For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (B) Objections and Motions, and Rulings Thereon. 241;212 (N.Y.Sup.) Where defendant did not object to an irregular direction of a verdict, when the proper procedure would have been to move for judgment on the pleadings, the error is waived, and need not be considered on appeal.-City of New York v. Brooklyn Heights R. Co., 176 N. Y. S. 578. ALIEN PROPERTY CUSTODIAN. See Costs, 9; War, 12. ALIENS. See Citizens, 8; Costs, 9; Executors and Administrators, 32; Treaties, 6; Trial, 133; War, 11, 12, 15. ALTERATION OF INSTRUMENTS. See Admiralty, 20. 2 (N.Y.Sup.) Alleged addition of words to a separation agreement, which did not alter its meaning, do not invalidate it. In re Wylie's Estate, 176 N. Y. S. 367. ANIMALS. See Shipping, 132. APPEAL. Courts, See Certiorari; Costs, 247; V. PRESENTATION AND RESERVA- (A) Issues and Questions in Lower Court, 139. 222 (N.Y.Sup.) Where plaintiff failed to move for new trial at the term at which the case was heard, and moved on the judge's minutes at a Special Term thereafter, though before the same judge, the order denying the motion for new trial can be reviewed by the Appellate Term, for, no objection having been taken below to the entertaining of plaintiff's application, the delay in making the application was an irregularity which was waived.Aronowitz v. Lamport, 176 N. Y. S. 789. 230 (N.Y.Sup.) Where the trial judge stated that he would not be present when the verdict was returned and directed a sealed verdict, upon the return of which the defeated party might make a motion on all the grounds stated in Code Civ. Proc. § 999, which would be deemed denied, and judgment entered, with a stay of 60 days, the irregularity in the proceeding could not be raised by a defeated party, in the absence of timely objection.-Smith v. Graves, 176 N. Y. S. 39. 237(4) (N.Y.Sup.) Where defendant's attorney made a motion to dismiss the complaint at the close of plaintiff's case, but did not renew it at the conclusion of the entire case, the Appellate Division has no right to dismiss the complaint.-Ellis v. Feeney & Sheehan Bldg. Co., 176 N. Y. S. 61. 241 (N.Y.Sup.) In action for injuries to pedestrian, received in an automobile accident, defendant cannot on appeal raise the point that plaintiff did not prove defendant's ownership of the car and his control over the driver, that plaintiff had failed to allege and prove a where the motion for nonsuit merely averred cause of action, and had failed to show negligence. Rubin v. Whan, 176 N. Y. S. 385. 241 (N.Y.Sup.) In buyer's action for sellers' failure to deliver, where buyer disclaimed asking general damages, and claimed special damages for profits of sale to third person from whom he had accepted order, court on appeal will not dismiss action because of absence of proof that plaintiff could not have purchased goods in open market, where defendant's counsel, in motion to dismiss at end of case, did not refer to such point, and did not ask to have issue referred to jury.-Wolf v. Park & Tilford, 176 N. Y. S. 768. (E) Cases and Questions Reserved or 173(14) (N.Y.) In action to recover cash value of life policy, with profits, insurer claiming that when plaintiff surrendered his old 314 (N.Y.) An appeal from a final order is policy for the one in suit he signed a certifi- not an appeal where questions should be certicate of loan, which plaintiff denied, certain mat- fied as provided by Code Civ. Proc. $190, ters constituting discrimination in favor of subd. 3.-In re Dolbeer's Estate, 123 N. E. plaintiff, if there was no certificate of loan, and 381. consequent illegality, should have been pleaded, and the defense cannot be raised on appeal under the issues as framed.-Quast v. Fidelity Mut. Life Ins. Co., 123 N. E. 494, 226 N. Y. 270. XVI. REVIEW. (A) Scope and Extent in General. 843(2) (N.Y.Sup.) Where a case must be reversed for failure to grant defendant a change of venue the appeal from the judgment will not be reviewed.