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
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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.
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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.
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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.
|