parcels. Held, that as it appeared that the appellant was not the owner of the premises, and that there was no deficiency, she could not raise the objection. (Id.)

45. Action to recover damages for injuries by the defendant's negligence-opinions of doctors as to the probability of the plaintiff's permanent recovery-as to the probability of the recurrence of brain troubles -objections to evidence unavailing unless the error be specifically pointed out. (See Tozer agt. N. Y. C. and H. R. R. R. Co., 38 Hun, 100.)

46. Taking of land for railroad purposes under chapter 606 of 1875contents of petition-power of the court to amend it-what objections to the character of the evidence cannot be first raised on appeal-duty of the commissioners as to determining the route and as to fixing the time for the completion of the railway. (See Mutter of Suburban Rapid Transit Co., 38 Hun, 553.)

47. A bill of particulars will not be allowed where the information sought for lies peculiarly within the knowledge of the defendant. (See Fink agt. Jetter, 38 Hun, 163.)

48. Bill of particulars in an action for libel--a party cannot be compelled to disclose his evidence-a bill of particulars cannot be required as to matters pleaded only in mitigation of damages. (See Newell agt. Butler, 38 Hun, 104.)

49. Indictment-variance between its allegations and the proof-an objection must first be taken at the trial

- how larceny is to be charged under section 528 of the Penal Code -charge as to reasonable doubt. (See People agt. Cruger, 38 Hun, 500.)

50. Evidence-when a party may testify as to the value of services rendered by him to a deceased person-Code of Civil Procedure, sec

tion 829-whether or not the plaintiff has offered to refer a claim should not be submitted to the jury -right of a party to address the jury on all questions submitted to it. (See Burrows agt. Butler, 38 Hun, 157.)

51. Party-wall-when a covenant to pay therefor runs with the landwhen a party taking subject to a covenant cannot dispute the liability of his grantor-when the parties are not entitled to a hearing before the appraisers. (See Bedell agt. Kennedy, 38 Hun, 510.)

52. Stay of proceedings because of the non-payment of costs-what is a waiver of the right to insist upon it. (See Attorney-General agt. Continental Life Ins. Co., 38 Hun, 522.)

53. Foreign administrator-jurisdiction of the courts of this state over an action against him--amendment of a clerical error in an affidavitCode of Civil Procedure, sec. 723. (See Murphy agt. Hall, 35 Hun, 528.)

54. Refusal of highway commissioners to have, what is claimed to be a public road, ascertained and recorded-an error in their decision cannot be reviewed by mandamus. (See People ex rel. Miller agt. Hulse, 38 Hun, 388.)

55. Action to recover assets wrongfully converted by an administrator -when it may be brought by one of the heirs-at-law. (See Randel agt. Dyett, 38 Hun, 347.)

56. Injunction-motion to vacate, without notice, at general termCode of Civil Procedure, sec. 626 -in what cases such a motion can be made (See Gere agt. N. Y. C. and H. R. R. R. Co., 38 Hun, 231.)

57. Power of the court to direct one of several persons, jointly indicted, to be tried separately-when a person is not disqualified to sit as a juror by reason of an existing opin

ion as to the guilt of the accusedwhen evidence not alleged in the indictment is admissible in support of the charge of fraud there made -when evidence of a settlement with a third person is not admissible in favor of the party indicted -misconduct of juror-when a conviction will not be reversed therefor-duty of counsel to present objections at the time of the commission of the improper act. (See People agt. Clark, 38 Hun, 214.)

58. Trial of a person accused of crime -all questions of fact should be left to the jury-not more than one separate and distinct crime can be charged in an indictment-Code of Criminal Procedure, sec. 278-the objection should be taken by a demurrer-Code of Criminal Procedure, sec. 323, subd. 3—and is waived by a plea of not guilty-Id., secs. 331, 464-when an indictment is defective in failing to sufficiently identify the property taken - the objection is waived if not taken by a demurrer-so also as to a failure to set forth the value of the property taken. (See People agt. Upton, 38 Hun, 107.)

