AMENDMENT. (D) Motions for New Trial. $294 (N.Y.Sup.) Where no motion is made See Indictment and Information, § 144; Plead to dismiss the complaint, the insufficiency of ing, §§ 239, 258. AMOUNT IN CONTROVERSY. See Courts, § 169. ANIMALS. See Carriers, §§ 199, 201, 203, 218. $96 (N.Y.Co.Ct.) Where a landowner, instead of driving a trespassing colt into the highway, attempts to confine it on his premises in a closed lane fenced with a low barb wire, he is liable for damages resulting from the colt's attempting to jump the fence, as he should have known it would likely do.-Mattice v. Mattice, 143 N. Y. S. 487. ANNULMENT. See Wills, §§ 215-400. ANSWER. See Pleading, §§ 85-146, 239, 258. APPEAL. See Certiorari; Courts, $$ 190, 207; Criminal Law, §§ 1169-1186; Justices of the Peace, § 185; Municipal Corporations, § 508; Wills, § 400. V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW. (A) Issues and Questions in Lower Court. $173 (N.Y.Sup.) Where the defendant moved for a dismissal in the lower court on the ground that no negligence was shown, it cannot on appeal raise the point that the negligence shown was not pleaded.-Bellos v. Athens Hotel Co., 143 N. Y. S. 1042. (B) Objections and Motions, and Rulings Thereon. § 194 (N.Y.Sup.) In an action on a note, where the answer set up new matter showing plaintiff not to be a bona fide holder for value, plaintiff cannot first on appeal complain that the allegation in the answer that he was not a bona fide holder for value was a mere conclu sion of law.-Laing v. Hudgens, 143 N. Y. S. 763. § 203 (N.Y.Sup.) In an action against executors, where no formal objection was made to the testimony of a legatee concerning the testator's physical and mental condition on the ground that she was incompetent to testify, such objection was unavailing upon appeal.-Richie v. Shepard, 143 N. Y. S. 19. the evidence to sustain the verdict is brought up upon the motion for a new trial.-Zang v. Joline, 143 N. Y. S. 858. VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (C) Payment of Fees or Costs, and Bonds or Other Securities. $373 (N.Y.Sup.) Under Code Civ. Proc. § 2577, appeal held not effectual where no undertaking was given.-In re Braker's Estate, 143 N. Y. S. 859. IX. SUPERSEDEAS OR STAY OF PROCEEDINGS. § 460 (N.Y.Sup.) Code Civ. Proc. § 1330, does not apply to stay execution until an appeal has been perfected, and does not apply where no undertaking to pay costs and disbursements was given, as required by Code, § 1326.-Walz v. Humrich, 143 N. Y. S. 806. X. RECORD AND PROCEEDINGS NOT IN RECORD. (B) Scope and Contents of Record. § 533 (N.Y.Sup.) Under the amendment of 1910 of the General Rules of Practice, on an appeal to the Appellate Division, the opinion of the court below is a part of the record.-Fish v. Delaware, L. & W. R. Co., 143 N. Y. S. 365. (D) Contents, Making, and Settlement of Case or Statement of Facts. $565 (N.Y.Sup.) Where defendant was delayed in making his case on appeal by the failure of the stenographer to furnish a copy of the minutes and by negotiations for a settlement, a motion to declare the appeal abandoned for failure to make and serve the case in time should not be sustained, though defendant failed to ask for an extension.-Fox v. Fox, 143 N. Y. S. 714. § 570 (N.Y.Sup.) A motion to resettle a case on appeal to the Appellate Division is not favored, and a determination of the Appellate Term as to proceedings at the trial is conclusive, unless there was a manifest abuse of power.-Thomas v. American Molasses Co., 143 N. Y. S. 813. The recollection of the trial justice, sustained by the stenographer's minutes of the trial, to the effect that no motion to dismiss was made, will control over a contrary affidavit made by counsel on a motion to resettle the case on appeal to the Appellate Division, so as to show that such motion was made.