INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Dedication, 20; Landlord and Tenant, 195. ABATEMENT AND REVIVAL. See Election of Remedies. § 1142, though drug would not have caused abortion.-Id. 5 (N.Y.Sup.) Information held to support conviction for holding out representations that a drug or medicine could be used or applied to cause an unlawful abortion, or descriptions calculated to lead another to so use or apply them.-People v. Hager, 168 N. Y. S. 183. (N.Y.Sup.) Evidence held to support V. DEATH OF PARTY AND REVIVAL conviction for holding out representations that OF ACTION. (B) Continuance or Revival of Action. 74(1) (N.Y.Sup.) Action commenced May 12, 1914. by German citizen and resident against citizen of United States, jurisdiction being obtained by attaching claim of defendant against domestic corporation having place of business in county of New York, held to abate, unless continued by personal representatives of deceased plaintiff within year.-Farenholtz v. Meinshausen, 168 N. Y. S. 869. ABORTION. drug could be used or applied to cause unlawful abortion, or descriptions calculated to lead another to so use or apply them, though witnesses were police detectives.-People v. Hager, 168 N. Y. S. 183. ABUTTING OWNERS. See Eminent Domain, 85, 105; Municipal ACCEPTANCE. See Bills and Notes, 68; Dedication, 35; Frauds, Statute of, 89. ACCOMPLICES. (N.Y.) In view of Penal Law, § 1145, provisions of section 1142. making it misdemeanor for person to sell, give away, advertise, or offer for sale any instrument or article, drug or medicine, for prevention of See Criminal Law, 507, 5072. conception, etc., held not unconstitutional as unreasonable police regulation.-People V. Sanger, 118 N. E. 637, 222 N. Y. 192. (N.Y.Sup.) Defendant could not be convicted of selling or giving away drug or medicine for causing abortion, where prescription was formula for nausea, and pills were not shown to be effective to produce an abortion in the dose recommended.-People v. Hager, 168 N. Y. S. 183. Under Penal Law, § 1142, forbidding the sale or giving away of any drug or medicine purporting to be for causing unlawful abortion, the drug must import that it is for such purpose, as by inscription on box or bottle.-Id. Defendant, furnishing drug to supposedly pregnant woman with statement that it would bring on menses, held guilty, under Penal Law, ACCORD AND SATISFACTION. See Compromise and Settlement; Payment; 10(1) (N.Y.Sup.) Where dispute between stockbrokers and member of syndicate as to liability for syndicate indebtedness was settled by payment of an agreed amount and release from liability, held, that there was an accord and satisfaction.-Post v. Thomas, 168 N. Y. S. 226. 17 (N.Y.Sup.) Verbal agreement to pay certain sum in settlement, but with no actual payment, constitutes no defense to action at law upon claim, and gives no equitable_right to compel enforcement of settlement.-Rubin v. Siegel, 168 N. Y. S. 744. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER (1137) ACCOUNT. See Account Stated; Brokers, 37; Executors and Administrators, 495-513; Pleading, 317. allowed, is confined to redress for plaintiff, and III. JOINDER, SPLITTING, CONSOLI- I. RIGHT OF ACTION AND DEFENSES. 3 (N.Y.Sup.) Parties to scheme to purchase mining property formed corporation to 57(1) (N.Y.Sup.) Several actions on an oftake title and sell stock received in exchange held engaged in joint enterprise or copartnership, so that their acts and duties were a proper subject for settlement in equity.-In re Marvin, 168 N. Y. S. 555. ficial bond, which could have been joined, and which defendant says it does not intend to defend, will under Code Civ. Proc. § 817, be consolidated to prevent harassment of defendant.-Sullivan County v. Downie, 168 N. Y. S. 923. 