-Appelman v. Shapiro, 176 N. Y. S. 20. (H) Harmless Error. ~1048(6) (N.Y.Sup.) Where a case rests in a large measure on the oral testimony of the plaintiff alone, which is denied by the defendant, the restriction of cross-examination is more prejudicial than where resting also upon testimony of other witnesses.-Baum v. Kelly, 176 N. Y. S. 22. 843(4) (N.Y.Sup.) On appeal from order granting plaintiff's motion for judgment on the pleadings, pursuant to Code Civ. Proc. § 547, in action for rent under agreement for monthly hiring, determination that complaint is not demurrable in so far as charges for light and 1050(2) (N.Y.Sup.) In action upon burglary power are concerned, renders it unnecessary to consider allegations concerning rental.-Kips Bay Brewing & Malting Co. v. J. H. Tooker Printing Co., 176 N. Y. S. 65. (B) Interlocutory, Collateral, and plementary Proceedings and Questions, insurance policy, permitting defendant to introduce in evidence, over appropriate objection and exception, the record of a summary proceeding instituted by plaintiff's landlord for his dispossession from the apartment in which the alSup-leged burglary occurred, was reversible error.Burkwitt v. New Jersey Fidelity & Plate Glass Ins. Co., 176 N. Y. S. 706. 873(1) (N.Y.Sup.) Where action was discon-1064 (1) (N.Y.Sup.) Where tinued against a codefendant upon plaintiff's motion, without costs, court on appeal will not deny the codefendant costs, where costs should have been awarded her as a condition of allowing discontinuance, merely because no order was entered from which appeal could be taken, though the entering of an order and appeal therefrom would have been the better practice.-Stevens v. Hush, 176 N. Y. S. 602. the jury was misled, to the prejudice of defendant, with respect to the measure of damages by the court's charge, a judgment for plaintiff should be reversed.-Lion v. Lahn, 176 N. Y. S. 823. (D) Amendments, Additional Proofs, and Trial of Cause Anew. (J) Decisions of Intermediate Courts. 1085 (N.Y.) While a unanimous affirmance of the findings of the Special Term by the Appellate Term forecloses the Court of Appeals from examining the record to see whether there is evidence to sustain a finding, yet exceptions during the trial may be passed upon. -Orthey v. Bowden, 123 N. E. 487, 226 N. Y. 234. 889(3) (N.Y.Sup.) Where steamship carrier, being sued by consignee, admitted during trial 1094(3) (N.Y.) Findings by the Special that goods were delivered to wrong party, com- Term, unanimously affirmed by the Appellate plaint drawn for recovery for mere breach of Division, are binding upon the Court of Apcontract may be deemed amended on appeal, to peals.-Orthey v. Bowden, 123 N. E. 487, 226 conform to conceded facts, so as to permit re- N. Y. 234. covery for conversion.-Boera v. Hijos De Jose Taya, S. En C., 176 N. Y. S. 47. (E) Presumptions. XVII. DETERMINATION AND DIS- no 927(3) (N.Y.Sup.) Plaintiff is entitled, up-1175(2) (N.Y.Sup.) Where there was on review of a judgment of nonsuit, to the motion for a directed verdict, the Appellate benefit of the most favorable inference from Division, in reversing judgment, cannot renthe evidence adduced, and, if two inferences der judgment for appellant, but can only grant can be drawn therefrom, it is for the jury to new trial.-Ernst Zobel Co. v. Canals, 176 N. say which of the two shall be drawn.-Sherman Y. S. 537. v. Nassau Electric R. Co., 176 N. Y. S. 452. Court. 927(3) (N.Y.Sup.) Where plaintiff's com- (F) Mandate and Proceedings in Lower plaint was dismissed at the close of plaintiff's case, in determining whether dismissal was proper, the testimony given on the part of the plaintiff must be taken as true.-Kepecs v. Schwartz, 176 N. Y. S. 477. 930(4) (N.Y.Sup.) Where jury rendered general verdict for plaintiffs, after having been instructed that it might hold defendants liable on either of two theories, and record does not disclose upon which theory verdict was predicated, judgment must be reversed, unless it can be sustained on both theories.-Moody v. Wise, 176 N. Y. S. 515. (G) Questions of Fact, Verdicts, and Findings. 999(1) (N.Y.Sup.) Verdict of jury upon question of fact is final, unless against weight of the evidence, or the result of bias, prejudice, or passion, or misconception of the evidence. Cohen v. Goldberg, 176 N. Y. S. 18. 