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competent. (Pierson agt. The People, 79 N. Y., 424.)

50. Section 834-For the purpose of showing the falsity of representations of the insured as to the cause of death of his mother, defendant called a physician who testified that he attended her in her last illness; it did not appear that he ever visited or saw her at any other time or in any other than a professional capacity. The witness was then asked if he knew or was able to state the cause of her death; if he observed the symptoms she exhibited in her sickness; if the symptoms were such as might have been discovered by observation and physical examination, without the aid of any specific statement from the patient, or without their being confidentially disclosed by her, or any friend or attendant, or through any private examination; and also if the statement of the insurer as to the cause of death was true:

Held, (EARL, J., dissenting), that the questions, so far as material, were properly excluded.

The statute prohibiting a physician from disclosing any information which he acquired in attending a patient in a profes sional capacity, and which was necessary to enable him to prescribe. (2 R. S, 406, sec. 73; Code of Civil Procedure, sec. 834), includes information received through the sense of sight as well as that communicated through the ear. It needs not that an examination of a patient should be private to exclude information so derived; nor is it required that it should be shown in the first instance by formal proof that the information was necessary to enable the physician to prescribe.

The statute includes all knowledge acquired from the patient himself, from the statements of others surrounding him, and from observation of his appearance and symptoms.

The death of the patient does not remove the prohibition, and the physician cannot testify to the cause of death learned by him while attending the patient in a professional capacity.

A witness, not a physician, who saw the mother of the insured in her last sickness, was asked to state his conclusion in reference to the character of her disesse. This was objected to and excluded:

Held, no error. (Grattan agt.The Metropolitan Life Ins. Co., 80 N. Y., 282.)

51. Section 835-What communication between attorney and client not privileged under. (See Root agt. Wright, 21 Hun, 344.)

52. Section 872-Since the amendment which was made in 1879 to subdivision 6 of this section of the Code of Civil Procedure, it is requisite and necessary, in an affidavit on which an application is made for the examination of witnesses where no action is pending, to state what the circumstances are which render it necessary for the protection of the applicant's rights that the witnesses' testimony should be perpetuated.

The meaning of the amendment to subdivision 6 is to require the applicant to show that he is in danger of losing the evidence of his right before it could be judiciously investigated. To prove that such danger exists it is incumbent on the complainant to allege that he has an interest, present or contingent, in the property, and that the defendant has or claims to have an interest. He is further bound to show that he is in danger of losing his witnesses by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he could at once bring a suit, he is bound to show that it has been commenced. If no action is pending, he is obliged to explain why he is not

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able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment (an injunction for example) to an immediate trial in a court of law. (Matter of Ketchum's Application, ante, 154.)

53. Sections 875, 876- Examination of a party before trial-power of the court to refuse or limit the extent of it. (See Harrold agt. New York, &c., R. R. Co., 21 Hun, 268.)

54. Section 892-It seems, that while a judge, in settling interrogatories to be annexed to a commission to take testimony, is required to allow "any question pertinent to the issue" (Code of Civil Procedure, sec. 892), he has authority to disallow questions not pertinent, and hence to determine whether a question is pertinent or not.

The power to exclude questions, however, should be sparingly exercised. (Uline agt. Ñ. Y. C. and H. R. R. R. Co., 79 N. Y., 175.)

55. Section 911 -An appeal does not lie from an order annexing an improper question to a commission; it affects no substantial right, as the party may raise the objection on trial (Code, sec. 911). (Id.)

56. Sections 929, 930, 931-A copy of an account of defendant's firm as it appeared in the ledger of a foreign corporation, no objection being made for want of proper verification, was properly admitted as presumptive evidence, under these sections of the Code, of the account of work done by the firm for the corporation. (Derham agt. Lee, ante, 334.)

57. Section 974-Not designed to send a counter-claim made by a defendant to a jury, in an action which is referable by reason that the trial will involve the examination of a long account. (Brooklyn,

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Section 982- This action was brought in the county of New York to restrain the defendant Johnson, who had in his possession a satisfaction piece of a judg ment recovered by the plaintiff against the defendant Nelson, from delivering the same to Nelson. The complaint showed that Nelson owned real property in Ulster, but none in Kings county. The defendant, upon an affidavit stating that Nelson had sold the land in Ulster county, and then owned no real estate except in Kings county, moved for an order changing the place of trial to Kings county, on the ground that the action was brought "to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real," within the meaning of this section of the Code of Civil Procedure:

Held, that whether or not the action was within that section must be determined by the complaint, and that the decision of that question could not be affected by affidavits. That the action did not have for its object the recovery of a judgment establishing or otherwise affecting a right, lien,

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or other interest in real property, and that the motion was therefore properly denied. (Knickerbocker Life Ins. Co. agt. Clark, 22 Hun, 506.)