58 (N.Y.Sup.) Costs accrued up to date arnot to be imposed as condition of consolidation of several actions on an official bond, al. of which might have been joined, and which defendant does not intend to defend.-SullivaL County v. Downie, 168 N. Y. S. 923. IV. COMMENCEMENT, PROSECUTION, 69 (N.Y.Sup.) It is only where the decision in one action will determine all the questions in the other, and the judgment on one trial will dispose of the controversy in both actions, that a subsequent action may be stayed until determination of a prior one.-Rosenberg v. Slotchin, 168 N. Y. S. 101. In suits growing out of alleged breach of contract, stay of plaintiff's action on account of pendency of action by defendant held, case not being at issue, etc., to be improper.-Id ACT OF GOD. See Carriers, 119. ADJOINING LANDOWNERS. 6(2) (N.Y.Sup.) Where corporate treasurer was to have share in profits, audit by an accountant held not to become an account stated because, as treasurer, he paid for accountant's See Street Railroads,-26. services and placed or left the audit_in_the corporation's safe.-Johnstone v. John W. But-6 (N.Y.Sup.) Where adjoining lands were ler, Inc., 168 N. Y. S. 273. 19(2) (N.Y.Sup.) Where the complaint and counterclaim each set up an account stated, the dispute being as to whether an item covering an amount reserved for bad debts was included, evidence as to amount of accounts still unpaid held immaterial and irrelevant.-Johnstone v. John W. Butler, Inc., 168 N. Y. S. 273. 1963) (N.Y.Sup.) Where corporate officer was to have share of net profits, evidence held insufficient to show agreement to accept accountant's audit as final as an account stated. -Johnstone v. John W. Butler, Inc., 168 N. Y. S. 273. ACKNOWLEDGMENT. 234, 258; Limitation of Ac See Evidence, ACTION. See Abatement and Revival. I. GROUNDS AND CONDITIONS PRE- (N.Y.Sup.) Object of civil proceedings, except, perhaps, where punitive damages are leased with permission to use them together for a single hotel, one owner is not entitled to equitable relief to prevent other owner from building division wall after lease's termination.— Olin v. Kingsbury, 168 N. Y. S. 766. ADJUDICATION. ALIENS. tests, as to testamentary capacity and undue Under complaint alleging that defendant, a Where a married woman, living apart from Annulment of adoption, for want of mental AGRICULTURE. uance, 22; Escheat; War, ALLOWANCE. 74; Contin- See Executors and Administrators, 217, ALTERATION OF INSTRUMENTS. See Reformation of Instruments. AMBIGUITIES. See Evidence, 450. AMENDMENT. See Indictment and Information, AMUSEMENTS. See Theaters and Shows. 159; ANCILLARY ADMINISTRATION. ANIMALS. See Carriers, 215-230; Game. 71 (N.Y.) Where defendant's driver left its 7 (N.Y.Sup.) In the absence of evidence AIR. See Eminent Domain, 105. ALIENATION. See Perpetuities. its horse untied, and it strayed onto station Where defendant's driver left its horse un- For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER III. DECISIONS REVIEWABLE. (D) Finality of Determination. 70(4) (N.Y.Sup.) Refusal to vacate order directing examination of defendant as adverse party before trial, being interlocutory proceeding, is not reviewable on separate trial.-Lotz v. Standard Vulcanite Pan Co., 168 N. Y. S. 446. IV. RIGHT OF REVIEW. (B) Estoppel, Waiver, or Agreements Affecting Right. 162(3) (N.Y.Sup.) Where plaintiff had either received payment of judgments in its favor for insufficient amounts, or issued execution, appeal held to be limited to question of amounts allowed on counterclaims.-Owners' Syndicate Co. v. Anson, 168 N. Y. S. 493. X. RECORD AND PROCEEDINGS NOT (K) Questions Presented for Review. 671(4) (N.Y.Sup.) There being nothing in record as to circumstances under which capital of defendant corporation was decreased or increased, no adjudication concerning validity of decrease or increase could be made.Selwyn-Brown v. Superno Co., 168 N. Y. S. 918. XIII. DISMISSAL, WITHDRAWAL, OR ABANDONMENT. 