ALIENATION.

Suspension of power of alienation of property,
see "Perpetuities."

AMENDMENT.

Of particular legal proceedings.

See "Pleading." § 4.

ANIMALS.

-Pascocello v. Brooklyn Heights R. Co. (Sup.)
177.

The exercise of discretion of park commis-
sioners under Laws 1891, p. 204, § 310, held
not reviewable by the courts.-Holtz v. Diehl
(Sup.) 841.

An order punishing defendants for failure to
comply with an order for discovery held not to
affect a substantial right, and hence not to be
appealable.-Brown v. Georgi (Sup.) 923.

The owner of a horse who, without knowl-
edge of its vicious propensities, permitted it to
be on a sidewalk, held liable for its biting a
pedestrian thereon.-Stern v. Hoffman Brewing
Co. (Sup.) 188.

ANNEXATION.

Of territory to municipal corporation, see "Mu-
nicipal Corporations," § 1.

ANSWER.

In pleading, see "Pleading," § 2.

APPEAL.

See, also "Certiorari."

Where an order striking out an answer was
made ex parte, and no order denying a motion
to vacate it was made, it is not appealable.--
Brown v. Georgi (Sup.) 923.

3. Right of review.

A stipulation held to preclude a review of the
question of the measure of damages.-McCall
Co. v. Reinhardt (Sup.) 170.

§ 4. Presentation and reservation in
lower court of grounds of review.
The fact that defendant offered no evidence
on one of two defenses pleaded held not to af-
fect his right to reversal for error of court in
limiting him to the other defense.-Conklin v.
John H. Woodbury Dermatological Inst. (Sup.)
258.

Error in sustaining an objection to a ques-
tion to a witness will not be presumed, in the
v. Langfeld (Sup.) 298.

1. Nature and form of remedy.
Where issues in an equity suit are transfer-
red to the trial term, the entry of judgment
in the latter court is a mere irregularity, which
should be corrected by motion to set the judg-
ment aside, and not by appeal.-Cameron v.
New York El. R. Co. (Sup.) 304.

The remedy against a judge's ex parte order
requiring a party to appear and submit to an
examination is by motion to set it aside, and
not by appeal.-Campbell v. Brock's Commercial
Agency (Sup.) 540.

§ 2. Decisions reviewable.

Order denying motion to transfer cause from
one borough to another in New York City held
not appealable, under Laws 1896. c. 748, §
1, and New York City Charter, § 1367.-Pasco-
cello v. Brooklyn Heights R. Co. (Sup.) 177.

on appeal.-Havey v. Kelleher (Sup.) 889.
The objection to the sufficiency of the answer
as a plea of a counterclaim cannot be first urged
on appeal.-Thornton v. Moore (Co. Ct.) 1100.

On appeal from judgment only, and not from
motion denying new trial, the facts will not be
reviewed. Rosenblatt v. Haymann (City Ct.
N. Y.) 378.

§ 5. Effect of transfer of cause or pro-
ceedings therefor.

Where the testimony indicates that a retrial
would not affect a judgment for defendant, an
attachment issued against him should not be
continued pending appeal.-Friede v. Weissen-
thanner (City Ct. N. Y.) 399.

§ 6. Record and proceedings not in rec-

ord.

Though statement does not show it contains
all the evidence, defendant, on appeal, held en-
titled to consideration of motion to dismiss at

close of case.-Miner v. Edison Electric Illumi-
nating Co. (Sup.) 801.

Where the record does not contain a bill
of particulars, the appellate court cannot con-
sider its alleged contents.-Bolte v. Third Ave.
R. Co. (Sup.) 1038.

$ 7. Review.

A judgment on conflicting evidence will not
be disturbed, where not the result of prejudice,
or against the preponderance of evidence.-Me-
Cready v. Lindenborn (Sup.) 54.

The appellate court may examine the papers
on an application to open a default, to see if
there was a legal foundation laid for the order.
-Davis v. Solomon (Sup.) 80.

