A note given to obtain the signature of a
creditor to a composition deed, the amount of
which is in excess of the amount paid other
creditors, is void. Slade, survivor, v. Wilson. 148

When a defendant, setting up such a defense,
fails to establish it but is allowed, without ob-
jection, to prove, uncontradicted another, viz.:
want of consideration, it is error to refuse to
direct a verdict for the defendant.
Ib.

The court can only order the exceptions taken
in a case to be heard in the first instance at the
General Term. Benedict v. Phelps.

150

Whether or not an accident by which plain-
tiff was injured could have been avoided by
proper care and diligence is a question for tue
jury. Haycroft v. L. S. & M. S. R. R. Co. 155

Where upon the return of an order to show
cause why a mandamus should not issue, affida-
vits are presented on behalf of the defendant,
upon which the relator takes no issue, but pro-
ceeds to argument, he admits the truth of the The Special Term has no power to order a
defendant's averments. The People ex rel.. motion for a new trial, upon exceptions, to be
Tenth National Bank v. Board of Apportion- heard in the first instance at the General Term,
ment of N. Y.
84 after having entertained a motion for a new
trial, upon the judge's minutes; and it makes
no difference that the latter motion was based
upon questions of fact; the code allows no
separation of the application. The People v.

Courts should not set aside a verdict of a jury
except upon clear and palpable evidence of
fraud, bias, or prejudice. Hill admr. v. The N.
Y. C. & H. R. R. R. Co.
94

When the plaintiff has knowledge of the
transaction in controversy, which is the subject
of the action, and is not called as a witness, it is
not error in the judge to submit to the jury the
plaintiff's absence for them to consider, and it is
not error for the judge to instruct them that if
they find such absence to be of a suspicious
character, that it would throw suspicion upon
plaintiff's case. Brooks v. Steen, imp'd., &c. 96

Under Sec. 391 of the Code, the plaintiff may
examine the defendant before issue joined, and
before the service of the complaint. Glenney v.
Stedwell et al.
97

Supreme Court rule 21, if intended to affect
this right, is inoperative.
1b,

If the affidavit upon which the application is
based gives the judge power to act, his action is
discretionary, and cannot be reviewed by the
Court of Appeals.
lb.

When more than three years have elapsed
since the commencement of a suit, judgment by
default will not be granted without notice to
defendant. Phipps v. Cresson.
120

Tweed et al.

159

The difficulty of the legal questions involved,
the length of the trial, the labor of preparing
for trial, the amount of the verdict, the number
of motions made in the course of the proceed-
ings, are considered in determining whether a
case is "difficult or extraordinary" for the pur-
pose of fixing an allowance.
Ib.

It is well settled that the court cannot set

aside a judgment to enable a party to appeal
when the time to appeal has expired. There is
no power in the court directly or indirectly to
extend the time of appeal. Whitney et al v.
Townsend.
172

The court is justified in regarding technical
irregularities in the entry of judgment as waived
by lapse of time, when there is nothing in the
The court may correct an erroneous sentence papers to show that the advantages gained by
any time during the term and before the sheriff the respondent by reason of gross laches of the
has proceeded to execute sentence. In the mat- appellants is inconsistent with equity and jus-
ter of Swan.
114 tice.
Ib.

It is too late to raise an objection to the com-
plaint for the first time on appeal, Holt v. Des-
brough.
129

The court has power in its discretion to allow
the discontinuance of an action without costs.
Hilborne, assignee, v. Kolle et al,

182

It is error for the General Term on reversing
a judgment, to direct judgment absolute unless
it clearly appears that no evidence, upon a new
trial, could change the result. Graves v. Water-
186
man, admr., et al.

upon exceptions filed after the decree, nor set
aside a decree because it was obtained by fraud.
In such case the remedy is by bill of review.
Terry v. The Commercial Bank of Alabama. 279

An affirmative defense, alleged upon informa-
Circuit Courts are not required to hear oral tion and belief, unsustained by proof, may be
Gaul v. The Knicker-
testimony in equity cases, but if they do it must stricken out as sham.
288
be reduced to writing and accompany the bocker Life Ins. Co.
record, and must include testimony objected
to and ruled out, subject to the objection. The The forty-ñrst rule of the courts of record of
U. S. Supreme Court will not send the case back New York State does not entitle the party mak-
to have the rejected testimony taken. Blease v.ing a case, as a matter of absolute right, to the
Garlington.
use of the stenographer's notes.
Lathauer.