1199 (N.Y.Sup.) Omission of words "with interest," after amount of defendant's liability, in decision of Appellate Division and order entered thereon, held a clerical error, which could be corrected by Appellate Division and Special Term, even though decision of Appellate Division had been affirmed by Court of Appeals, and judgment of Court of Appeals made the judgment of the court below.-Gilmore v. Hirschman, 176 N. Y. S. 787. 1202 (N.Y.Sup.) Where Appellate Division reversed an order setting aside a verdict of $500 in plaintiff's favor, and restored the_verdict, on the ground that the jury had reduced plaintiff's right to recover $1,000, which right was not disputed, by awarding defendant $500 on its counterclaim, the Special Term was without power to hear motion for new trial, based on affidavits of five of the jury that the counterclaim was not considered, but application should have been made to the Appellate 933 INDEX-DIGEST For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER APPEARANCE. 20(2) (N.Y.Sup.) Even if all members of a local union became vested with title under a See Contempt, 57; Courts, 189; Di- conveyance to the union, they were not all vorce, 326. ARGUMENT OF COUNSEL. See Trial, 127-133. ARMY AND NAVY. See Attorney and Client, 58; Elections, 182, 194; States, 112, 184. ARREST. 37(1) (N.Y.Sup.) Evidence held insufficient to sustain conviction of arson in the third degree.-People v. Whitlock. 176 N. Y. S. 436. ASSAULT AND BATTERY. See Carriers, 382, 383. ASSESSMENT. See Municipal Corporations, 407-514. ASSIGNMENTS. See Action, 25; Bankruptcy, 115, 363; Compromise and Settlement, 19; Dismissal and Nonsuit, 54; Executors and Administrators, 49, 450; Fraudulent Conveyances, 50, 169; Landlord and Tenant, 184, 230; Payment, 85; Principal and Agent, 183; Trusts, 231. I. REQUISITES AND VALIDITY, (B) Mode and Sufficiency of Assignment. 57 (N.Y.Sup.) Indorsement necessary parties to foreclosure of an out- ASSUMPSIT, ACTION OF. See Money Received, 17; Pleading, 42. ATTACHMENT. LUTION, OR ABANDONMENT. 241 (N.Y.Sup.) Motion to vacate an attachment, based upon an affidavit, insufficient in being a mere repetition of the conclusions of the complaint, without stating any facts, was made in time, and should have been granted, under Code Civ. Proc. § 682, where the attached property has not been applied in satisfaction of any judgment obtained in the action.-B. Baff & Son v. F. M. Heggie Co., 176 N. Y. S. 736. ATTORNEY AND CLIENT. See Bills and Notes, 534; Chattel Mort- I. THE OFFICE OF ATTORNEY. ties. making them payable to certain company, was insufficient notice to buyer of assignment to a party other than such company.-Republic For-26 (N.Y.Sup.) Where an attorney at law eign Products Co. v. Vandeweghe, 176 N. Y. S. 704. IV. ACTIONS. he did business with that he was acting under employed a detective agency, telling the person instructions from another, and giving the name of his principal, none of the services being per126 (N.Y.Sup.) That an assignment was formed by the agency until so instructed by the made to defeat defendant's counterclaim, or to attorney, the attorney was not liable to the avoid giving a bond for costs, does not pre- agency for its services, not having assumed perclude assignee from suing on assigned claim.-sonal liability in clear terms.-Willett v. William J. Burns International Detective Agency, Birdsall v. Read, 176 N. Y. S. 369. 176 N. Y. S. 722. ASSIGNMENTS FOR BENEFIT OF See Chattel Mortgages, 297; Parties, ASSOCIATIONS. See Banks and Banking, 293; Executors 15(1) (N.Y.Sup.) A conveyance to a local union, which was a voluntary association, vested title in all its members, not as tenants in (C) Suspension and Disbarment. 42 (N.Y.Sup.) That an experienced attordue, prepared and caused to be verified an an ney, engaged in defending a suit for rent justly swer denying the execution of the lease or liability thereunder, and known by him to be a sham, for the purpose of procuring a delay. held to constitute cause for disbarment.-In re Tinney, 176 N. Y. S. 102. 