-Id. (H) Transmission, Filing, Printing, Service of Copies. and $216 (N.Y.Sup.) Where a party was an agent § 633 (N.Y.Sup.) In the absence of a valid of defendant in some respects, though not in all, reason why the printed papers on appeal to a charge that he was the agent of defendant was the Appellate Division were not filed and servnot available error, where there was no re- ed, a motion to dismiss the appeal will be quest by defendant to limit the charge.-Herman granted.-In re Braker's Estate, 143 N. Y. S. v. City of Buffalo, 143 N. Y. S. 205. 860. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (K) Questions Presented for Review. § 671 (N.Y.Sup.) Where the record does not disclose a previous decision of the case, which appellant contends establishes the law of the case, the effect of such decision cannot be considered.-Lasky v. Coverdale, 143 N. Y. S. 756. $ 679 (N.Y.Sup.) Where the bill of particulars is not contained in the record before the appellate court, it cannot aid the judgment on the pleadings by showing the amount of the damage.-Lewis v. City Realty Co., 143 N. Y. S. 1026. § 694 (N.Y.Sup.) Where the record shows that at the close of plaintiff's case defendant moved for a nonsuit, which was denied with the suggestion that it be renewed at the close of the evidence, but fails to show any renewal of the motion at the close of the evidence, the question of the sufficiency of the evidence to take the case to the jury is not presented.— Whitney v. Terry & Tench Co., 143 N. Y. S. 905 XVI. REVIEW. (E) Presumptions. $927 (N.Y.Sup.) On appeal from a judgment of nonsuit, the appellant is entitled to the most favorable inferences that can reasonably be drawn from the evidence, including every fair deduction from the undisputed facts.-Hicks v. Smith, 143 N. Y. S. 136. $931 (NY.Sup.) Where, at the close of the trial, both parties moved for a direction of the verdict, neither party asking to go to the jury upon any question, and the court directed a verdict, every question of fact must be regarded as having been found against the defeated party. -Curtiss v. Teller, 143 N. Y. S. 188. (F) Discretion of Lower Court. § 953 (N.Y.Sup.) Under Code Civ. Proc. § 636, the discretion of a judge in granting a warrant of attachment will not be reviewed, unless the insufficiency is so obvious as to justify the conclusion that his action was inadvertent.-Bendure v. Bidwell, 143 N. Y. S. 97. $ 954 (N.Y.Sup.) On appeal from an order granting a temporary injunction, where there is a substantial dispute as to the facts, the Special Term's discretion will not be disturbed; but where, accepting plaintiff's version of the facts, he is not entitled to the relief sought, the order will be reversed.-Greene v. Faber, 143 N. Y. S. 27. admission of evidence that witnesses did not hear the whistle of the approaching car is harmless, if the evidence be too weak to be competent. Curtis v. Hudson Valley Ry. Co., 143 N. Y. S. 383. § 1052 (N.Y.Sup.) A judgment for defendant would not be reversed for technical errors in the admission of questions asked defendant's witnesses, where there was a complete failure of proof on plaintiff's part.-Richie v. Shepard, 143 N. Y. S. 19. § 1052 (N.Y.Sup.) Error in allowing plaintiff to give incompetent evidence on direct examina tion as to the earnings of deceased was cured, where the same evidence was brought out on cross-examination.-Curtis V. Hudson Valley Ry. Co., 143 N. Y. S. 383. § 1056 (N.Y.Sup.) In proceedings to establish a claim against an estate for services rendered to intestate, rejection of certain evidence held harmless to defendant.-In re Sutton's Estate, 143 N. Y. S. 1072. (K) Subsequent Appeals. § 1099 (N.Y.Sup.) The determination on a former appeal that a deposit by a lessee was in the nature of a penalty governs on a subsequent appeal, where the court had reversed and remanded for new trial only to determine wheth er surrounding circumstances would affect their determination, and none such were offered.Feinsot v. Burstein, 143 N. Y. S. 1040. XVII. DETERMINATION AND DISPOSITION OF CAUSE. (B) Affirmance. $1137 (N.Y.Sup.) Where court, without ex ception, denied a motion to dismiss an action notice, but set aside verdict for plaintiff on other against a village for failure to give statutory grounds, on plaintiff's appeal, held, that the judgment would not be affirmed because of the failure of the complaint to allege the giving of notice.