REAL PROPERTY-Continued.
remainder therein, without merger — a paper referred to in the will, though void
as a testamentary disposition, considered to ascertain the testator's intent.

See MARTIN v. PINE.

-

Specific performance of a contract to exchange real estate — objections
known when the contract was made are not available — it is too late after one has
refused to perform to put the other party in the wrong.

See JONES . WITTNER

-

Condition subsequent in a grant in fee-enforcible only by the grantor
or his heirs-a forfeiture not defeated by the transmission of title- recovery of
the estate by reason of a forfeiture-proper party defendant.

See UPINGTON . CORRIGAN

Will devising land in parcels —power of the Legislature to authorize the
sale of the interests of infants therein - it cannot direct the deduction of the
value of life estates on separate parcels from the gross proceeds

See EBLING v. DREYER..

Building in process of erection by a contractor—right of the owner to
enter it action of ejectment to what cases applicable.

-

See SMITH v. REVELS.

Trust estate- undisposed of rents and profits belong to the person entitled
to the next eventual estate, not to the surviving beneficiary nor to the next of kin
of the deceased beneficiary.

See GOULD v. RUTHERFURD...

Damages to real estate caused by an elevated railroad — requests to find
benefits and advantages in detail- -no presumption that evidence was not consid
ered because not found.

PAGE.

426

283

488

319

213

280

See WAGNER v. N. Y. EL. R. R. Co....

445

taxes

sale.

Proceedings under chap. 107 of 1884 to obtain possession of land sold for
what title must be shown by one claiming under the purchaser at the tax
See MATTER OF ANDERSON..

170

Will-suspension of the power of alienation of real estate the husband
of a woman owning an estate in remainder is entitled to an estate by the curtesy.
See TROLAN v. ROGERS..

507

Application to sell real estate for the payment of a testator's debts — order
of sale-real estate referred to in Code of Civil Procedure, section 2763.
See MATTER OF LAWRENCE..

Riparian rights — mill on a water site — participation in the diversion
of the waters of a creek- reason for injunctive relief.

Doctrine of mutuality—right to compel specific performance of a con-
tract for the sale of land — when such contract will be reformed.

203

Temporary annoyance to an owner of real estate caused by building on an
adjoining lot - creates no claim for damages.

See LESTER . MAYOR, ETC...

479

When wife not guilty of laches in relying upon her husband to prepare a
deed-deed from a husband to his wife — when calid in equity.

-

See BROWN v. BROWN..

44

-

Covenants in a deed, not enforcible in equity, justify the allowance of
damages at law — unmarketable title.

See FOURTH PRESBYTERIAN CHURCH v. STEINER

314

Partition brought by a remainderman — when the remainder is vested —

proper parties.

See LEVY T. LEVY..

290

INDEX.

REAL PROPERTY -Continued.

-

"Incumbrances"—when "taxes" are not included therein.
See MILLER v. EHEINZWEIG..

What provisions in a will create a life estate.

See BUMPUS v. BUMPUS..

a receiver

See VENDOR AND PURCHASER.

PAGE.

RECEIVER-Action by the general creditors of a firm for the appointment of
maintainable against a limited, but not against a general partner-
ship.] 1. While an action by the general creditors of a firm for the appoint-
ment of a receiver, and the disposition of its assets, is maintainable against
a limited partnership, it is not against a general partnership.

HARDT V. LEVY (No. 1.).

2. Objection to the acts of a receiver erroneously appointed — when too
late.] A receiver, appointed of the assets of a general partnership, in an
action brought by its general creditors, without opposition on the part of the
members of such firm, took possession of the estate and performed services
in relation thereto which the members of such firm well knew entailed upon
him, as an officer of the court, much labor and expense.

Held, that it was too late for them, after the facts had been within their
knowledge for over two years and a half, to strip the receiver of all the money
in his possession, treat him as a trespasser, and leave him to personally bear
the burden of expenses necessarily and in good faith incurred by him while
attempting to carry out the orders of the court;

That the receiver should be permitted to render an account of his proceed-
ings and make such disposition of the money in his possession as to the court
might seem to be in accordance with law and justice. Id.

- order for examination concerning
3. Refusal to deliver property to him
the property. A receiver was appointed in an action of all the pianos received
by the defendant and in his custody, and of all contracts for the sale of pianos
made on installments, and of all leases, and of all amounts uncollected
thereon; and the defendant was ordered to deliver to the receiver all contracts
and leases and all books, papers and accounts relating thereto.

1

526

348

Held, that on the failure of the defendant to deliver any such books of
account it was proper to direct him by an order of the court to appear for
examination concerning the disposition of the pianos and the amounts due
MATHUSHEK PIANO MFG. Co. v. PEARCE........ 417
from any parties thereon.

4. It is not an examination of an adverse party to be used as evidence.]
That such examination was not that of a party to an action at the instance of
his adversary to be used as evidence, and it was not necessary to set forth in
the moving affidavits the statements required by the Code of Civil Procedure
in proceedings to obtain such an examination. Id.

5. Appointed in supplementary proceedings — execution not returned
unsatisfied- — a junior judgment creditor cannot take advantage of the irregu-
larity when waived.] The appointment of a receiver of a judgment debtor
in proceedings supplementary to execution, instituted upon an affidavit
which states that the execution issued against the judgment debtor has been
returned unsatisfied, when the fact is otherwise, will not be set aside upon
the motion of a junior judgment creditor, as none but the judgment debtor
can take advantage of such an irregularity, and where he has consented to the
appointment of such receiver, he has thereby waived the same.
BAKER V. BRUNDAGE.

