On contracts, see Contracts, 8, 9.

foreign judgment, see Judgment, 11.
notes, see Negotiable Instruments, 4.
Particular forms, see Assumpsit; Ejectment;
Partition; Replevin; Trespass; Trover and
Conversion.

To set aside fraudulent conveyances, see
Fraudulent Conveyances, 9-15.
Splitting cause of action.

1. In an action against executors for
"provisions and supplies furnished" testa-
tor, it appeared that he died at plaintiff's
house, where he had been sick some time;
that, in a suit against defendants, plain-
tiff's wife had recovered for nursing testa-
tor, and for "preparing and administering
food, nourishment, meals, and medicine to
and for him," during the time for which
plaintiff claimed on account of "provisions
and supplies;" and that on the trial of the
wife's suit plaintiff had testified that he
had agreed with his wife that she should
have the claim for board of testator. Held,
that the demand, being a part of the same
board for which the wife had recovered,
could not be separated from it, and on a
finding that plaintiff's wife was the owner
of the account for board at the time of her
suit, plaintiff cannot recover,-Bowers v.
Smith, 8 N. Y. S. 226.

Joinder of causes.

2. Under Code Civil Proc. N. Y. § 484,
permitting the union of causes of action on
contracts, express or implied, where they
affect all the parties to the action, a com-
plaint may unite a cause of action against
an insane debtor for money loaned, with
one against his committee in lunacy who
is alleged to be in possession of moneys on
which the debt is an equitable lien; there
being no equity of redemption to be
barred, and the question being simply
whether plaintiff is equitably entitled to
have the money in the committee's hands
applied to his debt.-Parmerter v. Baker, 8
N. Y. S. 69.

3. A complaint, in an action by the
pledgees of bonds, which alleges that they
had become such for full value. in good
faith, and before maturity; that the exec-
utors of an estate served notice on the
makers that the bonds belonged to their
testator's estate, from which they had been
wrongfully abstracted by the pledgeor:
and that by reason of the notice the maker
refused to recognize the pledgees' interest:
and which prays that the pledgees' title to
the bonds may be adjudged, that the maker
may be required to register the bonds in
the name of the pledgees, and that the ex-
ecutors may be adjudged to have no right
or title against the pledgees.-is not bad
for a misjoinder of causes of action, since
the alleged facts are all parts of one con-
tinuing transaction.-Newcombe v. Chica-
go & N. W. Ry. Co., 8 N. Y. S. 366.

Title to support.

2. One cannot acquire title to land by
adverse possession where he claims title
under a deed which in fact does not in-
clude such land in its description.-Casey
v. Dunn, 8 N. Y. S. 305.

land sold under an execution on a judg
3. Possession under a sheriff's deed of
ment of a competent court, though the sale
may be irregular, and not pass a valid title.
is sufficient to form the basis of a claim of
title by adverse possession, under Code
Civil Proc. N. Y. § 36, providing, inter
alia, that a claim founded on a written in-
strument, as being a conveyance of the
premises, followed by continued occupa-
tion for 20 years, under the same claim,
will be deemed to have been held adverse-
ly.-Davis v. Burroughs, 8 N. Y. S. 379.

Affidavit.

For attachment, see Attachment, 3-10.

change of venue, see Venue in Civil
Cases, 6.

continuance, see Continuance.
Examination before trial, see Discovery,
1, 2.
On

application for commission to take
deposition, see Deposition, 2.

motion to dissolve attachment, see At-
tachment, 11.

See Divorce, 3.

Alimony.

Amendment.

Of judgment, see Judgment, 13, 14.
pleadings, see Executors and Adminis
trators, 15; Fraudulent Conveyances,
14; Pleading, 5-8.

ANIMALS.

Vicious animals-Evidence.
1. In an action for damages for a bite
by defendant's dog, evidence that plaintiff
was bitten by defendant's dog, without the
slightest warning, is sufficient proof of the
vicious character of the dog to require de-
fendant to keep him in subjection without
further notice, and supports a verdict for
plaintiff.-Webber v. Hoag, 8 N. Y. S. 76.

2. Evidence of the dog's treatment after
the accident is admissible to show his pre-
vious character.-Webber v. Hoag, 8 N. Y.

S. 76.

3. Evidence that the dog habitually as-
sailed people on the street near defend-
ant's premises before plaintiff was bitten;
that he had attacked a driver on a wagon;
that plaintiff's employer informed defend-
ant of this habit of the dog; and that he
was also informed that the dog had as-
sailed another person, and torn his coat,-
is sufficient to charge defendant with
knowledge of the dog's viciousness.-Web-
ber v. Hoag, 8 N. Y. S. 76.

See Pleading, 3.

Answer.

APPEAL.

See, also, Certiorari; New Trial.
Costs on appeal, see Costs, 9.
In condemnation proceedings, see Eminent
Domain, 11.

Review, see Attachment, 12; Contempt.
When lies, see Practice in Civil Cases, 3.

Appellate jurisdiction-When appeal

lies.

1. Where a bank pays over a deposit to
the administrator of the depositor after
ample notice of plaintiff's claim thereto,
as donee of the fund, it will not be granted
an appeal to the court of appeals from an
adverse decision of the court of common
pleas, for the purpose of having a question
of law, with reference to the contractual
force of its rules limiting its liability to de-
positors, "definitely" decided.-Walsh v.
Bowery Sav. Bank, 8 N. Y. S. 344.

Appellate jurisdiction — Appealable
orders.