189

A party in whose behalf a witness is examined
under the provisions of the Revised Statutes al-
lowing the examination of witnesses for the
purpose of perpetuating their testimony, cannot
properly file the deposition until the examina
tion of the witness is completed, although the
Judge may have subscribed and certified it.
II lett v. Wood et al.

203

Bohnet v.
290

In order to take advantage of a refusal of the
judge to submit a specific question of fact to a
jury, there must be a specific exception to such
refusal. Moore et al v. Bristol et al.

293

The rule that if the charge does not mislead
the jury, a new trial should not be ordered, ap-
plied to a peculiar case.

Sloane v. Elmore. 304

Where a general exception is taken to the re-
fusal of a judge to direct a verdict for defendants,
no request being made that the justice submit
to the jury any questions of fact, on appeal the
party making the request is concluded by the
finding of the justice from raising the point that
specific questions of fact should have been sub-
mitted to the jury-the justice having thereafter
directed a verdict for plaintiff. Strong, recr., v.
The N. Y. Laundry Mfg. Co.
334

The defense of usury should be made out by
lb.
a fair preponderance of evidence.

On a motion to set aside a judgment of divorce
because of adultery, on the ground of fraud and
collusion defendants affidavit is competent,
though she might not testify as to her innocence
352
on the trial. Megarge v. Megarge.

In such a case it is proper to apply by motion
Ib
instead of by action.
The rule that an abuse of discretion is ground
Smith et
for reversal applied to a peculiar case.
al. v. Neals.

375

A verdict cannot be set aside as against evi-
dence where the defendant has not moved for
non-suit nor asked the court to direct a verdict
in his favor. Peake v. Bell,
423

The practice with refererce to the writ of
ne exeat requires the special allowance of the
writ by an order of this court, and there should
be an endorsement upon the writ by the clerk,
showing the amount in which the defendant
should be held to bail. Viadero v. Via-
dero.
424

The liberal provisions of SS 173, 174 of the
Code, with reference to amendment, applies to
the writ of ne exeat.
lb.

If upon a reference certain facts are not found,
and no request made to find them, the appellate
court cannot assume they existed, nor can it
look into the evidence to ascertain whether facts
were proved which if found would require the
reversal of the judgment. Brett v. First Uni-
versal Society.
433

Where there is a plain conflict of evidence
upon one of the issues raised by the pleadings,
it is error to take the question from the jury.
Genet v. The Mayor &c. of N. Y.

437

A reargument will not be ordered to decide
questions which may arise in other pending ac
tions, when all the questions involved in the
appeal have been passed upon on the former
hearing. Becker v. Howard et al.
508

The court is not in error in refusing to leave
to the jury the question of the value of the
services for which the note was given, where the
same were to be determined by the intestate, as
that would be, in effect, to deprive the intestate
of his power of determination. Earl v. Peck,
admr.
527

For the reception of incompetent evidence
which could not by any possibility harm any
one, the court will not reverse a judgment.
Lyng v. Boyd.
528

When a party requests certain specified ques-
tions, for which there is no valid ground, to be
submitted to the jury, it is to be assumed that

he intends to waive the submission of other
questions. Dounce v. Dow et al.
536

An order directing service of summons by
publication against a non-resident corporation An exception to the decision of a judge de-
will be sustained under §135 of the Code, when nying a motion for a new trial on the minutes,
the subject of the action is personal property, on the ground that the verdict is against the
within the State, and the transactions in contro- weight of evidence, instead of its being on the
versy took place here, and the cause f action ground of insufficiency of evidence to support
arose here. Matter of the application of the At-it, is valid as to form, though the ground of the
lantic Giant Powder Co., &c.
motion does not come within the express terms
used in $264 of the Code. Sharkey v. Torrilhon.

475

Where the judgment is entere upon the re-
port of a referee and the General Term has a
right to review the facts, it is its duty to pass
upon them from the evidence. Godfrey v.
Moser.
483

To order a non-suit on the opening of a case.
the court must be satisfied that the counsel
stated no cause of action in his opening, provi-
ding same was fully proved. Shubert v. Shu-
bert.
484

It was a proper question for a jury whether
the President and Secretary of a company, in
purchasing goods, &c., acted individually or for
the company. Ingelhart et al. v. The Thousand
Island Hotel Co.
492

538

of the counsel for either party, cannot instruct
After a jury has retired, the court, in absence
the jury on any point material to the issue.
Burke v. Webb.
579

It is the province of the jury to reconcile the
conflict of proof, and determine from all the
evidence whether the truth is on the side of the
complainant or of the defendant; and when this
has been done, free from passion and prejudice,
and the record contains evidence sufficient to
sustain or justify the result, the verdict must
be regarded as final. Berdel v. Berdel.

