tions in such cases.' ""

Matter of Nichols.

In short, he was to determine for himself whether there was cause " for the removal; or, to use the language of Judge ALLEN, in People v. Fire Commissioners (72 N. Y. 449), "Some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office." To argue that the investigations of such questions and their determination is not the exercise of judicial power would be a frivolous discussion.

A careful examination of the questions which this application involves has led to the conclusion that the court has the power to review the action of both the mayor and the governor, and that, to use no stronger language, the facts require its exercise. Whilst, however, holding that the action of the chief executive of this State is, in a case like the present, reviewable by the courts, still, respect for the high office should induce judicial tribunals to be sparing in the use of their reviewing power, when process is asked to issue to or against him directly; and they should not, therefore, grant a writ of certiorari directed to him unless there is no other remedy. In the present case all the rights of Mr. Nichols can be guarded by a review of the action of the mayor. If that be reversed and held for naught the approval of the governor falls with it, for the conclusion of both the mayor and governor must stand to make effectual the removal. Besides, their action is separate and not joint. Each makes a separate and independent decision, and, in my judgment, each should be separately reviewed.

The writ asked for will be issued to the mayor and is refused as to the governor, not because his action is beyond review, but because it is unnecessary, and also because one issuing to both jointly might be held irregular.

ANALYTICAL INDEX

TO

ALL POINTS OF LAW AND PRACTICE

CONTAINED IN THE FOLLOWING

STANDARD REPORTS OF NEW YORK,

ISSUED DURING THE PERIOD COVERED BY THIS VOLUME ;

VIZ.: 73 NEW YORK REPORTS; 17 HUN'S SUPREME COURT REPORTS; 44 NEW YORK SUPERIOR COURT REPORTS (JONES & SPENCER); 6 ABBOTT'S NEW CASES, and LAWS OF 1879.

[For the greater convenience of the reader, all the decisions, whether on questions of practice or in the other departments of the law, are included in this Index. The classification is the same as in Abbott's New York Digest.

Attention is called to the additional title, "Code of Civil Procedure," under which are collected cases on the construction of its sections, or throwing light thereon by construction of corresponding provisions of the former Code.]

ABATEMENT AND REVIVAL.

ACCOUNT.

Mode of continuing action Right of a partner to demand against foreign corporation after production of partnership books its dissolution. Sturges v. Van- and papers on a partnership acderbilt, 73 N. Y. 384. counting. Stebbins v. Harmon, 17 Hun, 445.

ACCORD AND SATISFACTION. When a stipulation to settle a judgment and the acts done under it, will not sustain a plea of. Kromer v. Heim, 44 Super. Ct. (J. &| 8.) 237.

When payment of less than face of a promissory note, a complete accord and satisfaction. Babcock v. Bonnell, 44 Super. Ct. (J. & S.) 568.

32

ACCOUNT STATED.

What constitutes an account stated. Volkening v. De Graaf, 44 Super. Ct. (J. & S.) 424.

Impeachable by evidence of fraud or mistake. Welsh v. German American Bank, 73 N. Y. 424.

ACKNOWLEDGMENTS.

Acknowledgments of married women to be taken in same man

ner as if sole. L. 1879, p. 327, c.
249.

ACTIONS.

Consolidation of. Beck v. Rug-
gles, 6 Abb. New Cas. 69.

ADMISSIONS.

ALIENS.

Law of inheritance by aliens dis-
cussed. Renner v. Muller, 44 Super.
Ct. (J. & 8.) 535.

Alienage as affecting taking by
descent from a native born or na-
turalized citizen, dying between

When admission in pleading, to April 15, 1857, and April 27, 1874.
be construed in connection with Magdalena v. Muller, 44 Super. Ct.
statement of another fact nullify- (J. & S.) 535.

ing effect of the admission. Right
of party to disprove fact nullifying
admission. Gildersleeve v. Lan-

don, 73 N. Y. 609.

ADVERSE POSSESSION.
When adverse possession of one
who enters land under agreement
to purchase, begins to run. Mat-
ter of Department of Parks, 73 N.
Y. 560.

AFFIDAVIT.

When not relieved by their
alienage from liability under bank-
rupt act. Olcott v. MacLean, 73
N. Y. 223.

Supreme Court acquiring juris-
diction of the persons of aliens by
their appearance in the action.
Olcott v. MacLean, 73 N. Y. 223

AMBULANCES.

