24 The grounds of an objection must always be stated; a general objection, where defect might be cured, if stated, is not good. Patterson v. The People. 300
25 Where the claim in suit grows out of a mis- take in a settled account, and the defence is payment and an account stated, the New Code does not authorize an application by plaintiff for an inspection of defendant's books of ac- count in order to enable him to prepare for trial. Cutter et al. v. Pool. 307
26 Section 244 of the Code of Procedure in rela- tion to severance of causes of action is repeal ed. Lawton v. Shepherd.
32 Quere, Whether the Court had power to so amend the summons and proceedings as to strike out the names of all the original defend- ants and substitute that of another person. Shaw v. Cook. 373
33 The admission of illegal evidence bearing at all upon the result is fatal in an action at law, but will not be ground for a new trial in a suit at equity where the fact upon which it bears is abundantly made out by other com- petent evidence. Foote v. Beecher. 396 34 A stipulation entered into between attor- neys to set a cause down for trial for a day cer- tain, binds each party to it, without regard to the previous service of notice of trial. Jones
38 A defendant who has defaulted may proba- him charged in the answer of a co-defendant, bly be required to plead to allegations affecting or such allegations be taken as confessed against him. Id.
39 To constitute a proper case for a new trial on the ground of newly discovered evidence, it must appear: 1st. That client and counsel exercised ordinary diligence. 2d. That the evidence is not merely cumulative. 3d. That the evidence might have the effect to change the result of the trial. Bonynge v. Waterbury.
40 When such facts appear, a new trial should be directed. Id.
41 A defendant who has made default, relying on an agreement to delay or suspend action in a pending suit on giving new notes, or to take such notes in payment of the cause of action, will not be permitted to put in an answer set- ting up the giving of such notes as a payment where he has taken advantage of a delay ob- tained thereby to make a general assignment of his property. Weil v. Bonner et al.
the time allowed to answer is not analogous to 44 The withdrawal of a counterclaim within
the discontinuance of an action for the de- claim, and will not entitle plaintiff to costs. mand which is the subject of such counter- Branagan v. Palmer.
45 Where there is nothing to impeach the hon- esty or fairness of the jury, and there is no great preponderance of evidence on either side, weight of evidence. Bardin v. Stevenson. 554 the verdict will not be set aside as against the 46 When the law vests in one jurisdiction the exercise of discretion, another should not as- sume it, unless the case is such as imperatively demands it, to prevent great abuse and wrong. The German American Bank v. The Morris Run Coal Co. The Same v. The P. & E. Coal Co. et al.
47 Whether a witness offered as an expert is qualified to speak as such is to be determined by the Court. Nelson v. The Sun Mutual Ins. Co. 563
48 In an action against the indorser an offer to prove the taking of usurious interest in the transactions between the maker and holder is too broad. First Natl. Bk. of Buffalo v. Wood,
564 49 Where a plaintiff has elected to bring an equitable action, he thereby waives his right to a trial by jury. Davidson v. Associates of the Jersey Co.
50 Where a judge explains the whole law ap- plicable to the case in hand, he cannot be called upon to express it in the categorical form, based upon assumed facts, which coun- sel may choose to present to him. The Con- tinental Improvement Co. v. Stead. 585
51 Under $ 822 of the Code of Civil Procedure, the granting or refusing of an application to dismiss the complaint, for want of prosecu- tion, rests in the discretion of the Court. Osborne v. Sellick.
589 52 Where the plaintiff satisfactorily excused his delay since the New Code went into effect, the Court in its discretion allowed him a further opportunity to try the case before the referee. Id.
As to practice on appeal, see APPEAL. As to practice in proceedings to vacate as- sessments, see ASSESSMENTS, 2, 3, 7.
As to practice in contempt proceedings, see CONTEMPT, 3--6.
As to practice in actions of foreclosure, see MORTGAGE, 11, 12, 16, 32.
As to practice in different classes of actions, see those titles, as follows: ATTACHMENTS, 4, 7; DIVORCE, 2, 4, 5; DOWER, 1; LIFE IN- SURANCE, 15, 17; MALICIOUS PROSECUTION, 1, 2; MARINE COLLISION, 4, 9; RAILROAD COMPANIES, 22, 26; SUPPLEMENTARY PRO- CEEDINGS, 8, 9; WILLS, 23.
See also ATTORNEYS, 5; CREDITORS' BILL, 2; DEPOSITIONS, 3; LEASE, 1; NEGLIGENCE, 3, 17, 22; PLEADINGS, 9, 10; REFERENCE, 3,5; STAY OF PROCEEDINGS; VENUE.
1 If public documents or records cannot be ound, or their loss accounted for or explained, he natural presumption is that they never ex- sted. Hilton v. Bender et al. 183
QUO WARRANTO. See VILLAGES, 1.
1 It is not negligence for a railway company to obstruct the view of one nearing a farm crossing if such obstruction is raised in the prosecution of its business and on its own prop- erty; it has the same enjoyment of its prop- Cordell, erty in this respect as individuals. adır., v. The N. Y. C. & H. R. RR. Co. 60
2 But the fact that such an obstruction exists has an important bearing upon the question of ld. negligence.
3 In proceedings by a railroad company to acquire lands, the petition must contain an ac- curate description of the property; defects in the description in the petition cannot be rem- edied by reference to another instrument. In 64 re application N. Y. C. & H. R. RR. Co. 4 Although the employees of a railroad com- pany are negligent in failing to ring the bell on approaching a crossing, the company is not liable for an injury to one who attempts to cross the tracks when he sees or might see the approaching locomotive. Harlan v. The St. Louis, K. C. & N. R. Co.
