# In re Yawger

> Appellate Division of the Supreme Court of the State of New York · November 28, 1899 · 61 N.Y.S. 1152

URL: https://www.frixlaw.com/law-library/cases/7337511

## Case

- **Full name:** In re YAWGER
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** November 28, 1899
- **Citations:** 61 N.Y.S. 1152
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

No opinion. Parts of the decree appealed from amrmed, with costs against the appellant personally.
*1153 INDEX ABATEMENT AND REVIVAL. ACCOUNT STATED. Right of action by or against personal representative, see “Executors and Administrators,” § 6. ABUTTING OWNERS. Assessments for expenses of public improvements, see “Municipal Corporations,” § 5. Compensation for taking of or injury to lands or easements for public use, see “Eminent Domain,” §§ 1, 3. ' ACCEPTANCE. Of goods sold in general, see “Sales,” 3. ACCIDENT. Admissibility of evidence determined.—Traitel v. Dwyer (City Ct. N. Y.) 1100. ACTION. Actions between parties in particular relations, see “Master and Servant,” § 8; “Partnership,” § 2. Election of remedy, see “Election of Remedies.”' Jurisdiction of courts, see “Courts.” Particular forms of action, see “Trespass,” § 2; “Traver and Conversion.” - remedies in or incident to actions, see-“Attachment” ; “Discovery.” Review of proceedings, see “Appeal”; “Certiorari” ; “Judgment,” § 4. Submission of controversy to court without action, see “Submission of Controversy.” Suits in equity, see “Equity.” . ause of personal injuries, see “Negligence,” § 1. ACCORD AND SATISFACTION. ee “Compromise and Settlement.” ACCOUNT. ee “Account Stated.” ccounting by executor or administrator, see “Executors and Administrators,” § 7. - by trustee, see “Trusts,” § 5. 1. Proceedings and relief. To make available a defense that a decree of e surrogate on defendant’s previous accounting an administrator was conclusive on plaintiff, fendant should allege the jurisdictional facts, ose v. Durant (Sup.) 15. sufficient answer to an objection that the irt, in ordering an accounting as to property an intestate, did not specifically state that intate had interest in the property, is that the e was whether plaintiff was entitled to the punting.—Rose v. Durant (Sup.) 15. ‘ at there were other persons interested held objection to an order for accounting, as for referee, in his report, if there were others insted, could make provision for their protec.—Rose v. Durant (Sup.) 15. finding that a fiduciary relationship existetween the parties, a judgment for an acting held proper.—Rose v. Durant (Sup.) 15. 61 N.Y.S.—73 (11 Actions by or against particular classes of pa/rties. See “Carriers,” § 1; “Master and Servant,” § 9; “Municipal Corporations,” § 8; “Partner- - ship,” § 3; “Receivers,” § 3. Assignees, see “Assignments,” § 2. Corporate officers, see “Corporations,” § 5. Stockholders, see “Corporations,”- § 4. Particular causes or grounds of action. See “Account Stated”; “Bills and Notes,” § 6; “Bonds,” § 2; “Conspiracy,” § 1; “Insurance,” ' §§ 3, 5; “Libel and Slander,” § 4: “Money Received”; “Negligence,” § 3; “Penalties,” § 1; “Traver and Conversion,” § 2; “Work . and Labor.” Breach of contract, see “Contracts,” § 6? . “Sales,” § 7. - of warranty, see “Sales,” § 7. Discharge from employment, see “Master and : Servant,” § 1. Particular causes or grounds of action, sea-“Trespass.” Personal injuries, see “Master and Servant,”" § 8. Price of goods, see “Sales,” § 6. Recovery of price paid for land, see “Vendor and Purchaser,” § 4. - of tax paid, see “Taxation,” § 2. Rent, see “Landlord and Tenant,” § 6. Taking of or injury to property in exercise of power of eminent domain, see “Eminent Domain,” § 3. Particular forms of special relief. See "Account”; “Creditors’ Suit”; “Divorce”; “Partition,” § 1; “Specific Performance.”
*1154 1154 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. Construction of will, see “Wills,” § 4. Dissolution of partnership, see “Partnership, § 4. Enforcement or foreclosure of lien, see Mechanics’ Liens,” § 6. Setting aside assignment for benefit of creditors, see “Assignments for Benefit of Creditors,” § 3. Particular proceedings in actions. See “Costs” ; “Damages” ; “Depositions” ; “Evidence” ; “Execution”; “Judgment”; “Limitation of Actions” ; “Parties” ; “Process” ; “Trial” ; “Venue.” Default, see “Judgment,” § 3. Offer of judgment, see “Judgment,” § 2. § 1. Grounds and conditions precedent. Where a suit in equity was brought by Indians to recover possession of wampum belts, held, that a demand on defendant for their delivery was a necessary prerequisite to the action.—Onondaga Nation v. Thatcher (Sup.) 1027. § 2. Nature and form. Action for 'damages for nondelivery of goods should not be changed to replevin.—Brookstone v. Wescott Exp. Go. (Sup.) 72. A complaint held such that the action did not ■sound in tort, so as to exclude a counterclaim, "but to declare on a contract.—Stoneman v. Van "Vechten (Sup.) 513. ADMISSIONS. As evidence, see “Evidence,” § 4. AFFIDAVITS. See “Depositions.” In attachment proceedings, see “Attachment,” § 2. AGENCY. See “Principal and Agent.” AGREED CASE. Submission of controversy to court, see “Submission of Controversy.” AGREEMENT. See “Contracts.” ALIENS. See “Indians.” ALIMONY. See “Divorce,” § 2; “Husband and Wife,” § 4. ■§ 3. Joinder, splitting, consolidation, and severance. An action uniting several causes of action in the same complaint held maintainable, in view of Code Civ. Proc. § 484.—Whiting v. Elmira Industrial Ass’n (Sup.) 27. A complaint, alleging for a cause of action ■damages resulting from a conspiracy on the part •of defendants in the libeling and slandering of plaintiff and the unlawful taking of certain of "its property, is not demurrable because of improp•erly uniting causes of action.—IColel America 'Vatiferes Jerusalem v. Eliach (Sup.) 935. ;§ 4. Commencement, prosecution, and termination. Decision of appeal in another action between same parties held not to settle pending controversy, and hence motion to stay pending such appeal was denied.—Lowenstein v. Schiffer (Sup.) ion • ADEQUATE REMEDY AT LAW. "Effect on jurisdiction of equity, see “Equity,” ADMINISTRATION. 'Of estate of decedent, see “Executors and Adenmistrators.” Of property by receiver, see “Receivers,” § 1. Of trust property, see “Trusts,” § 4. ADMIRALTY. See “Shipping”; “Towage.” ALTERATION OF INSTRUMENTS. See “Reformation of Instruments.” • AMENDMENT. On appeal, see "Appeal,” § 14; “Pleading,” § 4. ANIMALS. In action to recover damages for injuries to plaintiff’s horse, caused by'its being bitten by vicious dog belonging to defendant, notice of th dog’s vicious disposition to defendant’s forema' held notice to the owner.—Niland v. Geer (Sup., 696. Where plaintiff’s child was bitten by defend ant’s dog, in order to recover plaintiff mus show that the defendant had notice of the dog’ vicious disposition.—Strubing v. Mahar (Sup. 799. ANNEXATION. Of territory to municipal corporation, see “Mi nicipal Corporations,” § 1. APPEAL. Accounting by executor or administrator, s “Executors and Administrators,” § 7. Assessment of taxes, see “Taxation,” § 1. Costs, see “Costs,” § 4. Review of agreed statement of facts, see “S mission of Controversy.” - of proceedings of justices of the peace, “Justices of the Peace,” § 2.
*1155 INDEX. 1155 § 1. Nature and grounds of appellate jurisdiction. Leave will not be granted to appeal to the court of appeals, in order that a question oí law may he determined, where the decision of the appellate division was based on a question of fact.—Village of Bronxville v. New York, W. & C. Traction Co. (Sup.) 719. $ 2. DecisioEs reviewable. Code Civ. Proc. § 3056, providing for course to he pursued on appeal, whore justice is unable (o make a return, licit} to apply to appeals from the municipal court. — Walker v. Baermann (Sup.) 91. An appeal can he taken from an order directing a peremptory mandamus.—People v. Hertle (Sup.) 965. No appeal lies from a default judgment — Reidy v. Bieistift (City Ct. N. Y.) 915. Where demurrer to complaint is sustained, defendants may appeal from so much of the order as denies them costs.—ICellar v. Shrady (City Ct. N. Y.) 1123. § 3. Right of review. One who is not a party to the proceeding cannot bring an appeal.—People v. Sanborn (Sup.) 529. § 4. Presentation and reservation in lower court of grounds of review. Defendant, on appeal in a proceeding for an accounting, held precluded from urging an objection as to parties.—Rose v. Durant (Sup.) 15. Under Code Civ. Proc. § 992. a question of fact in a case tried by the court may be reviewed, without exceptions, if the record is certified to contain ail the evidence.—1-Iill v. White (Sup.) 515. Objections to a charge will not he considered where no exception was taken.—Naily v. Hitchcock (Sup.) 902. Exceptions to denial of motion for nonsuit ifld insufficient on appeal.—Gowing v. Warner (City Ct. N. Y.) 500. An objection to the appearance of a receiver f a party in a proceeding prior to the notice of ippp.nl cannot be first raised on appeal.—ICubin -. Miller (City Ct. N. Y.) 1121. 5. Requisites and proceedings for transfer of cause. Two successive holidays, followed by a Sunday, eld to extend the limit of appeal to the Monday Bowing.—Lucia v. Omei (Sup.) 659. Where an order required modification in a ma-.rial matter, the facts that more than 10 days ■as occupied in malting the correction, and that ic corrected order was made to take effect nunc •o tune, will not affect the right to appeal.— ubin v. Miller (City Ct. N. Y.) 1121. Service of a copy of an order for judgment, ithout notice of the entry of the original, is no't fficient to limit the time in which to appeal; id a notice of appeal served before service of e notice of entry is sufficient.—Kubin v. Miller ity Ct. N. Y.) 1121. § 6. Supersedeas or stay of proceedings. Order staying proceedings on a judgment, to allow parties to appeal after being notified of judgment against them disposing of all issues of the case, held an abuse of discretion.—Bauer v. Parker (Sup.) 1021. Under Code Civ. Proc. c. 12, tit. 1, § 1310, and-Id. tit. 2. § 1326, letters testamentary cannot issue to executors while the decree admitting the will to probate is pending on appeal.—In re Gibon’s Will (Sur.) 244. § 7. Record and proceedings not in record—Matters to be shown by record. In an action in the municipal court of New York City for a money judgment, the failure of the record to show defendant’s residence within the jurisdiction of the court is fatal.—De Sis-to v. Stimmel (Sup.) 57., Failure of the record on appeal from a judgment for plaintiff in the New York municipal court to show where defendant resides is fatal. —R. H. Wolf & Co. v. Ritt (Sup.) 61. A judgment of the municipal court for plaintiff will be reversed where the record fails to show that defendant resides within the jurisdiction of the court.—Bang v. McAvoy (Sup.) S3. Where the record fails to show that defendants resided within the jurisdiction of the court, judgment for plaintiff will be reversed.—White v. Holding (Sup.) 771. A judgment of the municipal court for plaintiff will be reversed where it does not appear that defendant resides within the territorial jurisdiction of the court.—Price v. Bisen (Sup.) 805. A judgment of the municipal court in favor of plaintiff will be reversed where the record does not show that defendant resides within the territorial jurisdiction of the trial court, and the defendant attacks the judgment on that ground. —Currier v. Roseff (Sup.) 83S. It must appear from the record that the defendant resides within the jurisdiction of the trial court.—Bristor v. Flaherty (Sup.) 872. § 8. - Scope and contents of record. A judgment will be affirmed, on appeal, where the record discloses a conflict of evidence on a disputed question of fact, and it does not appear that injustice has been done.—Pascareia v. Manello (Sup.) 838. § 9. —— Defects, objections, amendment, and correction. Code Civ. Proc. § 3056, held to provide proper course to be pursued on appeal, where the testimony taken at the trial has been lost, and, therefore, not included in the return.—Walker v. Baermann (Sup.) 91. A defense with relation to which no findings of fact were made by the trial court cannot be considered on appeal. — Goddard v. American Queen (Sup.) 133. Where evidence showing that chattel mortgagees did not take immediate possession was received without objection, defendant cannot object for the first time on appeal that such
*1156 1106 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. ground of invalidity was not alleged in the complaint.—Robinson v. Hawley (Sup.) 138. An objection to a question as incompetent, and an exception, does not give the excepting party any broader ground for argument on appeal than was fixed by the objection.—Marquis v. Wood (City Ct. N. Y.) 251. An objection to evidence which does not state grounds is not available on appeal.—Marquis v. Wood (City Ct. N. Y.) 251. §10. —— Questions presented for review. Where the evidence is not returned, it is presumed that it was sufficient to support the findings.—Drake v. Beil (Sup.) 657. Where the only exception taken was to the denial of a motion for new trial, the only question for review was whether the verdict was against the weight of evidence.—Trenkmann v. Schneider (City Ct. N. Y.) 920. §11. Dismissal, withdrawal, or abandonment. An appeal from a judgment and an order denying a new trial should he dismissed when the motion for a new trial was not made until after the taking of the appeal.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 12. Hearing and rehearing. The fact that the appellate court did not, in its opinion, detail the evidence and circumstances showing the process by which it reached its conclusion, is not ground for reargument.—Edgerley v. Long Island R. Co. (Sup.) 677. Under Sup. Ct. Rule 4, App. Div. Rule 8, and Code, § 323, a motion for a reargument of an appeal in the city court or appellate term must be made to the general term not later than at the next succeeding term after the decision.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. §13. Review—Scope and extent in general. On an appeal from the city court of New York, the weight of evidence cannot be considered.—Mahoney v. O’Neil (Sup.) 69. Under Code Civ. Proc. § 1002, evidence cannot be reviewed when the appeal was taken and notice thereof given before the motion for new trial was filed and overruled.—Fraser v. Alpha Combined Heating & Lighting Mfg. Co. (City Ct. N. Y.) 1129. § 14. — Amendments, additional proofs, and trial of cause anew. A letter of a justice of the municipal court as to conclusions drawn will not be considered on appeal from his judgment, where it is not submitted for consideration until after submission of the appeal.—Routenberg v. Schweitzer (Sup.) 84. §15. —— Presumptions. On appeal from dismissal of a complaint, plaintiff's testimony must he taken as true, and given the benefit of all inferences which the jury might properly have found in plaintiff’s favor, had the case been submitted.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. §16. - Discretion of lower court. The decision of the court in setting aside a verdict as against the weight of evidence will not be disturbed, unless the record shows an abuse of discretion.—Bauer v. Metropolitan St. Ry. Co. (Sup.) 164. Discretion of trial court in refusing to permit plaintiff to amend his complaint on ground of loches held not reviewable.—Dennison v. Mus-grave (Sup.) 188. Refusal of motion to dismiss is reviewable.— Jacot v. Marks (Sup.) 1040. The exercise of a referee’s discretion to open a case, after the evidence is closed, to permit a party to give new evidence, will not be reversed, unless abused.—De Witt v. Mon jo (Sup.) 1046. §17. - Questions of fact, verdicts, and findings. The jury’s finding on conflicting evidence will not be disturbed, where it does not appear that the defeated party’s testimony was entitled to greater credit than his opponent’s.—Barrett v. New York Cent. & H. R. R. Co. (Sup.) 9. Judgment based on conflicting evidence will not be disturbed.—Donnelly v. Vanbeuren (Sup.) 57. Scrutiny of evidence held necessary only so far as to enable the court to determine whether the conclusions of the city court were sufficiently supported by any evidence,—Poliak v. Metropolitan St. Ry. Co. (Sup.) 92. A verdict based on conflicting evidence will not be disturbed.—Banta v. Merchant (Sup.) 218. The finding of a referee on conflicting evidence will not be disturbed.—Darling v. Hunt (Sup.) 278. The decision of a question of fact by a referee on conflicting testimony should not be disturbed.—Nugent v. Metropolitan St. Ry. Co. (Sup.) 476. Questions of fact -litigated before a referee must be considered as conclusively disposed of by his finding, though not specifically referred to in his report.—Lennon v. Ingersoll (Sup.) 668. • A referee’s finding, in a proceeding for contempt in violating an injunction, made on an inspection by consent of the parties, as well as on the evidence, cannot he reviewed.—Braisted v. Brooklyn & R. B. R. Co. (Sup.) 674. ' A verdict will not be disturbed, as against th weight of the evidence, where it is not so clearlj preponderating as to warrant an interference.Driscoll v. Nelligan (Sup.) 692. The supreme court will not reverse a judgmen on the ground that the verdict was contrary t the weight of the evidence, where it was ren dered on conflicting testimony, and the tri judge has denied a motion for a new trial. Cushman v. De Mallie (Sup.) 878. Findings of the jury on questions of fact in mandamus case held conclusive on the supre court at special term.—People v. Hertle (Sup 965. A verdict on conflicting evidence will not disturbed.—Moissen v. Rooney (Sup.) 1004.
*1157 INDEX. 1157 The supreme court will not interfere with a verdict on conflicting evidence.—Aron Pelt v. Chapter General of American Knights of St. John and Malta (Snp.) 1010. A verdict based on conflicting evidence will hot he disturbed.—Franken v. McAIpin. (City Ct. N. Y.) 406. Verdict for plaintiff on conflicting evidence will not he disturbed where there is evidence to sustain it.—Stephens v. Cowen (City Ct. N. Y.) 025. §18. - Harmless error. It is not prejudicial error to sustain an objection to evidence, where witness had previously testified to the fact.—Northam v. International Ins. Co. (Sup.) 45. Where substantial justice does not require it, an appellate court will not grant a new trial on. errors in ruling of the lower court; such refusal being authorized by Code Civ. Proc. § 1003.— Smith v. Balcom (Sup.) 777. Error in charging that one injured in alighting from a car was conceded to be a passenger was harmless, though he was a trespasser; the charge imposing only ordinary care on the company.— Rosenberg v. Third Ave. R. Co. (Sup.) 1052. § 19. -Decisions of intermediate courts. Where the evidence is conflicting, it will not be weighed on appeal from a judgment on a referee’s report.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. § 20. —— Subsequent appeals. AA'here no exceptions are filed to the decision on a trial to the court, the only questions reviewable are those raised by exceptions to rulings.— Buell v. City of Johnstown (Sup.) 1060. } 21. Determination and disposition of cause. On appeal from order granting new trial on vidonco introduced after the trial and on minies of trial judge, the court is not bound by the act that they are in opposition to conclusions of rial judge.—Driscoll v. Nelligan (Sup.) 692. Where referee dismissed the complaint on the rroneous assumption that the case was submitted n limitations set up in answer, and the record lows submission on the question of the comlaint only, the plaintiffs were entitled to a rersal.—Field v. Pinkus (Sup.) 1038. On the reversal of a judgment for a defendlt, who has interposed a general denial and a untorclaim, the case must be sent back for w trial.—Block v. Garfield (City Ct. N. Y.) S. APPEARANCE. t was error, where defendant appeared special-to pass on a question beyond the subject sub-ted for determination by the special appear-e.—Stone v. Smith (City Ct. N. Y.) 1106. APPLIANCES. bility of employer for defects, see d Servant,” § 5. “Master APPOINTMENT. Of executor or administrator, see “Executors and Administrators,” § 2. Of guardian, see “Guardian and Ward,” § 1. ASSESSMENT. Of compensation for property taken for public use, see “Eminent Domain,” § 2. Of expenses of public improvements, see “Municipal Corporations,” § 5. Of tax, see “Taxation,” § 1. ASSIGNMENTS. For benefit of creditors, see “Assignments for Benefit of Creditors.” Transfers of particular species of property, rights, or instruments, see “Mortgages,” § 4. § 1. Requisites and validity. An assignment of a portion of a fund in the hands of a third person to the credit of assignee held an assignment pro tanto.—Danvers v. Lu-gar (Sup.) 778. § 2. Actions. In an action on an assignment of what might be dne assignor on a contract for work, legal set-offs which defendant had after the contract’s completion should be allowed.—McMann v. Meehan (Sup.) 58. Assignment of money may be enforced without making assignor party.—Danvers v. Lugar (Sup.) 77S. A complaint alleging the assignment of a claim to plaintiffs from a firm held sufficient.—Crinnian v. Knauth (Sup.) 976. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See “Bankruptcy,” § 1. § I. Requisites and validity. If, after property is delivered to the assignee under an assignment for creditors, he allows it to escape from his possession, the assignment is not invalidated.—Troescher v. Cosgrove (Sup.) 1036. § 2. Administration of assigned estate. Right to vend assigned property in existence passed to the assignee, though a trade-name thereon, which his assignor was . entitled to use exclusively, did not.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. An assignment by an insolvent corporation does not vest in the assignee the right to sell the corporation’s exclusive right to use a trade-name as against the original owner.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. Declarations of an agreement held to contemplate payment of rent by a tenant who was to be procured, and not an assignee to whom the lease passed under assignment.—Baehrach v. Leventritt (Sup.) 343.
*1158 1158 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. § 3. Rights and remedies of creditors. Facts held to show that certain moneys received by an assignor from his wife did not create a debt to her.—Patehen v. Waefelaer (Sup.) 949. The inclusion by an assignor in his schedule of liabilities of a pretended debt to his wife of $15-500, and the payment, three days before his assignment, of $1,500 interest thereon, is sufficient to invalidate his assignment.—Patehen v. Waefelaer (Sup.) 949. The omission from the inventory and schedules in an assignment for creditors of personal property in fact delivered to the assignee is not fraud sufficient in itself to warrant setting aside the assignment.—Troescher v. Cosgrove (Sup.) 1036. § 4. Accounting, settlement, and discharge of assignee. The question whether an action will lie to remove an assignee for misconduct, and to obtain an accounting, cannot be raised by demurrer to the complaint.—Morrell v. Ball (Sup.) 405. ASSOCIATIONS. See “Beneficial Associations” ; “Exchanges.” ATTACHMENT. § 1. Property subject to attachment. Where the owner of shares of corporate stock deposited same as security for a loan, his reversionary interest or right to the possession of the stock upon the payment of the loan is property, and subject to levy by attachment.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 2. Proceedings to procure. Affidavit held sufficient to justify warrant on the ground that defendant was about to dispose of her property with intent to defraud creditors. —Fox v. Mays (Sup.) 295. § 3. 'Writ or warrant. Warrant held sufficient.—Fox v. Mays (Sup.) 295. § 4. Levy, lien, and custody and disposition of property. The last clause of Code Civ. Proc. § 649,. subd. 3, applies only to domestic corporations.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. Where the question as to whether, or not, a certain levy under attachment is valid, is presented, the same is properly determinable upon proceedings to enforce the levy, and not upon a motion to set aside and vacate the levy.—Simpson v. Jersey City Contracting Co. (Sup.) 1033. § 5. Quashing, vacating, dissolution, or abandonment. In deciding a motion to vacate, only the sufficiency of the papers before the court when the attachment was granted should be considered.— Fox v. Mays (Sup.) 295. That the cause of action alleged in the affidavit was incorrectly described in the warrant would not justify vacation, if a good cause was alleged in the affidavit.—Fox v. Mays (Sup.) 295. That the warrant contained superfluous averments would not justify vacation.—Fox v. Mays (Sup.) 295. Though Code Civ. Proc. § 682, does not provide that an attachment against a foreign state may be vacated on motion of a United States attorney, the court will vacate such an attachment on his motion, since the court has no jurisdiction of such an action.—Hassard v. United States of Mexico (Sup.) 939. ATTORNEY AND CLIENT. § 1. Retainer and authority. A client is not liable for work in printing briefs in his case, when the work was done for, and the credit extended to, the attorney, without instructions from or notice to the client.— Livingston Middleitch Co. v. New York College of Dentistry (City Ct. N. Y.) 918. § 2. Compensation and lien of attorney. A counterclaim, in an action by an attorney to recover for professional services, held not to state facts sufficient to constitute a cause of action against plaintiff.—Kissam v. Bremerman (Sup.) 75. Where the parties to an action for damages settle by plaintiff withdrawing his action, nothing being paid in settlement, his attorney is not entitled to prosecute the action in aid of his lien. —Burpee v. Townsend (Sup.) 467. AVhere the sum paid in settlement of an action without the knowledge of the plaintiff’s attorney will serve as a basis for fixing the amount of his lien for services, it is not necessary to continue the action of which settlement was made in order to enforce such lien.—Schriever v. Brooklyn-Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, a defendant who, without the knowledge of plaintiff’s attorney, settled with the plaintiff, who was irresponsible, becomes liable for the lien for services of such attorney.—Schriever v. Brooklyn Heights R. Co. (Sup.) 644. Under Code Civ. Proc. § 66, giving a lien t attorneys on a cause of action, an attorney can not be allowed or compelled to prosecute a com promised case to judgment, in order to enfore his lien, when the compromise is made withou his consent.—Schriever v. Brooklyn Heights R Co. (Sup.) 890. An attorney has a lien, irrespective of sta ute, upon a surrogate’s decree for his servie rendered in the proceedings resulting in such d cree.—In re Regan (Sur.) 1074. Code Civ. Proc. § 66, does not give an attorn a lien against a surrogate’s decree rendered b fore the amendment to such act was passed gi ing an attorney’s lien in special proceedings.In re Regan (Sur.) 1074. AUTHORITY. Of agent, see “Principal and Agent,” § 2. Of attorney, see “Attorney and Client,” § 1.
*1159 INDEX. 1158) BAILMENT. See “Innkeepers”; “Livery Stable Keepers”; “Pledges.” BALLOTS. See “Elections,” § 2. BANKRUPTCY. See “Assignments for Benefit of Creditors.” § 1. Assignment, administration, and distrilration of bankrupt’s estate. A complaint to set aside a transfer voidable under bankrupt act need not allege the evidence, nor show why a creditor had cause to believe the transfer was intended to give a preference.— Orooks v. People’s Nat. Bank (Sup.) 604. Allegations of a complaint to set aside a transfer by a bankrupt held sufficient to show that a creditor would receive by an assignment a greater percentage of his debt than other creditors.— Orooks v. People’s Nat. Bank (Sup.) 604. An allegation that the effect of a transfer will be to enable a creditor to obtain a greater percentage of his debt than other creditors, and to obtain a preference, is an allegation of a fact, and not a conclusion.—Crooks v. People’s Nat. Bank (Sup.) 604. Facts held to bring a case within the bankruptcy act, making voidable a transfer before bankruptcy giving a preference.—Crooks v. People’s Nat. Bank (Sup.) 604. In a complaint to set aside a transfer as voidable under the bankrupt act, the value of the debtor’s property and the extent of his indebtedness need not be set out.—Crooks v. People’s Nat. Bank (Sup.) 604. BANKS AND BANKING. A bank held not required to account for funds of an estate deposited by an executor in his own name.—Woodbridge v. First Nat. Bank (Sup.) 258. § 3. Savings banks. A savings bank held not entitled to make a person for whose benefit a deposit was made a party defendant to an action to recover it by the depositor’s administrator, who alleged that such person was fictitious.—Washington, v. Seaman’s Bank for Savings (Sup.) 971. BASTARDS. § 1. Property. The domestic relations law, legitimatizing illegitimate children whose parents afterwards marry, does not, because it protects against the devestment of ail estate or interest vested at the time of the marriage, devest all estate or interest which has vested since; and, if it did,- it would be void, under Const, art. 1, § 6.—In re Barringer’s Estate (Sur.) 1090. BENEFICIAL ASSOCIATIONS. . Records of a beneficial association, showing that amendments to by-laws had been favorably voted on by three-fourths of the members present at the meeting voting therefor, it will be presumed, in the absence of evidence to the contrary, that all members present participated in the vote.— Cowan v. New York Caledonian Club (Sup.) 714. A member of a beneficial association, in arrears for over a year, and liable to have his name stricken from the rolls, held not in good standing, so as to be entitled to benefits.—Cowan v. New York Caledonian Club (Sup.) 714. By-laws of a mutual benefit association held reasonable and valid.—Cowan v. New York Caledonian Club (Sup.) 714. § I. Banking corporations and associations. Const. 1846, art. 8, §§ 1-3, held to apply to ank corporations.—Barnes v. Trevor (Sup.) 85. The stock corporation law (Laws 1890, c. 564, 58) held not to relieve stockholders of an insolent bank from claims against it for depositsarnes v. Trevor (Sup.) 85. A stockholder, who is also a creditor of an inolvent bank, cannot set off its debt to him gainst his statutory liability.—Barnes v. Trevor up.) 85. 2. Functions and dealings. Where an executor deposited estate funds in a nk in his own name, there is no contractual lotion between the bank and the estate, renting the bank liable to account to the estate.— Woodbridge v. First Nat. Bank (Sup.) 258. A bank, in the absence of notice of an adverse im, has the right to assume that 1 Rev. St. p. 709, restricting brokers’ fees for negotiating loans, applies to a contract for a loan procured while such statute was in force, although such statute was subsequently changed.— Anderson v. Dwyer (City Ct. X. Y.) 1114. CALENDARS. Of causes for trial, see “Trial,” § 2. CARRIERS. § 1. Carriage of goods. Damages cannot be allowed, in an action for nondelivery of goods, -where there is no depreciation in value and the goods are tendered back to the consignor.—Brookstone v. Wescott Exp. Co. (Sup.) 72. A contract for transportation of goods, limiting the carrier’s liability, held not to relieve it from liability for a loss by its negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for loss of goods shipped under a contract limiting its liability, evidence as to the value of the goods held admissible, where the loss was due to carrier’s negligence.—Marquis v. Wood (City Ct. N. Y.) 251. In an action to recover for a portion of goods lost in shipment, evidence as to the value of those delivered, as fixing relatively, the value of those not delivered, is admissible.—Marquis v. Wood (City Ct. N. Y.) 251. A provision in a bill of lading that the carrier shall not be liable for any loss or breakage does not exempt the carrier from its own negligence.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. Evidence held to raise a presumption that defendant was negligent in handling freight in its possession as a carrier.—Hutkoff v. Pennsylvania R. Co. (City Ct. N. Y.) 254. $ 2. Carriage of passengers — Relation between carrier and. passenger. Where a passenger notified the conductor where to let him off, but was carried by through fault of the conductor, and was permitted to remain on the car till its return trip, he remained a passenger, though he paid but one fare.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. 3. —— Personal injuries. Evidence held to justify a finding that a pasenger's fall from a street car was due to its egligent operation.—Brainard v. Nassau Elecric R, Co. (Sup.) 74. Evidence held not to warrant a finding that a epression in a flight of stairs at station was the roximate cause of accident to plaintiff.—Rusk . Manhattan Ry. Co. (Sup.) 3S4. Failure to put sand or ashes on light snow or in ice at platform near railway station held ot negligence.—Rusk v. Manhattan Ry. Co. up.)' 384. Presence of a light snow and thin ice at platform near railway station will be presumed due to the snow-storm prevailing, so that railway company was not negligent in not clearing it off. —Rusk v. Manhattan Ry. Co. (Sup.) 384. Street railroad’s failure to provide a safe place for passengers to alight held sufficient to require the submission of plaintiff’s negligence, in stepping on a parallel track in front of another car, to the jury.—Wise v. Brooklyn Heights R. Go. (Sup.) 530. An instruction that the burden was on defendant to show that the accident causing the injury to plaintiff did not occur by reason of defendant’s negligence held erroneous. — Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence held insufficient to support a finding of negligence in the operation of a street ear, which ivas suddenly stopped, throwing plaintiff from her seat in the car to the floor.—Hoffman v. Third Ave. R. Co. (Sup.) 590. Evidence that the conductor of an open street car did not stop it, though he knew plaintiff was on the side step, and that a passing truck was dangerously close, held sufficient to support a finding that defendant was negligent. — Faris v. Brooklyn City & N. R. Co. (Sup.) 670. Passenger held entitled to assume that an engine would approach a car on which she entered so as not to cause her injury, and not to be required to look for its approach.—Jones v. New York Cent. ■ & H. R. R. Co. (Sup.) 721. Evidence held, sufficient to go to the jury on question whether conductor of a street car knew plaintiff intended to alight, and was negligent in prematurely starting his car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. Negligence cannot be attributed to street-railway company, where passenger, after the car had stopped, and then started up, stepped off, without notice, from the front platform.—Steuer v. Metropolitan St. Ry. Co. (Sup.) 1059. § 4. - Contributory negligence of person injured. A man ivho surrenders his seat in a crowded street car to a w-oman, and stands on the running board of the ear is not, as matter of law, negligent.—Brainard v. Nassau Eledtrie R. Co. (Sup.) 74. Riding on the running board of a crowded street car is not, per se, negligence.—Brainard v. Nassau Electric R. Co. (Sup.) 74. Where a passenger was injured by being struck by a street car on a parallel track from the one from which he alighted, evidence held sufficient to require the submission of the question of his negligence to the jury. — Wise v. Brooklyn Heights R. Co. (Sup.) 530. A passenger on the side step of a street car, who was injured by a passing truck, held not guilty of contributory negligence, when he tried to enter the nearest cross aisle in the car upon seeing his peril.—Faris v. Brooklyn City & N. R. Co. (Sup.) 670. A passenger on a crowded ear, standing on the running board, injured by striking a van
*1162 1162 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. while looking for a seat, held not guilty of negligence, as a matter of law.—Henderson v. Nassau Electric ft. Co. (Sup.) 690. It is not negligence per se for a passenger to alight from a street car without taking hold of the railings to guard against sudden movement of the car.—Schaefer v. Central Crosstown Ry. Co. (Sup.) 806. § 5. - Palace cars and sleeping cars. Allowing a valise to. stand in the aisle of a dimly-lighted car, where passengers are likely to stumble over it, is negligence.—Levien v. Webb (City Ct. N. Y.) 1113. Contributory negligence of a passenger, who was injured by stumbling over a valise left in the aisle of the sleeping car, held for the jury. —Levien v. Webb (City Ct. N. Y.) 1113. CAUSE OF ACTION. See "Action.” CERTIORARI. CHATTEL MORTGAGES. § 1. Requisites and validity. Evidence held sufficient to show that chattel mortgages were fraudulent in fact as to judgment creditors.—Robinson v. Hawley (Sup.) 138. § 2. Rights and liabilities of parties. Mortgagee, purchasing at chattel-mortgage sale, held liable for conversion of property to pri- or lienholder, although a year had elapsed at time of sale from date of filing the lien, which had not been refiled.—American Box Mach. Co. v. Zentgraf (Sup.) 417. § 3. Rights and remedies of creditors. Chattel mortgages held invalid, as against a prior executed judgment confession, not filed until after the execution of the mortgages, where the mortgagees failed to show that they took possession within a reasonable time.—Robinson v. Hawley (Sup.) 138. •. Chattel mortgage on hay held not void because of an agreement that the mortgagor might feed certain of the hay before sale under the mortgage.—Spurr v. Hall (Sup.) 854. § 1. Nature and grounds. Where plaintiff alleges that the disallowing of a claim by him as constable, on ground that he-was not constable, was illegal, as involving collaterally a trial to the office, his remedy is by certiorari, and not by action.—Adams v. Town of Wheatfield (Sup.) 738. § 2. Proceedings and determination. Under Code Civ. Proc. §§ 2138, 2139, in proceedings to review dismissal of an officer, affidavits of third parties cannot he considered, where returns were made both by the officer dismissing him and such officer’s successor.—People v. York (Sup.) 400. A return denying knowledge as to whether witnesses in proceedings sought to be reviewed were sworn, and alleging a custom to receive unsworn testimony, held an admission of an allegation that unsworn' testimony was received.—People v. York (Sup.) 400. CHANCERY. See “Equity.” CHANGE OF VENUE. Of civil action, see “Venue,” § 2. CHOSE IN ACTION. Assignment, see “Assignments.” CITIES. See “Municipal Corporations.” CITIZENS. See “Indians.” CLAIM AND DELIVERY. See “Replevin.” CLAIMS. Against county, see “Counties,” § 1. - estate of decedent, see “Executors and Administrators,” I 4. - town', see “Towns,” § 2. CLASS LEGISLATION. See “Constitutional Law,” § 2. CLUBS. CHARITIES. § 1. Creation, existence, and validity. A bequest for charitable uses held intended for a branch organization attached to a particular church, and not for the chief society.—In re Fitzsimmons’ Will (Sur.) 485. A bequest for charitable uses held valid, under Acts 1893, c. 701, § 1, providing that a bequest should not fail for indefiniteness of beneficiaries. —In re Fitzsimmons’ Will (Sur.) 485. Where a club, at a meeting of its members directs its president to purchase realty for club site, an officer subsequently empowered b; the trustees has no authority to purchase tin site; the power conferred by the club bein. superior to that of the trustees.—Kirwan v. Bar ney (Sup.) 122. COLLATERAL ATTACK. On judgment, see “Judgment,” § 5.
*1163 INDEX. 1163 COLLECTION. CONDITIONS. Of estate of decedent, see “Executors and Ad•ministrators,” § 3. Precedent to action, see “Action,” § 1. COMBINATIONS. See “Conspiracy.” CONFESSION. Of judgment, see “Judgment,” § 1. COMMISSIONS. CONFIDENTIAL RELATIONS. Of broker, see “Brokers,” § 1. Of trustee, see “Trusts,” § 5. • COMMITTEE. Guardianship of insane persons, See “Insane Persons,” § 1. Disclosure of § 1. communications, see “Witnesses,”" CONSIDERATION. Of bill of exchange or promissory note, see “Bills and Notes,” § 1. Of contract, see “Contracts,” § 1. COMMON CARRIERS, CONSPIRACY. See “Carriers.” COMPARATIVE NEGLIGENCE. See “Negligence,” § 2. COMPENSATION. For property taken for public use, see “Eminent Domain,” § 1. For services, see “Master and Servant,” § 2. Of attornei', see “Attorney and Client,” § 2. Of executor or "administrator; see “Executors and Administrators,” § 7. f trustee, see “Trusts,” § 5. § 1. Civil liability. A complaint which, for a cause of action, alleged a conspiracy in the doing of certain acts which resulted in damage to plaintiff, is demurrable, since a conspiracy to do certain things, the doing of which caused damage, does not, of itself, constitute a cause of action upon which a recovery can he had.—Kolel America Vatiferes Jerusalem v. Eliach (Sup.) 935. CONSTABLES. See “Sheriffs and Constables.” CONSTITUTIONAL LAW. COMPETENCY. f experts as witnesses, see “Evidence,” § 7. f witnesses in general, see “Witnesses,” § 1. COMPLAINT. n civil actions, see “Pleading,” § 1. COMPROMISE AND SETTLEMENT. A fair settlement of an action for personal iniries will not be set aside because defendants died to employ plaintiff after he got well, ough they promised it as part consideration for e settlement.—Szymanski v. Chapman (Sup.) 0. See “Jury,” § 1. § 1. Distribution of governmental powers and functions. Laws 1899, c. 700, § 1 et seq., providing that municipal corporations shall pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official duties, is unconstitutional.—In re Straus (Sup.) 37. " § 2. Privileges or immunities, and class legislation. Laws 1895, c. 322, § 1, prohibiting use of soft coal in certain portions of city of Brooklyn, held not a grant of exclusive privilege by a local act, within Const, art. 3, § 18—City of Brooklyn v. Nassau Electric R. Co. (Sup.) 33. CONCLUSION CONTEMPT. witness, see “Evidence,” § 7. CONDEMNATION. king property for public use, amain. see “Eminent CONDITIONAL SALES. “Sales,” § 8. § 1. Acts or conduct constituting contempt of court. A litigant’s false swearing will justify a finding that he is guilty of contempt of court.—Bernheimer v. ICelleber (City Ct. N. Y.) 1125. § 2. Punishment. Code Civ. Proc. § 111, which prohibits successive terms of imprisonment, does not apply where the earlier commitment is founded on mesne process, and a second commitment is ordered under
*1164 1164 i 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. final judgment in the samp action.—Reese v. Rees (Sup.) 760. Under Code Civ. Proe. § 2284, a person may he fined for an omission to perform an act, without any order requiring him to perform the act.—Hommel v. Buttling (Sup.) 811. A fine, imposed for contempt for false swearing, of the amount of plaintiff’s judgment, held not excessive.—Bernheimer v. Kelleher. (City Ct. N. Y.) 1125. CONTEST. Of will, see “Wills,” § 3. CONTINUANCE. Amendment of a complaint, averring that a car was “stopped” to permit plaintiff to alight, so as to conform to proof that it was moving “very slowly,” held not cause for suspension of the trial.—Rosenberg v. Third Ave. R. Co. (Sup.) 1052. CONTRACTS. Agreements within statute of frauds, see “Frauds, Statute of.” Contracts of municipalities, see “Municipal Corporations,” §§ 4, 5. Damages for breach, see “Damages,” § 2. Novation, see “Novation.” ■Operation and effect of customs or usages, see “Customs and Usages.” Particular classes of express contracts, see “Bills and Notes”; “Covenants”; “Insurance” ; “Joint Adventures”; “Landlord and Tenant” ; “Liens’”; “Principal and Agent” ; “Principal and Surety”; “Sales”; “Vendor and Purchaser.” - employment, see “Master and Servant.” - separation agreements, see “Husband and Wife,” § 4. Particular modes of discharging contracts, see “Compromise and Settlement” ; “Payment.” Reformation, see “Reformation of Instruments.” Specific performance, see “Specific Performance.” '§ 1. Requisites and validity. Failure of contractor to disclose information regarding the' character of the subject-matter of contract with the state held not to invalidate it. —People v. Roberts (Sup.) 148. A contract for a lower price, after delivery •and acceptance at a certain price, is without consideration.—O’Sullivan v. New York Lumber Corp. (Sup.) 493. Where defendant promised that, if windows placed in his house by mistake were left, he would pay for work done, leaving the windows is a consideration for the promise.—Drake v. Bell (Sup.) 657. Evidence held not to show contract by defendant to pay plaintiff for services rendered third .person— Balmford v. Peffer (Sup.) 787. , The fact that parties to a tripartite agreement attempted to obtain possession thereof after it had been delivered to plaintiff held not sufficient to show want of delivery.—Day v. Dow (Sup.) 793. Money paid by an employe’s wife, under an employer’s agreement to refrain from arresting his employs, in an action to recover money alleged to have been stolen by him, held paid under duress.—Jaeger v. ICoenig (City Ct. N; Y.) 505. A wife’s agreement to pay her husband’s employer money in consideration of the employer’s forbearance to arrest her husband, in an action to recover money which it was alleged he had stolen, held an agreement to refrain from a civil arrest merely, and not to- amount to the compounding of felony.—Jaeger v. Koenig (City Ct. N. Y.) 505. § 2. Construction and operation. A contract that may be discontinued “in” three months cannot be discontinued after the expiration of such time—Feree v. Moquin-Offerman-Hessenbuttel Coal Co. (Sup.) 120. . On a contract by defendants to pay plaintiff a certain price for all ice used by them for two years, he cannot recover for ice purchased by them from others.—Banker v. Willard (Sup.) 447. Contract authorizing owner to make “omissions” held to refer to things abandoned, and not those given to some other contractor to perform. —Gallagher v. Hirsh (Sup.) 609. § 3. Modification and merger. In an action to recover for ice sold under a contract, evidence held, to raise a question for the jury as to plaintiff’s intention to modify the original contract as to the price.—Taylor v. Citizens’ Ice Co. (Sup.) 213. In an action to recover for ice sold under contract, evidence held admissible to show a modification of the contract as to the price. Taylor v. Citizens’ Ice Co. (Sup.) 213. 4. Rescission and abandonment. The giving of a note as provided in a contrae does not, in the absence of evidence of furthei or different agreement, constitute a waiver o rights under the contract.—Richardson & Morga~ Co. v. Gudewill (City Ct. N. Y.) 1120. 5. Performance or breach. Where plaintiff contracted to phy all of de fendant’s obligations as shown on the latter’ books, held, in the absence of misrepresentation,, he was bound by the books.—State Bank Napier (Sup.) 779. Whether or not delay of third person in d livering building material justified a contrac or’s failure to complete contract in time spe ified held question for jury.—McLaren Fischer (Sup.) 808. Delay of contractor for 51 days to comple building contract held prima facie unreaso able, and places burden of excusing same o contractor.—McLaren v. Fischer (Sup.) 808. § 6. Actions for breach. Code, § 519, does not authorize introduction i evidence to prove an implied contract, where express one is pleaded.—Dennison v. Musgra (Sup.) 188.
*1165 INDEX. 1165 Complaint setting forth, contract and its breach held to state good cause of action, though theory of damages was erroneous.—Kraft v. Rice (Sup.) 3G8. Complaint alleging pledge of liquor to secure a note, and payment, and refusal to return liquor, does not state breach of contract without alleging demand for return.—Kraft v. Rice (Sup.) 308. A contract cannot be considered, on demurrer to a complaint for its breach, which did not refer to the contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Facts held insufficient to constitute a cause of action for breach of contract.—Baez v. Cleveland School-Furniture Co. (Sup.) 407. Nature of contract, as set out by the pleadings, held for the jury.—Gallagher v. Hirsh (Sup.) 609. CORONERS. Laws 1897, c. 378, §§ 1570, 1571, held to abolish the office of county coroner within the territory of Greater New York as it theretofore existed.—Tuthill v. City of New York (Sup.) 968. CORPORATIONS. Particular classes of corporations, see “Municipal Corporations”; “Street Railroads," § 1. - banks, see “Banks and Banking,” § 1. § 1. Incorporation and organization. In an action against a stockholder for an indebtedness of the company because the capital stock was not fully paid in, evidence held sufficient to support a finding of an overvaluation of the property when the company was organized. —White, Corbin & Co. v. Jones (Sup.) 21. An answer to an action on a written contract, which alleged an agreement outside the writing and did not seek to reform the contract, but to repudiate it, held insufficient.—International Food Co. v. Beckerd (Sup.) 1001. Where defendant’s answer to an action on a contract alleged a counterclaim, to which she would not be entitled if the contract was valid, and did not allege that it was void, the answer •as insufficient.—International Food Co. v. leckerd (Sup.) 1001. Action for a breach of a contract held mainainable, in the form brought, to recover a balnce of salary due under such contract.—Purdy . C. C. White Paper Mfg. Co. (City Ct. N. Y.) 54. Admission of evidence of a special contract held rroneous, where plaintiff had elected to proceed n a quantum meruit.—Morris v. Sire (City Ct. “. Y.) 1098. Where complaint alleges due performance of ritten contract, plaintiff cannot show omissions, nperforraance, and waiver.—Bloch v. Remelius Yty Ct. N. Y.) 1124. CONTRIBUTORY NEGLIGENCE. e “Negligence,” § 2. CONVERSION. rongful conversion of personal property, see ‘Traver and Conversion.” CONVEYANCES. veyances of particular species of property, e “Easements,” § 1. mortgaged property, see “Mortgages.” § 5. fraud of creditors, see “Fraudulent Conveyces.” trust, see “Trusts,” § 1. ticular classes of conveyances, see “Assignents for Benefit of Creditors”; “Chattel ortgages” ; “Deeds” ; “Mortgages.” § 2. Corporate existence and. franchise. One who had recognized a corporation de facto, and officially directed its affairs, held estopped to assert, when sued by it, that it lacked corporate existence.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. Refusal to find that one corporation carried on its projects through the agency of another corporation held proper.—In re Griffin’s Will (Sup.) § 3. Capital, stock, and dividends. Mere recording of a certificate reciting that a company’s stock was fully paid up held not to terminate stockholder’s liability for unpaid stock. —White, Corbin & Go. v. Jones (Sup.) 21. Payments for capital stock, represented by expenditures in developing property, held properly computable in determining stock actually paid in.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. • § 4. Members and stockholders. In an action to enforce a stockholder’s statutory liability for corporate debts, evidence of the value of property transferred for stock issued was admissible.—White, Corbin & Co. v. Jones (Sup.) 21. In an action by a minority stockholder of a corporation to restrain the payment of exorbitant salaries, it must be alleged and proved that a demand to sue was made on the corporation, and that the same was refused.—Fitchett v. Murphy (Sup.) 182. That a person claiming to have been defrauded of his interest in the corporate assets may maintain an action to restrain the payment of exorbitant salaries, he must be a stockholder at the time of the institution of the action.—Fitchett v. Murphy (Sup.) 182. § 5. Officers and agents. In an action to restrain the further payment of exorbitant salaries to officers of a corporation, the court has no power to fix a gross sum to be divided as salaries among the officers.— Fitchett v. Murphy (Sup.) 182. In an action to enforce the personal liability of directors for failure to file an annual report, as required by Laws 1892, c. 688, § 30, the var
*1166 1166 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. lidity of the corporation’s act in changing the location of its principal office could not be questioned. — Uptegrove v. Schwarzwaelder (Sup.) 623. Laws 1892, c. 688, § 30, held complied with where the annual report of a corporation was filed in the county where its principal business office was in fact located, though the certificate of incorporation located it in a different county, from which it was legally removed.—Uptegrove v. Schwarzwaelder (Sup.) 623. Complaint for penalties, under Gen. Laws, c. 36, § 29. for refusal to permit an inspection of corporate books, should aver specifically the facts relied on to constitute the offense.—Gunst v. Gcldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, is defective, if it ".does, not allege that the company is a stock corporation, and the circumstances connected with the demand for inspection.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection of corporate books, need not show that defendant was an officer of the corporation, if it shows that he was an agent.—Gunst v. Goldstein (Sup.) 707. A complaint for penalties, under Gen. Laws, c. 36, § 29, for refusal to permit an inspection, of corporate books, need not make the corporation a party.—Gunst v. Goldstein (Sup.) 707. § 8. Dissolution and forfeiture of franchise. A corporation once legally created continues, in the absence of statute, until either its charter period has expired or its dissolution has been judicially declared.—Geneva Mineral Springs Co. v. Coursey (Sup.) 98. An order authorizing the assignment by the receiver of a bank of certain judgments held by it. duly made in the .dissolution proceedings of the bank, is prima facie binding upon all the stockholders of the bank, and the title of the assignee can only be assailed by a direct proceeding, to which he is made a party.—1Treacy v. Bilis (Sup.) 600. § 9. Foreign corporations. An arrangement begun under section 161 of the English companies act, providing for a voluntary winding-up, does not ceaso to be within the section because presented to the court for approval.—Bank oE China, Japan & the Straits v. Morse (Sup.) 268. A reorganization scheme under the English companies act held to violate the rule that calls on unpaid subscriptions should be equal.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. It is a defense to an action against a stockholder to recover a call on his shares that the call was made for unauthorized purpose.—Bank of China, Japan & the Straits v. Morse (Sup.) 268. ^ 6. Corporate powers and liabilities. In an action against a corporation on an apparently ultra vires contract, proof of its execution by the secretary and treasurer was insufficient to authorize its admission in evidence.— Broadway Theater Co..v. Dessau Co. (Sup.) 335. Acts and declarations of the president, secretary, and treasurer of a corporation, without action by directors or stockholders, held not sufficient to show ratification of an ultra vires contract.—Broadway Theater Co. v. Dessau Co. governing "body. : Ordinance providing that steps descending mice • a cellar, where same are covered, shall be inclosed with rails, does not apply where steps are covered with a set of doors.—Schroeck v. Reiss -(Sup.) 1054. § 3. Officers, agents, and employés. ' Dismissal of a policeman, based on the um-sworn testimony of a single witness, materially contradictory to the policeman’s statements, is--, -erroneous.—People v. York (Sup.) 400. Laws 1899, c. 370, and the civil service rules-‘passed in pursuance thereof, in so far as they .compel the appointment in the civil service of .cities of the person graded highest on the propt.er eligible list, held to conflict with Const, ara,.10, § 2, and to nullify the power of appointment conferred thereby.—People v. MosBey.,(Sup.) 452. i The office of police clerk’s assistant of the evSyof New York is a competitive office within civil? "service law (Laws 1899, c. 370).—People-Knox (Sup.) 469. 1 Appointment of police clerk’s assistant, maefeafter civil service law (La.ws 1899,°c. 370) wezsi into effect, but before regulations and rules for its operation had been prescribed, was invalid’.. People v. Knox (Sup.) 469. , Laws 1899, c. 370, requiring officers to tain certificates of civil service employment ira prder to recover their salaries, held not to apply to an officer not appointed thereunder.—People v. Knox (Sup.) 472. A village patrolman, who has succeeded to Ms, position as city patrolman under New RoskeiB® 3rty Charter, could not be removed, except for mcompetency or misconduct, though he previously . applied for such position under the city government.—People v. Dillon (Sup.) 537. Under Greater New York Charter, § 299) to> entitle a patrolman to the first grade he mash have served for five years immediately preceding
*1186 1186 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. the reorganization of the force.—People v. York ¡(Sup.) 547. A Civil War veteran, discharged on completion of his work -in a city department, cannot compel his reinstatement in the public service.—People v. Claussen (Sup.) 579. The position of morgue keeper is within the rule requiring appointment to public office to he evidenced by a writing.—People v. Keller (Sup.) 746. Where a resolution was passed appointing plaintiff morgue keeper, but no record thereof was made, nor any written authority given plaintiff, there was no appointment.—People v. ICeiier (Sup.) 746. § 4. Contracts in general. In absence of fraud on part of city officials, the courts cannot determine whether gravel furnished under a contract with city park commis-" sioners is in accordance with the contract.—Paul v. City of New York (Sup.) 570. Under New York Charter, §§ 419, 607, a contract to furnish gravel, awarded by the park "board and executed by one member of the board, under its authority, is valid.—Paul v. City of -New York (Sup.) 570. Evidence held insufficient to show that comp'troller had not attached his certificate to a contract, as required by New York Charter, § 419. —Paul v. City of New York (Sup.) 570. S 5. Public improvements. Offer by city to deduct from cost of repaving street two-thirds of penalty of bond given to it to secure performance of obligation that pavement laid previously would last for 10 years held reasonable.—People v. City of Utica (Sup.) •31. Greater New York Charter, § 413, does not •restrict the action of the commissioner of public ■buildings, lighting, and supplies in making contracts before receiving express authorization from the municipal assembly.—Blank v. Kearny 108.
*1192 3192 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. PROPERTY. 'See “Trade-Marks and Trade-Names.” ' .Protection of rights of property by injunction, ■ see “Injunction,” § 1. 'Taking for public use, see “Eminent Domain.” PROTEST. 1897, ch. 378, § 417. Greater New York Charter. .. 80 1897, ch. 378, § 419. Greater New York Charter.. . 80, 195, 633 1897, ch. 378, § 607. Greater New York Charter... 570 1897, ch. 378, § 895. Greater New York Charter. .. 432 1897, ch. 378, § 1551. Greater New York Charter ................... 195 1897, ch. 378, §§ 1570, 1571. Greater New York Charter............... 968 1897, ch. 378, § 1611. Greater New York Char- ................... 1897, ch. 415, § 8........ 1897, ch. 418, § 9, subd. 7 1897, ch. 418, §| 16, 40.. 1897, ch. 434............ 1897, ch. 439............ 1897, ch. 612, § 26, subd. 2 1898, ch. 101............ 1898, ch. 125............ 1898, ch. 184............ 1898, ch. 335, § 110, subd. 2, rules 6, 9........... 1899, ch. 128, §§ 114, 119, 256. New Rochelle City Charter............... 1899, ch. 370........452, 1899, ch. 370, § 6, subd. 1 1899, ch. 370, § 7........ 1899, ch. 370, § 29...... 1899, ch. 417............ 1899, ch. 700, § 1 et seq.'.. 577 724 306 688 577 288 73 894 983 579 775 537 472 858 469 41 588 37
*1198 1198 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. STAY. ’ Pending appeal, see “Appeal,” § 6. STOCK. Corporate stock, see “Corporations,” § 3. STOCKHOLDERS. Of banks, see “Banks and Banking,” § 1. Of corporations, see “Corporations,” § 4. STREET RAILROADS. See “Railroads.” § 1, Establishment, construction, and maintenance. Under Laws 1895, c. 933, where street occupied by street railroad is repaved by city, entire cost of repaving strip two feet wide outside of rails must be collected from the railroad company, and no part of it is assessable upon abutting property.—People' v. City of Utica (Sup.) 31. Where the consent of highway commissioners is necessary to lay tracks on highways, a condition requiring transfer of passengers for a given fare within its own territory is not void, as conflicting with the right in other towns to prescribe conditions for the construction of the road within their limits.—Gaedeke v. Staten Island M. R. Co. (Sup.) 290. Where a street railroad’s franchise, was forfeited if the road was not constructed within a specified time, further construction would be enjoined, pending action to permanently enjoin, on nonperformance of such condition.—Dusenberry v. New York, W. & C. Traction Co. (Sup.) 420. In an action to enjoin construction of a street raihoad on account of lack of required consent by property owners, the burden was on defendant to positively establish such consent.—Dusenberry v. New York, W. & 0. Traction Co. (Sup.) 420. Under Railroad Law, §§ 93, 99, a street railroad can be enjoined from constructing or operating its road when it has failed to carry out the conditions of its franchise requiring completion within less than three years.—Dusenberry v. New York, W. & C. Traction Co. (Sup.) 420. § 2. Regulation and operation. A city ordinance giving ambulances the right of way held admissible to prove negligence of a street railway in allowing its car to collide with an ambulance.—Buys v. Third Ave. R. Co. (Sup.) 113. Where child ran upon a street-car track unexpectedly, and so close to the rapidly approaching car that the driver could take no steps to stop the car, or to save the child from injury, the company is not liable.—Hirschman v. Dry Dock, E. B. & B. R. Co. (Sup.) 304. Evidence that driver of street car was arrested after the accident held prejudicial error.— Seipp v. Dry Dock, E. B. & B. R. Co. (Sup.) 409. Street-railway company, running a car so close to a van that plaintiff, while standing on the running board, was injured by striking the van, held guilty of negligence.—Henderson v. Nassau Electric R. Co. (Sup.) 690. Facts, in an action for damages from a collision with a street car, held not to justify recovery by plaintiff.—Reilly v. Metropolitan St. Ry. Co. (Sup.) 785. Evidence held not to entitle plaintiff, cutting in in front of a street car, to recover for damages occasioned by a collision.—Mason v. Metropolitan St. Ry. Co. (Sup.) 789; Cornell v. Same, Id. Negligence cannot be predicated on defendant’s failure to ring a gong, where plaintiff testifies that he saw the car approaching by which he was struck.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. Facts held to establish negligence on part of plaintiff, in an action for damages from being struck by a street car.—Anderson v. Metropolitan St. Ry. Co. (Sup.) 899. In an action for injuries from a collision with defendant’s car, the dismissal of the complaint at the close of plaintiff’s testimony held error.— Warren v. Union Ry. Co. (Sup.) 1009. STREETS. See “Municipal Corporations,” § 7. SUBMISSION OF CONTROVERSY. On submission of controversy on agreed facts, the court, on appeal, cannot draw inferences as to the intended legal effect of a contract, but must construe it according to its terms.—American Box Mach. Co. v. Zentgraf (Sup.) 417. SUBSCRIPTIONS. To corporate stock, see “Corporations,” § 3. SUBSTITUTION. Of devisees or legatees, see “Wills,” § 4. SUIT. See “Action.” SUMMARY PROCEEDINGS. Recovery of possession by landlord, see “Lon lord and Tenant,” § 7. SUMMONS. See “Process.” SUPPLEMENTARY PROCEEDINGS See “Execution,” § 1.
*1199 INDEX. 1199 SURVIVORSHIP. Of devisees or legatees, see “Wills,” § 4. TAXATION. See “Intoxicating Liquors,” § 1. Assessments for municipal improvements, see “Municipal Corporations,” § 5. § 1. Levy and assessment. Where no more is disclosed on review of an assessment on certiorari than relator’s mere claim of inequality and overvaluation in the appraisement, sworn by the assessor to be fair, and the facts on which the claim is based do not appear, the assessment will not be disturbed.—People v. Feitner (Sup.) 432. Where a taxpayer applies to correct an assessment under Greater New York Charter, § 895, his complaint must state the facts constituting inequality charged; for the court, on certiorari, is not required to enter on a new and original inquiry, under Laws 1896, c. 908, § 253.—People v. Feitner (Sup.) 432. The expression, “until the third Tuesday of August,” in Tax Law, § 35, held not to include the third Tuesday in August.—People v. Horn-beck (Sup.) 978. § 2. Payment and refunding or recova cry of tax paid. Where plaintiff resided and voluntarily paid the taxes for several years on premises he -alleged belonged to his mother, knowing that such taxes were improperly assessed, he cannot, under Laws 1892, c. 686, § 16, recover back the taxes so paid.—McCue v. Board of Sup’rs of Monroe County (Sup.) 315. § 3. Sale of land for nonpayment of tax. Mandamus held not to lie to set aside a sale for taxes, because of an irregularity in a pamphlet advertisement, where no one was misled.—People v. Coler (Sup.) 665. A sale of land for a single assessment may be made when there are other assessments in arrears.—People v. Coler (Sup.) 665. Where plaintiff’s lands were included in a parel with others advertised for sale for .delinquent axes, but the parcel was knocked down to the tote without opportunity for bids, the proceeding lid not amount to a sale, and was void.—Andrus . Wheeler (Sup.) 983. 4. Tax titles. When plaintiff’s lands were to be sold for tax-s, but were knocked down to the state without ale, a deed based on such proceeding is not alidated by the act to quiet tax titles after two ears.—Andrus v. Wheeler (Sup.) 9S3. When the owner of part of a tract of land pays e exact proportion of a tax laid on the whole act which her acreage bears to the whole reage, a sale of her portion for the remaining xes is without jurisdiction and absolutely void. Wallace v. Curtis (Sup.) 994. Evidence held to show that a certain portion a tract of land upon which the taxes had been paid did not pass by a sale of the remainder for its portion of the tax laid on the whole tract.— Wallace v. Curtis (Sup.) 994. § 5. Legacy, inheritance, and transfer taxes. Failure to tax a bequest, under mistaken theory that it was not subject to transfer tax, held not an “erroneous determination,” within Laws 1896, c. 908, § 232, permitting a reappraisement in such cases.—In re Niven (Sup.) 956. Surrogate’s order, on report of appraiser under transfer tax act, held conclusive as to allowance for debts and expenses of administration. —In re Rice’s Estate (Sur.) 911. Surrogate’s order, on report of appraiser under transfer tax act, held conclusive as to appraisement.—In re Rice’s Estate (Sur.) 911. Under transfer tax act, authorizing appraisals “as often as occasion may require,” reappraisements are contemplated to reach property omitted in former appraisals, and not property previously appraised which has increased in value.—In re Rice’s Estate (Sur.) 911. Where decedent was a nonresident, and his life insurance policies, issued by New York corporations, were in another state at the time of his death, the proceeds of such policies are not taxable, under the transfer tax law (Laws 1892, c. 399).—In re Abbett’s Estate (Sur.) 1067. TEACHERS. See “Schools and School Districts,” 1 1. TELEGRAPHS AND TELEPHONES. § 1. Regulation and operation. IJnder Laws 1848, c. 265. as amended by Laws 1855, c. 569, and Laws 1850, e. 340, a telegraph company cannot be compelled to furnish stock exchange news to persons whom the exchange orders shall not receive the same.—In re Renville (Sup.) 549. TENDER. A check is not a legal tender.—Block v. Garfield (Oity Ot. N. Y.) 918. TESTAMENT. See “Wills.” TESTAMENTARY CAPACITY. See “Wills,” § 1. TIME. For taking appeal, see “Appeal,” § 5. TITLE. Sufficiency of title of vendor of land, see “Vendor and Purchaser,” § 2. Tax titles, see “Taxation,” § 4. To office, see “Officers,” § 2.
*1200 1200 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. TOOLS. Liability of employer for defects, see “Master and Servant,” § 5. TORTS. § 2. Infringement and unfair competition. A spool-silk manufacturer, who had merged his business into a corporation, giving it his name, held not entitled to enjoin the use of the corporate name by others—Cutter v. Gudebrod Bros. Co. (Sup.) 225. Of employes, see “Master and Servant,” § 9. Of married women, see “Husband and Wife,” » § 2. Particular torts, see “Conspiracy,” § 1; “Negligence” ; “Trespass”; “Traver and Conversion.” - causing death, see “Death,” § 1. TOWAGE. A vessel which undertakes to tow other boats must see that the tow is properly made up, and that the lines are strong and securely fastened. —Tilley v. Beverwyck Towing Co. (City Ct. N. Y.) 495. Though a steam tug employed to tow a vessel into port is not a common carrier, nor an insurer, it is bound to exercise reasonable skill and care, in everything relating to the work, until it is done.—Tilley v. Beverwyck Towing Co. (City Ct. N. Y.) 495. TOWNS. See “Municipal Corporations.” § 1. Fiscal management, public debt, securities, and taxation. Under Laws 1895, c. 767, a notice of a submission to town electors of a question as to whether a school teacher is to be pensioned must be published in a newspaper, if any is printed in the town. — People v. Town Board of Plattsburg (Sup.) 932. A vote by a town, under Laws 1895, c. 767, to provide a teachers’ pension fund, on a petition to pension a particular teacher, held invalid. —People v. Town Board of Plattsburg (Sup.) 932. § 2.' Claims against towns. A town board has no authority to revive a claim against the town after it has been barred by limitations.—McGrory v. City of New York (Sup.) 689. TRADE-MARKS AND TRADE-NAMES. § 1. Title, conveyances, and contracts. Evidence held to establish a trade-mark, so as to entitle the owner to a charge to that effect; and hence submission of its existence was error.—Stern v. Barrett Chemical Co. (Sup.) 221. Assignee of a "corporation held entitled to use and sell spool cabinets which a manufacturer of spool silk had transferred to the corporation without removing his trade-name therefrom, and a purchaser from him entitled to be protected in their use.—Cutter v. Gudebrod Bros. Co. (Sup.) 225. TRANSFER TAX. See “Taxation,” § 5. TRESPASS. Injuries to trespassers, see “Railroads,” § 1. § 1. Acts constituting trespass, and liability therefor. An owner of shore land, who contracts for dredging in front of it, without providing means of preventing deposits from spreading on the land of an adjacent owner, held as much a trespasser as the contractor, where such deposits so spread. —Braisted v. Brooklyn & R. B. R. Co. (Sup.) 674. § 2. Actions. In action to recover treble damages for despoiling trees, under Code Civ. Proc. §§ 1667, 1668. refusal to submit to jury issue as to whether cutting was casual or involuntary held not erroneous.—Van Siclen v. Jamaica Electric Light Co. (Sup.) 210. Where defendant had an undivided half interest in cattle on plaintiff’s farm, on entering and taking one-half of the cattle by force, an instruction that the minimum amount of damages for the trespass was the value of the cattle taken was error.—Eelts v. Collins (Sup.) 482. A defense to trespass, that complainant granted permission to enter the premises, then refused admission, and defendant entered despite the refusal, held demurrable.—Silberman v. New Amsterdam Gas Co. (Sup.) 699. A defense insufficient in bar is not sustainable as a partial defense, where it is not pleaded as a partial defense.—Silberman v. New Amsterdam Gas Co. (Sup.) 699. TRIAL, See “Continuance”; “New Trial”; “Refer ence”; “Witnesses.” Of particular civil actions or proceedings, se “Negligence,” § 3; “Replevin,” § 2. — disputed claims against estate of decedent see “Executors and Administrators, ” § 4. Right to trial by jury, see “Jury,” § 1. § 1. Notice of trial and preliminar proceedings. Under Gode Civ. Proc. § 798, a notice of tri served by mail does not require double the 1 days specified in section 977, since section 79 also provides that such notices may be served ’ mail at least 16 days before the term.—German' Life Ins. Co. v. Powell (Sup.) 942. An objection that a notice of trial was serv by mail without sufficient postage is waived 1
*1201 INDEX. 12.01' accepting it.—Germania Life Ins. Co. T. Powell (Sup.) 942. When the trial of a case has been entered into, and is discontinued to permit the bringing in of another party as defendant, it is necessary to serve new notice of trial.—Romanoski v. Union Ry. Co. (City Ct. N. Y.) 1097. A note of issue of fact or law held not filed in compliance with Code Civ. Proc. § 3162.—Miner v. Galvanotype Engraving Co. (City Ct. N. Y.) § 2. Dockets, lists, and calendars. Under Code Civ. Proc. § 793, right to preference of a cause held lost by failure to serve notice of application with notice of trial.—Eckhard v. Jones (Sup.) 257. Under Code Civ. Proc. § 793, notice of preference may he served after notice of trial, if within time in which notice of trial can be given.—Gilbert v. Pinch (Sup.) 300. The right of preference upon the calendar given by Code, § 791, subd. 5, to executors, when they are the sole plaintiffs or sole defendants, does not extend to a case where the same person is joined as a party in his individual capacity, as well as in the prescribed capacity.—Ahern v. Ahern (Sup.) 931. The fact that there is no opposition to a motion to place a case on the preferred calendar is not sufficient reason for granting the preference, unless some right or reason is shown therefor.— Ahern v. Ahern (Sup.) 931. _ Code Civ. Proc. § 793, requiring notice of a motion for preference to he served with the notice of trial, does not apply to motions for preference, under special term rule 10, in actions to foreclose mortgages.—Germania Life Ins. Go. v. Powell (Sup.) 942. Failure of plaintiff to notice his cause for the first term after issue is not loches, defeating his right to move to place the cause on the preferred calendar.—Bailey v. Miles (Sup.) 977. A motion to strike a case from the calendar, because not regularly thereon, made before it is reached, is in time.—Poindexter v. Carleton (City Ct. N. Y.) 1116. § 3. Reception of evidence. A motion to strike a witness’ answer, because it was incompetent, held properly denied.—Jones v. New York Cent. & H. R. R. Co. (Sup.) 721. That a witness’ answer is not responsive is an objection that lies only with the examining counsel.—Jones v. New York Cent. & H. R. R. Co. (Sup.) 721. 4. Taking case or question from jury. Where, at the close of the evidence, counsel or both parties request a verdict, the court can ass on any question of fact presented by the vidence. — Northam v. International Ins. Co. Sup.) 45. Request for direction of a verdict, without subequent request to go to the jury, i's a waiver of e right to go to the jury.—Ranken v. Donovan up.) 542. 01 N.Y.S.—76 Evidence held to authorize direction of verdict for defendants, plaintiffs having waived right to-go to jury.—Ranken v. Donovan (Sup.) 542. Error cannot be predicated on the refusal of the trial court to grant a nonsuit, where there was evidence tending to establish plaintiff’s cause of action—Niland v. Geer (Sup.) 696. Though the evidence in the first trial of an action for injuries tended to show plaintiff’s- eon-tributary negligence, yet, she having testified to diligence on the second trial, it was error for the court to dismiss the complaint.—Hickman v. Nassau Electric R. Co. (Sup.) 698. The trial court is not bound, by Code Civ. Proc. § 1187, to receive the general verdict where, after a motion to direct a verdict has been made, and special fact questions submitted to the jury, they report that they cannot agree upon the questions, but have reached a¡ general verdict.—McDonald v. Metropolitan St-Ry. Co. (Sup.) 817. If, on the evidence, a verdict in favor of the' person against whom judgment has been rendered could not be sustained, a verdict against .him may properly be directed.—McDonald v~ Metropolitan St. Ry. Co. (Sup.) 817. Where both parties, at close of case, moved for direction of verdict, the court, if the evidence-so warrants, can direct judgment for defendant.—Schreyer v. Jordan (Sup.) 889. A motion for nonsuit on the ground that proof fails to sustain the complaint must specify omissions relied on.—Boldt v. Epstein (City Ct. NY.) 248. A motion for nonsuit or to dismiss a complaint is properly denied where the motion does not point out the defects in plaintiff’s case relied! on.—Gowing v. Warner (Oity Gt. N. Y.) 500.. § 5. Instructions to jury. Construction of a foreign statute, in connection:', with expert testimony, presents a question foB-the court.—Bank of China, Japan & the Straits-v. Morse (Sup.) 268. A refusal to charge on the effect of testimony,-. if found to be true, was proper.—Ravin v. Suhin- • (City Ct. N. Y.) 1104. Instructions having no bearing on issues held ' properly refused.—Rishel v. Weil (City Ct. N. Y.), - § 6. Waiver and. correction of irregu— - larities and errors. Failure to move to strike out evidence of an - attorney, after it appeared that the same was-privileged, is a waiver of any objection thereto,-. —Kitz v. Buckmaster (Sup.) 64. TROVER AND CONVERSION. § I. Acts constituting conversion, and liability therefor. Evidence held to show a consignment of merchandise, to be -paid for by the consignees at a price fixed in advance if disposed of, and, if not, to be returned, and not a fiduciary relation, which would make them liable for a wrongful
*1202 1202 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. conversion of the proceeds of sales thereof.— Stoneman v. Van Veehten (Sup.) 513. Defendant’s attachment affidavit showing that property seized was claimed by a third person, defendant will be presumed to know that the proceeds of a sale thereof included such property: and hence he is liable in conversion therefor.— Hill v. White (Sup.) 515. § 2. Actions. Whether charge of complaint is fraudulent conversion of money of plaintiff’s intestate, and the proof shows that defendant drew the_ money from the banks at the request of plaintiff’s intestate, there can be no recovery on the ground that defendant did not exercise reasonable care in turning the same over to her.—ICirwin v. Malone (Sup.) 844. Where a complaint charges fraudulent conversion of money, defendant cannot be held liable, on the ground that he was negligent in turning the money over to plaintiff’s intestate while she was insane.—ICirwin v. Malone (Sup.) 844. In an action against a marshal to recover damages for the seizure and conversion of plaintiff’s goods under a writ directed- against another, testimony of plaintiff as to whose possession the goods were in when seized is competent.—Leibman v. Abramson (Sup.) 897. TRUSTS. Conveyances in trust for creditors, see “Assignments for Benefit of Creditors.” § 1. Creation, existence, and validity. An agreement between a grantor and a grantee held to constitute a valid trust in favor of the grantor as to a surplus mentioned in the agreement.—Spencer v. Richmond (Sup.) 397. Deposit of money in bank in name of another, with provision that depositor may withdraw, without knowledge of former, held to create trust for benefit of person in whose name deposit was made.—Martin v. Martin (Sup.) 813. § 2. Construction and operation. Evidence held sufficient to sustain a finding of a fiduciary relationship between the parties.-— Rose v. Durant (Sup.) 15. A trust deed conveying all of decedent’s property affects only such property as was owned by him at the time of its execution.—In re Backus’ Will (Sur.) 1070. $ 3. Appointment, qualification, and tenure of trustee. A trustee may be removed, merely because of 311 feeling between himself and the cestui que trust, though he is. guilty of no mismanagement or misconduct.—Disbrow v. Disbrow (Sup.) 614. $ 4E. Management and disposal of trust property. Ratification by cestui que trust of investment made by trustee must not only be clearly proved, hut it must appear that it was made with full knowledge of cestui que trust 'of all material facts, and that he was fully apprised of their effect and of his rights.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Trustee has no authority to make voluntary investments, of a speculative nature, of trust funds 'in lands outside the -state.—In. re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Taking of a mortgage for the benefit of cestui que trust, and a subsequent assignment, held proper exercise of the trustee’s powers.—Wash-burn v. Benedict (Sup.) 387. Surcharging of the accounts of a trustee with the cost of repairs in excess of the cost of similar repairs by other persons held error.—Disbrow v. Disbrow (Sup.) 614. Evidence held sufficient to show that a trustee should be credited by the cost of repairs made by him, without detailed evidence of the nature of the repairs.—Disbrow v. Disbrow (Sup.) 614. That a cestui que trust objected to repairs held not to entitle him to have the trustee’s account surcharged with the amount paid therefor.—Dis-brow v. Disbrow (Sup.) 614. Surcharging of the accounts of a trustee with penalties incurred by failure to pay taxes promptly held error, where the cestui que trust had used the funds available for prompt payment.—Dis-brow v. Disbrow (Sup.) 614. Trusts under a will held not entitled to share in the increase in value of the principal before they are set apart.—In re Irwin’s Estate (Sur.) 239. § 5. Accounting and compensation of trustee. Where executor, acting also as trustee, sells railroad bonds belonging to estate at a premium, and mingles proceeds of sale with his individual funds, he is chargeable with entire proceeds of sale, and with interest thereon from date of sale. —In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Executor, acting as trustee, who had encroached on principal in making payments to- cestui que trust, his daughter, held not entitled to credit for amount overpaid.—In re Harmon’s Estate (Sup.) 50; Reed v. Stevens, Id. Refusal to compel an accounting of trust funds, where plaintiff did not show that all or any certain part of fund in regard to which accounting was sought was trust funds, was not error. — Woodbridge v. First Ñat. Bank (Sup.) 258. A trustee under a deed to take care of real estate is entitled to only such compensation as is allowed to executors, in the absence of any provisions in the deed regulating the compensation.—■ Disbrow v. Disbrow (Sup.) 614. Surcharging of the accounts of a trustee with the amount of premiums paid for insurance on the property in excess of its salable value held error.—Disbrow v. Disbrow (Sup.) 614. Where beneficiary died before trust was form ed, commissions ought not to be allowed th trustees.—In re Irwin’s Estate (Sur.) 239. Trusts under a will should not bear their pr rata expenses of the principal estate, incurrei before they were set apart.—In re Irwin’s Es ■tate (Sur.) 239.
*1203 INDEX. 1203 § 6. Establishment and enforcement of trust. Where an agreement as to a surplus constitutes a valid trust as to such, surplus, the payment of such surplus to the husband of the cestui que trust, having knowledge of such trust, does not deprive judgment debtors of the cestui que trust of their right to reach same.—Spencer v. Richmond (Sup.) 397. UNDISCLOSED AGENCY. See “Principal and Agent,” § 2. UNDUE INFLUENCE. Procuring making of will, see “Wills,” § 2. UNITED STATES. See “United States Marshals.” Indians, see “Indians.” UNITED STATES MARSHALS. A United States marshal held liable for depreciation in value of property in his hands under attachment, where due to his negligence.—Park v. Hayden (Sup.) 264. A complaint in an action against a United States marshal to recover for depreciation of property in his hands under attachment, due to his negligence, held not defective.—Park v. Hayden (Sup.) 264. USAGES. See “Customs and Usages.” covenants of which are not binding on the land. —Kahn v. Mount (Sup.) 358. § 3. Rights and liabilities of parties. Where by lapse of time the lien of a judgment upon a judgment debtor’s land has ceased, and no conveyance or deed, upon execution sale thereof, executed by the sheriff, has been recorded as required by statute, and the judgment debtor executes a valid conveyance to a third person, who received it for a valuable consideration and without notice of any other conveyance, and duly recorded his deed as required by law, such third person would acquire a good title thereto.—Davidson v. Crooks (Sup.) 362. The record of a sheriff’s certificate of sale is no notice to a subsequent grantee of the sale by the sheriff, and is therefore no cloud upon the title of the property.—Davidson v. Crooks (Sup.) 362. A purchaser of realty is chargeable with the constructive notice which the law imputes to the records, and not with everything he might learn from an examination of all papers connected with the title.—Potter v. Sachs (Sup.) 426. Agreement to maintain fences along a railroad, in consideration of an agreement to convey the land occupied by the road, held a covenant running with the land, authorizing conveyance on performance by railroad company.—Davenport v. New Jersey & N. Y. R. Co. (Sup.) 1040. § 4. Remedies of purchaser. A vendor may show title by adverse possession on the trial of vendee’s action to recover money paid after rescission for defective title, though he had not previously acquainted the vendee with the facts constituting his adverse claim.—Kahn v. Mount (Sup.) 358. VACATION VENUE. Of attachment, see “Attachment,” § 5. Of judgment, see “Judgment,” § 4. VENDOR AND PURCHASER. See “Sales.” Purchasers at tax sale, see “Taxation,” § 4. Specific performance of contract, see “Specific Performance.” 1. Modification or rescission of contract. Unintentional error in a chain of title, referring 0 and intending to convey the same premises, 1 eld to furnish no grounds for defendant’s refus1 to perform the contract to purchase the premses.—McAdam v. Farrell (Sup.) 234. 2. Performance of contract. A purchaser of real estate cannot refuse to erform his contract on the ground that the invest of an heir of a former owner who died instate is still outstanding, where the vendor’s tie is good by adverse possession.—Kahn v. ount (Sup.) 358. A purchaser of real estate cannot refuse to rform his contract on the ground that the •emises are incumbered by an agreement the § I. Nature or subject of action. An action against a landlord for entering the demised property and making alterations is within Code Civ. Proc. § 982, requiring actions affecting a “right” in realty to be tried where the realty is situated.—Rothlein v. Hewitt (Sup.) 97. § 2. Change of venue or place of trial. Under Code Civ. Proc. § 982, where an action is brought to set aside a fraudulent assignment and conveyance of land situated in another county, a change of venue will be awarded to the county where the land lies.—Iron Nat. Bank v. Dolge (Sup.) 680. Affidavit of merits held unnecessary to change the place of trial of an action as to interest in land to county where land was situated.—Iron Nat. Bank v. Dolge (Sup.) 680. All parties to an action are concluded by the decision of a motion for change of venue, where they have notice thereof.—Iron Nat. Bank v. Dolge (Sup.) 680. VERDICT. Directing verdict in civil actions, see “Trial,” § 4. Review on appeal, see “Appeal,” § 17.
*1204 1204 61 NEW YORK SUPPLEMENT and 95 New York State Reporter. VESTED REMAINDERS. Creation, see “Wills,” § 4. VICE PRINCIPALS. See “Master and Servant,” § 6. VILLAGES. See “Municipal Corporations.” VOTERS. See “Elections.” WAGES. See “Master and Servant,” § 2. WAIVER. See “Estoppel.” Of objections, see “Trial,” § 6. WAR. Declaration of war does not dissolve a shipping contract between domestic ports.—Graves v. Miami S. S. Co. (Sup.) 115. Voluntary disposition of vessels to the government in time of war does not dissolve a shipping contract of the owner.—Graves v. Miami S. S. Co. (Sup.) 115. WARRANT. For attachment, see “Attachment,” § 3. WARRANTY. On sale of goods, see “Sales,” §§ 5, 7. WATERS AND WATER COURSES. § 1. Subterranean and percolating waters. The city of New York enjoined from operating its pumps, which caused the diversion of percolating waters under plaintiff’s land, and held liable for the damage plaintiff had sustained by reason of such diversion.—Forbell v. City of New York (Sup.) 1005. WAYS. Private rights of way, see “Easements.” WILLS. See “Descent and Distribution”; “Executors and Administrators.” Charitable bequests and devises, see “Charities.” Construction and execution of trusts, see “Trusts.” Restrictions on perpetuities, see “Perpetuities.” I 1. Testamentary capacity. The fact that testatrix was of unsound mind at the time of her death, and for some months prior thereto, will not affect the validity of her will made two years before, when there is no evidence that such a condition existed when the will was made.—In re King’s Will (Sur.) 238. Evidence of conduct of testatrix held, insufficient to rebut presumption of sanity.—In re Dwyer’s Will (Sur.) 903. Evidence held, to show that testatrix was of sound mind at the time she executed a will.— In re Dwyer’s Will (Sur.) 903. A will will not be set aside on the sole testimony of an expert that he would not regard one under certain conditions mentally incapable of making a will, when the deceased was not subject to such conditions.—In re Connor’s Will (Sur.) 910. § 2. Requisites and validity. A lost will was sought to be proved by the witnesses, who testified that an unsigned paper was signed by them and then signed by decedent in presence of one of them. Held, that it was executed, so as to be entitled to probate, under 2 Rev. St. p. 63, § 40.—In re Purdy’s Will (Sup.) 430. Evidence held insufficient to show that a beneficiary exercised undue influence over testatrix. —In re Dwyer's Will (Sur.) 903. Facts held not to show undue influence sufficient to warrant denial of probate of a will.—In re Westerman’s Will (Sur.) 1065. Under Rev. St. pt. 2, c. 6, tit. 1, art. 3, § 42, a will is not revoked by a trust deed providing for its revocation, where the deed is not executed with the same formalities with which the will itself was required by law to be executed.—In re Backus’ Will (Sur.) 1070. Rev. St. pt. 2, c. 6, tit. 1, art. 3, §§ 47, 48, do not refer to the revocation of wills, but only to the revocation of devises and bequests contained in wills.—In re Backus’ Will (Sur.) 1070. § 3. Probate, establishment, and annulment. A husband under no legal disability may sue, under Code Civ. Proc. § 2653a, to set aside his wife’s will for undue influence, etc.—Wells v Betts (Sup.) 231. Code Civ. Proc. § 2653a, providing for suit, to contest wills probated within two years pria to the passage of the section, held to apply t wills probated after the section was passed. Wells v. Betts (Sup.) 231. The probate of a lost will refused, under Cod Civ. Proc. § 1865, where one of witnesses swor that decedent devised all his estate to his mot" er and to her heirs, and one that devise was her heirs.—In re Purdy’s Will (Sup.) 430. Where a contest over the probate of a will timately turned on its correct construction, t surrogate had power to allow costs to the unsu cessful party, under Code Civ. Proc. § 2561.— re Bogart’s Will (Sup.) 671. Where a party to a contest of a will did n oppose the awarding of costs to contestants
*1205 INDEX. 120» the surrogate’s court, his motion for resettlement of costs should be denied.—In re Bogart’s Will (Sup.) 671. Will contested on grounds of undue influence held not so unnatural as to throw burden of proof upon proponent.—In re King’s Will (Sur.) 23S. Material alterations in will, made by erasing with chemical and writing in words, where no statement is contained in will that they were made before execution, throws burden of showing they were made before execution on proponent.—In re Dwyer’s Will (Sur.) 903. § 4. Construction. The language of a devise in a will held to show an intention by the testator that if, at his death, any of the devisees were dead, the issue of such devisee or devisees should become substituted therefor.—Lyons v. Weeks (Sup.) 441. Where property is given to trustees for the benefit of a person during life, and upon the death of such beneficiary to others, the remainder-men take a vested remainder in fee, which is not defeated by the death of such remainder-men during the life of the beneficiary.—Lyons v. Weeks (Sup.) 441. A son, admitting the validity of his father’s will as to his mother’s life estate, and not interested in a trust created therein, held not entitled, as heir at law, to sue in equity to have the will construed, and the trust declared void, and an intestacy after the death of his mother adjudged.—Kalish v. Kalish (Sup.) 448. A son cannot maintain an action in equity to have his father’s will construed, and a trust therein created declared invalid, where he has no present interest, either as next of kin or as legatee.—Kalish v. Kalish (Sup.) 448. Code Civ. Proc. § 1866, held not to authorize a son to maintain, as heir at law, an action in equity to have his father’s will construed, and a trust therein created declared void.—Kalish v. Kalish (Sup.) 448. Provisions of a will construed, and held to provide that surviving sisters of deceased legatee should take her share, independent of children of other brothers and sisters previously deceased. —In re McCahill (Sur.) 1071. '§ 5. Rights and liabilities of devisees and legatees. A legacy, failing to vest in the legatee because of her death, held to pass to the legatee’s issue, under 2 Rev. St. p. 66, § 52.—In re Hafner (Sup.) 565. WITNESSES. See “Evidence.” Code Civ. Proc. § 835, prohibiting the disclosure of confidential communications between attorney and client, does not prevent an attorney from testifying to conversations and advice given to a person not his client.—Kitz v. Buckmaster (Sup.) 64. Defendant, in an action for wrongfully causing decedent’s death, held prohibited from testifying concerning the transaction, including conversations with deceased at the time, by Code Civ. Proc. § 829.—Abeiein v. Porter (Sup.) 144. Refusal to permit defendant to testify when he had discovered that a deceased holder of a mortgage had failed to indorse a payment was proper, as calling for evidence concerning a transaction with a deceased person. — Rowley v. Parsons (Sup.) 392. Under Code, § 836, providing for a waiver of the privileges of a professional witness, a waiver by plaintiff was sufficient where the action was for injuries to his minor son.—Corey v. Bolton (City Ct. N. Y.) 917. § 2. Examination. The form of a question on the cross-examinatian of a witness in an action for personal injuries held, not erroneous.—Barrett v. New York Cent. & H. R. R. Co. (Sup.) 9. A question, on cross-examination, as to the witness’ pecuniary interest in the action, is admissible.—Sissinch v. Bernhardt (Sup.) 107. It is within the discretion of the court whether defendant should be permitted to cross-examine plaintiff’s witness upon the whole case before the plaintiff has rested. — Nally v. Hitchcock (Sup.) 962. § 3. Credibility, impeachment, contradiction, and corroboration. Testimony of adverse witness on cross-examinatian held not to conclude party calling him.— Mueller v. Tenth & Twenty-Third St. Perry Co. (Sup.) 986. WORK AND LABOR. Liens for work and materials, see “Mechanics’ Liens.” A servant held entitled to an ordinary judgment for wages, though he brought action under Buffalo City Charter, as amended by Laws 1898, c. 101, but failed to state a cause of action entitling him to the special relief provided thereby.—Wah Kee v. Young (Sup.) 894. WRITS. Particular writs, see “Execution”; “Mandamus.” § 1. Competency. Whether relation of attorney and client exists, so as to prevent the attorney from testifying to conversations, is a question for the court.— ICitz.v. Buckmaster (Sup.) 64. YEAR. Agreements not to be performed within one year, see “Frauds, Statute of,” § 2. Estates for years, see “Landlord and Tenant.”
*1206 1
*1207 TABLES OF NEW YORK SUPPLEMENT CASES APPEARING IN OTHER REPORTS. VOL. 41, APPELLATE DIVISION REPORTS. Page Adams v. Nassau Electric B. Co. (58 N. Y. S. 543).............................. 334 Ahrens v. Moadinger (58 N. Y. S. 497).... 355 American Lucol Co. v. Lowe (58 N. Y. S. 687) ............ 500 Arena Athletic Club v. McPartland ( 58 N. Y. 8 . 477)........................... 352 Asbestos Pulp Co. v. Gardner ( 58 N. Y. 8 . 1136) ...........;...................624 Badger v. Ceiler ( 58 N. Y. 8 . 653)........ 599 Balfoort v. New York Cent. & H. R. R. Co. (58 N. Y. S. 1136).......... 617 anedetto v. Banker ( 58 N. Y. 8 . 1136)... 625 ateman v. Austin ( 58 N. Y. 8 . 1136)..... 623 each v. McGovern ( 58 N. Y. 8 . 493)...... 381 ecker v. Syracuse Rapid Transit Ry. Co. ( 58 N. Y. 8 . 1136).................... 625 eebe v. Nassau Show Case Co. (58 N. Y. S. 769).............................. 456 ell v. Miller ( 58 N. Y. 8 . 1136)......... 616 ibbey v. Collins ( 58 N. Y. 8 . 1336)...... 616 iel v. Rochester Carting Co. ( 58 N. Y. 8 . 1136) ............................... 624 igelow v. Niagara River Brewing Co. (In re Busch Brewing Co., 58 N. Y. 8 . 812).. 204 ini v. Smith ( 59 N. Y. 8 . 1098).......... 631 irrell v. New York & H. R. Co. ( 58 N. Y. 8 . 650).............\................ 506 lanek v. Nelson ( 59 N. Y. 8 . 1098)...... 632 oland v. Cook ( 58 N. Y. 8 . 1137)........ 624 own v. Britton ( 58 N. Y. 8 . 353)....... 57 own v. Harmon ( 58 N. Y. 8 . 1137)....: 623 own v. Persons ( 58 N. Y. 8 . 1137)...... 625 ffalo Creek R. Co. v. Collins (58 N. Y. .65)................ 8 II v. Case ( 58 N. Y. 8 . 774)............ 391 rleigh v. Shepard & Morse Lumber Co. 58 N. Y. 8 . 1137).................. 617 rlew v. Hunter ( 58 N. Y. 8 . 453)....... 148 rnham v. Raymond ( 58 N. Y. 8 . 1137).. 625 sch Brewing Co., Matter of ( 58 N. Y. 8 . 12) ..................... 204 tier v. Butler ( 58 N. Y. 8 . 1094)....... 477 ladine v. City of Niagara Palls (58 N. . 8. 1137)....'.......?............... eron v. Nash ( 58 N. Y. 8 . 643)....... pbeil v. Joseph H. Bauland Co. (58 N. 8. 984)............................ I v. Doty ( 58 N. Y. 8 . 1137).......... 61 N.Y.S. Page; Carney, Matter of ( 58 N. Y. 8 . 1137).....617 Carrie v. Davis ( 58 N. Y. 8 . 820)......... 520. Carson v. Crawford ( 58 N. Y. 8 . 1137)____617-Chapman v. New York Cent. & H. R. R. Co. ( 58 N. Y. 8 . 728).................. 61@ Chicago Lumbering Co. of Michigan v. Hartman ( 58 N. Y. 8 . 1137)............ 626 Chicago & E. I. R. Co. v. Central Trust Co. of New York ( 58 N. Y. 8 . 809)......... 495-City of New York, Matter of (58 N. Y. S. 736) ................................"58® City of New York v. East Bay Land & Improvement Co. ( 58 N. Y. 8 . 724)____.... 567 City of Niagara Palls v. New York Cent. & H. R. R. Co. ( 58 N. Y. 8 . 619)....... 9S. Clark v. Village of Batavia ( 58 N. Y. 8 . 1138) ...............................624" Coheleach v. Gaily ( 59 N. Y. 8 . 1100)..... 632: Colebrook, Matter of ( 58 N. Y. 8 . 1138)... 625". Comesky v. Postal Tel. Cable Co. (58 N. Y. S. 467)................. 24R Conklin v. McCauley ( 58 N. Y. 8 . 879).... 452 : Cook v. Gordon ( 58 N. Y. 8 .1138)........ 624 ■ Coon v. Coon ( 58 N. Y. 8 . 1138)......... 617 Corbett v. Ciason ( 59 N. Y. 8 . 1101)..'____631 Cornell v. Village of Baidwinsville ( 58 N. Y. 8 . 1138)......................... 626" Comell Steamboat Co., People ex rel., v. Dederick ( 58 N. Y. 8 . 1146),............. 611, Crane, People ex rel., v. Chandler ( 58 N. Y. 8 . 794).......................... 178; Davis v. Marvine ( 61 N. Y. 8 . 1135>...... 617 Dayton, Matter of ( 59 N. Y. 8 . 1101)......632 Delafield v. Village of Westfield ( 58 N. Y. 8 . 277).............................. 24"; Denike v. Towns ( 58 N. Y. 8 . 931)-......... 62®. Deutermann v. Pollock ( 59 N. Y. 8 . LL01);.. 631; Deverell v. Bauer ( 58 N. Y. 8 . 413)......... 53 : De Vito v. Press Pub. Co. (59 N. Y. Si. 1102) 632 Devlin v. Hinman ( 59 N. Y. 8 . 1102)..... 632 Doigeville Electric Light & Power Co., Matter of ( 58 N. Y. 8 . 1139)............... 624i Dougherty v. King ( 58 N. Y. 8 . 67)....... Í Douglass v. Northern Cent. Ry. Co. ( 58 N. Y. 8 . 73)....... 615 Downes v. Elmira Bridge Co. ( 58 N. Y. 8 . 628) ................................ 838) Du Bois v. City of New York (59 N. Y. S» 1102) .............................. Y. S. 45)............................. 652 eople ex rel. Manhattan Ry. Go. v. Barker <59 N. Y. S. 926)..................... 13 People ex rel. Mehegan v. gcannell (59 N. Y. S. 950)............................ 401 People ex rel. Moore v. Leavy (59 N. Y. S. 408) ................................ 246 People ex rel. Pierce v. Cassidy (39 N. Y. S. 1112)............................. 589 People ex rel. Sherrill v. Guggenheimer (59 ' N. Y. S. 913)......................... 735 People ex rel. Shook v. Kilburn (59 N. Y. S. 1052)............................. 679 People ex rel. Smith v. Doyle (59 Ñ. Y. S. 959) ................................ 411 People ex rel. Speir v. Tax Corn’rs (59-N. Y. S. KUO)........................... 591 People ex rel. Tavlor v. Welde (59 Ñ. Y. S. 1030) ............................... 582 People ex rel. United States Grand Lodge of Order of Brith Abraham v. Payn (59 Ñ. Y. S. 851)........................:... 275 People ex rel. West v. City of Syracuse (59 N. Y. S. 763)......................... 95 Perkins v. Allen (58 N. Y. S. 1080; 59 N. Y. S. 258)............................ 145 Phillip Semmer Glass Co. v. Nassau ShowCase Co. (59 N. Y. S. 530)............. 577 Pierson, Matter of (59 N. Y. S. 1003)..... 726 Piskosh v. Third Ave. R. Co. (59 Ñ. Y. S. 1113) ............................... 778 Podmore v. Seamen’s Bank (59 N. Y. S.' 629) ................................ 488 Poliak v. Metropolitan St. Rv. Co. (58 Ñ. Y. S. 1133)..................... 791 Powell v. Allen (59 N. Y. S. 091)......... 775 Purdy, Matter of (59 N. Y. S. 887)....... 303 Quantmeyer v. J. H. Mohlman Go. (59 N. Y. S. 1113)........................... 795 Rand’s Will, Matter of (59 N. Y. S. 1082).. 465 Rawlinson v. Brainard & Armstrong Co. (59 N. Y. S. 880)..................... 287 Ray v. Adams (59 N. Y. S. 1047)......... 664 Eeade v. Continental Trust Co. (60 Ñ. Y. S. 258).............................. 721 Reals v. Weston (59 N. Y. S. 807)........ 67 Reilly v. Eastman’s Co. (58 N. Y. S. 1089) 125 Reiss v. Metropolitan St. Ry. Co. (58 N. Y. S. 1024)..................... 198. Rhind v. Stake (59 N. Y. S. 42)..........177 Rihan v. Namhoal (59 N. Y. S. 1114).....772 Ritter v. Greason (59 N. Y. S. 1053)...... 656 Rockefeller v. Taylor (59 N. Y. S. 1038)... 460 agers v. Sattler (58 N. Y. S. 1073)...... 242 posa v. Brooklyn Heights R. Co. (59 N. Y. S. 664).............................. 387 osenstock v. Montague (59 N. Y. S. 500) 483 osenzweig v. McCaffrey (59 Ñ. Y. S. 863) 485 othchild v. Schwarz (59 Ñ. Y. S. 527).... 521 ottenberg v. Stajer (59 N. Y. S. 192)____442 oy Watch-Case Co. v. Camm-Roy Watch-Case Co. (58 N. Y. S. 979)............. 45 upp, Matter of (59 N. Y. S. 997)........ 703 achs v. Walsh (60 N. Y. S. 214)........ 751 alomon v. State Bank (59 Ñ. Y. S. 407).. 324 Page Schreiber v. Finan (59 N. Y. S. 594)...... 560 Seaman v. Metropolitan St. Ry. Co. (58 N. Y. S. 1053)........................ 769 Semmer Glass Co. v. Nassau Show-Case Go. (59 N. Y. S. 530)..................... 577 Sheehan v. McMahon (59 N. Y. S. 969)____733 Shipway v. Rofrano (58 N. Y. S. 1111)____230 Silverstein v. Rugiero (58 N. Y. S. 1059).. 139 Slingerland v. International Contracting Co. (59 N. Y. S. 860).................. 319 Smith v. Harman (59 N. Y. S. 1044)...... 681 Smith v. National Surety Co. (59 X. Y. S. 789) ............................... 628 Sorzano v. Coudert (59 N. Y. S. 1064)..... 677 Spofford v. Pearsall (60 N. Y. S. 218)..... 730 Springfield Metallic Casket Co. v. Wielar (59 N. Y. S. 1115).................... 784 Sprogg v. Dichman (59 Ñ. Y. S. 906)...... 409 Steinhart v. Carver (59 Ñ. Y. S. 1115).... 794 Stern v. Barrett Chemical Co. (58 Ñ. Y. S. 1129) ...............................429 Stilwell v. Armstrong (59 Ñ. Y. S. 671).... 546 Stokes v. Stokes (59 N. Y. S. 801)........ 58 Strauss v. Benheim (59 N. Y. S. 1054).... 660 Stages, Matter of-(59 N. Y. S. 783)...... 110 Sutherland’s Will, Matter of (59 N. Y. S. 989) .............................. 424 Syracuse Rapid Transit Ry. Co. v. Salt Springs Nat. Bank (59 N. Y. S. 1066). .. 619 Thedford v. Eeade (59 N. Y. S. 537)....... 563 Third Nat. Bank v. Spring (59 Ñ. Y. S. 794) ................................ 9 Thompson v. City of Sea Isle City (59 Ñ. Y. S. 596)....................... 494 Thompson v. Rich (59 N. Y. S. 819)....... 265 Thompson v. Vidal (60 N. Y. S. 57)....... 711 Tompkins, Matter of (59 N. Y. S. 902).... 351 Torres v. Rogers (58 N. Y. S. 1104).......176 Town v. Metropolitan St. Ry. Co. (59 Ñ. Y. S. 1116)........................... 784 Tully v. Tully (59 N. Y. S. 818).......... 54 Turrell’s Will, Matter of (59 N. Y. S. 780) 106 Tyroler v. Gummersbach (59 N. Y. S. 266, 319) ...... .151 United States Mortgage & Trust Co. v. Hodgson (58 N. Y. S. 1132)............ 447 University Press v. Williams (59 N. Y. S. 817) ................................ 52 Van Horn v. Kittitas County (59 N. Y. S. 883) ................................ 333 Van Leeuwen v. Fish (39 Ñ. Y. S. 183).... 443 Victoria Paper Mills v. New York & P. Go. (58 N. Y. S. 1070).................... 123 Volk Hat Co. v. Loman (59 N. Y. S. 1116) 793 Volkmar v. Third Ave. R. Co. (58 N. Y. S. 1021) ............................... 141 Von Keller, Matter of (59 N. Y. S. 1079).. 600 Wallace v. Arkell (59 N. Y. S. 597)....... 502 Wallace’s Estate, Matter of (59 Ñ. Y. S. 1084) ............................... 603 Wallach v. Maack (59 N. Y. S. 1117)......797 Walton v. Riverside Bank (58 Ñ. Y. S. 1008) ............................... 449 Warrin’s Estate, Matter of (60 Ñ. Y. S. 191) ................................ 695 Watson v. Dealy (59 N. Y. S. 623)....... 544
*1222 1222 61 NEW YORK SUPPLEMENT and 95 New -York State Reporter. SZ8 MISC .—Continued. Page West Side Bank v. Foehrenbach (58 N. Y. S. 1067)............................. 130 Widmayer, Matter of (59 N. Y. S. 980).... 362 Wies v. Hoffman House (59 N. Y. S. 38)... 225 Williams y. Zimmermann (59 N. Y. S. 1119) 797 Wilso-n v. Tabernacle Baptist Church (59 N. Y. S. 148)......................... 268 Woodward’s Will, Matter of (59 N. Y. S. 1080) ................................ 602 Wormser’s,Estate, Matter of (59 N. Y. S. 1088) ................................60S Worthington v. London Guarantee & Accident Co. (58 N. Y. S. 1088)............. 774 Wulff v. Cilento (59 N. Y. S. 525)......... 551 VOL. 13, NEW YORK Page People v. Baker (50 N. Y. S. 771), .....105 People v. Burnham (48 N. Y. S. 946)..... 204 People v. Coombs (55 N. Y. S. 276). ...... 525 People v. Cornelius (55 N. Y. S. 723)..... 4l6 People v. Hippold (51 N. Y. S. 859)...... 23Ó People v. Dortliy (46 N. Y. S. 970)....... 173 People v. Dunn (52 N. Y. S. 968)........ 263 People v. Gartland (52 N. Y. S. 352)...... 163 People v. Gibson (48 N. Y. S. 861)....... 208 People v. Heiselbetz <51 N. Y. S. 685)..... 223 People v. Heiselbetz (55 N. Y. S. 4)..... 470 People v. Hill (56 N. Y. S. 282).......... 550 People v. ICellina (50 N. Y. S. 653)....... 134 People v. Levy (53 N. Y. S. 643)..... 269 People v. Lindenborn (52 N. Y. S. 101).... 195 People v. Lovejoy (55 N. Y. S. 543)....... 411 People v. Lovell (48 N. Y. S. 879)........ 206 People v. Lyons (51 N. Y. S. 811)......... 108 People v. Mack (54 N. Y. S. 698)......... 401 People v. Molineux (57 N. Y. S. 643)..... 544 People v. Mulkins (54 N. Y. S. 414)....... 359 People v. Nicholson (55 N. Y. S. 447)..... 472 People v. Ray (55 N. Y. S. 410)..........437 People v. Reilly (53 N. Y. S. 1005)........ 338 People v. Royal (48 N. Y. S. 742)......... 27 People v. Shaver (55 N. Y. S. 729)........ 420 People v. Shinburne (50 N. Y. S. 51)...... 157 People v. Sickles (50 N. Y. S. 377)........ 138 People v. Sullivan (54 N. Y. S. 538)...... 377 People v. Sumner (53 N. Y. S. 817).......318 People v. Thompson (53 N. Y. S. 497)..... 273 People v. Van Tassel (50 N. Y. S. 53).....160 People v. Wade (59 N. Y. S. 846)......... 425 CRIMINAL REPORTS. Page People v. Wade (57 N. Y. S. 645)........ 546 People v. Watkins (48 N. Y. S. 856)...... 218 People v. Willis: (52 N. Y. S. 808)........ 255 People v, Willis (54 N. Y. S. 52)......... 343 People v. Willis (54 N. Y. S. 129)........ 346 People v. Wilmarth (51 N. Y. S. 688)..... 227 People v. Wolf (53 N. Y. S. 296)......... 261 People ex rel. Bedell v. ICinney (48 N. Y. S. 749).............................. 21 People ex rel. Day v. Reese (53 N. Y. S. 965) ............ 334 People ex rel. Gardiner v. Olmstead (55 N. Y. S. 472)............................ 406 People ex rel. Hunt v. Markell (50 N. Y. S. 766).............................. 115 People ex rel. ICellar v. Schrady (53 N. Y. S. 964)............ 331 People ex rel. Keller v. Hinsdale (51 N. Y. S. 425)............................... 112 People ex rel. Kirkpatrick v. Crowley (49 N. Y. S. 214)......... 200 People ex rel. McLane v. Whitney (49 N. Y. S. 589) .......................... 191 People ex rel. Perry v. Hagan (54 N. Y. S. 826) ............................... 418 People ex rel. Saloom v. Whitney (53 N. Y. S. 570).............. 341 People ex rel. Sloane v. Fallon (57 N. Y. S. 931) .................................429 People ex rel. Sloane v. Fallon (57 N. Y. S. 931) ....................'............ 553 People ex rel. Snyder v. Whitney (49 N. Y. S. 591) ............................. 192 WEST PUBLISHING CO., PKINTEBS AND STEREOTYPERS, ST. PAUL, MINN.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7337511. Public record. Not legal advice.