-Murphy v. Village of Ft. Edward, 143 N. Y. S. 378. (C) Modification. 1317, authorizing the court to modify, as well 81151 (N.Y.Sup.) Under Code Civ. Proc. § as affirm or reverse, judgments, it is proper for tiff shall agree to a modification deducting from the court to order an affirmance provided plainhis judgment the amount of a note which should have been but was not considered in assessing plaintiff's damages.-Van Denberg v. Scott, 143 N. Y. S. 310. §1151 (N.Y.Sup.) Where, in deducting a conceded counterclaim from the amount of plaintiffs' gross claim, an error of $10 was made in subtraction, the error will be corrected on ap peal.-Jacobson v. Kaplan, 143 N. Y. S. 946. (D) Reversal. $1175 (N.Y.Sup.) Under Code Civ. Proc. 1317, where the trial court should have granted defendant's motion to dismiss the complaint at the close of the evidence, the Appellate Di vision will grant that relief.-Mahony v. Ma hony, 143 N. Y. S. 881. $24 (N.Y.Co.Ct.) Under Pen. Code, §§ 2, 221, ASSAULT AND BATTERY. $1208 (N.Y.Sup.) Where costs have been 7 (N.Y.Sup.) An oral agreement by one ARCHITECTS. See Mechanics' Liens, §§ 36, 281. ARGUMENT OF COUNSEL. See Trial, § 133. ASSESSMENT. See Insurance, § 193. ASSIGNMENTS. See Interpleader, § 18; Landlord and Tenant, ASSIGNMENTS FOR BENEFIT OF See Attorney and Client, § 187; Bankruptcy. ASSOCIATIONS. See Joint-Stock Companies, §§ 1, 4. ASSUMPSIT, ACTION OF. See Work and Labor. ASSUMPTION OF RISK. See Master and Servant, § 288. ASYLUMS. § 5 (N.Y.Sup.) Under Const. art. 8, §§ 11, Evidence held not to justify the granting of Where the order to show cause upon an ap- For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER III. PROCEEDINGS TO PROCURE. (B) Affidavits. § 92 (N.Y.Sup.) The information furnished by the moving papers for an attachment must be such that a person of reasonable prudence would be willing to accept and act upon it.Kelderhouse v. McGarry, 143 N. Y. S. 741. § 100 (N.Y.Sup.) Averments, in an affidavit for an attachment in an action for breach of agreement to give a chattel mortgage as additional security to a real estate mortgage, as to the value of the mortgaged property and the amount of property owned by the defendant, are insufficient in the absence of any averment of circumstances from which personal knowledge may be fairly inferred.-Kelderhouse v. McGarry, 143 N. Y. S. 741. $113 (N.Y.Sup.) Under Code Civ. Proc. § 636, authorizing an attachment when it is shown by affidavit that the defendant is about to dispose of property with intent to defraud creditors, affidavits merely stating facts which might give rise to a suspicion of such purpose, without stating the source of information or showing personal knowledge, are insufficient.Kelderhouse v. McGarry, 143 N. Y. S. 741. cause of insufficiency of the affidavit, all inferences will be in favor of its sufficiency.— Bendure v. Bidwell, 143 N. Y. S. 97. ATTESTATION. See Wills, § 120. ATTORNEY AND CLIENT. See Asylums; Costs, § 58; Estoppel, § 62; I. THE OFFICE OF ATTORNEY. ties. $20 (N.Y.Sup.) A member of firm of attor neys who acted for executrix and legatee held to have violated professional duty by acting as attorney for plaintiff in an action against the executor of such executrix and legatee for an accounting.-Seaward v. Tasker, 143 N. Y. S. 257. $30 (N.Y.Sup.) A member of a firm of attorneys is included in the retainer of the firm and a party to the confidential relation so as to make it improper for him to subsequently act for an adverse party relative to the same matter, even though the first client's business is entirely conducted by another member of the firm.