44(2) (N.Y.Sup.) That an experienced attorney falsely states to his client that costs have not been collected by him, and converts such costs to his own use, is cause for disbar- | stolen, with truck, from line of waiting trucks ment. In re Tinney, 176 N. Y. S. 102. at freight depot, as result of driver's failure to guard truck.-Sullivan v. Williams, 176 N. Y. S. 710. 58 (N.Y.Sup.) A lawyer of many years' standing, who charged a fee for rendering services as an associate member of the legal advisory board in the administration of the Selective Service Law, who did not attempt to conceal the facts, and who returned fee upon proceedings being instituted against him, will be suspended from practice for a period of four months.-In re O'Reilly, 176 N. Y. S. 781. III. DUTIES AND LIABILITIES OF ATTORNEY TO CLIENT. 109 (N.Y.) Liability of an attorney who negligently passed record title to realty without noting that an executor's deed in chain of title was invalid because he exceeded his authority in exchanging, instead of selling, the land, is not obviated by fact that client probably had good title by adverse possession, where such fact was not mentioned by attorney, nor did he gather evidence to sustain such contention. -Trimboli v. Kinkel, 123 N. E. 205, 226 N. Y. 147. 18(3) (N.Y.Sup.) If plaintiff, without the consent of defendant, obtained possession of the truck, upon which defendant had a lien, the lien was not destroyed, and continued after defendant regained possession.-Horowitz v. Hurlburt Motor Truck Co., 176 N. Y. S. 514. BANK NOTES. (D) Warrant and Custody of Property. 115 (N.Y.Sup.) The receiver of a bankrupt contractor being an officer of the federal court and responsible to it for property coming into his possession, if property is wrongfully taken from him, he must retake it or recover damages for the conversion and account to the court, the receiver holding the property for the creditors, and they being entitled to benefit of any recovery, which must be administered in bankruptcy court, so that such a cause of action in favor of the receiver is not assignable. -Ellis v. Feeney & Sheehan Bldg. Co., 176 N. Y. S. 61. 117(1) (N.Y.Sup.) Sale by the receiver of the estate of a bankrupt contractor was not void, though unauthorized by the court, where subsequently ratified, since anything a court can authorize to be done it can ratify after it is done.-Ellis v. Feeney & Sheehan Bldg. Co., 176 N. Y. S. 61. Where a receiver makes an irregular sale of property of the bankrupt estate, more property being taken under color of the sale by the purchaser than was sold, the remedy is in the bankruptcy court on application of the trustee tacked in action for conversion against the or of a creditor, and the sale cannot be atpurchaser by one not a creditor of the estate. -Id. III. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF BANKRUPT'S ESTATE. (D) Administration of Estate. See Carriers, 108; Contracts, 308; 14(1) (N.Y.Sup.) Truckman, who was bailee for hire of goods, was liable for loss of goods inventoried as an asset of a bankrupt's estate in the possession of the trustee, or as property to which the trustee claimed title, and was For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER not mentioned in the appraisal nor in any (F) Claims Against and Distribution of Estate. a 363 (N.Y.Sup.) Where plaintiff carried BANKS AND BANKING. See Evidence, 26, 121, 129; Executors and III. FUNCTIONS AND DEALINGS. (C) Deposits. 119 (N.Y.Sur.) The relation between a (30(1) (N.Y.) A bank, in which trustee in Bank of Seneca Falls, 123 N. E. 368, 226 N. V. SAVINGS BANKS. 293 (N.Y.Sup.) The provision of Laws 1910, Laws 1910, c. 126, § 215, subd. (d), requiring Plaintiff, who, on making a deposit in defend- The holder of a savings and loan company's BEER. If a bank had notice that funds deposited by on would be liable.-Id. BENEFICIAL ASSOCIATIONS. ance, 801, 825; Stipulations, 14. A bank, in which trustee in bankruptcy de- See Accord and Satisfaction, 826; Insur- (E) Loans and Discounts. BILLS AND NOTES. See Corporations, 177, 414; Courts, 180 (N.Y.) Where a bank declared dividends form of promises to pay to bearer are within |