164 (N.Y.Sup.) Where plaintiff had either 781(2) (N.Y.Sup.) Question whether injunereceived payment of judgments in its favor for tion order against mortgage foreclosure action insufficient amounts, or issued execution, appeal by objecting stockholder was properly granted held to be limited to question of amounts allow in proceedings for voluntary dissolution of cored on counterclaims.-Owners' Syndicate Co.poration is not academic, where objecting stockv. Anson, 168 N. Y. S. 493. holder's right to costs of appeal is involved.In re French, 168 N. Y. S. 988. V. PRESENTATION AND RESERVA. (A) Issues and Questions in Lower Court. 171(1) (N.Y.Sup.) In action on policy insuring automobile, where insured below did not stand on agreed valuation, but treated evidence as proving value under open policy, he cannot change front on appeal, and urge policy valuation controls.-Hoffman v. Prussian Nat. Ins. Co. of Stetin, Germany, 168 N. Y. S. 841. XVI. REVIEW. (A) Scope and Extent in General. 839(2) (N.Y.) Under Code Civ. Proc. § 1338, where the trial judge found that a delivery of an assignment of a mortgage was not conditional, and the Appellate Division found that it was conditional, there was an adequate designation of the fact finding.-Levy v. Louvre Realty Co., 118 N. E. 207, 222 N. Y. 14. 842 (2) (N.Y.) Whether facts found support conclusions of law is a question of law, and in deciding it court on appeal is not limited to grounds urged or adopted in courts__below.Hartley v. Eagle Ins. Co. of London, Eng., 118 N. E. 622, 222 N. Y. 178. 171(3) (N.Y.) When seller, suing buyer, 866(3) (N.Y.Sup.) Since a motion for ditreated action as one for price, and defendant did not object, held, that Appellate Division could not adopt a new theory, nor could the Court of Appeals affirm its action in so doing. Phelps-Stokes Estates, Inc., v. Nixon, 118 N. E. 241, 222 N. Y. 93. 173(4) (N.Y.Sup.) It is too late to raise for the first time on appeal the failure of the obligee on the bond to show notice required therein as a condition precedent to liability.Bailey v. Casualty Co. of America, 168 N. Y. S. 128. rected verdict is simply a submission to the court of the facts and the law, the court's decision of fact in directing a verdict is subject to review, and should be reversed if against the weight of evidence.-Trundle v. James Beggs & Co., 168 N. Y. S. 785. (C) Parties Entitled to Allege Error. 882(12) (N.Y.Sup.) If counsel induce giving of erroneous charge, he cannot afterward urge that it is reversible error.-De Maria v. New York Cent. R. Co., 168 N. Y. S. 292. (E) Presumptions. ence that he had been, or could be, compensated for the injuries, where no evidence that he had been compensated was subsequently produced.-Posnick v. Crystal, 168 N. Y. S. 868. to is 907 (1) (N.Y.Sup.) Stipulation on which deposition was taken not appearing in the record, it cannot be assumed it limited the right under the Code to object on trial to questions and answers.-MacDonald v. Wells, 168 1053(3) (N.Y.Sup.) Instructions as N. Y. S. 626. sues held not to cure error in admission of to matter not in controversy.— 931 (1) (N.Y.Sup.) Where findings are in- evidence as consistent, appellant is entitled to benefit of one Shongut v. Meyers, 168 N. Y. S. 2. most favorable to him.-Olin v. Kingsbury, 1681060(1) (N.Y.Sup.) In action for malicious N. Y. S. 766. prosecution, allowing introduction of evidence as to circumstances surrounding issuing of search warrant on another charge, together with argument of counsel, held attempt to induce verdict by resort to atmosphere of such case, necessitating reversal.-Wolff v. United Drug Co., 168 N. Y. S. 862. (F) Discretion of Lower Court. 981 (N.Y.Sup.) Order granting a new trial for newly discovered evidence, where record did not show diligence, but only that plaintiff did not know all the absent witness would 1062(1) (N.Y.Sup.) Where court not only testify to, and did not know his whereabouts, will be reversed.