# Young v. Equitable Life Assur. Society of United States

> Appellate Division of the Supreme Court of the State of New York · November 20, 1906 · 101 N.Y.S. 1150

URL: https://www.frixlaw.com/law-library/cases/8274629

## Case

- **Full name:** YOUNG v. EQUITABLE LIFE ASSUR. SOCIETY OF THE UNITED STATES
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** November 20, 1906
- **Citations:** 101 N.Y.S. 1150
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

PER CURIAM.
Motion for leave to go to Court of Appeals granted, and the following questions of law certified to the Court of Appeals as questions of law which ought to he reviewed by said court-: (1) Does the complaint state facts sufficient to constitute a cause of action against the defendant Charles B. Alexander? (2) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry M. Alexander? (3) Does the complaint state facts sufficient to constitute a cause of action against the defendant William Alexander? (4) Does the complaint state facts sufficient to constitute a cause of action against the defendant James W. Alexander? (5) Does the complaint state facts sufficient to constitute a cause of action against the defendant August Belmont? (6) Does the complaint state facts sufficient to constitute a cause of action against the defendant Cornelius N. Bliss? (7) Does the complaint state facts sufficient to constitute a cause of action against the defendant O. Ledyard Blair ? (8) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alexander J. Cassatt? (9) Does the complaint state facts sufficient to constitute a cause of action against the defendant Thomas De Witt Cuyler ? (10) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry C. Deming? (ll) Does the complaint state facts sufficient to constitute a cause of action against the defendant Chauncey M. Depew? (12) Does the complaint state facts sufficient to constitute a cause of action against the defendant Louis Fitzgei'ald? (13) Does the complaint state facts sufficient to constitute a cause of action against the defendant Marcellus M. Dodge? (14) Does the complaint state facts sufficient to constitute a cause of action against the defendant James B. Forgan? (15) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry O. Frick? (16) Does the complaint state facts sufficient to constitute a cause of action against the defendant George J. Gould? (17) Does the complaint state facts sufficient to constitute a cause of action against the defendant Henry C. Haarstiek? (18) Does the complaint state facts sufficient to constitute a cause of action against the defendant Edward H. Harriman? (19) Does the complaint state facts sufficient to constitute a cause of action against the defendant James J. Hill? (20) Does the complaint state facts sufficient to constitute a cause of action against the defendant Bradish Johnson? (21) Does the complaint state facts sufficient to constitute a cause of action against the defendant Thomas A. Jordan? (22) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alvin W. Krech? (23) Does the complaint state facts sufficient to constitute a cause of action against the defendant Joseph T. Low? (24) Does the *1151 complaint state facts sufficient to constitute a cause of action against the defendant John J. McCook? (25) Does the complaint state facts sufficient to constitute a cause of action against the defendant William H. McIntyre? (26) Does the complaint state facts sufficient to constitue a cause of action against the defendant Darius O. Mills? (27) Does the- complaint state facts sufficient to constitute a cause of action against the defendant David H. Moffat? (28) Does the complaint state facts sufficient to constitute a cause of action against the defendant Levi P. Morton? (29) Does the complaint state facts sufficient to constitute a cause of action against the defendant Jacob H. Schiff? (30) Does the complaint state facts sufficient to constitute a cause of action against the defendant Charles S. Smith? (31) Does the complaint state facts sufficient to constitute a cause of action against the defendant Valentine P. Snyder? (32) Does the complaint state facts sufficient to constitute a cause of action against the defendant George H. Squire? (33) Does the complaint state facts sufficient to constitute a cause of action against the defendant Alfred G. Vanderbilt? (34) Does the complaint state facts sufficient to constitute a cause of action against the defendant William O. Van Horne? (35) Does the complaint state facts sufficient to constitute a cause of action against the defendant George T. Wilson? (36) Are causes of action improperly united in the complaint, as alleged in the said defendants’ several demurrers? (37) Is there a misjoinder of parties plaintiff, as alleged in the said defendants’ several demurrers?
See case of same title immediately preceding.
End of Oases in Vol. 101. *
*1152 1
*1153 ÍNDEX, ABANDONMENT. Of rights arising from dedication, see “Dedication,” § 2. ABATEMENT AND REVIVAL Judgment as bar to another action, see “Judgment,” g 6. Substitution of parties, see “Parties," § 2. § 1. Transfer or devolution of title, right, interest, or liability. *A suit by a substituted trustee of a testamentary trust held not abated by the death of the beneficiary, under Code Civ. Proc. g 756.— Farmers’ Loan & Trust Co. v. Pendleton (Sup.) 340. ABUTTING OWNERS. Compensation for taking of or injury to lands or easements for public use, see “Eminent Domain,” g§ 1, 3. Bights in streets in cities, see “Municipal Corporations,” § 4. ACCEPTANCE. Of dedication, see “Dedication,” § 1. ACCESSION. Annexation of personal to real property, see “Fixtures.” ACCIDENT. Accident insurance, see “Insurance,” §§ 9, 10. Cause of death, see “Death,” § 1. ACCOMPLICES. Testimony, see “Criminal Law,” § 2. ACCORD AND SATISFACTION. See “Payment”; “Release.” As defense to action for rent, see “Landlord and Tenant," § 5. Plaintiff held entitled to set up fraud vitiating a defense of accord and satisfaction without any pleading thereof.—Whitehead v. Trussed Concrete Steel Co. (Sup.) 250. ACCOUNT. See “Account Stated.” Copies of accounts' alleged or annexed in pleading, see “Pleading,” § 6. Modification of judgment in action for accounting, see “Appeal,” § 7. Accounting by particular classes of persons. See “Executors and Administrators,” § 4. Attorney, see “Attorney and Client.” § 2. Partners, see “Partnership,” g§ 2, 4. Trustee, see “Trusts,” g 5. § 1. Proceedings and relief. ♦Where referee in effect took full account of profits claimed by plaintiff, interlocutory judgment in accounting held not necessary.— Smith v. Smith (Sup.) 521. ACCOUNT, ACTION ON. Copies of accounts alleged or annexed in pleading, see “Pleading,” § 6. ACCOUNT STATED. Where an attorney collected money for a corporation and retained it, facts held insnificient to show a settlement or an account stated between the attorney and the corporation’s assignee under a general assignment or trustee in bankruptcy.—In re Klein (Sup.) 663. ACCRUAL. Of right of action, see “Limitation of Actions,” § 1. ACCUMULATIONS. See “Perpetuities,” ACKNOWLEDGMENT. Operation and effect of admissions as ground of estoppel, see “Estoppel,” § 2. Operation and effect of admissions as evidence, see “Evidence,” g 5. ACTION. Abatement, see “Abatement and Revival.” Accrual, see “Limitation of Actions,” g 1. Bar by former adjudication, see “Judgment, g 6. Counterclaim, see “Set-Off and Counterclaim. » » ♦Point annotated. See syllabus. (1153) 101 N.T.S.—73
*1154 1154 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Jurisdiction of courts, see “Courts.” Limitation by statute, see “Limitation of Actions.” Malicious actions, see “Malicious Prosecution.” Set-off, see “Set-Off and Counterclaim.” Actions between parties m particular relations. See “Master and Servant,” §§ 2, 3; “Partnership,” §§ 2, 4. Co-tenants, see “Partition,” § 1. Actions by or against particular classes of persons. See “Brokers,” § 2; “Carriers,” §§ 2, 3; “Infants,” § 1; “Landlord and Tenant,” § 4; “Master and Servant,” § 4; “Municipal Corporations,” § 7; “Principal and Agent,” § 2; “Street Railroads,” § 2. Assignees, see “Assignments,” §§ 1, 2. Assignees in bankruptcy, see “Bankruptcy,” § 1. Corporate officers, see “Corporations,” § 4. Officers of insurance company, see “Insurance," § 1. Actions relating to particular species of property or estates. ;See “Fixtures.” and § 1. § 2. and Particular causes or grounds of action. See “Account Stated”; “Bills and Notes,” § 2; “Death,” § 1; “Fraud,” § 1; “Insurance,” §§ 12, 13; “Libel and Slander,” § 2; “Malicious Prosecution,” § 2; “Money Lent”; “Money Paid”; Negligence,” § 3; “Nuisance,” § 1; “Trespass” ; “Traver and Conversion,” § 1; “Work and Labor.” Alienation of affections, see “Husband Wife,” § 2. Bond of highway ofijeer. see “Highways,” Breach of contract, see “Contracts,” § 5. Compensation of broker, see “Brokers,” Discharge from employment, see “Master Servant,” § 1. Infringement of trade-mark or trade-name, see “Trade-Marks and Trade-Names,” § 3. Malfeasance by officers of insurance company, see “Insurance,” § 1. Penalty for cutting timber on forest preserve, see “Woods and Forests.” Personal injuries, see “Carriers,” § 3; “Landlord and Tenant,” § 4; “Master and Servant,” § 3; “Municipal Corporations,” § 5; “Railroads,” § 6; “Street Railroads,” § 2. Price of goods, see “Sales,” § 4. Recovery of payment, see “Payment,” § 1. Recovery of price paid for goods, see “Sales,” § 5. Recovery of price paid for land, see “Vendor and Purchaser,” § 3. Rent, see “Landlord and Tenant,” § 5. Services, see “Master and Servant,” § 2 ; “Work and Labor.” Taking of or injury to property in exercise of power of eminent domain, see “Eminent Domain,” § 3. Wages, see “Master and Servant,” § 2. Particular forms of action. See “Ejectment”; “Replevin”; “Trespass,” § 2; “Traver and Conversion.” Particular forms of special relief. See “Account” ; “Divorce”; “Injunction” ; “Interpleader”; “Partition,” § 1; “Specific Performance.” Accounting between partners, see “Partnership,” § 4. Alimony, see “Divorce,” § 3. Enforcement or foreclosure of lien, see. “Mechanics’ Liens,” § 2. Establishment of will, see “Wills,” § 2. Foreclosure of mortgage, see “Mortgages,” § 3; “Railroads,” § 4. Reformation of written instrument, see “Reformation of Instruments.” Settling aside fraudulent conveyance, see “Fraudulent Conveyances,” § 2. Particular proceedings in actions. See “Continuance”; “Costs”; “Damages”; “Depositions”; “Dismissal and Nonsuit”; “Evidence”; “Execution” ; “Judgment” ; “Jury”; “Limitation of Actions”; “Motions” ; “Parties” ; “Pleading” ; “Process”; “Reference”; “Trial”; “Venue.” Bill of particulars, see “Pleading,” § 6. Default, see “Judgment,” § 1. Verdict, see “Trial,” § 5. Particular remedies in or incident to actions. See “Attachment”; “Discovery”; “Injunction.” Proceedings in exercise of special or limited jurisdictions. Courts of limited jurisdiction in general, see “Courts,” § 2. Criminal prosecutions, see “Criminal Law.” Review of proceedings. See “Appeal”; “Judgment,” § 4; “Justices of the Peace,” § 1; “New Trial.” § 1. Nature and form. Allegations in an action for the recovery of money held insufficient to stamp it as one in conversion, defeating counterclaims founded on contract.—Lange v. Schile (Sup.) 1080. § 2. Joinder, splitting, consolidation, and severance. A complaint of a stockholder, seeking a recovery of a declared dividend, and to restrain the issuance of new stock, field to improperly join the law action and the equity action.—Searles v. Gebbie (Sup.) 199. Complaint in an action for enticing a wife, field not subject to demurrer as stating separate causes of action against each defendant.— De 'Ronde v. Bell (Sup.) 497. Complaint for the improper use of plaintiff’s photograph held to state but one cause of action, and that against both defendants.—Riddle v. MacFadden (Sup.) 606. ' Under Code Civ. Proc. § 484, a legal and equitable cause of action growing out of the improper use of plaintiff’s photograph held properly joined.—Riddle v. MacFadden (Sup.) 606. Actions on claims on a contract held proper for consolidation.—Wilson v. Locke (Sup.) 831. * Point annotated. See syllabus.
*1155 INDEX. 1155 •Delay in making a motion for consolidation of action held not ground for refusal of motion. —Wilson v. Locke (Sup.) 831. •Complaint held subject to demurrer for improperly uniting several causes of action.— Myers v. Lederer (Sup.) 1088. § 3. Commencement, prosecution, and termination. •Plaintiff held not entitled to recover installments under a contract by performing a condition precedent to his right of recovery after the commencement of the action.—Tullís v. Stone (Sup.) 1082. ACTION ON THE CASE. See “Trespass,” § 2. ADJOINING LANDOWNERS. See “Boundaries.” ADJUDICATION. Operation and effect of former adjudication, see “Judgment,” §§ 6, 7. ADMINISTRATION. Of estate of decedent, see “Executors and Administrators.” Of trust property, see “Trusts,” § 3. ADMISSIONS. As evidence in civil actions, see “Evidence,” § 5. ADULTERATION. •In an action to recover a penalty for the delivery of adulterated milk contrary to the Agricultural Law, Laws 1893, p. 655, c. 338, held, that the question whether a sample taken under section 12 (page 659) was a fair one was for the jury.—People v. Weaver (Sup.) 961. In an action under Laws 1893, p. 659, c. 338, § 12, to recover a penalty for the delivery of adulterated milk, held that there was a sufficient delivery to defendant of a sample of the milk in question.—People v. Weaver (Sup.) 961. Failure of an inspector to comply with the provisions of Agricultural Law, Laws 1893, p. 659. c. 338, § 12, in regard to the delivery of a duplicate sample of milk, held to preclude recovery of a penalty under the statute for adulteration.—People v. Weaver (Sup.) 961. In an action under the Agricultural Law, Laws 1893, p. 655, c. 338, to recover a penalty for the delivery of adulterated milk, the fact that the inspector was not present at the entire milking of the herd for the purpose of taking a sample held no bar to a recovery.—People V. Weaver (Sup.) 961. •Point annotate ADULTERY. Ground for divorce, see “Divorce,” § 2. Of plaintiff as defense to action for divorce, see “Divorce,” §§ 1, 2. ADVERSE POSSESSION. See “Limitation of Actions.” ADVERTISEMENT. Of contracts for public improvements, see “Municipal Corporations,” § 3. AFFIDAVITS. See “Depositions.” Particular proceedings or purposes. See “Attachment,” § 1. Examination of judgment debtor, see “Execution,” § 3. To set aside judgment, see “Judgment,” § 4. Verification of claim against town, see “Towns,” § 2. AGENCY. See “Principal and Agent.” AGREEMENT. See “Contracts.” ALIENATION. Of affections, see “Husband and Wife,” .§ 2. Suspension of power of alienation of property, see “Perpetuities." ALIENS. See “Indians.” ALIMONY. See “Divorce,” § 3. ALTERATION OF INSTRUMENTS. See “Reformation of Instruments.” AMBASSADORS AND CONSULS. Under the treaty of April 26, 1826 ( 8 Stat. 342 , art. 8) with the kingdom of Denmark, the Danish consul cannot appear for an infant party to a proceeding for the probate of a last will, so as to give the Surrogate’s Court jurisdiction of such party, without the issuance of a citation.—In re Peterson’s Will (Sur.) 285. AMENDMENT. Of parties, see “Parties,” § 3. Of pleading, see “Pleading,” § 5. Of record on appeal, see “Appeal,” § 4. Power of lower court to allow amendment on remand, see “Appeal,” § 7. 1. See syllabus.
*1156 1156 101 NEW YORK SUPPLEMENT and 135 New York State Reporter ANIMALS. Railroads frightening animals, see “Railroads,” APPEAL. See “Justices of the Peace,” § 1; “New Trial.” Costs, see “Costs,” § 5. From judgment of municipal court, see “Courts,” § 2. Power of appellate court to grant injunction, see “Injunction,” § 2. Review in criminal prosecutions, see “Criminal Law,” § 4. Review in special proceedings. Condemnation proceedings, see “Eminent Domain,” § 2. For removal of executor, see “Executors and Administrators,” § 1. In Indian court, see “Indians.” Probate proceedings, see “Wills,” § 2. § 1. Decisions review-able. *A judgment by default cannot be appealed from.—-Levine v. Munchik (Sup.) 14. *An order denying a motion to open a default is appealable.—Levine v. Munchik (Sup.) 14. *Where a municipal court judgment was void because entered more than 14 days after final submission of the cause, and because there had been no trial of the action, the remedy of the defeated party was by appeal.—Barron v. Feist (Sup.) 72. *An order, settling and allowing cross-interrogatories propounded by the plaintiff to defendant, is appealable.—Shafer ' v. McIntyre (Sup.) 268. ■ *It being for the trial court to determine what was before it, its order, resettling the case on appeal to include exhibits alleged to have been omitted, will not be disturbed.—Volhard v. Vol-hard (Sup.) 453. *An order, denying a motion for an adjournment, held not appealable.—Fred S. Chute Co. v. Westbay (Sup.) 527. *An appeal from a judgment by default dismissed where no motion had been made to open the default.—Fred S. Chute Co. v.. Westbay (Sup.) 527. *An order granting a motion for a reargument is not appealable.—Hart v. Kaplan (Sup.) 763. *No appeal lies from an order of the Municipal Court of the city of New York denying a motion for reargument.—Steindler v. American Bonding Co. (Sup.) 795. *A default judgment in the Municipal Court of the city of New York is not appealable.— Steindler v. American Bonding Co. (Sup.). 795. *An appeal lies from an order of the Municipal Court of the city of New York denying a motion to open a default.—Steindler v. American Bonding Co. (Sup.) 795. § 2. Presentation and. reservation ini lower court of grounds of review, *In an action against an executor held, that the objection that the word “as” was omitted between defendant’s name and his title could' not be first raised on appeal.—Pryor v. Milburn (Sup.) 34. ’-Where, in the trial of an action for damages, defendant acquiesced in the rule adopted by plaintiff to show the measure of damages, defendant could not, on appeal, challenge the correctness of the rule.—Morrison v. American Telephone & Telegraph Co. (Sup.) 140. ^Failure to attempt to introduce in evidence in an action on a life insurance policy the application therefor, held, to preclude the raising on appeal of the question of its admissibility.— Carr v. Prudental Ins. Co. (Sup.) 158. *Questions of fact not submitted to the jury on the trial of a case cannot be considered on appeal.—Van Alstine v. Standard Light, Heat & Power Co. (Sup.) 696. The statement of counsel at the trial as to his understanding of the law will not estop Him from urging on appeal that the law is not in harmony with that understanding.—People v. Armstrong (Sup.) 712. § 3. Requisites and proceedings for transfer of cause. *Where a notice of appeal described the judgment as entered in favor of a tenant on June 18, 1906, and the only judgment in the record was against the tenant, and rendered October 38, 1906, the appeal will be dismissed.— Oberwager v. Levy (Sup.) 793. § 4. Record and proceedings not in record. *Lack óf a certificate that the case on appeal contained all the evidence held to result in the presumption that a finding of fact by the tria$ court was correct.—Kuhn v. Knight (Sup.) 1. *For variance between notice of appeal and record as to what the judgment was, held the record would be returned to the trial court for correction.—Hartman v. Kahn-Feinberg Co. (Sup.) 108. Where the judgment from which the appeal purports to be is not in the record held the questions involved in the appeal cannot be considered.—Spencer v. Busch (Sup.) 188. *Where a record is conflicting as to the parties, plaintiff and defendant, in the case, and as to the cause of action involved, it will be returned to the trial court for correction.— Bruck v. Gilmartin & Dewell (Sup.) 527. *On appeal to the appellate term held that the return of the Municipal Court must govern as against an affidavit made by plaintiff’s attorney—Gottlieb v. Kurlander (Sup.) 751. *Where affidavits referred to in briefs on appeal do not appear in record, return will be 0 sent back to files to permit parties to move to amend it.—Waldman v. Mann (Sup.) 757. * Where the notice of .appeal recites an appeal from a judgment of dismissal,- and the See syllabus. * Point annotated."
*1157 INDEX, 1157 record does not contain such judgment, the case will be remanded for such action as the parties may deem proper.—Shiel v. Miller (Sup.) 789. ♦Defendant held entitled to an amendment of the case on appeal as to a request to charge.— McMahon v. Delaware, L. & W. R. Co. (Sup.) 805. Whether default in serving printed copies of papers on appeal should be opened must be settled on motion in the Appellate Division, but whether default in service of a case on appeal should be open must be settled at the Special Term.—Hanson v. Walsh (Sup.) 1061. ♦One of the defendants who was defeated held entitled to have the case on appeal resettled so as to disclose the grounds on which his motion to dismiss at the close of plaintiff’s case was made.—Blewett v. Hoyt (Sup.) 1086. 5 5. Dismissal, withdrawal, or abandonment. An appeal from an order continuing an injunction restraining the appellant from acting as executor will be dismissed where before the appeal was argued the letters testamentary issued to appellant were revoked.—In re Hirseh’s Estate (Sup.) 1027. § 6. Review. ♦Where the pleadings present an issue of fact, and the burden is on the plaintiff, and there is no evidence, a judgment for plaintiff must be reversed.—Vitigliano v. Filusia (Sup.) 20. ♦In an action by a servant for personal injuries, granting of a nonsuit, based on the failure to prove defendant’s negligence, held not sustainable on the ground of contributory negligence.— Wendell v. Leo (Sup.) 51. ♦Error cannot be regarded as harmless unless it affirmatively appears that no prejudice resulted.—Englander v. Fleck (Sup.) 125. On appeal from a judgment based on a life insurance policy, a presumption in favor of the judgment held to arise as to a disputed acceptance of premiums by the company, not passed on by the jury.—Carr v. Prudential Ins. Co. (Sup.) 158. ♦On appeal from a judgment, based on a life insurance policy, any error in refusing to submit to the jury the question as to the mailing of a required notice of forfeiture under Laws 1897, p. 92, c. 218, § 92, held favorable to appellant.—Carr v. Prudential Ins. Co. (Sup.) 158. ♦Where defendant appealed from an order allowing cross-interrogatories propounded to him by the plaintiff, it rested upon him to show that they were clearly irrelevant.—Shafer v. McIntyre (Sup.) 268. Where, under the charge, a verdict might have been reached by a finding that deceased was killed by the original accident, not contributed to by deceased’s negligence, which was unwarranted, the verdict could not rest on proof of negligence subsequent to the happening of the accident.—Healy v. United Traction Co. (Sup.) 331. ♦Point annotate The erroneous admission of an offer of compromise in a suit against a firm held not cured by the admission of one of the members of the firm that he made the offer, and stated why he did so.—Franklin v. Hoadley (Sup.) 374. The resettling of the case on appeal to have the title where appearing in the printed papers conform to that in the summons and complaint cannot be complained of.—Yolhard v. Volhard (Sup.) 453. Under Code Civ. Proc. § 1316, a defendant, appealing _ from a final judgment, held entitled to a review of an interlocutory judgment.— Bauer v. Parker (Sup.) 455. ♦Where there was a sharp conflict of proof, the finding will not be disturbed.—J. C. Bogert Co. v. Schmidt (Sup.) 580. ♦A judgment founded on improper instructions, duly excepted to, cannot be upheld.— Stantial v. Union Ry. Co. (Sup.) 662. ♦Upon an appeal from a nonsuit appellant is entitled to the most favorable inferences deducible from the evidence.—Duffy v. Interurban St. Ry. Co. (Sup.) 767. The court in reviewing a judgment of nonsuit must place on the evidence a construction most favorable to plaintiff, and consider the rea' able inferences that may be drawn therefrom.— Fruhauf v. Interborough Rapid Transit Co. (Sup.) 781. ♦Determination of a motion to correct a case on appeal by a justice other than the one who tried the case, and who heard the motion only on the papers submitted, held not conclusive on appeal.—McMahon v. Delaware, L. & W. R. Co. (Sup.) 805. ♦An order continuing a preliminary injunction till trial held not to be disturbed, the facts calling for exercise of discretion.—Manufacturers Commercial Co. v. Anderson (Sup.) 823. ♦The awarding of costs on setting aside a verdict, as authorized by Code Civ. Proc. § 999, for inadequacy of damages, held within court’s discretion, and not subject to reversal on appeal.—Waltz v. Utica & M. V. Ry. Co. (Sup.) § 7. Determination and disposition of cause. ♦Where defendant failed to appear on the hearing of a motion to open a default, and the court thereon improperly ordered a denial instead of a dismissal of the motion, it can only be modified upon appeal by providing for a dismissal.—Levine v. Munchik (Sup.) 14. ♦An erroneous judgment in an action by a partner for an accounting held not subject to correction on appeal, and hence to require a reversal for a new trial.—Hebblethwaite v. Flint (Sup.) 43. ♦An excessive judgment for personal injuries held subject to affirmance on condition of prior stipulation of reduction to a reasonable sum.— Schierloh v. Interurban St. Ry. Co. (Sup.) 437. 1. See syllabus.
*1158 1158 101 NEW YORK SUPPLEMENT and 135 New York State Reporter *A reversal of a judgment in an action to enforce a limited liability of the directors of a corporation held to inure to the benefit of a director who did not appeal.—Bauer v. Parker (Sup.) 465. An order dismissing a complaint for failure to prosecute will be reversed on condition where sustaining the order would work great injustice to appellant.—Gunn v. Metropolitan St. Ry. Co. (Sup.) 791. The special term of the Supreme Court held authorized to allow amendment of complaint, and to amend the judgment of dismissal to allow the complaint to stand as amended.—Town of Palatine v. Canajoharie Water Supply Co. (Sup.) 810. APPLIANCES; Liability of employer for defects, see “Master and Servant,” § 8. APPOINTMENT. Of corporate officers, see “Corporations,” § 4. Of executor or administrator, see “Executors and Administrators,” § 1. Of judge, see “Judges,” § 1. Of public officers in general, see “Officers,” § 1. APPORTIONMENT.* Of damages recovered for wrongful death, see “Damages,” § 1. Of legislative districts, see “States,” § 1. ASSIGNMENTS. Counterclaim against assigned cause of action, see “Set-off and Counterclaim,” § 1. Fraud as to creditors, see “Fraudulent Conveyances.” Transfers of particular species of property, rights, or instruments. See “Trade-Marks and Trade-Names,” § 2. Contracts with corporation to consolidated corporation, see “Corporations,” § 6. Corporate shares, see “Corporations,” § 2. § 1. Rights and liabilities of parties. ♦The driver for an express company, who was compelled to pay amount of claim for goods delivered to it and who with the consent of the express company took an assignment of the claim, could maintain an action against the consignee for the value of the goods alleged to have been delivered to him.—Buchhoiz v. Damick (Sup.) 17. § 2. Actions. In an action by assignee of an accepted order requiring defendant to pay to the payee a sum due drawer under a certain contract, evidence held sufficient to show that moneys were due the drawer under such contract—Tim v. Elite Realty Co. (Sup.) 533. ♦The assignee of a claim held not entitled to sue thereon without first demanding payment.— Packard v. Long Island R. Co. (Sup.) 660. ♦Where there was uncontradicted evidence of a paroi assignment of a claim, the assignee could maintain an action thereon in his own name.—Haller v. Ingraham (Sup.) 789. ARCHITECTS, ASSIGNMENTS FOR BENEFIT OF CREDITORS. Approval of architect as condition precedent to recovery for performance of contract, see “Contracts,” § 4. See “Bankruptcy,” § 1. ASSOCIATIONS. ARMY AND NAVY. Preference to veterans in appointment of municipal employes, see “Municipal Corporations,” § 1. ARREST. Illegal arrest, see “False Imprisonment.” Mandamus to reinstate expelled member of, see “Mandamus,” § 3. Mutual benefit insurance association, see “Insurance,” § 13. ASSUMPSIT, ACTION OF. See “Account Stated”; “Money Lent” Paid”; “Work and Labor.” “Money ASSAULT AND BATTERY. Mental suffering as element of damages, see “Damages,” § 1. ASSUMPTION. Of risk by employé, see “Master and Servant,” § 3. Of risk, in general, see “Negligence,” § 2. ASSESSMENT, ATTACHMENT. Of compensation for property taken for public use, see “Eminent Domain,” § 2. Of loss on insured, see “Insurance,” §§ 4, 7. Of tax, see “Taxation,” § 2. § 1. Proceedings to procure. ♦An application for a warrant of attach, ment should be based on legal evidence; hearsay evidence will be substituted therefor only in ♦Point annotated. See syllabus.
*1159 INDEX. 1159 cases of necessity.—Gumbes v. Hicks (Sup.) 741 *An attachment against nonresident cannot issue on complaint and affidavit made on information and belief derived from a letter which is not presented.—Gumbes v. Hicks (Sup.) 741. ATTORNEY AND CLIENT. Account stated between attorney and client, see “Account Stated.” Liability of attorney for contempt, see “Contempt.” Reception of testimony of attorney at trial of civil action, see “Trial,” § 2. Right to attorney’s fees under indemnity contract, see “Indemnity.” § 1. The office of attorney. ♦Practicing under an assumed name held, to call for disbarment of an attorney for unprofessional conduct, deceit, fraud, and malpractice. —In re Kaffenburgh (Sup.) 507. Practicing law held not a business, and so not authorized under an assumed name by Pen. Code, § 363b.—In re Kaffenburgh (Sup.) 507. Where an attorney was admitted to practice on a showing that he had practiced in Texas, but he suppressed the fact that he had practiced in Virginia under a different name and had there been disbarred, there was ground for his disbarment.—In re Marx (Sup.) 680. In proceedings to disbar an attorney on the ground that he had previously been disbarred in another state held that his excuse offered was no defense.—In re Marx (Sup.) 680. § 2. Duties and liabilities of attorney to client. Where an attorney retained his client’s money, claiming a lien thereon the Supreme Court held to have jurisdiction to determine the question summarily on application.—In re Klein (Sup.) 663. A trustee in bankruptcy held entitled to maintain an application in the Supreme Court to compel an attorney to pay over moneys collected for the bankrupt.—In re Klein (Sup.) 663. An attorney held justified in refusing on demand of the client’s trustee in bankruptcy to turn over all moneys which the attorney had collected without allowing him to retain anything for his services.—In re Klein (Sup.) 663. ♦Under the evidence held that petitioner did not have a right to maintain summary proceedings against defendant to compel him to pay over money received as an attorney.—In re Nellis (Sup.) 698. ♦The right of a client to proceed in a summary manner against an attorney to compel him to pay over moneys received by him is subject to the discretion of the court.—In re Nellis (Sup.) 698. *On application of a client, the court can, under common law, inquire into the alleged misconduct of his attorney by an order to show cause; and Code Civ. Proc. only regulates the authority and dictates the manner in which ♦Point annotate such right may be exercised.—People v. Fee-naughty (Sup.) 700. ♦Court held to have common-law authority to inquire into alleged misconduct of attorney on application of client.—People v. Feenaughty (Sup.) 700. ♦Remedy of client for recovery of money withheld by attorneys claiming lien held, not by action for conversion, but by application for order to show cause or action for accounting.—Rose v. Whiteman (Sup.) 1024. § 3. Compensation and lien of attorney. In action by an attorney for services, a judgment in his favor held under the facts erroneous as for an insufficient amount.—Allen v. Flynn (Sup.) 747. ♦Attorneys held entitled to assert lien on moneys coming into their hands as attorneys till compensation has been agreed on.—Rose v. Whiteman (Sup.) 1024. AUCTIONS AND AUCTIONEERS. ♦Failure of auctioneers to pay over the proceeds of a sale held a breach of their bond creating an immediate liability thereon.—Plummer v. Bankers’ Surety Go. (Sup.) 529. Where plaintiff requested certain auctioneers to pay over the proceeds of a sale of plaintiff’s goods, such request constituted a sufficient demand to put the auctioneers in defaults—Plummer v. Bankers’ Surety Co. (Sup.) 529. AUTHORITY. Of agent, see “Principal and Agent,” § 2. AUTOMOBILES. Injuries to third person caused by negligence of chauffeur, see “Master and Servant,” § 4. Speculative damages in action for injuries to, see “Damages,” § 1. Use of streets by, see “Municipal Corporations,” § 4. BAILMENT. Particular species of bailments, and bailments incident to particular occupations. See “Banks and Banking,” § 1; “Carriers,” § 2; “Pledges.” ♦Bailees for hire held' not liable for injuries to a truck caused by a collision with a street car, owing solely to the negligence of the motorman.—Littlefield v. New York City Ry. Co. (Sup.) 75. In an action against a bailee for the hire of a lamp, evidence held insufficient to sustain a judgment dismissing the complaint.—Municipal Lighting Co. v. Pauli (Sup.) 84. A bailee, in the absence of negligence, is not liable for the loss' of goods by burglary.— Campbell v. Klein (Sup.) 577. I. See syllabus.
*1160 1160 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Evidence held not to show purchaser of dyeing business guilty of negligence rendering her liable for goods stolen from place of business.— Campbell v. Klein (Sup.) 577. BANKRUPTCY. Allegations in complaint in action by trustee in bankruptcy, as to failure to file chattel mortgage, see “Chattel Mortgages,” § 1. Right of trustee in bankruptcy to compel attorney to pay over moneys collected for bankrupt, see “Attorney and Client,” § 2. § 1. Assignment, administration, and distribution of bankrupt’s estate. ♦Action by a trustee in bankruptcy to have set aside a transfer of the bankrupt’s property, held properly brought in equity.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦A complaint by a trustee in bankruptcy to set aside a transfer as preferential under Acts July 1, 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], held to sufficiently allege that the “enforcement” of the transfer would result in a preference.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦Complaint under Acts July 1. 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [TJ. S. Comp. St. 1901, p. 344b], declaring preferential transfers voidable by a trustee in bankruptcy, held sufficient without a specific allegation that the transfer was voidable by the trustee.—Lesser v. Bradford Realty Co. (Sup.) 571. ♦Allegations of a complaint by a trustee in bankruptcy under Acts July 1. 1898, c. 541, § 60, subds. a, b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], declaring a preferential transfer voidable by the trustee, held to sufficiently show plaintiff’s interest.—Lesser v. Bradford Realty Co. (Sup.) 571. § 2. Rights, remedies, and discharge of bankrupt. ♦Discharge of a partner in individual bankruptcy proceedings after the dissolution of the firm held to entitle the bankrupt to a cancellation of a judgment for a firm debt which was duly scheduled and provable in the bankruptcy proceedings, under Code Civ. Proe. § 1268.— Berry Bros. v. Sheehan (Sup.) 371. ♦Defendant’s discharge in bankruptcy under Bankr. Act July 1, 1898. c. 541, § 17, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], held no bar to an action on an agreement whereby defendant was to save plaintiff harmless from partnership debts.—Ogilby v. Munro (Sup.) 753. BANKS AND BANKING. Establishment of trust in bank deposit, see “Trusts,” § 1. § 1. Functions and dealings. ♦Petitioner as one of the trustees of a bank deposit for the benefit of an incompetent held not entitled to an equitable set-off on the insolvency of the bank to the amount of such deposit against his individual debt to the bank. —People v. German Bank (Sup.) 917; In re Hauenstein, Id. § 2. National banks. ♦A contract of guaranty executed by a national bank held void as ultra vires.—Appleton v. Citizens’ Cent. Nat. Bank (Sup.) 1027. ♦Under Rev. St. U. S. § 5136 [U. S. Comp. St. 1901, p. 3455], a national bank held not authorized to enter into a general contract of guaranty by which it becomes liable for debts of others.—Appleton v. Citizens’ Cent. Nat. Bank (Sup.) 1027. § 3. Loan, trust, and investment companies. Depositors with an insolvent trust company having no interest contracts held entitled to interest from the date of the appointment of the receiver.—People v. Merchants’ Trust Co. (Sup.) 255. Holders of certificates of deposit in an insolvent trust company held entitled to interest at a specified rate to the date of the appointment of the receiver, and thereafter at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. A depositor with an insolvent trust company is entitled to payment of interest after dissolution only upon the balances! which would have been due to him had he accepted the several installments of principal at the time they were respectively paid to creditors by the receivers. —People v. Merchants’ Trust Co. (Sup.) 255. Holders of certified checks on an insolvent trust company held entitled to interest upon their respective credit balances from the date of the receivership up to the date of the final payment of principal at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. Appointment of receivers for a trust company obviates necessity for demand by depositors for payment of their deposits.—People v. Merchants’ Trust Co. (Sup.) 255. Depositors, having special interest contracts with an insolvent trust company, held entitled to recover interest at the contract rate up to the time of the appointment of the receiver, and thereafter at the legal rate.—People v. Merchants’ Trust Co. (Sup.) 255. Where the assets of an insolvent corporation proved sufficient to pay its creditors in full held that they were entitled to interest.—People v. Merchants’ Trust Co. (Sup.) 255. BAR. Of action by former adjudication, see “Judgment,” § 6. BENEFICIAL ASSOCIATIONS. Mandamus to reinstate expelled member of, see “Mandamus,” § 3. Mutual benefit insurance association, see “Insurance,” § 13. 'Point annotated. See syllabus.
*1161 INDEX, 1161 BENEFITS. Acceptance of, as ground of estoppel, see “Estoppel,” § 2. BEQUESTS. See “Wills.” BEST AND SECONDARY EVIDENCE In civil actions see “Evidence,” § 4. BIAS. Of witness, see “Witnesses,” § 3. BILL OF EXCHANGE. See “Bills and Notes.” BILL OF, PARTICULARS. See “Pleading,” § 6. BILLS AND NOTES. Part payment within statute of limitations, see “Limitation of Actions,” § 2. Usury in note, see “Usury,” § 1. $ 1. Requisites and validity. In an action on a note signed by a married woman, evidence that she was induced to sign with her husband on his promise th,at she would never be required to pay it, held insufficient to relieve her from liability.—Hover v. Magley (Sup.) 245. *In an action on a note given in part payment on a sale, defendant held entitled to defend on the ground of fraud.—Douglass v. Richards (Sup.) 299. § S. Actions. *Under Negotiable Instruments Law, § 320, Laws 1897, p. 755, c. 612, a complaint on a note made to the maker’s own order, failing to allege the maker’s indorsement, held fatally defective.—Simon v. Mintz (Sup.) 86. In action, by indorsee on note, held error under pleadings and evidence to direct verdict in favor of indorsee.—Royal Bank of New York v. Goldschmidt (Sup.) 101. BONA FIDE PURCHASERS. Of lands, see “Vendor and Purchaser,” § 2. BONDS. Municipal bonds, see “Municipal Corporations,” § 6. Of government contractor, see “United States,” § 1. Sureties on bonds, see “Principal and Surety.” ::: Point annotate Bonds for performance of duties of trust or office. See “Auctions and Auctioneers”; “Officers,” § 3. Highway officers, see “Highways,” § 1. Town officers, see “Towns,” § 1. Bonds in judicial proceedings. See “Costs,” § 4. BOOKS. Of corporation, see “Corporations,” § 4. BOUNDARIES. § 1. Description. *Title to the center of a street is conveyed where the property is conveyed according to a map filed which shows such streets as boundaries, though the city never opens the street. —Trowbridge v. Ehrich (Sup.) 995. BREACH. Of condition, see “Insurance,” §§ 6, 7. Of contract, see “Contracts,” § 4; “Sales,” § 2; “Vendor and Purchaser,” § 1. Of warranty, see “Sales,” §§ 3, 5. BROKERS. Insurance brokers, see “Insurance,” § 2. Retroactive operation of laws repealing laws relating to unauthorized offers for sale of real property, see “Statutes,” § 4. § 1. Compensation and lien. A broker employed to procure a purchaser of land held to have earned his commission.—Lovett v. Clench (Sup.) 174. * Where a broker was employed by both parties to contract of exchange of property, neither could refuse compensation where he had knowledge that the broker was also in the employ of the other.—Tieck v. McKenna (Sup.) 317. ‘^Broker’s right to commissions for procuring execution of contract for exchange of property held not affected by noncompletion of contract. —Tieck v. McKenna (Sup.) 317. - ^Section 640d of the Penal Code (Laws 1901, p. 312, c. 128) held not to preclude broker having no written authority from either party to ask for an exchange of property from recovering commissions for procuring execution of such contract.—Tieck v. McKenna (Sup.) 317. *Real estate brokers held not entitled to commissions.—Ward v. Kennedy (Sup.) 524. Where a memorandum of a broker’s authority to sell was not signed by the owner or her attorney in fact as required by Pen. Code, § 640d, the broker could not recover against the owner’s husband for breach of an implied warranty of authority to place the property for sale.—Hochbaum v. Rotter (Sup.) 531. 1. See syllabus.
*1162 1162 ♦Broker negotiating mortgage loan held not entitled to commissions.—Kronenberger v. Teschemacher (Sup.) 764. Claim against decedent’s estate for commissions for sale of decedent’s land dismissed.— In re French’s Estate (Sur.) 734. § 2. Actions for compensation. In an action for services rendered by a broker, evidence examined and held to require submission to jury of question whether defendant employed broker to perform services rendered.— Tieck v. McKenna (Sup.) 317. In an action against party to contract of ■exchange of property for services rendered by broker in procuring execution of such contract, evidence examined and held to show disclosure to defendant by broker of his agency for the other party, also.—Tieck v. McKenna (Sup.) 317. Evidence in an action for commission held insufficient to support judgment for plaintiff.— Greenfield v. Kaplan (Sup.) 567. In an action for commissions earned by a broker, the defense that a written authority is required by Pen. Code, § 640d, held not available unless specially pleaded.—Strunski v. Geiger (Sup.) 786. BUILDING CONTRACTS. See “Contracts,” § 4. BURGLARY. Liability of bailee for loss of goods by burglary, see “Bailment.” CANALS. Forest preserves for protection of water supply for canal, see “Woods and Forests.” CANCELLATION OF INSTRUMENTS. Cancellation of insurance policy, see “Insurance,” § 5. Cancellation of liquor tax certificates, see “Intoxicating Liquors.” § 1. Setting aside fraudulent conveyances, see “Fraudulent Conveyances,” § 2. CARRIERS. Excessive damages in action for injuries to passenger, see “Damages,” § 2. Inadequate damages in action for ejection of passenger, see “Damages,” § 2. Mental suffering as element of damages in action for ejection of passenger, see “Damages,” § 1. Release by passenger of damages sustained, see “Release, § 1. Verdict disregarding instructions injuries to passenger, see “Trial Control and regulation of common CEivriex’S* Under Railroad Law, Laws 1890, p. 1096, c. 565, § 39, and Id. pp. 1113, 1114, §§ 101, 104, as amended by Laws 1892, pp. 1405, 1406. c. 676, a bona fide passenger, desiring to make one continuous trip between two points on a street railway held entitled to recover from the carrier a penalty for its refusal to give a transfer.—Hennion v. New York City Ry. Co. (Sup.) 100. The Hepburn Act, Act Cong. June 29, 1906, 34 Stat. 584 , c. 3591, held to apply to railroad with termini in different states and operating coal mines in one state.—Central Trust Co. of New York v. Pittsburg, S. & N. R. Co. (Sup.) 837. § 2. Carriage of goods. ♦In an action against an express company, evidence, that plaintiff did not read the terms of a limited liability receipt, held admissible on the question of his consent to varying the terms of the oral contract.—Coggswell v. Weir (Sup.) 188. ♦In an action against an express company for loss of goods whether plaintiff assented to the terms of a limited liability receipt, held for the jury.—Coggswell v. Weir (Sup.) 188. § 3. Carriage of passengers. In action for injuries received while attempting to board a street car evidence held not to show negligence on part of the motorman.— Egg v. Rochester Ry. Co. (Sup.) 195. ♦Evidence in action for injuries to passenger held to warrant the jury in finding for plaintiff. —McLaughlin v. Syracuse Rapid Transit Ry. Co. (Sup.) 196. ♦In an action for injuries to a boy by jumping from a moving street car on being frightened by "flames issuing from the controller box, whether he was guilty of contributory negligence held for the jury.—Paine v. Geneva, W., S'. F. & C. L. Traction Co. (Sup.) 204. ♦Where a passenger on a street car jumped therefrom because an unusual explosion and fire issuing from the controller box, the burden was on the carrier to relieve itself from the presumption of negligence.—Paine v. Geneva, W., S. F. & C. L. Traction Co. (Sup.) 204. In an action for injuries to a passenger on an electric car, it was no defense that the controller was of the best approved pattern, had been properly inspected, and that there was no known means to determine in advance whether such a controller would explode.—Paine v-Geneva, W., S. F. & C. L. Traction Co. (Sup.) 204. A passenger on a street car held not making a “continuous trip,” within Railroad Law, Laws 1892, p. 1406, c. 676, § 104; and therefore not entitled to recover the penalty for refusal of a transfer.—Hunt v. Brooklyn Heights R. Co. (Sup.) 209. In an action against a street railway for injuries to a passenger, facts held, insufficient to See syllabus. 101 NEW YORK' SUPPLEMENT and 135 New York State Reporter § 1. in action for ” § 5. ♦Point annotated.
*1163 INDEX. 1163 show negligence on the part of defendant.— Adams v. New York City Ry. Co. (Sup.) 510. ♦Passenger on street car held guilty of contributory negligence in riding in a dangerous position.—KlefEmann v. Metropolitan St. Ry. Co. (Sup.) 582. ♦A verdict in an action by a passenger against a street railway company for the misconduct of the conductor held excessive.—Burfeindt v. New York City Ry. Co. (Sup.) 589. ♦In an action for injuries to a passenger, while attempting to alight, in consequence of the sadden starting of the ear, the question of the negligence of the company, under Railroad Law, Laws 1890, p. 1126, c. 565, § 138, held for the jury.—Fruhauf v. Interborough Rapid Transit Co. (Sup.) 781. p. 514, c. 418, as amended by Laws 1900, p. 499, c. 248.—Lesser v. Bradford Realty Co. (Sup.) 571. CHEAT. See “False Pretenses”; “Fraud.” CHILDREN. See “Infants.” Injuries to minor servant, see “Master and Servant,” § 3. CHOSE IN ACTION. Assignment, see “Assignments.” CASE ON APPEAL. Making and settlement, see “Appeal,” § 4. CITATION. See “Process.” On appeal, see “Appeal,” § 3. CAUSE OF ACTION. See “Action”; “Malicious Prosecution,” § 1. CERTAINTY. In complaint, as ground for demurrer,. see “Pleading,” § 4. CERTIFICATE. From civil service commission, see “Municipal Corporations,” § 1. CITIES. See “Municipal Corporations.” CITIZENS. See “Indians.” CIVIL RIGHTS. See “Constitutional Law,” § 1. CIVIL SERVICE. CERTIFICATES OF DEPOSIT. In trust companies, see “Banks and Banking,” 8 3. CERTIORARI. To review assessment, see “Taxation,” § 2. In municipalities, see “Municipal Corporations, tt CLAIM AND DELIVERY. See “Replevin.” CLAIMS. CHANGE OF VENUE. Of civil actions, see “Venue,” § 1. CHARGE. Of legacies on property by will, see “Wills,” § 4. To jury in civil actions, see “Trial," § 4. To jury in criminal prosecutions, see “Criminal Law,” § 3. CHATTEL MORTGAGES. See “Pledges.” Jurisdiction of municipal court of action for deficiency on, see “Courts,” § 2. 8 I. Rights and remedies of creditors. A complaint of a trustee in bankruptcy held to sufficiently allege a failure to file a chattel mortgage for record, as required by Laws 1897, ♦Point annotate Against estate of decedent, see “Executors and Administrators,” § 2. Against state, see “States,” § 3. Against town, see “Towns," § 2. COLLATERAL AGREEMENT. Parol evidence, see “Evidence,” § 8. COLLATERAL INHERITANCE TAXES. See “Taxation,” § 3. COLLATERAL SECURITY. See “Pledges.” COLLATERAL UNDERTAKING. See “Frauds, Statute of,” § 1; “Guaranty.” i. See syllabus.
*1164 .1164 101 NEW YORK SUPPLEMENT and 135 New York State Reporter COLLECTION. By attorney, see “Attorney and Client,” § 2. COLLEGES AND UNIVERSITIES. Devise to in general, see “Wills,” § 3. COLLISION. Between truck and street car, see “Street Railroads,” § 2. -Contributory negligence in general o£ vessel injured by, see “Negligence,” § 2. COMPUTATION. Of period of limitation, see “Limitation of Actions,” § 1. CONCLUSION. Of witness, see “Evidence,” § 9. CONDEMNATION. Taking property for public use, see “Eminent Domain.” COMMERCE. -Carriage of goods and passengers, see “Carriers.” CONDITIONAL SALES. See “Sales,” § 6. -§ 1. Means and methods of regulation. ♦Franchise tax, created by Laws 1896, p. .'856, c. 908, § 182, held collectible, though the business of the corporation is interstate or foreign commerce.—People v. Roberts (Sup.) COMMISSION., 'To take testimony, see “Depositions.” COMMISSIONS. -Of broker, see “Brokers,” § 1. -Of executor or administrator, see “Executors and Administrators,” § 4. COMMON CARRIERS. ¡See “Carriers.” COMPENSATION. Tor performance of contract, see “Contracts,” ' § 2. Tor property taken for public use, see “Eminent Domain,” § 1. Of witnesses in general, see “Witnesses,” § 1. COMPROMISE AND SETTLEMENT. ¡See “Accord and Satisfaction”; “Account Stated”; “Payment”; “Release.” Admissibility of evidence of offer of compromise, see ‘‘Evidence,” § 5. Of claims under contracts with municipality, see “Municipal Corporations,” § 3. CONDITIONS. In contracts and conveyances. See “Deeds,” § 1. Insurance policies, see “Insurance,” §§ 6, 7. Precedent to actions or other proceedings. Against municipality, see “Municipal Corporations,” § 7. Amendment of pleading, see “Pleading,” § 5. On bond of highway officer, see “Highways,” § 1. CONDUITS. Grant of permission to construct, as contract irrevocable by legislature, see “Constitutional Law,” § 3. CONFIDENTIAL RELATIONS. Disclosure of communications, see “Witnesses,” § 1. CONFLICT OF LAWS. See “Usury,” § 1. CONSIDERATION. For condition in deed, see “Deeds,” § 1. Of contract in general, see “Contracts,” § 1. CONSOLIDATION. Of actions, see “Action,” § 2. Of corporations, see “Corporations,” § 6. CONSTITUTIONAL LAW. . Provisions relating to particular subjects. See “Jury,” § 1; “States.” Legislative districts, see “States,” § 1. Repeal of statutes, see “Statutes,” § 3. Special or local laws, see “Statutes." § 1. Subjects and titles of statutes, see “Statutes,” ♦Point annotated. See syllabus.
*1165 INDEX. 1165. § 1. Personal, civil, and political rights. The clause of section 77 of the Labor Law, Laws 1903, p. 439, c. 184, forbidding the employment of minors under the age of 18 years and females in factories in the nighttime, held not a valid exercise of police power, but an infringement of the right to contract.—People v. Williams (Sup.) 562. $ 2. Vested rights. ♦Where, in action to construe a will, plaintiff took no estate under the will, he had no vested interest that would have prevented the application of the statute of 1893 (Laws 1893, p. 1748, c. 701), under which the will could be pronounced valid, though it created a trust in the trustees of a university, the residuary legatee.—Morgan v. Durand (Sup.) 1002. § 3. Obligation of contracts. The mere granting of permission by a city council to a corporation to construct conduits and subways, does not constitute a contract, where the corporation performs no act thereunder.—People v. Ellison (Sup.) 55. g 4. Retrospective and ex post facto laws. ♦Acts 1905, p. 131, c. 94, amending Laws 1896, p. 795, c. 908, and Laws 1901, p. 297, c. 118, in relation to the taxation of foreign insurance companies, held not invalid on constitutional grounds as retroactive.—People v. Kelsey (Sup.) 902. CONSULS. See “Ambassadors and Consuls.” CONTEMPT. Contempt proceedings to enforce judgment for alimony, see “Divorce,” § 3. Violation of injunction, see “Injunction,” § 4. § 1. Acts or conduct constituting contempt of court. ♦Order imposing fine on attorney and commitment for contempt in failing to pay over moneys to client held void where order requiring payment to client has never been served on the attorney.—People v. Feenaughty (Sup.) 700. § 2. Power to punish and proceedings therefor. Procedure in contempt, under Code Civ. Proc. §§ 2281, 2283, defined.—People v. Feenaughty (Sup.) 700. CONTINUANCE. Where a cause has reached the ready section of the day calendar, excuses for postponement are too late except such as arise after the ready section is reached.—Loehr v. Brooklyn Ferry Co. (Sup.) 209. ♦Where a cause had been placed on the ready section of the day calendar, the court held without authority to set the cause down for trial on a subsequent date.—Loehr v. Brooklyn Ferry Co. (Sup.) 209. ♦Point annotate Under the facts held that the trial court was-justified in refusing to grant a stay of the-trial because of engagements of counsel.—Riesgo v. Clark (Sup.) 832. CONTRACTS. Agreements within statute of frauds, see-“Frauds, Statute of.” Assignment, see “Assignments.” Consolidation of actions on, see “Action,” § 2. Declarations as evidence in action on, see-“Evidence,” § 6. Denial of liberty to contract, see “Constitutional Law,” § 1. Impairing obligation, see “Constitutional Law,”' § 3. Liability of decedent’s estate on contracts of" decedent, see “Executors and Administrators,” § 2. Operation and effect of usury laws, see “Usury,”' Parol or extrinsic evidence, see “Evidence,” § 8~ Questions for jury in action on, see “Trial,” § 3. Reformation, see “Reformation of Instruments.” Set-off in action on, see “Set-Off and Counterclaim,” § 1. Specific performance, see “Specific Performance.” Temporary injunction in action for breach of,. see “Injunction,” § 2. Contracts of particular classes of persons. See “Master and Servant”; “Municipal Corporations,” § 3; “United States,” § 1. Devisees or legatees, see “Wills,” § 4. Contracts relating to particular subjects. See “Interest”; “Trade-Marks and Trade-Names,” § 2. Ground for mechanics’ liens, see “Mechanics’" Liens,” § 1. Municipal improvements, see “Municipal Corporations,” 1 3. Removal of fixtures, see “Fixtures.” Water supply, see “Waters and Water Courses,”" § 1. Particular classes of empress contracts. See “Bailment” ; “Bills and Notes” ; “Chattels Mortgages”; “Guaranty”; “Indemnity”; “Insurance,” § 3; “Partnership”; “Sales.” Agency, see “Principal and Agent.” Employment, see “Master and Servant.” Leases, see “Landlord and Tenant.” Sales of realty, see “Vendor and Purchaser.” Suretyship, see “Principal and Surety.” Particular classes of implied contracts. See “Account Stated”; “Money Lent” ; “Money Paid”; “Use and Occupation”; “Work: and Labor.” Particular modes of discharging contracts. See “Accord and Satisfaction”; “Payment”;: “Release.” $ 1. Requisites and validity. ♦The fact that a party to an executed contract: violated a penal statute in the approach to the-contract held not sufficient to prevent the? I. See syllabus.
*1166 1166 101 NEW YORK SUPPLEMENT and 135 New York State Reporter, court from enforcing the contract.—Beilin v. Wein (Sup.) 38. *A contract to transfer certain letters patent to a corporation in consideration, of payments of money and stock held• not void for want of mutuality.—Wills v. Pennell (Sup.) 1017. § 2. Construction and operation. An uncanceled lis pendens in an action for violation of Tenement House Act, Laws 1901, p. 917, c. 334, § 129, held a sufficient reason for declining a loan on the property within a contract requiring the applicant to pay the lender’s charges in examining the title, whether the loan was accepted or declined.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. Where an application for a loan bound the applicant to pay the lender’s charges in examining the title to the property whether the loan was made or not, such charges, on declination of the loan, were recoverable only if the declination was in good faith.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. Under a contract for services in obtaining a reduction of a municipal improvement assessment plaintiff held entitled to recover one-quarter of the difference between a previous proposed assessment, and that subsequently made. —United ' States Title Guaranty & Indemnity Go. v. Marks (Sup.) 483. An alleged guaranty held an essential part of a contract alleged, without proof of which no cause of action existed on the contract.—Linden v. Thieriot (Sup.) 568. § 3. Modification and merger. Contract by the vendors of a manufacturing plant not to engage in certain business under a certain name, held, under the evidence, not to be merged in a subsequent agreement.—Union Mills v. Harder (Sup.) 309. § 4. Performance or breach. *One performing labor on a contract to recover, held required to procure the architect’s certificate or to show that it has been unreasonably refused, or that the other party has waived its production.—Traitel v. Oussani (Sup.) 105. _ Where a building contractor provides for certificate of completion such provision is waived where the owner completes the work under the contract.—Bader v. City of New York (Sup.) 351. Objection that building contractor sublet in violation of contract held waived.—Bader v. City of New York (Sup.) 351. § 5. Actions for breach. In an action on a contract to pay the expenses of examining an application for a loan, whether it was accepted or declined, the burden was on defendant to show that the declination was capricious.—Title Guarantee & Trust Go. v. Wesolick (Sup.) 7. *Burden of proof as to using a word in a contract with a special meaning determined.—■ Abrams V. Bloch (Sup.) 109. In action for compensation for public printing turned over by defendant to plaintiff, evidence *Point annotated. examined and held to show existence of arrangement as to price and time of payment.—Quayle & Sons v. Brandow Printing Go. (Sup.) 323. * Action for compensation for public printing turned over by defendant to plaintiff held premature as to some of the items, precluding recovery.—Quayle & Sons v. Brandow Printing Co. (Sup.) 323. In an action on an alleged contract under which plaintiff claimed to have delivered certain bonds to defendant for sale and reinvestment of the proceeds under a guaranty to make good any resulting loss, evidence examined, and held insufficient to establish the guaranty. —Linden v. Thieriot (Sup.) 568. Evidence held insufficient to establish the making of a contract to pay a portion of the taxes on certain real estate.—Ereifeld v. M. Groh’s Sons (Sup.) 863. CONTRADICTION. Of record, see “Appeal,” § 4. CONTRIBUTORY NEGLIGENCE. See “Negligence,” § 2. Of passenger, see “Carriers,” § 3. Of person injured by operation of railroad, see “Railroads,” § 6. Of person injured by operation of street railroad, see “Street Railroads,” § 2. Of person injured in street, see “Municipal Corporations,” § 4. Of servant, see “Master and Servant,” § 3. CONVERSION. Wrongful conversion of personal property, see “Traver and Conversion.” CONVEYANCES. In fraud of creditors, see “Fraudulent Conveyances.” In trust, see “Trusts,” § 1. Particular classes of conveyances. See “Assignments”; “Chattel Mortgages”; “Deeds”; “Mortgages.” CORPORATIONS. Action of partners in holding themselves out' as corporation as fraud, see “Fraud,” § 1. Constitutional restriction on enactment of retrospective laws affecting, see “Constitutional Law,” § 4. Engaged in interstate commerce, see “Commerce,” § 1. Examination of corporate officer, see “Discovery,” § 1. Guaranty bjr corporate officer against loss by dealing with corporation, see “Guaranty,” § 2. Joinder of causes of action to recover dividend, see “Action,” § 2. See syllabus.
*1167 INDEX, 1167 Mandamus, see “Mandamus,” § 2. Parties to judgment in action to enforce limited liability of directors of corporation, see “Judgment,” § 2. Requirements of statute of frauds as to promise by directors to answer for debt of, see “Frauds, Statute of,” § 1. Taxation of corporations and corporate property, see “Taxation,” §§ 2, 3. Particular classes of corporations. See “Municipal Corporations”; “Railroads”; “Street Railroads.” Insurance companies, see “Insurance.” Telegraph and telephone companies, see “Telegraphs and Telephones.” Trust companies, see “Banks and Banking,” § 3. Water companies, see “Waters and Water Courses,” § 1. § 1. Corporate existence and franchise. ♦A corporation formed in 1882 and maintaining and leasing lines of electrical conductors held duly organized.—People v. Ellison (Sup.) 444. § 2. Capital, stock, and dividends. Where a resident transfer agent of a foreign corporation wrongfully delayed the transfer of stock held by a nonresident decedent, the agent was not liable for damages to the persons to whom the stock was transferred, its liability for nonfeasance being solely to its principal.—Dun-ham v. City Trust Co. (Sup.) 87. ♦Upon proper declaration of a dividend by a corporation, it becomes the debtor of the stockholder.—Searles v. Gebbie (Sup.) 199. ♦False representations held sufficient ground for rescission of exchange of shares of corporate stock.—John v. Reynolds (Sup.) 293. ♦Under Railroad Law, § 2, subd. 13 (Laws 1892, p. 2050, c. 565) a subscriber to the stock of a railroad company to be organized held liable on the subscription on the organization of the company.—Lowville & B. R. R. Co. v. Elliot (Sup.) 328. *A subscriber to the' stock of a railroad company to be organized to build a railroad held liable on his subscription on the company being organized to build, maintain, and operate the road.—Lowville & B. R. R. Co. v. Elliot (Sup.) 328. § 3. Members and stockholders. ♦Under General Corporation Law, § 20 (Laws 1901, p. 975, c. 355), fixing the qualification of voters at corporation elections, a corporation held not entitled to vote stock standing in the name of its directors.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. One, failing to object to a corporation stock-book at the time of an election, held not to be aided in a proceeding to set aside the election, by the fact that the stockbook was not in the exact form required by Stock Corporation Law (Laws 1892, p. 1831, c. 688) § 29.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. ♦Point annotated. § 4. Officers and agents. A corporate election held not to be set aside for an alleged error not affecting the result.— In re Utica Fire Alarm Telegraph Co. (Sup.) 109. Proceedings under General Corporation Law (Laws 1892, p. 1018, c. 687) § 27, to determine the validity of a corporate election, held not appropriate for determining an equitable right in shares of stock.—In re Utica Fire Alarm Telegraph Co. (Sup.) 109. The failure of a stockholder, contesting the election of directors under General Corporation Law,' § 27 (Laws 1892, c. 687), to specify in the application that the statutory notice of election was not given, held not a waiver of the omission to give notice, notwithstanding General Rules of Practice, § 37.—In re Keller (Sup.) 133. ♦Under General Corporation Law, j 24 (Laws 1892, c. 687), Stock Corporation Law, § 20 (Laws 1892, c. 688), and the by-laws of a corporation, an election of directors on 12 days’ notice held subject to be set aside on the application of a stockholder who did not appear at the meeting.—In re Keller (Sup.) 133. Directors are not liable to stockholders for a declared dividend, until it has been severed from the assets of the company.—Searles v. Gebbie (Sup.) 199. In an action to charge defendant officer of a corporation on an alleged individual promise evidence held not to show such promise or that plaintiff was entitled to any installments under the contract.—Tullís v. Stone (Sup.) 1082. ♦A director of a corporation held, entitled to an order allowing him to examine its books, records, and accounts, on a showing that he has demanded and been refused permission to do so. —People v. Central Fish Co. (Sup.) 1108. § 5. Corporate powers and liabilities. ♦Facts held to show no contract made by one empowered to bind defendant corporation.— Greenwald v. Petite Cigar Mfg. Co. (Sup.) 86. Laws 1905, p. 2097, c. 737, § 13, prohibiting a corporation from transferring or leasing its franchise to any other person or corporation, does not prohibit such transfer by an individual.—In re Long Acre Electric Light & Power Co. (Sup.) 460. ♦Where a franchise was not forfeited by the city which gave it, because of any terms of the agreement itself, and no action has been taken to dissolve the corporation, or forfeit the franchise, it remains effective.—In re Long Acre Electric Light & Power Co. (Sup.) 460. Misuse of funds by the president of a corporation in contributing to the payment of taxes on certain real estate held no evidence of a contract by the corporation to continue such contributions—Freifeld v. M. Groh’s Sons (Sup.) 863. § 6. Consolidation. Where services rendered, under an employment • contract, were completed before the corporation rendering the same was merged in plaintiff cor-see syllabus.
*1168 1168 101 NEW YORK SUPPLEMENT and 135 New York State Reporter poration, it was no defense to plaintiff’s claim therefor that the contract was personal and unassignable.—United States Title Guaranty & Indemnity Go. y. Marks (Sup.) 483. § 7. Foreign corporations. Where complaint showed that plaintiff was a foreign corporation, but did not show that it was a foreign stock corporation, defendant held not entitled to nonsuit for plaintiff’s failure to show compliance with section 15, General Corporation Law, Laws 1892, p. 1805, c. 687.— Charles E. Wright & Co. v. Faulkner (Sup.) 807. . CORRECTION. Of record on appeal, see “Appeal,” § 4. CORROBORATION. Of witness in general, see “Witnesses,” § 3. COSTS. Allowance of to trustee, see “Trusts,” § 5. Effect of jurisdiction on costs recoverable, see “Costs,” § 1. On granting new trial, see “New Trial,” § 2. Payment as condition precedent to permitting amendment of pleading, see “Pleading,” § 5. Review of discretion of court in awarding, see “Appeal,” § 6. § 1. Nature, grounds, and extent of right in general. •Defendant, in whose favor judgment is rendered, is not entitled to costs where he filed no verified pleading or written notice of appearance.—Livingston Press v. Genet (Sup.) •The City Court of the City of New York having no jurisdiction of an action against the city, Code Civ. Proc. § 3228, as amended Laws 1904, p. 1351, c. 557, held not to operate to prevent a plaintiff suing the city in the Supreme Court and recovering less than 8500, from recovering his full bill of costs.—O’Connor v. City of New York (Sup.) 295. § 2. Persons entitled. Where a person served with summons has the same name as defendant except as to an initial, he is justified in defending, and where he is not the person intended he is entitled to costs on dismissal.—City of New York v. Ackerman (Sup.) 687. § 3. Persons, property, and funds liable. Where, under Laws 1896, p. 329, c. 376, plaintiff sued in his own name as agent for a penalty for the detention of milk cans, principals held not liable for costs, within Code Civ. Proc. § 3247, making parties beneficially interested liable for costs, they having previously transferred the cans.—Pierson v. Clark (Sup.) 719. , § 4. Security for payment. •One held to have the right to sue as a poor person, though suing as administrator.—In re Cannice (Sup.) 1054. The moving papers held insufficient to show freedom from contributory negligence, so as to authorize an order for an administratrix to sue as a poor person for death of her intestate.—In re Cannice (Sup.) 1054. ♦An application to require a nonresident, appointed administratrix in New York, to give security for costs under Code Civ. Proc. § 3268, subd. 1, and section 3271, in an action brought in her representative capacity, held within the discretion of the court.—Clarendon v. Milliken Bros. (Sup.) 1105. •Under Code Civ. Proc. § 3271, security for costs will not be required unless it is manifest that there is bad faith involved, or other serious objection to plaintiff proceeding without such guaranty.—Clarendon v. Milliken Bros. (Sup.) 1105. § 5. On appeal or error, and on new-trial or motion therefor. •One, having the case on appeal resettled to insert matters omitted because overlooked by his counsel, held required to pay costs of reprinting the record made necessary thereby.— Volhard v. Volhard (Sup.) 453. COUNTERCLAIM. See “Set-Off and Counterclaim.” COUNTIES. See “Municipal Corporations.” As employers, see “Master and Servant,” § 4. § 1. Property, contracts, and liabilities. •A county is not liable at the suit of a private party for damages.—Moest v. City of Buffalo and County of Erie (Sup.) 996. COURTS. Contempt of court, see “Contempt.” Criminal courts, see “Criminal Law,” § 1. Indian courts, see “Indians.” Judges, see “Judges.” Jurisdiction of action on claims against state, sos “Statos§ 3. Jurisdiction of actions by or against state, see “States,” § 3. Jurisdiction over decedents’ estate, see “Courts.” Justices’ courts, see “Justices of the Peace.” Repeal of statutes granting right of removal from municipal court, see “Statutes,” § 3. Review of decisions, see “Appeal.” Right to trial by jury, see “Jury,” § 1. § 1. Nature, extent, and exercise of jurisdiction in general. An order removing the cause from the Municipal Court to the City Court for trial held not appealable.—Bonagur v. Orlandi (Sup.) 115. •Parties cannot confer jurisdiction over the subject-matter by consent.—Weinstein v. Douglas (Sup.) 251. •Point annotated. See syllabus.
*1169 INDEX. 1169 § 2. Courts of limited or inferior jurisdiction. Under Code Civ. Proc. § 3347, subds. 3-4, and Municipal Court Act (Laws 1902, p. • 1503, c. 580) § 24, Code Civ. Proc. § 448, providing for an action by one party for the benefit of all similarly interested, held not applicable to an action in the Municipal Court of New York City.—Reed v. Wiley, Harker & Camp Co. (Sup.) 39. Under Municipal Court Act, Laws 1902, c. 580, p. 1563, § 254, an application to vacate a judgment on a trial by the court must be made within five days after its rendition.— Barron v. Feist (Sup.) 72. Municipal Court Act, Laws 1902, c. 580, p. 1563, § 254, requiring an application to vacate or set aside a judgment to be made within five days, etc., held inapplicable where the motion is made because of 'an irregularity in entering the judgment.—Barron v. Feist (Sup.) 72. Code Civ. Proc. § 724, held inapplicable to a motion to vacate a Municipal Court judgment entered by mistake of the trial judge.—Barron v. Feist (Sup.) 72. Code Civ. Proc. tit. 3, c. 11, providing for the vacation of judgments, made applicable to the Supreme Court, the City Court of New York and county courts by; section 3347, subd. 8, held inapplicable to Municipal Court judgments.—Barron v. Feist (Sup.) 72. Under Municipal Court Act, Laws 1902, p. 1546, c. 580, § 187, the Municipal Court of the City of New York held to have authority to make an order of interpleader.—Englander v.° Fleck (Sup.) 125. Under Municipal Court Act, Laws 1902, p. 1488, c. 580, § 1, subd. 11, in an action in such court to enforce a mechanic’s lien, the court cannot adjudge the priority of liens nor establish the lien of a defendant lienor.—Drall v. Gordon (Sup.) 171. Under Municipal Court Act, Laws 1902, p. 1488, c. 580, § 1, subd. 11, such court in a suit to foreclose a mechanic’s lien held authorized only to render a money judgment to be enforced by ion execution.—Droll v. Gordon (Sup.) 171. ♦Municipal Courts have no jurisdiction except such as is specially conferred by statute.— Weinstein v. Douglas (Sup.) 251. On a submission of controversy under Municipal Court Act, Laws 1902, p. 1560, c. 580, § 241, the affidavit therein required is essential to confer jurisdiction, and cannot be waived.—Weinstein v. Douglas (Sup.) 251. Under Daws 1902, p. 1563, c. 580, § 257," an order of the Municipal Court opening a default and setting aside the judgment held not appealable in the first instance.—Dutch v. Parker (Sup.) 271. Under Amended New York Charter 1901 (Laws 1901, pp. 574, 579, c. 446), §§ 1345, 1364, repealing part of charter of 1897 (Laws 1897, p. ♦Point annotate 92, c. 378) § 262; Laws 1819, p. 74, c. 71; Laws 1858, p. 569, c. 334, § 2; Laws 1860, p. 645, c. 379; Laws 1868, p. 2007, e. 853; Laws 1872, p. 1493, c. 629: Laws 1881, p. 720, c. 537; Laws 1882, p. 305, c. 410, § 1103; Consolidation Act (Laws 1882, pp. 302-335, c. 410) §§ 1208-1278, and Code Civ. Proc. §§ 315, 339—held, that the City Court of the City of New York has "no jurisdiction of an action against the city.—O’Connor v. City of New York (Sup.) 295. An action for a deficiency on a chattel mortgage held not an action on the mortgage, jurisdiction of which is denied the Municipal Court by Laws 1902, p. 1533, c. 580, § 139.—Wilcox v. Perez (Sup.) 391. The Municipal Court of the city of New York being one of limited jurisdiction, no presumptions can be invoked of its jurisdiction.— Katz v. Schreckinger (Sup.) 743. Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, the Municipal Court of the city of New York held to have had no authority to enter a final order in favor of the landlord in proceedings to dispossess a tenant.—Katz v. Schreckinger (Sup.) 743. Under the express provisions of Municipal Court Act, § 311, Laws 1902, p. 1578, c. 580, a defendant may appeal from a judgment rendered against him in an action wherein he did not appear and summons was not personally served on him.—Gottlieb v. Kurlander (Sup.) 751. ' Where a cause was dismissed in the Municipal Court for plaintiff’s failure to appear, it could not be restored to the calendar until the default had been excused and the judgment of dismissal vacated.—Gottlieb v. Kurlander (Sup.) 751. Defendant held not to have consented to an adjournment of an action pending in the Municipal Court for more than the eight days authorized by Municipal Court Act, Laws 1902, p. 1547, c. 580, § 193, and that the court therefore lost jurisdiction by a longer" adjournment.— Clemens v. Werner Co. (Sup.) 755. Under section 230, Municipal Court Act, Laws 1902, p. 1557, c. 580, judgment entered by Municipal Court" more than 14 days after submission of cause to court held not sustainable.— City Button Works v. Cohn (Sup.) 765; Cohn v. City Button Works, Id. § 3. Courts of probate jurisdiction. Provisions of a will directing the surplus income to be applied to the payment of mortgages and to be invested until the termination of two lives on which a trust depended held invalid as creating unlawful accumulations.—Kirk v. Mc-Cann (Sup.) 1093. A surrogate held to have no jurisdiction of controversy between surety of temporary administrator and third person.—In re Weisell’s Estate (Sur.) 273. COVERTURE. See “Husband and Wife.” 1. See syllabus. 101 N.Y.S.—74
