of parties desiring to purchase property in that locality, said that if the
proposed purchasers wanted the property they might have it for $82,000, and
caused his attorney, after negotiations, to draw a contract for the sale of such
property, which contract was submitted to the proposed purchasers and their
attorney, who pronounced it satisfactory.

The proposed purchasers then asked that a clause be inserted giving them
an option of allowing part of the purchase price to remain on mortgage. At
this point the attorney for the proposed purchasers discovering that the
property instead of being twenty-five feet front as described by the broker
and in the contract, was, in fact, only twenty-four feet and seven and one-
half inches, the proposed purchasers demanded a proportionate reduction on
account of the shortage, which demand was refused.

Further negotiations between the owner and the proposed purchasers
resulted in a refusal of the latter to take the property at the price named,
and the refusal of the former to take less.

In an action brought by the real estate broker to recover commissions from
the owner of the premises,

Held, that the fact of the mistake in the dimensions of the lot, in the
absence of any misrepresentations on the part of the owner, did not affect
the contract between the owner and the real estate broker, which was that
the latter should bring the minds of the buyer and seller to an agreement
for a sale, and as to the price and terms on which it was to be made;

That, there being no evidence that the defendant was not ready at all times
to comply with his agreement to take $82,000 for the premises which he
owned, or that the proposed purchasers were ready, able and willing to pay
him that amount, under the terms and conditions which he imposed, it could
not be said that the efforts of the plaintiff were rendered futile by the fault
of the defendant; and that the plaintiff, having failed to produce a party
able and willing to take the property upon the terms prescribed, had not
earned the commission which he sought to recover.

DIAMOND & Co. v. HARTLEY...

87

PRINCIPAL AND AGENT - Continued.

2.

Conversion the refusal of a bank to pay a check given by an agent
for moneys collected for his principal. it does not establish a conversion.]
Proof that a check, given by an agent for moneys of his principal collected
by the agent, was refused payment by the bank on which it was drawn,
unaccompanied by any evidence of a demand therefor made upon the agent,
is not, of itself, sufficient to sustain an action against him for the conversion
of the moneys represented by the check.

NATIONAL LIFE ASSOCIATION . THOMPSON

-

3. Admissions testified to as made by the agent may be explained by him.]
Where, upon the trial of such an action, the director of agencies of the prin-
cipal testifies to conversations in which the agent admitted appropriating to
his own use the moneys represented by the check, the agent is entitled to
meet and rebut such testimony by giving his own version of such conversa-
tions. Id.

4.

ww

Real estate broker's commissions · when they cannot be taken from
both parties to an exchange of real property.] Where, in an action by a real
estate broker to recover commissions for services rendered in effecting an
exchange of real estate, it appears that the plaintiff was employed not only
by the defendants, but also by the other party to the exchange, from whom
he had received commissions, and it does not appear that the plaintiff's
employment by the other party to the exchange, or the fact that he was to
receive compensation from that party, was known to the defendants, the
complaint is properly dismissed, especially where the plaintiff testifies that
his contract with the defendants required him to get all the property I
could for them, in exchange for Long Island lots." ROBINSON v. CLOCK.... 67

..

Action' to recover commissions on sales—what facts do not establish a
right to examine the defendant's books.

See TAYLER v. AMERICAN RIBBON CO......

Scrivener's rule - to what case it is not applicable.
See CENTRAL TRUST CO. v. FOLSOM....

PAGE.

PRINCIPAL AND INCOME Evidence that a trustee has paid over to the
cestuis que trustent the amount of the income of the estate is sufficient to author-
ize the court to find that the deficit is in the corpus of the estate and not in the
income.

See ANDERSON v. DALEY.

PRINCIPAL AND INTEREST - Trust fund amount to be retained
by the trustee from the income of securities purchased at a premium — estoppel
of beneficiary- when a trustee is chargeable with knowledge of his predecessor's
investments.

See NEW YORK LIFE INSURANCE Co. v. BAKER..

PRINCIPAL AND SUPETY When a creditor must first resort to the
property of the principal delior.] 1. To sustain the defense that a creditor,
as between a surety and the principal debtor, must first resort to the prop-
erty of the principal debtor, two things are necessary -a request by the
surety to the creditor so to proceed, and a failure to comply therewith with
resultant damages. DE CAUMONT . RASINES.

PROCEDURE:

2. — Set-off.] An accommodation maker of a note, payable “on demand
and return of the securities given," and delivered under no agreement as to
the use to be made of it, is not entitled to insist that the note shall be used
as an offset to an obligation existing in favor of the principal maker against
the holder of the note, who took the note with knowledge of the relation
thereto of the accommodation maker-the obligation not being a collateral
to secure the payment of the note. Id.

See PRACTICE.

PROBABLE CAUSE - Malicious prosecution-probable cause, a question
for the jury.

See MALICIOUS PROSECUTION.

445

144

295

505

417

153

PROMISSORY NOTE:

PROCESS-A surrogate may direct substituted service of a citation upon an
administratrix.

See SCHARMANN v. SCHOELL..

See BILLS AND NOTES.

PROOF:

See EVIDENCE.

PROPERTY- Personal.

See PERSONAL PROPERTY.
Real.

See REAL PROPERTY.

PUBLIC STREET:

PUBLIC POLICY – Evidence of — general assignment, with preferences, by a
foreign corporation - its validity in the State of New York sustained.
See MATTER OF HULBERT BROS. & Co.....

What contract is contrary to.
See CONTRACT.

See MUNICIPAL CORPORATION.

PUBLIC WORK- Awarding a contract to the lowest bidder.

See CONTRACT.

PUNITIVE DAMAGES:

See DAMAGES.

PURCHASE — Of personal property.

See SALE.

-

PAGE.

RAILROAD- Negligence-proof of the plaintiff's residence in the State of
New York in an action against a foreign railroad corporation for an injury
outside of the State-duty of an engineer to stop his train to prevent a probable
injury to one approaching the track.

See BUMP v. NEW YORK, NEW HAVEN & H. R. R. Co.....

Action against a railroad by an abutting owner who, pending the suit,
has parted with the title issues sent from the Special Term to the Trial Term
-entry of judgment on the verdict-period of assessment of damages.

See CAMERON . NEW YORK ELEVATED R. Co...

Eminent domain-damages to an abutting owner from an elevated rail-
road when a devisee and residuary legatee of such owner is not entitled to dam-
ages accruing before the latter's death.

See GUCKER . METROPOLITAN ELEVATED R. Co....

City of Brooklyn — an ordinance requiring electric cars to be equipped
with fenders extending to within "not more than three inches from the tracks"
is unreasonable.

See CITY OF BROOKLYN . NASSAU EL. R. R. Co.....

. RATIFICATION - Of his acts by an infant.
See INFANT.

528

323

60

16

47

365

Agreement between two railroad companies to construct a road for joint
use-either company may run cars of a leased road over it.

Se CONEY Is. & G. R. Co. . CONEY Is. & B. R. R. Co....
Exemplary damages in an action against a railroad company for per-
sonal injuries-in what case they are not recoverable.

See WIGTON e. METROPOLITAN STREET R. Co...
Negligence-bicycle rider in a city street darting from behind one street
car and running into another approaching one.

597

See CARDONNER 2. METROPOLITAN STREET R. Co......
Negligence-collision between two street railroad cars—presumption of
negligence arising therefrom.

See FALKE . THIRD AVENUE R. R. Co....

494

207

49