61. Sections 994, 997-Under the provision of these sections of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the court or a referee, the ten days allowed for that purpose did not begin to run until the entry of judgment, and notice thereof; the alternative stated therein, within such time as may be prescribed by the rules of the court," meant such further time as might be prescribed.

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or

A service, therefore, of a copy of a referee's report, and notice of filing, did not operate to limit the time to serve a case or exceptions.

Accordingly, held, that the rule of the supreme court (rule 34 of 1858, rule 47 of 1871 and 1874, and rule 32 of 1877), requiring a case to be served within ten days after written notice of the decision, or report was in conflict with the Code, and consequently inoperative.

The practice, in this respect, was not changed by the provision of the Code of Civil Procedure (sec. 994), providing that exceptions, taken after trial, may be taken at any time before the expiration of ten days after service of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon."

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While under this provision exceptions may be taken at any time after trial: they are not required to be taken until ten days after notice of judgment; and although no provision is made as to time for serving the case, as the case is required to contain the exceptions (Code, sec. 997), it need not, and cannot be served until after the exceptions are framed, and

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the party cannot be put in default for not serving a case containing them, before the expiration of the time allowed for framing them.

The exceptions referred to in said provision are not simply those taken on the trial.

It seems, that where a report of a referee, and notice of filing thereof, were served prior to the going into effect of the Code of Civil Procedure (Sept. 1, 187.), but no judgment had been entered, that even if the practice had been changed by the said Code, and the rule validated, the notice would not have become operative to limit the time for making a case to ten days after the Code went into effect; as the notice when served did not operate to limit the time, the new provision could not retroact to give it that effect, and a new notice should have been served. (French agt. Powers, 80 N. Y., 146.)

Section 999-Upon what grounds

a motion for a new trial on the minutes of the judge may be made. (See Robson agt. New York Central, &c., R. R. Co., 21 Hun, 387.)

63. Section 999 - This court can only review judgments and grant new trials for errors of law; and such errors must be pointed out by exceptions taken at a proper time.

Where, therefore, it is alleged that a verdict is perverse, excessive in amount, and contrary to the law and the evidence, the judgment entered thereon cannot be reviewed here without an exception.

This rule has not been changed by the provision of this section of the Code of Civil Procedure, in reference to the granting of a new trial by the judge presiding at the trial.

For such errors, it seems, the general term has power to grant a new trial in its discretion, although no exceptions were taken

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on the trial. (Standard Oil Co. agt. Amazon Ins. Co., 79 N. Y., 506.)

64. Section 1003-Where feigned

issues in an action are tried by a jury, and the judge presiding at the trial neither entertains a motion for a new trial nor directs exceptions taken at the trial to be heard at the general term, a motion for a new trial can only be made under this section of the Code of Civil Procedure at the special term, where the motion for final judgment is made, and before such judgment. (Chapin agt. Thompson, 80 N. Y., 275.)

65. Section 1005- The provision of this section of the Code of Civil Procedure providing for a motion for a new trial after judgment, has reference to a new trial of the action itself, not to a new trial upon the feigned issues which may have been awarded therein. (Id.)

66. Section 1013- Power of the court to order a compulsory reference under. (See Dane agt. Liverpool, &c., Ins. Co., 21 Hun, 259.)

67. Section 1021-Demurrer - an interlocutory judgment must be entered upon the decision of an issue of law. (See Liegeois agt. McCracken, 22 Hun, 69.)

68. Section 1023-Judge or referee cannot make additional findings on settlement of case - so far as rule 23 conflicts with this section it is inoperative. (See Palmer agt. Phoenix Ins. Co., 22 Hun, 224.)