59. Judgment affirming a surrogate's order in special proceedings-right of a party to enter a judgment for costs. (See Wadley agt. Davis, 38 Hun, 186.)

60. When an entire defense cannot be stricken out as irrelevant- -a pleading will not be stricken out because it does not state a good cause of action. (See Hubbard agt. Gorham, 38 Hun, 162.)

61. Service of summons by publication-defects in the notice attached to the summons-when they do not prevent the court from acquiring jurisdiction-Code of Civil Procedure, secs. 442, 443-purchaser at a judicial sale required to accept a title. (See Loring agt. Binney, 38 Hun, 152.)

62. Compulsory reference cannot be ordered on the ground that an account must be examined, if that is not the principal issue. (See Claflin agt. Drake, 38 Hun, 144.)

63. Motions affecting receivers of insolvent corporations-what papers must be served upon the attorneygeneral under chapter 378 of 1883. (See Greason agt. Goodwillie - Wyman Co., 38 Hun, 138.)

64. Action to recover a tax illegally collected by a county-when it may be recovered without first vacating the assessment-what evidence is sufficient to show a receipt of the money by the county-a claim to recover a tax illegally collected need not be first presented for audit. (See Ross agt. Supervisors of Cayuga County, 38 Hun, 20.)

65. Pleading-a cause of action for an absolute divorce cannot be united with one for a separation-the failure of the plaintiff to separately state his causes of action does not deprive the defendant of his right to demur. (See Zoran agt. Zoran, 38 Hun, 67.)

66. Certiorari-a return thereto is to be confined to matters specified in the writ-to what extent the papers used on the motion for a writ may be considered at the hearingalteration of a highway. (See People ex rel. Downey agt. Dains, 38 Hun, 43.)

67. Certiorari-it cannot issue to a body which has lost control of the record to be reviewed. (See People ex rel. L. S. and M. S. R. Co., agt. Common Council, 38 Hun, 7.)

68. When a plaintiff should not be compelled to elect as to which of two counts he relies upon. (See Haynes agt. Buffalo, N. Y. and P. R. R. Co., 38 Hun, 17.)

69. Action to restrain the enforcement of a city ordinance-when the

72. Surrogate's court-who may petition the court as a "creditor" for a decree directing his claim to be paid - Code of Civil Procedure, sections 2717, 2718. (See Hall agt. Dusenbury, 38 Hun, 125.)

73. A party entering a judgment for damages and costs, after his costs have been taxed, cannot thereafter move for a retaxation. (See Burrows agt. Butler, 38 Hun, 121.)

74. Increased costs in an action against a public officer-when not allowed in an action upon an indemnity bond-Code of Civil Procedure, section 3258, subdivision 1. (See Conner agt. Keese, 38 Hun, 124.)

75. Appointment of a guardian for an infant in a surrogate's court-no notice is required if the infant be present and consent. (See Matter of Sebray, 38 Hun, 218.)

76. Attachment-what facts must be stated in the papers therefor-Code of Civil Procedure, sections 635, 636. (See Edick agt. Green, 38 Hun, 202.)

77. Amendment to complaint - not allowed so as to change the venue thereby. (See Rector agt. Ridgwood Ice Co., 38 Hun, 293.)

78. When a defect in a notice of entry of judgment is waived by an admission of its due and proper service to review an interlocutory judgment on an appeal from a final judgment, the former must be specified in the notice of appealCode of Civil Procedure, sections 1301, 1316-the court cannot amend the notice by inserting such reference. (See Patterson agt. McCunn, 38 Hun, 531.)

79.

Purchase at a foreclosure salethe court cannot enforce it as to part, with a deduction from the price for the residue as to which the title is defective. (See Thomp son agt. Schmieder, 38 Hun, 504.)

80. Fees of a referee appointed to take the accounts of a receiverwhen not allowed until the report is made. (See Clapp agt. Clapp, 38 Hun, 540.)

81. Court of special sessions-restrictions upon the power of, to impose a sentence upon one convicted before it-Code of Criminal Procedure, section 717-habeas corpusproper remedy for one imprisoned under a void judgment. (See People ex rel. Stokes agt. Riseley, 38 Hun, 280.)

82.

Surrender of coupons upon the receipt of a worthless check-when the owner still retains his title to them- -a mandamus should not issue when an ample legal remedy exists. (See People ex rel. Port Chester Bank agt. Cromwell, 38 Hun, 384.)

83. A commission to take testimony may issue upon a reference of a disputed claim against an estateR. S., pt. 2, chap. 6, tit. 3, art. 2, secs. 36, 37-Code of Civil Procedure, sections 887, 888. (See Paddock agt. Kirkham, 38 Hun, 376.)

84. Action for libel-a demurrer will not lie, if the words can be so construed as to be libelous, although

98. Judgment creditor's action-when the debtor may attack the judgment as obtained through fraud. (See Richardson agt. Trimble, 38 Hun, 409.)

99. Power of court to order a reference on a motion to continue an injunction-it may compel the personal appearance of the affiantsmay prescribe upon what notice the hearing should be had-may prohibit an application for the examination of witness without the state by a commission. (See Stubbs agt. Ripley, 39 Hun, 620.)

100. The court has not power to compel a husband, in an action for divorce, to pay for the printing of papers on an appeal by his wifewhen the court will relieve an appellant from printing the case. (See Fagan agt. Fagan, 39 Hun, 531.)

101. Power of the court to allow amendments to pleadings- when an action may be changed from contract to tort-amendment not disallowed because the claim is barred at the time the motion is made. (See Eighmie agt. Taylor, 39 Hun, 366.)

102. Power of the court to order issues to be settled although more than ten days have elapsed since they have been joined - General Rules Spreme Court No. 31. (See Apel agt. Connor, 39 Hun, 482.)

103. Right to serve an amended complaint an extension of time is a waiver of the right to object that a complaint is not sufficient to require an answer or demurrer. (See Smith agt. Pfister, 39 Hun, 147.)

104. What instructions to a jury as to their duty to agree is allowable. (See Cranston agt. N. Y. C. and H. R. R. R Co., 39 Hun, 308.)

105 Action to restrain the use of a trade-mark-will not lie if the plainVOL. III 78

tiff is chargeable with a false representation in using it-when an action for an injunction will not be retained as one for damages. (See New York Card Co. agt. Union Card Co., 39 Hun, 611.)

106. Action to restrain the prosecution of another action in the same court-only allowed where full and complete justice cannot be obtained in the first action. (See Hayward agt. Hood, 39 Hun, 596.)

107. Libel- action to restrain the publication of the name of the plaintiff as a delinquent debtorwhat must be shown in order to obtain a temporary injunction. (See Greene agt. U.S. Dealers' Pro. A880ciation, 39 Hun, 300.)

108. Joinder of causes of action—an action relating to different separate trusts created by the same will cannot be joined where the beneficiaries are different and have no common interest. (See Weeks agt. Cornwall, 39 Hun, 643.)

109. Modification of a judgment by the general term so as to send the case back to a referee to consider one particular subject-a motion to confirm the report should be made at special term and not at the general term. (See Gautier agt. Douglas Mfg. Co., 39 Hun, 642.)

110. Stay of proceedings on appealwhen an allowance of a counterclaim in behalf of a defendant will be treated as a judgment recovered by him against the plaintiff. (See New York, L. E. and W. R. R. Co. agt. Carhart, 39 Hun, 516.)

111. Referee-he is disqualified by reason of his having already, in an action for divorce, found one of the parties guilty of adultery. (See Matter of Bliss, 39 Hun, 594.)

112 Failure of a referee to deliver or file his report within sixty days-a delay of the successful party to take