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INDEX TO NOTES.

ACTION TO CHARGE DEFENDANTS NOT SUMMONED—
Amount of claim is the amount remaining unpaid at time
of verification of complaint, 41.

Defenses pleaded must have existed when action was insti-
tuted, or if against the judgment itself, must be as to its
validity or binding efficacy, 41.

Defense of statute of limitations prohibited unless it existed
at time of original defense. Likewise as to defense of
payment, release and discharge in bankruptcy, 42.
Form of judgment, 41.

APPEAL-

A reversal of decision of trial court upon a question of fact
should be made to so appear in the record of the judg-
ment or order, 57.

ASSESSMENT-

To review an erroneous decision, mandamus is not the proper
remedy, 28.

Whether a default shall be opened and a rehearing had purely
a matter of discretion, 28.

Determination is not subject for an appeal, 28.

CERTIORARI-

Where writ is issued more than four months after the deter-
mination sought to be reviewed thereby became final and
binding upon relator, the writ may upon motion of de-
fendant be quashed, 28.

'Practice, 28.

COSTS-

Security for, cannot be required when party has absolute
right to be brought in as defendant, as a condition for
granting such right, 56.

In an action by sheriff to compel delivery of personal property,
sheriff is a nominal party not liable. Against executor
or administrator may be granted. Other illustrations when
granted. What must occur for costs to be awarded against
administrators. General rule, will not be awarded against

executor. Disbursements allowed. Costs on appeal al-
lowed, 70, 72.

EXECUTOR'S ACCOUNT-

Practice in Surrogate's Court. Decision by referee. When
not necessary for Surrogate to file a decision. Practice.
Absence of findings. When tried by surrogate. Findings
are indispensable. When it is the duty of the party ap-
pealing to procure same, 237.

What evidence admitted is error in order to charge executor
in an executor's accounting. Appeal in executor's ac-
counting, how construed, 238.

JURISDICTION OF MUNICIPAL COURT, 175—

PARTIES-

Bringing in additional, in action to set aside general assign-
ments in Surrogate's Court-in Equity-Foreclosure-Ac-
tion for accounting. Ejectment, 56.

When party to an action dies, while action is pending, the ac-
tion cannot legally proceed to judgment without bringing
in his personal representatives, 57.

REDEMPTION PROCEEDINGS-

When may be had, 189.

Meaning of words "rent" and "costs", 190.

Tender-its object, when sufficient, 190.

When a tenant cannot redeem, 190.

Power of receiver in-to maintain, 190.

SECTION 829-

Construction of, 261.

When fraud is alleged, who is a competent witness. The
rule at common law defined. Attorney's lien does not
make him an interested party within the prohibition of
the section. Promissory note, where the obligation is
joint as well as several, prohibition of statute does not
apply. Applies to a surviving partner, and executor of a
party examined before trial. Statute must be strictly
construed. To be brought within the spirit of the statute
is not sufficient. How it affects husband. Mortgage, when
not affected. Title to real estate, testimony not permitted
of a party claiming title through a deceased person.
Receipt inadmissible, when. Counterclaim affected,
when. Contradiction of living witness, not prevented by
operation of statute. 262.
Corporation not affected by the statute, when. Interrogator-
ies when allowed. Personal communications with the de-
ceased, test of. Dower, testimony of wife incompetent.
Appeal, stipulation cannot affect or prevent the operation

of the statute. Agent, transaction had through is a per-
sonal transaction within the meaning of the statute. At-
torney, when not interested he is competent to testify.
Conversion, value of property converted may be testified
to only. Curtesy, husband not affected. Replevin, evi-
dence of the delivery of property in, may be excluded.
Cross examination may open the door to further testi-
mony, otherwise inadmissible, 263.

Executor, when interested, and not a competent witness.
Mortgager an interested party, when seeks to be relieved.
Surety, when the testimony of admissible. Mutual mis-
take, how the statute may affect, 264.

SUBMISSION OF CONTROVERSY-

Affidavits by whom made, and what to contain. Court con-
fined to facts agreed upon. When court must dismiss
submission of controversy, 125.

SUMMARY PROCEEDINGS-

Answer must be verified. Counter affidavit not accepted. Ad-
journment in power of clerk. When answer may be re-
ceived in. What is meant by affirmative relief and equit-
able defense, or counter claim in. When counter claim not
allowed in. What answer must contain, 87, 88.

SHERIFF-

Action to compel delivery of personal property to, must be
instituted in his name, or in the name of the debtor-may
bring an action to collect a debt attached before judgment
in the action in which the attachment was granted.
Power of court over money due him. Property held by
fraudulent transfer, attackable in such actions, 70.

GENERAL INDEX.

ACCOUNTING,

When a new accounting should be ordered, 57.

ACTION,

to charge debt of decedent upon land; when cannot be
maintained, 198.

to recover damages for negligently causing death, survives.
Who is sole beneficiary in, 239.

ANCILLARY LETTERS TESTAMENTARY,

Upon what record they will be issued; jurisdiction of New
York Surrogate, 1.

APPEAL,

In proceedings to determine damages, 72.

APPELLATE DIVISION,

Power of Duty to order new accounting for errors, 57.
ASSESSMENT,

Parties uniting to attack, under Sec. 250, Chap. 908, Laws of
1896, 22.

When may not be vacated but reduced, 190.

ASSETS,

Moneys recovered by widow as administratrix for negligent
killing of husband, are such, 180.

ASSIGNMENT,

General, by Corporation, 265.

ATTACHMENT,

Action by Sheriff to recover attached property, 67.

When the interest of the owner and pledger in certificates of
a foreign corporation belonging to a non-resident, in pos-
session of a resident, can be levied upon, 286.

ATTORNEY'S LIEN,

What constitutes proceeds of judgment, 88.
Settlement of action by parties, 94.

in Surrogate's Court, 387.

CHILDREN,

Habeas corpus to obtain, when dismissed, 214.

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