581

No appeal being taken from an order in be-

half of plaintiff amending the complaint upon
the trial, the defendant being successful, it
stands intact as a part of the case, with all the
benefit to the plaintiff to be deprived therefrom.
Hauck v. Craighead et al., exrs., et al.

594

deems most appropriate to the success of the
business, has a sufficient interest to entitle him
to insure the property. Kline et al, ex'rs. v.
Queen Ins. Co.
343

And where such property has been insured as
Where there is a conflict in the evidence upon property held in trust by the person to whom
a material issue in the case, the court must sub-the policy issued, such property will be regarded
mit the question to the jury.
as coming within the terms of the policy.

Ib.

PRINCIPAL AND AGENT.

A principal who ratifies the act of & voluntary
agent who receives money for his principal and

makes a loan in his behalf as a condition of
such receipt, is entitled to receive the money so
paid to the agent upon the repayment of the
loan made by the agent. Fowler et al. v. The
New York Gold Exchange Bank.
1

A voluntary agent is entitled to be reim-
bursed for expenses incurred in behalf of his
principal, on the ratification by the principal of
the agent's acts.
Ib.

A principal can enforce all rights of action
acquired on his behalf by his agent, irrespective
of any obligations or liabilities arising in the
transaction between the principal and agent.
Indi inapolis, P. & C. R. R. Co. v. Tyng.

80

Ib.

The fact that an agent has authority to do a
certain act, does not warrant an inference that
he has general authority. Express authority
should be shown. Gillett v. Hall.
448

A corporation is liable only for the actual
damages caused by the willful acts of its agent,
done in the course of his employment, unless it
shall have authorized such acts or ratify them
after they are done. The agent alone is liable
for all exemplary damages arising out of such
act. McKinley v. Chicago & N. W. R. Co. 452

A promissory note given for work done for
the principal by an agent having a power of at-
torney, and signed "J. E., attorney for the estate
of L. Hayes," does not bind the heirs of the
estate, (the principals). Merchants Bank v.
Hayes et al.
525

Where one employs a contractor to rebuild
his house, under an agreement that the con-
tractor shall make good any damage to a neigh-
boring house, and the contractor uses insufficient
means to support said house, whereby it was
damaged, the employer is liable. Bower v.
Peate.

530

It is the duty of a principal, when he termi-
A principal is bound by the knowledge of his nates the agency, to notify all parties who have
agent only so far as it was gained in the trans-been in the habit of dealing with the agent.
action in which he was employed. Houseman | Claflin et al. v. Lenheim.
v. The Girard Mutual Bldg & Loan Ass. 188

558
The fact that dealings between the parties had
Where a contract is signed by "the cashier," been suspended for two years, and that on re-
and it is found that he so signed under the di-suming them the principal dealt directly with
rection of the president of the bank, and his act the parties, is not sufficient to constitute con-
purported to be on behalf of the bank, the bank structive notice of the revocation of the agency.
is bound. Merchants Bank v. The Meyers Steel
&c., Co.
214

A party cannot avoid his agent's acts as to
part of a transaction and avail himself of them
as to the residue.
Ib.

Commissioners appointed by and in pursuance
of an act of the legislature for a particular pur-
pose, viz.: to erect a court-house in one of the
judicial districts in the city of New York, and
havi g no corporate or continuous power, are
agents of the city; and the city is liable for ex-
penditures made by them in the prosecution of
the work. Wood et al. v. The Mayor, &c., of N.

Y.

220

The remedy in such case is by action, and not
Ib.
by mandamus.
Where an attorney is employed by a collec-
tion agency to collect a claim, the attorney is
the agent of the collection agency, and not of
the creditor. Hoover, assignee v. Wise et al. 241

A general agent having the custody and con
trol of his principal's property with full power
to preserve and dispose of it in the way he

Ib.

The immediate employer of the agent or ser-
vant who causes the injury is alone responsible
for such injury; to him alone the rule of re-
spondeat superior applies, and there cannot be
two superiors severally responsible. Wray v.
Evans.

561

As to estoppel of surety from claiming a dis-removal of subordinates by way of discipline, is
charge, see ESTOPPEL.