-Seaward v. Tasker, 143 N. Y. S. 257. (C) Suspension and Disbarment. § 38 (N.Y.Sup.) In view of Penal Law, § 570, an attorney, who institutes criminal proceedings to compel settlement of a civil action is guilty of grave professional misconduct, though there be some basis in fact for the institution of the proceedings. In re Abrahams, 143 N. Y. S. 927. $ 42 (N.Y.Sup.) An attorney is an officer of the court and as such it is his duty to aid, not obstruct, the administration of justice.-In re Goodman, 143 N. Y. S. 577. Under the Judiciary Law, § 88, making deceit ground for disbarment, where after his suspension for professional misconduct had expired, an attorney attempted to deceive the court by stating that, if an absent witness could be produced, there would be no doubt about the case, knowing the witness was procurable, and would be of no assistance, he should be disbarred, though the decision was not influenced thereby.-Id. $42 (N.Y.Sup.) An attorney held guilty of misconduct deserving of severe censure in tesVII. QUASHING, VACATING, DISSO-tifying, for a client charged with bigamy, that LUTION, OR ABANDONMENT. § 228 (N.Y.Sup.) Under Code Civ. Proc. §§ 635, 636, in an action for breach of agreement to execute a chattel mortgage as additional security to a real estate mortgage, where neither the moving affidavit nor the complaint show a right to recover any definite amount, and it is not stated that the amount claimed is over and above all counterclaims, the attachment should be set aside.-Kelderhouse v. McGarry, 143 N. Y. S. 741. $249 (N.Y.Sup.) Under Code Civ. Proc. § 636, on motion to vacate an attachment be witness had made a search and been unable to locate the client's former wife, when in fact the attorney had letters indicating that the wife's whereabouts could be ascertained without difficulty.-In re Newman, 143 N. Y. S. 590. § 44 (N.Y.Sup.) Where an attorney, acting in collusion with his partner, took advantage of a client by obtaining a default judgment against a company in which the client was the only person interested, through service of summons on his partner, who was secretary of the company, and settled with the client without dis closing or satisfying the judgment, he should be suspended.-In re Slawson, 143 N. Y. S. 594. An attorney, who obtains an advantage over a client, or one who has been a client, by means that are not fair and honorable, is subject to suspension.-Id. § 44 (N.Y.Sup.) Where an attorney collusively allowed his former partner, with whom he was still connected, to secure a default judgment against his client, a company of which he was secretary, through service of summons on himself, he is subject to suspension for professional misconduct under the Judiciary Law, § 88, making malpractice ground for suspension.-In re Beare, 143 N. Y. S. 595. $44 (N.Y.Sup.) An attorney, having misappropriated $250 collected for his client, and also a mortgage for $2,000, assigned to him for collection, held guilty of misconduct warranting suspension, though one of the members of the client firm, knowing that it was in financial difficulties, consented to such misappropriation. -In re Rich, 143 N. Y. S. 623. § 44 (N.Y.Sup.) An attorney having misappropriated funds received from his clients as their assignee for the benefit of creditors held guilty of misconduct justifying suspension_notwithstanding his youth and inexperience.-In re Herbst, 143 N. Y. S. 890. § 46 (N.Y.Sup.) The Appellate Division is charged with the supervision of its attorneys, and if any attorney is guilty of dishonest or improper conduct, especially toward his clients, or those who have been clients, it is its duty to discipline him, and an attorney cannot escape discipline for breach of duty to his client by severing his relation with the client.-In re Beare, 143 N. Y. S. 595. partners, the proceedings against one on charges of professional misconduct will be suspended a reasonable time that the dispute may be tried out in an action by the respondent against the other for an accounting, which he has commenced, and in which he claims a balance will be found due him.