69. Section 1059- Upon the trial of an indictment for murder, the prisoner challenged the array of jurors on the ground that, an order having been granted requiring the drawing of additional jurors, one of the boxes required to be kept by the clerk, i. e., that containing the names of jurors who had attended a term of the court, and served, had not been kept,

and was not brought into court as required by this section of the Code of Civil Procedure. The challenge was sustained; the prisoner thereupon withdrew it; a jury was impanneled and the trial proceeded:

Held, that the prisoner could withdraw his challenge, and that he thereby waived the irregularity. (Pierson agt. The People, 79 N. Y., 424.)

70. Section 1204- Where in an action for damages alleged to arise from the breach of a written contract to do advertising, a joint liability is charged against numerous defendants, among whom are C., A. and C., copartners, and the latter defendants answer jointly, admitting that they had dealings with and did advertising for plaintiff, but aver that all such dealings were several as to them and not joint with the other defendants, and thereupon such copartners set up counter-claims in their answer, to which counter-claims plaintiff demurs on the ground that all the defendants in this action are sued on a joint liability, that the said counter-claims are alleged in favor of said defendants separately, and that as between the said defendants and the plaintiff a separate judgment in this action cannot be had:

Held, that a demurrer to such an answer is ill, and that defendants are entitled to judgment for the amount due under their counter-claims.

Held, also, that plaintiff's position would have been well taken under the former common-law rule; but that the Code of Procedure has radically changed the former rule, and that now under this section of the new Code, judg ment may be given for or against one or more defendants; that the ultimate rights of parties on the same side, as between themselves, may be determined, and a defendant granted any affirmative relief to which he is entitled. (Clegg

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agt. American Newspaper Union, ante, 498.)

71. Section 1217- When judgment cannot be entered by default under. (See Clarke agt. Boreel, 21 Hun, 594.)

72. Section 1279-J., a naturalized citizen, died in 1866 intestate, and seized of certain real estate. He left him surviving his widow, his father, the defendant B., who was his sister, and the wife of a citizen, and two alien children of a deceased sister, who was an alien. The widow died in 1870. B., in 1873, by judgment in an action of ejectment, wherein she founded her claim upon her title by descent, recovered possession of the premises. She contracted to sell the same to plaintiff, in 1877. Upon submission of the controversy as to her title under this section of the Code of Civil Procedure, held, that the title to the premises vested in B., upon the death of her brother, that the act of 1874 (chap. 261 of Laws of 1874), amending the said provision of the act of 1845, by inserting after the words "resident alien," the words "or any naturalized or native citizen," could not operate to divest her estate thus acquired, and that, therefore, she could give a good title and was entitled to a performance of the contract. (Luhrs agt. Eimer, 80 N. Y., 171.)

73. Section 1279- Plaintiff was appointed by said commissioner janitor of the building occupied by the police court of the second district, and by the district or civil court of the third district: the justice of the latter court appointed C. janitor for that court. The board of estimate and apportionment made an appropriation for the salary of one janitor for said building, conditioned however, substantially, that no portion thereof should be paid by the comptroller to either appointee until the ques tion was judicially determined

that he was and that the other was not entitled to be paid:

Held,that the appropriation could only be availed of in an action or submission, to which both claimants were parties, and then only on establishing that the power to appoint janitors was exclusive, either in the court or the commissioner, and that there could be but one janitor; and that, therefore, plaintiff was not entitled to judgment upon a submission of the controversy under this section of the Code of Civil Procedure, as between him and the city, to which C. was not a party. (Kennedy agt. The Mayor, 79 N. Y., 361.)

74. Section 1323-- Where, under an adverse judgment in an action in the nature of a quo warranto, the defendant who was in the possession of the office, having a certificate of election from the duly constituted board of canvassers, was removed from the office:

Held, that upon reversal of the judgment here, the court had power and it was proper to compel restitution of the rights lost by means of the erroneous judgment (Code of Civil Procedure, sec. 1323); also, that the court could not look into the case to see which way the merits inclined as between the two contestants; the defendant having the adjudication in his favor required by the statutes, and by virtue of it having held and exercised the office, this is conclusive until the certificate has been corrected or shown to be false by judicial determination (1 R. S., 118, sec. 17). (People ex rel. Dailey agt. Livingston, 80 N. Y., 66.)

75. Section 1338-Under this section of the Code of Civil Procedure, where an order of general term, reversing a judgment entered upon the report of a referee, does not state that it was made on questions of fact, it will be deemed to have been made on questions of

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