8 A railroad company takes its charter subject to the right of the Legislature to alter or amend it, and the Legislature may impose such additional restrictions and burdens as the
public good requires. The People ex rel. Kim- ball v. The B. & A. RR. Co. 161
9 A railroad company has a right to make a regulation reserving certain cars for the use of ladies and gentlemen accompanying them, and may, by an agent or servant, remove an in- truder therefrom, using such force as may be necessary to effect that result. Peck v. The N. Y. C. & H. R. RR. Co. 201
10 Where excess of force is used by such agent or servant, if it be put forth within the scope of his immediate employment, and with no purpose of his own, the company is liable. ld. 11 Where an employee is injured by his own negligence the company is not liable. Evans v. The L. S. & M. S. RR. Co. 301
12 Where a railroad company has provided a sufficient number of efficient employees, with
all means essential for a proper, faithful, and intelligent discharge of their several duties, and is not obliged to direct their action in every instance to a greater extent than is ac- tually done, and the same number of men and the same degree of care is not always requir- ed, it is justified in leaving them to the exer- cise of their own discretion and judgment, and is not liable for an injury to one of such em- ployees occasioned by the negligence of an- other. Besel v. The N. Y. C. & H. R. RR. Co. 325
22 It is error to charge the jury that they are to determine and decide what signals should ld. have been given at a certain time.
23 Where the plaintiff was injured while riding in a wagon by permission of the owner who was driving, negligence of such owner is no bar to an action for the injury. Id.
24 When danger is imminent the law does not demand that accuracy of judgment required under other circumstances. Id.
25 The mention in the charter of a city railroad company of the streets over which its line shall run is such a practical location as to dis- pense with the notice of the route usually re- quired to be given to property owners. Coney Island RR. Co. v. Ridley.
13 Where an accident is caused to a train of cars by a land-slide, whereby oil cars burst and take fire, and the burning oil is carried by the waters of a creek to plaintiffs' premises and destroys property thereon, Held, That the en- gineer's negligence in not seeing the obstruction in time to prevent the accident is too remote to render the railroad company liable. Hoag et al. v. The L. S. & M. S. RR. Co. 339 14 The determination by a railroad company of the question as to the expediency of carrying 26 A request to charge that "If the jury be- a highway over or under the track cannot believe that M., the flagman, is truthful and did reviewed by an appeal to a court or jury. The N. Y. C. & H. R. RR. Co. v. The People. 351 15 Whether an indictment distinctly charging the acts which might and ought to have been done to properly restore the highway would lie, quare. Id.
what he says he did in the warnings, then the plaintiff cannot recover; if the jury believe the account that M. gave, that he gave the warnings and made the outcry to stop the men in the manner he describes, the plaintiff is not entitled to recover," is objectionable, as it precludes the jury from construing M.'s evi- dence. Dolan v. The Prest., etc., D. & H. C. Co.
27 The petition in proceedings to take land for railroad purposes, need not show that $10,000 per mile of the proposed road has been sub- scribed and ten per cent. thereof paid in, Mat- 488 ter of the Sheepshead & C. I. RR. Co.
28 It is no objection to the petition in such a case that the title of a town to such land has not been extinguished, where the tenants to the land are parties. ld.
29 A reference to take proof cannot be made in such proceedings. Id.
30 Where a train after passing a station came to a full stop, and plaintiff, supposing it was at the station, attempted to alight, and in so do- ing was injured by the sudden backing of the train, Held. That she was justified in her sup- position, and that the question of negligence in the company in not notifying the passengers that the train would back up was for the jury. Taber v. The D., L. & W. RR. Co. 31 Persons crossing a railroad track are bound they are not relieved from the necessity of to look and listen for approaching trains; and taking such precaution by the neglect of the company's servants to sound the whistle or ring the bell on approaching the crossing. The Chicago, R. I. & P. RR. Co. v. Houston. 523 32 A railroad company running drawing-room cars on its own trains, under a special contract with the owner, is responsible for the wrong- ful act of a servant of such owner in ejecting a passenger from a drawing-room car, to the
does not introduce a new cause of action, or which is made to meet an immaterial variance, the defendant is not thereby entitled to demur and the referee has no power to allow him the privilege. Smith et al. v. Rathbun et al. 558
11 A referec appointed pursuant to § 1015 of the Code of Civil Procedure, is bound to take the oath prescribed in § 1016, unless it be ex- pressly waived, The Exchange Fire Ins. Co. v. Early et al. 587
See APPEAL, 25, 27; ATTORNEYS, 5; COSTS, 4; DEEDS, 12, 19, 20; DIVORCE, 3, 11; HIGHWAYS, 4; MORTGAGE, 12, 32; PRAC- TICE, 9, 14; RAILROAD COMPANIES, 29; RE- CEIVERS, 2; SUMMARY PROCEEDINGS, 1.
3 An answer of title in a stranger, without an allegation connecting defendant with such title, furnishes no defence to an action of re- plevin in cepit, but might to an action of re- plevin in detinet. 4 In an action to recover possession of a canal- boat mortgaged to plaintiff, where defendants have a right to redeem, the proper judgment is one directing a return of the property, or if that cannot be had, a judgment for its value, fixing it at the amount due on the mortgage with expenses and costs, less the amount realized on a sale of a portion of the property. Allen v. Judson et al.
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