6.

Order permitting an action to be brought against a receiver -
A court will not permit its officer, while pro-
when it will not be granted.]
ceeding in the discharge of a duty imposed upon him by the court and in

382

RECEIVER-Continued.

the manner directed by it, to be subjected to the annoyance and vexation
of an action, charging that he is a trespasser while performing the commands
of the court. HARDT V. LEVY (No. 2).

PAGE

... 351

Motion to vacate a warrant of attachment—when it may be made by a
receiver competent affidavit - a waiver of a defect in a complaint by the corpo-
ration does not conclude the receiver.

See KNORR v. N. Y. STATE MUT. BENEFIT LIFE ASSN....
Receiver of a partnership — when not appointed on the application of the
surviving partner.

83

See BOOTH v. SMITH....

884

Action of partition — receiver of the rents and profits— grounds for his
appointment.

See BATHMANN v. BATHMANN..

477

When a receiver may be appointed.

See BUFFALO CHEM. WORKS v. BANK OF COMMERCE...

-

RECORD - Order granted under section 3 of chapter 438 of 1884-may be
made ex parte may be vacated on notice — notice of hearing thereon may be
directed.

-

99

195

REFERENCE - Code of Civil Procedure, § 1228-taking of testimony by a
referee after the filing of his report—the Special Term has no power to permit or
direct it proper way to correct an error.

See MCCREADY v. FARMERS' L. & T. Co

The General Term has no power to grant an extra allowance to the suc
cessful party upon a reference to determine the amount of compensation due from
a party to an action to his attorney therein.

See GRIGGS v. BROOKS..

REFORMATION- Of a contract.

See CONTRACT.

Of deeds.

See DEEDS.

RELEASE- Restoration of money received under an instrument before attach-
ing it for fraud.

241

894

807

REPAIRS:

See LANDLORD AND TENANT.

REPLEVIN -Judgment in replevin for the recovery of bonds when not a
bar to the recovery of interest collected thereon.

PAGE

See GOVIN . DE MIRANLA..

329

Action to recover a chattel -

value fixed as of the time of trial.

541

See DUFFUS v. SCHWINGER.

RES ADJUDICATA:

See JUDGMENTS.

RESTORATION - Of money received under an instrument before attaching
it for fraud.

See CONTRACT.

REVOCATION — Of will.

See WILL.

RIPARIAN RIGHTS - Enforced by injunction.] 1. It is the right of ripa-
rian owners to have the waters of natural surface streams flow in their channels
subject only to such reasonable use by those owning lands higher up on the
streams as does not cause a diversion of the waters to the prejudice of the
usufruct of those below, and, as a rule, the riparian owners are entitled to
relief by injunction when necessary for their protection against such
diversion. CHACE v. WARSAW WATER Co......

.. 151

2.. Mill on a water site.] Although a mill on a water site may not be
very valuable for practical purposes, the right of the owner thereof to the
full benefit of his water privilege cannot for that reason be lawfully invaded
or impaired, and the water which would otherwise reach his premises be
diverted therefrom, nor can he for that reason be deprived of his right to
relief by injunction if he be otherwise entitled thereto. Id.

3. Participation in the diversion of the waters of a creek.] On the trial
of an action brought to restrain a corporation from diverting the waters

RIPARIAN RIGHTS-Continued.

of a creek from their natural channel, it was shown that the defendant sup-
plied the village wherein the plaintiff resided with water from the creek in
question and from other sources, and that the plaintiff's dwelling house in
such village was supplied with such water for domestic purposes, but it
appeared that when such corporation first commenced to supply water to
the plaintiff none of its water supply was taken from such creek.

PAGE.

Held, that such use of the village water by the plaintiff was not such a
participation in the diversion complained of as to deny to the plaintiff the
right to assert that, as against him, the diversion of such water by such
corporation was unlawful and prejudicial. Id.

4.-

Reason for injunctive relief.] A well-recognized reason for granting
an injunction rests in the fact that it will prevent the necessity of a multi-
plicity of suits which might, and very likely would, be the consequence of
the denial of equitable relief. Id.

RISK-Under policy of insurance
See INSURANCE.

RIVER:

See WATERCOURSE

RIVER BANKS:

See RIPARIAN RIGHTS.

-

ROCHESTER - Police justice of Rochester-authority to try charges made
under section 322 of the Penal Code — chapter 204 of 1893 a valid provision of
lavo - chapter 14 of 1880 repealed by implication chapter 143 of 1861 - chapters
384 of 1887 and 561 of 1890 unconstitutional — “local courts” defined — statutes,
how construed.

See PEOPLE v. UPSON....

Charter of the city of Rochester-notice to an official of the defective con-
dition of a street.

See SMITH v. CITY OF ROCHESTER.

RULE-The General Term of the Supreme Court has power to change an attor
ney upon the application of his client, under the provisions of rule 10 of the Gen-
eral Rules of Practice.

See GRIGGS v. BROOKS...

SALE Payment guaranteed" written by an alleged vendee upon bills of
merchandise made out to him by the vendor does not turn the sale into a
guaranty.

87

174

394

See JONES v. NEWTON..

436

Executory contract for sale of personal property — liability of vendor for
breach of warranty - damages must be proved.

See HOOPER v. STORY..

53

Vendor's lien on personal property — enforcement and collection of pur•
chase price not obtained on the sale.

For a debt given to a surety — enforcible by the creditor.
See PRINCIPAL AND SURETY.

1