Act giving right of way, &c., to
ambulances. L. 1879, p. 246, c.
186.

AMENDMENT.

Effect of punctuation on mean-
Power of county court to allow
ing of.
Case v. People, 6 Abb. amendment of summons and com-
New Cas. 151.
plaint so as to reduce amount
When to be construed as made claimed when it exceeds $1,000.
on information and belief, without
regard to punctuation. Lambert v.
People, 6 Abb. New Cas. 181.

McIntyre v. Carriere, 17 Hun, 64.

When refusal to allow amend-
ments to pleadings in a justice's

When proof of corporal oath to court, reviewable on appeal. Walsh
an affidavit necessary. Case v.
People, 6 Abb. New Cas. 151.

AGREEMENT.

v. Cornett, 17 Hun, 27.

Disallowing amendments on an
appeal from a justice's court to a
county court. McKinstry. Sah-

When a consideration necessary ler, 17 Hun, 136.

for a modification of an agreement. When amendment to offer of
McMaster v. Kohner, 44 Super. Ct. judgment, not allowed. Riggs .
(J. & S.) 253.
Waydell, 17 Hun, 515.

Construction of agreement to When amending complaint by
collect a claim: limitation of time: striking out allegations as to fraud-
what a reasonable time. Lawson ulent representations, does not
v. Bachman, 44 Super. Ct. (J. & S.) change the cause of action. Hitch-
396.
cock v. Baere, 17 Hun, 604.

Power of court of appeals to con- An order not affecting a sub-
form pleadings to the facts, and stantial right, not appealablo.
give judgment accordingly. Thay- Jaffray v. Brown, 17 Hun, 575.
er v. Manley, 73 N. Y. 305.
Order overruling a demurrer,
Amendment of judgment, after not appealable before judgmont
appeal, giving a receiver additional thereon. Garner v. Harmony Mills,
powers. McKelvey v. Lewis, 44 6 Alb. New Cas. 212.

Super. Ct. (J. & S.) 561.

Review of a verdict rendered on
Construction in order allowing the trial of issues, ordered on ap-
amendment of pleading, of phrase peal from a surrogate's decree.
"on payment of costs of the action Webster v. Cole, 17 Hun, 507.
to the present time." Havemeyer Appeals from judgments of city
v. Havemeyer, 44 Super. Ct. (J. & court of Yonkers. Mitchell v.

8.) 170.

Pike, 17 Hun, 142.

Limit of time for applying How appeal taken from condi-
for amendments to proceedings. tions on which leave to amend a
Schweizer v. Raymond, 6 Abb. pleading is granted. Havemeyer
New Cas. 378.
v. Havemeyer, 44 Super. Ct. (J. &
8.) 170.

ANIMALS.

Upon what papers appeal from

Act in relation to infectious and refusal to postpone trial should be
contagious diseases of animals. L. made. Gallaudet v. Steinmetz, G
1879, p. 393, c. 306.

Abb. New Cas. 224.

Appropriation to carry out pro-
visions of law in relation to infec- What necessary to be shown
tious and contagious diseases of affirmatively by appellant asking
animals. L. 1879, p. 21, c. 20. for reversal of a judgment, on
Gravamen of action for injuries ground of exclusion of evidence.
by a ferocious dog. Proof that Haggerty v. Brooklyn City, &c.
dog is of a savage and ferocious R. R. Co., 6 Abb. New Cas. 139.
nature equivalent to express notice. On appeal from judgment ren-
Muller v. McKesson, 73 N. Y. 195. dered in a justice's court the costs
Liability of owner of vicious dog and return fees must be paid at the
for injuries caused by it. When time of service of notice of ap-
contributory negligence a defense. peal. Section 1303 of Code of Civ.
Lynch . McNally, 73 N. Y. 347.
Pro. has no application to such
appeals. Eldridge v. Underhill,
17 Hun, 241.

APPEAL.

I. APPEALS IN GENERAL.

When no undertaking required
When order setting aside a sale, of appellant to county court. Hal-
appealable. Fisher v. Hersey, 17 lenbeck v. Company E, 13th Regi-
Hun, 370.
ment, 17 Hun, 234.

Party intervening entitled to ap- When question not presented by
peal. Attorney-General v. North exception, cannot be considered on
America Life Ins. Co., 6 Abb. New appeal. Hunt v. Church, 73 N. Y.
Cas. 293.

615.