-In re Thiele, 143 N. Y. S. 1011. $58 (N.Y.Sup.) An attorney instituting criminal proceedings with intent to influence civil actions cannot defend on the ground that he did not know that his conduct was unprofessional, and he should be disciplined, though on account of youth and inexperience he may not be disbarred.-In re Abrahams, 143 N. Y. S. 927. II. RETAINER AND AUTHORITY. § 75 (N.Y.Sup.) A party may, without an order of court, withdraw a motion for the substitution of attorneys, where he tenders the opposite party his costs.-Simers v. Great Eastern Clay Products Co., 143 N. Y. S. 1020. IV. COMPENSATION AND LIEN OF ATTORNEY. (A) Fees and Other Remuneration. § 166 (N.Y.Sup.) In an attorney's action on a written agreement which the client was permitted to orally contradict verdict for client held so contrary to the evidence as to lead to the conclusion that it was induced by some consideration other than the evidence.-Klein v. Utz, 143 N. Y. S. 1099. (B) Lien. § 181 (N.Y.Sup.) An attorney's charging lien, conferred by Judiciary Law, § 475, is in addi§ 48 (N.Y.Sup.) Under Judiciary Law, 8 88, tion to his "retaining lien"; the latter being a subd. 2, as amended, the Appellate Division will, general one for the balance of account, while on application of an attorney, appoint a coma "charging lien" is limited to his services in mittee to prepare charges to investigate his the action in which the judgment is recovered. conduct of a litigation which has been criticis--In re Heinsheimer, 143 N. Y. S. 895. ed by the Supreme Court.-In re Wilson, 143 N. Y. S. 852. § 53 (N.Y.Sup.) Evidence held insufficient to justify a finding that an offer was made with the knowledge or approval of respondent that criminal proceedings instituted by respondent would be dropped if the debtor would satisfy a judgment without prosecuting a motion for a new trial.-In re Abrahams, 143 N. Y. S. 927. Evidence held sufficient to support a finding that criminal charges were instituted by the respondent to influence civil actions.-Id. § 53 (N.Y.Sup.) Where respondent, on the report of a special master appointed to take testimony, was suspended from practice by the U. S. District Court for professional misconduct, and the bar association presented the charges to the state court, the facts of the misconduct charged must be independently investigated by the state court, unless the respondent consents to a submission on the testimony taken before and the finding made by the special master.In re Lichtenberg, 143 N. Y. S. 1101; In re Kopf, Id. 1102. § 54 (N.Y.Sup.) The controversy appearing to be principally between two attorneys, formerly An attorney who conducts a number of cases under a single contract and for a single fee, not apportionable among the various matters, has a charging lien, conferred by Judiciary Law, § 475, on a judgment obtained in one of such cases for the whole fee.-Id. $182 (N.Y.Sup.) An attorney retained in proceedings to assess damage from a change of street grade in accordance with Greater New York Charter, $$ 951-953, is not entitled to a lien upon an award to the same property for damages caused by the opening of a new street under Greater New York Charter, §§ 979, 980, as amended by Laws 1906, c. 658, and Laws 1909, c. 394, §§ 2, 3.-In re Fourteenth St. in City of New York, 143 N. Y. S. 943. Nor to a lien under Judiciary Law, § 475, giving an attorney a lien upon his client's claim, where the owner conveyed the property pending the proceedings to another, who was represented by a different attorney.-Id. § 182 (N.Y.Sup.) Where money is paid into court by a defendant to keep a tender good, it becomes the property of the plaintiff, regardless of the final outcome of the action, and his attorneys immediately acquire a lien on such For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER |