of annotating the same or closely related matters under two headings and in two places and even of separating conflicting cases on precisely the same point. Such defect is caused by using both affirmative and negative headings, like "Particulars granted" and "Particulars not granted." Such faulty method necessarily sacrifices accuracy, clearness and conciseness. Such defect may be avoided and all related matters annotated under one heading by using only affirmative headings and by using the Star (*) to denote the negative. Herein the precise point of every case is presented by means of a Headline, often covering

many cases. plus a Subline followed by a reading note. All Headlines are made from the Text of the Rule annotated, and are arranged in natural sequence. Each Headline is affirmative, like "Particulars granted"; the negative is denoted by the Star (*), which means, reading "Not" into the Headline. "Particulars not granted." All unstarred cases show what particulars are granted, and all starred cases show what particulars are "not" granted. Do not confuse the Headline printed in capitals with the Subline printed in lower case black face.

EDITORIAL NOTES—

Source: General Rules of Practice 47, last paragraph, and 83. See CPA § 63, subdivision 3. General Rule 47, last paragraph, was formerly Rule 49 of 1877; Rule 46 of 1880; Rule 46 of 1884; Rule 46 of 1888; Rule 47 of 1896; Rule 47 of 1900; Rule 47 of 1910; Rule 47 of 1913. General Rule 83 was formerly Rule 96 of 1871; Rule 96 of 1874; Rule 90 of 1877; Rule 84 of 1880; Rule 84 of 1884; Rule 84 of 1888; Rule 83 of 1896; Rule 83 of 1900; Rule 83 of 1910; Rule 83 of 1913. General Rule 47, last paragraph, read: "The Appellate Division in any department may make such further or different regulations upon these subjects as it may deem proper." General Rule 83 read: "The Appellate Division in each department, and the various courts of record, may make such further rules in regard to the transaction of business before them respectively, not inconsistent with the foregoing rules as they in their discretion may deem necessary."

Text in italics is new matter, inserted June 17, 1921.

Civil Practice Act references: General powers of courts of record to devise and make

new process and forms of proceedings, CPA § 63, subd. 3.

Civil courts of record: court for trial of impeachments, court of appeals, appellate divisions, supreme court, court of claims. county courts, surrogate courts, city court of the city of New York, city court of Yonkers, municipal court of the city of New York, and such other local courts as are now constituted courts of record (Judiciary Law, § 2; Municipal Court Code, § 1).

Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. COURT RULES AUTHORIZEDAppellate Divisions: First Department, Special Term Rule 14, regulating the practice of referees and the notice to be given of judicial sale and effect of such notice of sale (Francis 72 AD 15, 76 NYS 106). Appellate Terms: (See infra). Court of Appeals: (See infra).

Court of Claims: (Court of Claims Act § 14). New York City Court: (NY City Court Act § 45).

New York City Municipal Court: (NY City
Municipal Court Code, § 8).
Surrogate's Court: (See infra).

EDITORIAL NOTES—

Source: Surrogate's Court Act § 316 (as revised by L 1920, c 928, from CCP § 2770, as revised by L 1914, c 443, from CCP § 2538) verbatim, except rule heading and except "of" omitted after "context" and "of law or" omitted after "provision." Text in italics is new matter, inserted in SCA 316 as revised by L 1920, c 928, from CCP 2770, which read: * a provi

sion of this chapter, all other portions of this act, and the general rules of practice apply to surrogates' courts," etc. Revisers' Note of 1921: Rule 3 is stated by the Rules Committee to be "new," whereas as early as 1880 it was inserted as "new in CCP § 2538 from which SCA § 316 was originally revised, as above stated. Revisers' Note of 1920: SCA § 316 is stated to be CCP § 2770, "without change," whereas its wording has been changed, as above noted, under "Text in italics." Revisers' Note of 1914: On account of enlarged jurisdiction, jury trial, etc., we omit specifications of certain parts, namely, title first, and articles third and fourth of title sixth, of chapter eighth, and articles first and second of title third of chapter ninth, of the Code of Civil Procedure, and include all the Code, as limited by the

language used in CCP § 2538 as originally inserted in 1880.

Revisers' Note of 1880: CCP § 2538 is new. CCP $$ 721-730, entitled "Mistakes, omissions, defects, and irregularities," are made applicable to surrogates' courts, thereby introducing a new rule. CCP 796-802. entitled "Service of Papers," are also made applicable, codifying the prevailing prac tice. Likewise CCP §§ 803-809, entitled "Discovery of books and papers,' 3, already applicable by 2 RS. 221, § 6. Also CCP §§ 870-886, entitled "Deposition taken and to be used within the State," new to such courts. So also CCP §§ 887-913, entitled "Depositions taken without the State for use within the State," already applicable to surrogates' courts.

Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. APPLICABLE PROVISIONS то SURRO

GATE'S COURTAppeal and error: stay of proceedings by filing of undertaking on motion for leave to appeal (Kennedy's Estate 110 Mis 92, 179 NYS 765).

Bonds, undertakings and sureties: (*Surrogate's Court Act §§ 105-117). Commissions and compensation: of execu tors, administrators, guardians and trustees (Surrogate's Court Act 285).

Costs: granting of, to proponent on appeal where general term made no direction (Hatten 6 Dem 446).

Costs and fees: (*Surrogate's Court Act §§ 275-284, 286-287). Depositions: application for commission to take, where issue pending (Shannon 180 AD 214, 167 NYS 472); taking of outside of state (Plumb 19 NYS 79). Discovery: examination of proponent before trial (PxLew 229 NY 84; Carter 193 AD 355, 184 NYS 39; Hodgmann 113 Mis 215, 184 NYS 185; PvFowler 107 Mis 253, 176 NYS 806; PvFowler 189 AD 335, 178 NYS 500, rvg 107 Mis 253, 176 NYS 806; *Hodgmann's Will 107 Mis 70, 175 NYS 608); examination of witnesses before trial (Delaplaine 6 Dem 269); filing of notice, question not decided (McGovern 5 Dem 425). Executors and administrators: notice of rejection of claim (Miller 147 AD 214, 131 NYS 1041); physical examination before trial, question not decided (Leland 175 AD 56, 161 NYS 315); public administrator, distribution of balance payable to unknown persons (Hammer 105 Mis 721, 174 NYS 887).

Guardians: (*Surrogate's Court Act §§ 172194).

Order to show cause: shortening time of notice of (*See Filley's Estate 20 NYS 427). Proceedings, pleadings and process: (*Surrogate's Court Act §§ 48-87).

Reference: indorsement by referee of rulings on requested findings (Troughton's Estate 101 Mis 386, 166 NYS 1077). Trial by jury: (Bull 111 NY 624; see Corley 149 NY 228).

Verdiot: certification to surrogate's court by clerk of court in which tried (See Hatten 22 AbNC 66n).

Wills, probate of: judge's direction to jury to render verdict subject to his opinion (Dorsey 94 Mis 566, 157 NYS 662); motion for judgment on special verdict, by whom made and where (Dorsey 94 Mis 566, 157 NYS 662); motion for new trial on judge's minutes without case (Dorsey 94 Mis 566, 157 NYS 662); parties who may contest probate of (*Zimmerman 104 Mis 516, 172 NYS 80); set aside verdict and for new trial (Dunn 94 Mis 578, 158 NYS 119); waiver of jury trial (*Carnright 180 AD 21, 167 NYS 438).

EDITORIAL NOTES

Source: General Rule of Practice 11. excepting oral stipulations in open court. Formerly Law Rule 64 and Equity Rule 84; Rule 40 of 1849; Rule 37 of 1852; Rule 13 of 1858; Rule 16 of 1871; Rule 16 of 1874; Rule 11 of 1877; Rule 11 of 1880; Rule 11 of 1884; Rule 11 of 1888; Rule 11 of 1896; Rule 11 of 1900; Rule 11 of 1910; Rule 11 of 1913. General Rule 11 read: "No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel." Text in italics is new matter, inserted in Rules of Civil Practice in 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. OBJECT OF RULE—

Relieve courts: from constant determination of controverted questions of fact arising as result of oral stipulations (Mutual Life Ins. Co 146 NY 275, 40 NE 787; Paterson 83 Hun 492, 32 NYS 32; Keeler 7 NYS 199; Mason & Hamlin Organ Co 19 Hun 282). HISTORY

Formerly: rule 16 of Supreme Court, dating as far back as 1796 (PvStephens 52 NY 306).

ORAL AGREEMENTS BETWEEN PARTIES OUT OF COURT ARE VOIDAdjournment: of trial (Shadwick 3 Cai 129). Disbursements: amount of (Rust 8 AbNC

148).

Discontinuance: of separation suit (Rogers 4 Paige 516).

ORAL AGREEMENTS BETWEEN ATTORNEYS OUT OF COURT ARE VOIDAdjournment: motion in Court of Errors (Chamberlain 2 Cow 243); of trial (Griswold 1 Johns 507).

Calendar: to try case improperly on (Kennedy 126 AD 551, 110 NYS 894). Commission to take testimony: consent to (Mason & Hamlin Organ Co 19 Hun 282). Compromise: of claim (Schlesinger 88 NYS 1042).

Contractual: containing mutual rights and obligations (Grand St Realty Co [Jan 10, 1922] 66 NYLJ 1251). Discontinuance: (Connell 21 Mis 609, 48 NYS 77; Gaillard 6 Cow 382). Extension of time: to answer (Friedland 136 AD 6, 120 NYS 126; Wager 3 Paige 407); to put in special bail and plead (Broome 1 Sandf 664); to set aside judgment entered on referee's report (Leese 3 How 63). Mortgage foreclosure: forbearance to sue (Bradford 25 AD 581, 49 NYS 521); vacation of deficiency judgment, agreed to by managing clerk of plaintiff's attorney (Mutual Life Ins Co 146 NY 275, 40 NË 787).

Referee: hearing before (See DeSimone 164 AD 956, 149 NYS 1078); postponing report of until testimony of certain witnesses obtained (Combs 1 Cai 147). Representation acted upon: party making it cannot be permitted to retract and take advantage of acts or omissions of his adversary (PvStephens 52 NY 306; Zweeker 135 AD 432, 120 NYS 425; Montgomery 6 How 326; Stinnard 1 How 169; Turner 1 Hill 627; Grand St Realty Co [Jan 10, 1922] 66 NYLJ 1251).

Undertaking: waiving filing of, in appeal from justice's to county court (Lauch 85 Mis 491, 148 NYS 933).

Venue: change of (Parker 7 Johns 320). Waiver: of irregularities (Bain 2 Cai 95). Writing withdrawn: correspondence proposing terms of settlement withdrawn before acceptance but subsequently agreed orally (Keeler 7 NYS 199).

to

ORAL AGREEMENTS BETWEEN ATTORNEYS ON ENTERED ORDER ARE BINDING

Trespass: four cases of, to abide the event of case first tried (Dubois 3 Johns 145). Venue: change of, not obtained by fraud (Fitch 18 How 314).

ORAL STIPULATIONS BETWEEN COUNSEL IN OPEN COURT ARE BINDING Contract: whether sum fixed intended as penalty or liquidated damages (Staples 41 Barb 648).

Easements: of light and air arranged for accommodation of both parties by defend. ant (Banks 4 SandfCh 438).

Execution: not to issue until certain time had elapsed (Jewett Clark's Ch 247). Issues: of cause except damages to abide result of another case pending (Slaven 64 Hun 506, 19 NYS 492).

Referee: extending indefinitely time to report (Ballou 55 NY 673; Livingston 25 How 1); waiving objection master's report not timely (Corning 7 Paige 587). WHO CONCLUDED BY STIPULATION— Both parties: evidence at prior trial available at second trial under general stipulation although situation changed since first trial (Clason 152 NY 204); evidence in case on appeal to be used as sole evidence on second trial (Ryan 154 NY 328); from appeal to court of appeals, after stipulating to abide by decision of general term (Townsend 15 NY 587).

Defendant: agreeing it never acquired certain easements, as alleged in complaint cannot thereafter claim the contrary (Driscoll 95 AD 146, 88 NYS 745); concession by attorney for at prior trial available at second trial although claimed concession made for special reasons at first trial (Converse 16 AD 49, 44 NYS 1080).

AGREEMENTS RELATING TO MATTER IN ACTION OR PROCEEDING Abide decision: of appellate division, both parties to (Townsend 15 NY 587), defendant city, without prejudice to plaintiff's right to appeal to Court of Appeals (Px Burby 85 Hun 601, 33 NYS 165); two causes to abide event of two others, after latter had been tried (Malin 1 Cai 117). Referee: extending indefinitely time to report (Ballou 55 NY 673; Sproull 45 AD 575, 61 NYS 404); parties agreeing orally on trial before referee to allow him to fix his own compensation (*First Nat Bk 77 NY 476).

CASES SINCE ORAL STIPULATIONS BETWEEN COUNSEL IN OPEN COURT ARE BINDINGBill of particulars: correctness of items in (Thaler-Tucker Dress Co 192 NYS 775). Contract: extension of time for performance (Chozo Yano 192 NYS 647).

Issues: confined to those arising on complaint, deferring those arising on counterclaim (Handal 201 AD 278, 194 NYS 216). Partnership accounting: amount to be allowed for office furniture (Culver 200 AD 887, 192 NYS 345). WRITTEN AGREEMENTS BETWEEN PARTIES ARE BINDING

Facts: whether certain clause of contract complied with (Kissen 192 NYS 328). WRITTEN AGREEMENTS BETWEEN ATTORNEYS ARE BINDING—

Settlement: of controversy (Smith 82 AD 608, 81 NYS 1057).

Sureties: withdrawal of exception to (Zweeker 135 AD 432, 120 NYS 425). STIPULATIONS AVOIDED— Abandonment: agreement for speedy trial (Crowell 91 Hun 638, 36 NYS 1124). Compromise: agreement between attorneys tantamount to, though entered into under mistake of law, no fraud being shown (*Montgomery 6 How 326).

Discretionary: with trial court, whenever parties can be restored to same condition they would have been if no agreement made (Barry 53 NY 536).

Fraud: by plaintiff's attorney against his clients in agreeing with defendant's attorney to vacate arrest order (Seaver 1 Hun 305). Judgment: reduction of, as condition of affirmance by General Term, subsequently reversed by Court of Appeals (Crim 32 Hun 350).

Mistake of law and fact: by defendant's attorney (Becker 13 How 23). Reversal on appeal: of judgment for injunction granted on condition that stipulation be signed (Hine 149 NY 154).

Unadvisedly or inadvertently: signed by counsel representing municipality (Mayor of NY 9 WkD 558).

WHAT COURT MAY ENFORCE STIPULATION

Court of Appeals: has power to enforce stipulations made by parties in the subordinate courts (Townsend 15 NY 587). STIPULATIONS WITHIN RULEWritten stipulations: between parties or attorneys (Schweinburg 131 AD 795, 116 NYS 318).

EDITORIAL NOTES—

Source: General Rule of Practice 46 and CPA § 73, both rewritten. General Rule 46 was formerly Rule 87 of 1852; Rule 53 of 1858; Rule 57 of 1871; Rule 57 of 1874; Rule 48 of 1877; Rule 45 of 1880; Rule 45 of 1884; Rule 45 of 1888; Rule 46 of 1896; Rule 46 of 1900; Rule 46 of 1910; Rule 46 of 1913. General Rule 46 read: "On appeal from a justice's judgment, where a County Court has not jurisdiction, by reason

of

relationship, etc., a notice of motion for an order to compel the justice to amend his return may be given in twenty days after the date of the certificate of the county judge, and not after that time." Civil Practice Act references: Incapacity of county judge or special county judge, CPA § 73; removal of action to supreme court from county court, CPA § 190. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1.

EDITORIAL NOTES

Source: General Rule of Practice 6, time of notice shortened to three days; other ver

bal changes but without intended change of substance. Formerly Law Rule 13; Rule 6 of 1849; Rule 6 of 1852; Rule 8 of 1858;