2. A petitioner applied to the surrogate's
court to have an administrator removed.
She also brought an action in the supreme
court in aid of such proceeding. The sur-
rogate dismissed her petition on the merits.
The supreme court ordered her action there
to be sent to the surrogate to hear and de-
termine all questions therein, including
costs, etc. No exception was taken to the
order. Held, that an order of the surro-
gate, opening the first decree, and allow-
ing costs to the administrator, who was de-
fendant in the supreme court, cannot be
reviewed on appeal.-In re Gillingham's
Estate, 8 N. Y. S. 385.
Notice of appeal.

making it necessary for a party appealing
3. Under Code Civil Proc. N. Y. § 1301,
from a final judgment who desires to re-
view any intermediate order not already
appealed from to state that intention in
his notice of appeal, an order refusing a
continuance, not referred to in the notice
be reviewed.-Crouch v. Moll, 8 N. Y. S.
of appeal from the final judgment, will not
183.

Record.

4. Where the record on appeal does not
show the grounds on which a motion for a
new trial on the minutes was based, the
question whether the verdict was contrary
to the evidence will not be considered.-
Stedman v. Batchelor, 8 N. Y. S. 37.

5. Where the papers on an appeal to the
general term are not certified as required
by Code Civil Proc. N. Y. § 1353, the appeal
will not be determined.-Dwight v. Elmira,
C. & N. R. Co., 8 N. Y. S. 789.

6. When the record does not show that
it contains all the evidence, an exception
on the ground that the verdict is not sus-
tained by the evidence will not be noticed.
-Getty v. Town of Hamlin, 8 N. Y. S. 190.
Review.

7. An exception to a refusal to postpone
a trial, when made part of the record, will
be reviewed by the general term of the su-
preme court.-Garfield Nat. Bank v. Col-
well, 8 N. Y. S. 380.

8. An order of the special term denying
a motion for leave to file a supplemental
answer, showing that defendant was en-
titled to and had removed the cause to the
federal court, is not reviewable on appeal
from the judgment, as it is not an order
which necessarily affects the final judg.
ment.-Ulster County Sav. Inst. v. Fourth
Nat. Bank, 8 N. Y. S. 162.

9. Under Code Civil Proc. N. Y. § 1301,
which provides that when an appeal is
from a final judgment, and the appellant

641.

29. Opinions of witnesses as to the
causes which occasion the decrease of

rental value are improper; but error in
their admission is harmless when the fact
intended to be proved thereby is conclu
sively established by other evidence, and
expressly admitted by defendant's own
witnesses.-Birch v. Metropolitan El. Ry.
Co., 8 N. Y. S. 325.

30. Objections to a question asked a
witness, and to his answer, are cured by
the subsequent withdrawal of the evidence
thereby elicited.-Morison v. Broadway &
S. A. R. Co., 8 N. Y. S. 436.

31. Where defendants rely on a release,
plaintiff may show that it was obtained by
fraud or mistake, and, having failed so to
do, they are not prejudiced by a refusal to
allow an amendment praying to have the
release set aside on account of fraud.-
Bartlett v. Bunn, 8 N. Y. S. 155.

32. In an action by a wife against her
husband to recover money received by him
for her use, it was conceded that defendant
received $600 to invest in a house, the title
of which was taken in their joint names.
Defendant was credited in plaintiff's bill
of particulars with $1.700 as invested in
such house, and the credit was allowed.
Held, that he could not be heard to com-
plain.-Fey v. Fey, 8 N. Y. S. 362.

34. It was admitted that plaintiff paid
money to defendant. and his receipt
showed that it was in the nature of a loan
and the only question was whether plaintiff
afterwards agreed to give the money to de-
fendant for certain services. Held, that
the admission of a note given by plaintiff
to a third person, which was indorsed to
the effect that the money was to be loaned
to defendant, was harmless error.-Thorp
v. Reily, 8 N. Y. S. 493.

35. Plaintiff, a passenger on defendant's
steam-ship, applied through the stewardess
for quinine, which was distributed gratis
to passengers. Calomel was given instead,
with serious results. Plaintiff was per-
mitted to show, against defendant's objec-
tion, that some days after the giving of the
medicine the ship's doctor was seen intox-
icated. Afterwards the court charged
there could be no recovery for neglect of
the doctor from any cause. Held, that the
case would be considered on appeal as if
the evidence of intoxication had been re-
jected.-Allan v. State S. S. Co., 8 N. Y.
S. 803.

Objections waived.

36. After plaintiff had testified, without
objection, that he lent money to defend-
ant, giving him an order on C., who owed
plaintiff, and that C. paid it, and defend-
ant, and C. in his behalf, had testified that
no such order was given or paid, defend-
ant moved to strike out plaintiff's evidence
as secondary, and proving the contents of
was properly denied. as, even if the evi-
a writing by parol. Held, that the motion
dence was improper, defendant had waived
his right.-Daniels v. Smith, 8 N. Y.

S. 128.

Liabilities on appeal-bonds.

37. Judgment was rendered in proceed-
ings to foreclose a mortgage, but no spe-
cific sum of money recovered. other than
from the sale of the mortgaged premises.
Defendant appealed, and furnished sure-
ties in compliance with Code Proc. N. Y.
§ 335, 338. The obligation of the sureties
contained no express agreement on their
part to pay any deficiency after sale of
mortgaged premises. Held, that the sure-
ties incurred no liability for said deficien-
cy.-Knapp v. Van Etten. 8 N. Y. S. 415.