-Davenport v. Dewsnap, 168 N. Y. S. 613. submitted question of factory owner's violation of Labor Law, § 80, but also question of violation of common-law duty, of which there was no evidence, held, that judgment must be reversed.-Irwin v. J. J. Steindler Co., 168 N. Y. S. 328. 1068 (4) (N.Y.Sup.) Under the federal Employers' Liability Act, where a servant, temporarily made watchman, was struck by an engine, his contributory negligence not defeating, but reducing, recovery, and the court first properly instructed, and then erroneously stated that, if he was a watchman, there could be no recovery, the jury's verdict finding $16,000 damages, and reducing them to $12,000 for contributory negligence, would be affirmed.De Maria v. New York Cent. R. Co., 168 N. Y. 1002 (N.Y.Sup.) In action for goods sold, where the evidence was conflicting as to whether they conformed to sample, but court on appeal, from an inspection of goods delivered, could see that they did not, verdict for plaintiff will be set aside.-Eclipse Embroidery Works v. J. T. Murray & Co., 168 N. Y. S. 620. S. 292. 1003 (N.Y.Sup.) Verdict on finding contra-1071(6) (N.Y.) Where it appears that upry to physical facts established by uncontraon crucial question of fact, no finding has been dicted evidence cannot stand.-Schräger v. Fos- made, judgment cannot be allowed to stand.ter, 168 N. Y. S. 240. Hartley v. Eagle Ins. Co. of London, Eng., 118 N. E. 622, 222 N. Y. 178. 1005(4) (N.Y.Sup.) On defendant's appeal, in action for injuries, from judgment for plaintiff and order denying defendant's motion for new trial, judgment and order will be reversed; finding of defendant's negligence being clearly against evidence.-Hoykendorf v. Bradley Contracting Co., 168 N. Y. S. 286. 1012(1) (N.Y.Sup.) In action for wrongful discharge, judgment for plaintiff held not so manifestly against weight of evidence as to require a reversal.-Finkelstein v. Warhauer & Kolsby, 168 N. Y. S. 593. a (J) Decisions of Intermediate Courts. 1080 (N.Y.) Where the record shows that one of the justices sitting did not vote, the decision of the Appellate Division was not unanimous, and the case is appealable under Const. art. 6, § 9.-Vaughan v. Transit Development Co., 118 N. E. 219. 1091 (4) (N.Y.) Appellate Division's decision reversing judgment because there was no evidence of negligence will be presumed to have been made upon question of law by Court of Appeals under Code Civ. Proc. § 1338.-Searlett v. Delaware, L. & W. R. Co., 118 N. E. 513, 222 N. Y. 155. (H) Harmless Error, 1050(1) (N.Y.Sup.) In guest's action against a hotel keeper for damages arising from a charge of immoral conduct, the admission in 1094(3) (N.Y.) On review of judgment of evidence of a letter of apology from defend- Appellate Division unanimously affirming judgant's manager, if error, held harmless.-Boyce ment of Special Term, where no reversible erv. Greeley Square Hotel Co., 168 N. Y. S. 191. ror in admission or exclusion of evidence is 1050(2) (N.Y.Sup.) In action against de- claimed, only question is whether facts found cedent's estate, irrelevant evidence, showing Ins. Co. of London, Eng., 118 N. E. 622, 222 support conclusions of law.-Hartley v. Eagle that decedent had been withholding money from a third party, held prejudicial.-Kraus- N. Y. 178. haar v. Kraushaar, 168 N. Y. S. 619. (K) Subsequent Appeals. 1052(2) (N.Y.Sup.) Where injured servant sued third party for injuries, it was prejudicial1097(5) (N.Y.Sup.) Decision of Court of to admit evidence that his employer had work- Appeals reversing judgment for servant for men's compensation insurance, creating infer- personal injury upon the merits, in view of For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |