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Digest.

competent. (Pierson agt. The Peo- The death of the patient does ple, 79 N. Y., 424.)

not remove the prohibition, and

the physician cannot testify to 50. Section 834 — For the purpose

the cause of death learned by of showing the falsity of repre

him while attending the patient sentations of the insured as to the in a professional capacity: cause of death of his mother, A witness, not a physician, who defendant called a physician who

saw the mother of the insured in testified that he attended her in

her last sickness, was asked to her last illness; it did not appear

state his conclusion in reference that he ever visited or saw her at

to the character of her disease. any other time or in any other

This was objected to and exthan a professional capacity. The

cluded: witness was then asked if he Held, no error. (Grattan agt. The knew or was able to state the Metropolitan Life Ins. Co., 80 N. cause of her death; if he observed

Y., 282.) the symptoms she exhibited in her sickness; if the symptoms 51. Section 835 — What communi. were such as might have been cation between attorney and -lient discovered by observation and not privileged under. (See Root physical examination, without the agt. Wright, 21 Hun, 344.) aid of any specific statement from the patient, or without their being 52. Section 872 — Since the amend. confidentially disclosed by her, ment which was made in 1879 to or any friend or attendant, or subdivision 6 of this section of the through any private examination; Code of Civil Procedure, it is reand also if the statement of the quisite and necessary, in an affiinsurer as to the cause of death davit on which an application is was true:

made for the examination of wit. Held, (EARL, J., dissenting), that nesses where no action is pending, the questions, so far as material, to state what the circumstances were properly excluded.

are which render it necessary for The statute prohibiting a phy- the protection of the applicant's sician from disclosing any infcr- rights that the witnesses' testi. mation which he acquired in mony should be perpetuated. attending a patient in a profes The meaning of the amendment sional capacity, and which was to subdivision 6 is to require the necessary to enable him to pre- applicant to show that he is in scribe. (2 R. S, 406, sec. 73; Code of danger of losing the evidence of Civil Procedure, sec. 834), includes bis right before it could be judici. information received through the ously investigated. To prove that sense of sight as well as that com- such danger exists it is incumbent municated through the ear. It on the complainant to allege that needs not that an examination of he has an interest, present or cona patient should be private to tingent, in the property, and that exclude information so derived; the defendant has or claims to nor is it required that it should have an interest. He is further be shown in the first instance by þound to show that he is in danger formal proof that the information of losing his witnesses by sickwas necessary to enable the phy. ness, age, death or departure from sician to prescribe.

the jurisdiction, or that his case The statute includes all knowl- rested upon the evidence of only edge acquired from the patient one witness. Where he could at himself, from the statements of once bring a suit, he is bound to others surrounding him, and from show that it has been commenced. observation of his appearance and If no action is pending, he is symptoms.

obliged to explain why he is not Digest.

able to maintain an action, the &c., R. R. Co. agt. Reid, 21 Hun, ordinary reasons being that the 273.) right of action belonged to the adverse party, or that the adverse 58. Section 974 — It seems that the party had raised some impediment

provision of this section of the (an injunction for example) to an

Code of Civil Procedure, in referimmediate trial in a court of law.

ence to the mode of trial when de(Matter of Ketchum's Application,

fendant interposes a counter-claim ante, 154.)

and demands an affirmative judg

ment, and an issue of fact is 53. Sections 875, 876 — Examination

joined thereon, applies only when of a party before trial - power of

the counter-claim sets up matter the court to refuse or limit the

for which a separate action might extent of it. (See Harrold agt.

be maintained. (Cook agt. Jenkins, New York, &c., R. R. Co., 21 Hun,

79 N. Y., 575.) 268.)

59. Section 982 - Where an action 54. Section 892-It seems, that while

relating to surplus moneys on a a judge, in settling interrogatories

foreclosure must be brought. (See to be annexed to a commission to

Fliess agt. Buckley, 22 Hun, 551.) take testimony, is required to allow. “any question pertinent to 60. Section 982 – This action was the issue" (Code of Civil Procedure,

brought in the county of New sec. 892), he has authority to dis

York to restrain the defendant allow questions not pertinent, and Johnson, who had in his posseshence to determine whether a

sion a satisfaction piece of a judg. question is pertinent or not.

ment recovered by the plaintiff The power to exclude questions,

against the defendant Nelson, however, should be sparingly ex

from delivering the same to Nelercised. (Uline agt. N. Y. C. and

son. The complaint showed that H. R. R. R. Co., 79 N. Y., 175.) Nelson owned real property in

Ulster, but none in Kings county. 05. Section 911 -An appeal does not The defendant, upon an affidavit

lie from an order annexing an im- stating that Nelson had sold the proper question to a commission; land in Ulster county, and then it affects no substantial right, as owned no real estate except in the party may raise the objection Kings county, moved for an order on trial (Code, sec. 911). (Id.) changing the place of trial to

Kings county, on the ground that 56. Sections 929, 930, 931 - A copy the action was brought “to re

of an account of defendant's firm cover or to procure a judgment esas it appeared in the ledger of a tablishing, determining, defining, foreign corporation, no objection forfeiting, annulling or otherwise being made for want of proper affecting an estate, right, title, verification, was properly admit- lien or other interest in real propted as presumptive evidence, un- erty, or a chattel real," within the der these sections of the Code, of meaning of this section of the the account of work done by the Code of Civil Procedure: firm for the corporation. (Derham Held, that whether or not the agt. Lee, ante, 334.)

action was within that section

mi be determined by the com67. Section 974 — Not designed to plaint, and that the decision of

send a counter-claim made by a that question could not be affected defendant to a jury, in an action by affidavits. That the action did which is referable by reason that not have for its object the recov. the trial will involve the examina- ery of a judgment establishing or tion of a long account. (Brooklyn, otherwise affecting a right, lien,

VOL. LX 70

Digest.

or other interest in real property, the party cannot be put in default and that the motion was therefore for not serving a case containing properly denied. (Knickerbocker them, before the expiration of Life Ins. Co. agt. Clark, 22 Hun, the time allowed for framing 506.)

them.

The exceptions referred to in 61. Sections 994, 997 — Under the

said provision are not simply those provision of these sections of the

taken on the trial. Code of Procedure, in reference

It seems, that where a report of to making a case for the purposes.

a referee, and notice of filing of review, in an action tried by"

thereof, were served prior to the the court or a referee, the ten going into effect of the Code of days allowed for that purpose did

Civil Procedure (Sept. 1, 187.), not begin to run until the entry

but no judgment had been entered, of judgment, and notice thereof; that even if the practice had been the alternative stated therein, “ or

changed by the said Code, and the within such time as may be pre

rule validated, the notice would scribed by the rules of the court," not have become operative to limit meant such further time as might

the time for making a case to ten be prescribed.

days after the Code went into A service, therefore, of a copy

effect; as the notice when served of a referee's report, and notice

did not operate to limit the time, of filing, did not operate to limit

the new provision could not retrothe time to serve a case or excep

act to give it that effect, and a tions.

new notice should have been Accordingly, held, that the rule served. (French agt. Poroers, 80 of the supreme court (rule 34 of

N. Y., 146.) 1858, rule 47 of 1871 and 1874, and rule 32 of 1877), requiring a case 62. Section 999—Upon what grounds to be served within ten days after

a motion for a new trial on the written notice of the decision, or

minutes of the judge may be made. report was in conflict with the (See Robson agt. New York Central, Code, and consequently inopera

&c., R. R. Co., 21 Hun, 387.) tive.

The practice, in this respect, 63. Section 999 - This court can on. was not changed by the provision ly review judgments and grant of the Code of Civil Procedure new trials for errors of law; and (sec. 994), providing that excep- such errors must be pointed out tions, taken after trial, may be by excoptions taken at a proper taken "at any time before the time. expiration of ten days after serv- Where, therefore, it is alleged ice

of a copy of the that a verdict is perverse, excessdecision of the court, or report ive in amount, and contrary to the of the referee, and a written law and the evidence, the judgnotice of the entry of judgment ment entered thereon cannot be thereupon.

reviewed here without an excepWhile under this provision ex- tion, ceptions may be taken at any time This rule has not been changed after trial; they are not required by the provision of this section of to be taken until ten days after the Code of Civil Procedure, in notice of judgment; and although reference to the granting of a new no provision is made as to time trial by the judge presiding at the for serving the case, as the case trial. is required to contain the excep- For such errors, it seems, the tions (Code, sec. 997), it need not, general term has power to grant and cannot be served until after a new trial in its discretion, althe exceptions are framed, and though no exceptions were taken Digest.

424.)

on the trial. (Standard Oil Co. agt. and was not brought into court as Amazon Ins. Co., 79 N. Y., 506.) required by this section of the

Code of Civil Procedure. The 64. Section 1003 - Where feigned challenge was sustained; the pris

issues in an action are tried oner thereupon withdrew it; a jury by a jury, and the judge pre- was impanneled and the trial siding at the trial neither en- proceeded: tertains a motion for a new trial Held, that the prisoner could nor directs exceptions taken at the withdraw his challenge, and that trial to be heard at the general he thereby waived the irregularity. term, a motion for a new trial can (Pierson agt. The People, 79 N. Y., only be made under this section of the Code of Civil Procedure at the special term, where the motion 70. Section 1204 – Where in an acfor final judgment is made, and

tion for damages alleged to arise before such judgment. (Chapin from the breach of a written conagt. Thompson, 80 N. Y., 275.)

tract to do advertising, a joint

liability is charged against numer65. Section 1005 — The provision of

ous defendants, among whom are this section of the Code of Civil

C., A. and C., copartners, and the Procedure providing for a motion latter defendants answer jointly, for a new trial after judgment, has

admitting that they had dealings reference to a new trial of the ac

with and did advertising for plaintion itself, not to a new trial upon tiff, but aver that all such dealthe feigned issues which may have

ings were several as to them and been awarded therein. (Id.)

not joint with the other defend

ants, and thereupon such copart66. Section 1013 - Power of the ners set up counter-claims in their

court to order a compulsory refer- answer, to which counter-claims ence under. (See Dane agt. Liver- plaintiff demurs on the ground pool, &c., Ins. Co., 21 Hun, 259.) that all the defendants in this

action are sued on a joint liability, 67. Section 1021 – Demurrer - an

that the said counter-claims are interlocutory judgment must be

alleged in favor of said defendentered upon the decision of an

ants separately, and that as beissue of law. (See Liegeois agt.

tween the said

defendants and the McCracken, 22 Hun, 69.)

plaintiff a separate judgment in this action cannot be had:

Held, that a demurrer such 68. Section 1023 - Judge or referee

an answer is ill, and that defendcannot make additional findings

ants are entitled to judgment for on settlement of case so far as

the amount due under their countrule 23 conflicts with this section

er-claims. it is inoperative. (See Palmer agt. Held, also, that plaintiff's poPhænix Ins. Co., 22 Hun, 224.)

sition would have been well taken

under the former common-law 69. Section 1059 — Upon the trial of rule; but that the Code of Pro

an indictment for murder, the cedure has radically changed the prisoner challenged the array of former rule, and that now under jurors on the ground that, an or- this section of the new Code, judgder having been granted requiring ment may be given for or against the drawing of additional jurors, one or more defendants; that the one of the boxes required to be ultimate rights of parties on the kept by the clerk, i. e., that con- same side, as between themselves, taining the names of jurors who may be determined, and a defend had attended a term of the court, ant granted any affirmative relief and served, had not been kept, to which he is entitled. (Clegg judgment here, the court had the said provision of the act of

Digest.

agt. American Newspaper Union, that he was and that the other was ante, 498.)

not entitled to be paid:

Held that the appropriation could 71. Section 1217 — When judgment only be availed of in an action or

cannot be entered by default submission, to which both claim. under. (See Clarke agt. Boreel, 21 ants were parties, and then only Hun, 594.)

on establishing. that the power to

appoint janitors was exclusive, 72. Section 1279 — J., a naturalized either in the court or the commis

citizen, died in 1866 intestate, and sioner, and that there could be seized of certain real estate. He but one janitor; and that, thereleft him surviving his widow, his fore, plaintiff was not entitled to father, the defendant B., who was judgment upon a submission of his sister, and the wife of a citi- the controversy under this section zen, and two alien children of a of the Code of Civil Procedure, as deceased sister, who was an alien. between him and the city, to which The widow died in 1870. B., in C. was not a party. (Kennedy agt. 1873, by judgment in an action of The Mayor, 79 N. Y., 361.) ejectment, wherein she founded her claim upon her title by descent, 74. Section 1323 -- Where, under recovered possession of the prem- an adverse judgment in an action ises. She contracted to sell the in the nature of a quo warranto, same to plaintiff, in 1877. Upon the defendant who was in the pos. submission of the controversy as session of the office, having a to her title under this section of

certificate of election from the the Code of Civil Procedure, held,

duly constituted board of canthat the title to the premises vested

vassers, was removed from the in B., upon the death of her

office: brother, that the act of 1874 (chap.

Held, that upon reversal of the 261 of Lars of 1874), amending

power and it was proper to com1845, by inserting after the words

pel restitution of the rights lost resident alien,” the words “or

by means of the erroneous judgany naturalized or native citizen,"

ment (Code of Civil Procedure, sec. could not operate to divest her

1323); also, that the court could estate thus acquired, and that,

not look into the case to see which therefore, she could give a good

way the merits inclined as betitle and was entitled to a per

tween the two contestants; the deformance of the contract. (Luhrs fendant having the adjudication agt. Eimer, 80 N. Y., 171.)

in his favor required by the stat.

utes, and by virtue of it having 73. Section 1279 — Plaintiff was ap- held and exercised the office, this

pointed by said commissioner jani- is conclusive until the certificate tor of the building occupied by the has been corrected or shown to be police court of the second district, false hy judicial determination and by the district or civil court (1 R. 8., 118, sec. 17). (People ex of the third district: the justice rel. Dailey agt. Livingston, 80 N. of the latter court appointed C. Y., 66.) janitor for that court. The board of estimate and apportionment | 75. Section 1338 – Under this secmade an appropriation for the sal- tion of the Code of Civil Procedary of one janitor for said build- ure, where an order of general ing, conditioned however, sub- term, reversing a judgment enstantially, that no portion thereof tered upon the report of a referee, should be paid by the comptroller does not state that it was made on to either appointee until the ques. questions of fact, it will be deemed tion was judicially determined to have been made on questions of

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