The discretion of the court in opening a de- |
fault is reviewable.-Davis v. Solomon (Sup.)
80.

Judgment of trial court on question of fact,
based on conflicting evidence, will not be dis-
turbed on appeal.-Gair v. Cohen (Sup.) 180:
Smith v. Davis (Sup.) 183; Lewis v. Hosey
(Sup.) 200; Gwillim v. Smith (Sup.) 226.

When a complaint is dismissed because plain-
tiff had been negligent, and the evidence failed
to establish defendant's negligence, and, in ar-
gument on appeal, no effort is made to sustain
the judgment on the former ground, only the
latter ground will be considered.-Schiller v.
Dry Dock, E. B. & B. R. Co. (Sup.) 184.

The findings of fact of a referee will not be
disturbed unless error affirmatively appears.-
Hicks v. Magoun (Sup.) 484.

witnesses will be considered on an appeal from
The fact that the surrogate could see and hear
a judgment on an issue of fact.-In re Arken-
burgh (Sup.) 523.

defendant in a certain indictment is prejudicial.
Compelling a witness to admit that he is the
though he does not state whether he was ever
indicted.-Hirschman v. Cohn (Sup.) 602.

Compelling a witness to admit that he is the
defendant in a certain indictment is prejudiciai
without introducing the indictment.-Hirsch-
man v. Cohn (Sup.) 602.

A reversal on appeal, on the grounds that a
requirement of a contract had been waived,
held res judicata on a second trial, where the
evidence was the same.-Hartley v. Murtha
(Sup.) 686.

The evidence conflicting, the appellate court
cannot assume that, because the jury erred in
assessing damages, they also erred in their con-
clusion on the general facts.-Stemmerman v.
Nassau Electric R. Co. (Sup.) 730.

One consenting to reference cannot, on ap-
peal, claim that the case was not referable.-
Biglow v. Biglow (Sup.) 794.

A finding of fact will not be reviewed, the
evidence being conflicting.-Miller v. Marshall
(Sup.) 865.

A verdict on conflicting evidence will not be
disturbed.-McCormick v. Catholic Relief &
Beneficiary Ass'n (Sup.) 905; Rosenblatt v. Hay-
mann (City Ct. N. Y.) 378.

A decision on conflicting evidence will be dis-
turbed only where prejudice or failure to delib-
erate appears, or where injustice has been
done.-Schmitz v. Stahl (Sup.) 195.

A judgment of the general term sustaining an
attachment because of a fraudulent disposition
of property will not be disturbed.-Rickerson
v. Bunker (Sup.) 202.

The fact that court submitted question of law
arising on undisputed facts to jury on errone-
ous charge held immaterial where jury reached
proper conclusion.-Clinton Nat. Bank v. Na-
tional Park Bank (Sup.) 244.

Where defendant requested that certain is-
sues be transferred to the calendar of the
trial term, he cannot object on appeal that the
trial term erred in submitting such issues to
the jury.-Cameron v. New York El. R. Co.
(Sup.) 304.

Denial of a motion for leave to amend, after
motion for verdict, is within the court's discre-
tion.-Reiner v. Jones (Sup.) 423.

Where instructions indicate the court's opin-
ion on the facts, and it is probable that such

ment, under Code Civ. Proc. § 1316.-Raff v.
Koster, Bial & Co. (Sup.) 997.

A decision on conflicting evidence, which
seems to do substantial justice, will not be dis-
turbed.-Lewis v. Heydenreich (Sup.) 1014.

Where the evidence is conflicting, the ques-
tion whether a tender was coupled with a con-
dition is for the jury.-Zeitlin v. Arkaway
(Sup.) 1058.

When the evidence is conflicting, the question
whether a tender was for the amount of a
lien on the goods is for the jury.-Zeitlin v.
Arkaway (Sup.) 1058.

Whether or not a building contract had been
substantially performed held a question of fact
for the trial court.-Ryan v. Voelkl (Sup.) 1065.

fuses application for adjournment, the error
Where the justice of a municipal court re
held not cured by opening the default, where
terms are imposed on defendant.-Marsh v.
Nassau Show-Case Co. (Sup.) 1083.

Error in sustaining an objection to a ques-
tion is cured by the witness afterwards testify-
ing in regard thereto.-Harding v. Jenkins
(Sup.) 1086.

1. Admission of incompetent evidence held prej-|
udicial, though the evidence preponderated in
appellee's favor.-Nussbaum v. Jordan (Co. Ct.)
862.

Admission of incompetent evidence held prej-
udicial, though a jury was waived.-Nussbaum
v. Jordan (Co. Ct.) 862.

Where the evidence requires a submission of
a case to the jury, their verdict will not be re-
versed.-Waltenberg v. Bernhard (City Ct. N.
Y.) 396.

8. Determination and disposition of

cause.

Where the issues are submitted to a jury
pending a motion to direct a verdict, the appel-
late division will not enter judgment under
Code Civ. Proc. §§ 1187, 1317, if there were er-
rors below. Sullivan v. Metropolitan St. Ry.
Co. (Sup.) 88.

Judgment for plaintiff on cause of action at
variance with that alleged held not sustaina-
ble on appeal, when evidence in record does not
enable court, by modification thereof, to de-
cide issues according to justice of case.-Nicoll
v. Lloyd (Sup.) 178.

Where the state was not a party to an action
to construe a will, the taxability of a portion of
the estate should be determined by the judgment
of the court of appeals, and not by the judg-
ment entered in the supreme court on remittitur
by consent. In re Edson (Sup.) 409.

Decision reversing judgment for failure to
give a certain instruction held not binding on
second trial below on different evidence.-
Thames Loan & Trust Co. v. Hagemeyer (Sup.)
689.

Where, on the pleadings and admission in the
record, a party was entitled to a larger judg-
ment than was awarded him, he is entitled to
a reversal.-Miller v. Marshall (Sup.) 865.
The reversal of an order setting aside defend-
ant's default nullifies a judgment for defend-
ant rendered intermediate the appeal from the
order and the reversal thereof.-Weinberg v.
Frank (Sup.) 920.

Where an order striking out an answer and
an order directing a judgment on the com-
plaint are reversed, a judgment entered in com-
pliance with the latter order is invalid.-Raff
v. Koster, Bial & Co. (Sup.) 997.

A judgment of court of appeals construing a
contract is conclusive on lower court in a sub-
sequent action.--Genet v. President. etc., of
Delaware & H. Canal Co. (Sup.) 1000.

Where no exception is taken to dismissal of
a suit because without costs, such dismissal
will not be reviewed.-Gagliostro v. Caprorale
(Sup.) 1027.

A formal judgment need not be entered on an
order of reversal.-Trenton Potteries Co. v.
Smith (Sup.) 1075.

APPEARANCE.

Under Code Civ. Proc. § 424, one named as
defendant, but not served, may serve notice of

appearance against plaintiff's objection. - Mc-
Loughlin v. Bieber (Sup.) 805.

Under Code Civ. Proc. §§ 424, 1932, court held
to have no discretion to authorize procedure
against those defendants only who have been
served.-McLoughlin v. Bieber (Sup.) 805.

The fact that a partner has made an assign-
ment for creditors held not to show that he has
no interest in an action on a partnership debt,
under Code Civ. Proc. § 1932, so that he may
not appear therein.-McLoughlin v. Bieber (Sup.)
805.

Plaintiff must treat defendant as having ap-
peared specially on a motion, where he had not
appeared generally and the record is silent as
to what the appearance on the motion was.-
Springfield Metallic Casket Co. v. Wielar (City
Ct. N. Y.) 394.

Irregularities in an appearance on a motion
are waived by proceeding to a hearing without
objection. Springfield Metallic Casket Co. v.
Wielar (City Ct. N. Y.) 394.