*1170 1170 101 NEW YORK SUPPLEMENT and 135 New York State Reporter CREDIBILITY. Of witness, see “Witnesses,” § 3. CREDIT INSURANCE. See “Insurance,” § 8. CREDITORS. See “Bankruptcy”; “Fraudulent Conveyances.” Of intestate, see “Descent and Distribution,” § 2. Rights as to chattel mortgage by debtor, see “Chattel Mortgages,” § 1. CREDITORS’ SUIT. Remedies in cases of fraudulent conveyances, see “Fraudulent Conveyances,” § 2. CRIMINAL LAW. Impeachment of witnesses, see “Witnesses,” § 8. Penalties, see “Penalties.” Particular offenses. See “Adulteration”; “Contempt”; “False Pretenses” ; “Homicide”; “Larceny.” Against liquor laws, see “Intoxicating Liquors,” § 2. § 1. Jurisdiction. Under Code Cr. Proe. §§ 22 (6), 22 (4) and 41, held, that the Supreme Court, having sent an indictment to the County Court, which was returned, could again send it to the County Court.—People v. De Puy (Sup.) 81. § 2. Evidence. ♦Nonexperts held not competent to testify whether a person was of sound or unsound mind. —R. A. Schoenberg & Co. v. City Trust, Safe Deposit & Surety Co. (Sup.) 798. Evidence in a prosecution for forgery considered, and held insufficient .to corroborate the ’ evidence of an accomplice.—People v. Colmey (Sup.) 1016. § 3. Trial. ♦To charge- that it is for the jury to say whether a witness was “a vicious and precocious off-scouring of the street” held improper.— People v. Myers (Sup.) 291. ♦To charge that the fact that defendant had been convicted of a prior violation of the statute, for violation of which he was being prosecuted, might be considered in "determining whether defendapt was the kind of man that would continue to violate the statute held prejudicial error.—People v. Myers (Sup.) 291. On a trial for homicide, the refusal to give a charge held not erroneous as placing on accused the burden of convincing the jury that his testimony was true.—People v. Mallon (Sup.) 814. ♦Point annotated. § 4. Appeal. A ruling on the admission of evidence in a homicide case held not reversible error, under Code- Cr. Proc. § 542.—People v. Mallon (Sup.) 814. DAMAGES. Compensation for property taken for public use, see “Eminent Domain,” § 1. Objection to rule as to measure of damages for purpose of review, see “Appeal,” § 2. Provision as to, in contract with municipality, see “Municipal Corporations,” § 3. Damages for particular injuries. See “Death,” § 1; “Nuisance,” § 1; “Trespass,” § 2. Breach by seller of contract for sale of goods, see “Sales,” § 5. Defective condition of demised premises, see “Landlord and Tenant,” § 4. Failure of landlord to perform contract of renting, see “Landlord and Tenant,” § 2. Injuries caused by public improvements, see “Municipal Corporations,” § 3. Personal injuries, see “Carriers,” § 3; “Master and Servant,” § ■ 4. Recovery in particular actions or proceedings. See “Trespass,” § 2. For personal injuries, see “Carriers,” § 3. § 1. Grounds and subjects of compensatory damages. ♦Plaintiff in an action for an assault committed on him in the presence of his wife cannot recover for injuries to the wife occasioned by fright and subsequent loss u of service of the wife.—Hutchinson v. Stern (Sup.) 145. ♦A defendant, agreeing to loan to plaintiff a specified sum to aid him in furnishing a place as a saloon, held on failing to furnish the loan not liable for the rent paid during plaintiff’s occupancy of the premises.—Treanor v. New York Breweries Co. (Sup.) 189. On breach of an agreement by the owner of lands who agreed to convey the same in consideration of his support, plaintiffs, who had lived on the farm for a time and supported him, were not entitled to recover full price for his board, without giving credit for the rent.— Bovee v. Barrett (Sup.) 322. Where building contractors conducted their operations so negligently that a tenant was obliged to vacate a neighboring house, in an action by him against the contractors for damages, the elements of damage determined.— McFadden v. Thompson-Searrett Co. (Sup.) 467.' ♦In an action for ejection of a passenger, plaintiff held entitled to recover damages, for injury to his feelings, and for indignity suffered, though there was no evidence of loss of time, or physical injury.—Samuels v. New York City Ry. Co. (Sup.) 534. ♦An owner refusing to receive insurance policies under an agreement with a broker to See syllabus.
*1171 INDEX, 1171 insure his property held not liable for the full amount of commissions which the broker might have received from the company.—Weingrad v. Kletzky (Sup.) 588. " In an action for injuries to an automobile, an allowance of $150 for loss of use held erroneous as speculative.—Foley v. Forty-Second St., M. & St. N. Ave. Ry. Co. (Sup.) 780. ♦Measure of damages recoverable by the vendee in a contract of sale on vendor’s failure to deliver determined.—Atlas Portland Cement Co. v. Hopper (Sup.) 948. S 2. Inadequate and excessive damages. ♦Personal injuries received on a street car held not to entitle plaintiff to more than $1,000. —Schierloh v. Interurban St. Ry. Co. (Sup.) 437. In an action for ejection of a passenger, a verdict for plaintiff for $5 held inadequate.— Samuels v. New York City Ry. Co. (Sup.) 534. *A verdict for $15,000 for the breaking of a leg held excessive, and should be reduced to $5,206.20.—Ross v. Metropolitan St. Ry. Co. (Sup.) 932. DEATH. Caused by operation of street railroads, see “Street Railroads,” § 2. Of partner, see “Partnership,” § 3. Review of verdict on appeal, see “Appeal,” § 6. § 1. Actions for causing death. Where, under Code Civ. Proc. § 2732, subd. 7, plaintiff alone was entitled to recover for the wrongful death of his infant son, and after bringing an action therefor, which was dismissed for his default, settled his claim, plaintiff’s widow could not open the default.—McGurty v. New Amsterdam Gas Co. (Sup.) 235. ♦Under Code Civ. Proc. § 1903, as amended, the surrogate has sole right to determine amount to be paid for funeral expenses from sum recovered for death of decedent by wrongful act. —In re McDonald’s Estate (Sur.) 275. DEBTOR AND CREDITOR. See “Bankruptcy”; “Fraudulent Conveyances.” DEDICATION. § 1. Nature and requisites. ♦Where a deed to city property named two streets as a part of the boundary and conveyed to their respective centers, there was a dedication to the public of the portions of such streets adjoining' the property.—Palmer v. East River Gas Co. (Sup.) 347. ♦Where there had been a dedication of land as public streets, a resolution of a municipal board changing the grade of such streets, and a map relating thereto, were competent evidence to show an acceptance by the city of the land dedicated.—Palmer v. East River Gas Co. (Sup.) 347. ♦A city may make an unofficial street official by acceptance, and the maintenance of street lamps and the granting permission to a gas company to lay mains in streets was an acceptance. —Palmer v. East River Gas Co. (Sup.) 347. ♦Though, by a city’s failure! to work streets, they may have lost their official status, yet as long as they are used by the public, the city may renew its acceptance by an official user, and thereby confer official character upon them. —Palmer v. East River Gas Co. (Sup.) 347. ♦A street may be an irrevocable public street by dedication and general public use without official acceptance by the city.—Palmer v. East River Gas Co. (Sup.) 347. § 2. Operation and effect. Laws 1890, p. 1177, c. 568, providing that every dedicated highway which has not been opened and worked or laid out within six years from the time of its dedication shall cease to Be a highway, does not relate to those becoming and remaining actual highways by general public use.—Palmer v.. East River Gas Co. (Sup.) 347. DEEDS. Denial in answer of allegation in complaint as to conveyance, see “Pleading,” § 2. In trust, see “Trusts,” § 1. Recitals in, as dedication, see “Dedication,” § 1. Reformation, see “Reformation of Instruments.” Trust deeds, see “Mortgages.” DECEDENTS. Estates, see “Descent and Distribution”; “Executors and Administrators.” § 1. Construction, and operation. ♦A deed to a certain plot as shown on a map held to include land laid out as a specially excavated canal.—In re Canal Place in City of New York (Sup.) 397. DECEIT. See “Fraud.” Effect of knowledge on limitation in action for, see “Limitation of Actions,” § 1. DECLARATIONS. As evidence in civil actions, see “Evidence,” § 6. . A condition in a deed by executors or trustees held to be without consideration.—Richter v. Distelhurst (Sup.) 634. ♦Provisions in a deed for forfeiture on breach of condition are viewed with disfavor and should be strictly construed.—Richter v. Distelhurst (Sup.) 634. A condition in a deed by trustees or executors held not open to construction as authorizing heirs of the trustees to re-enter for breach.— Richter v. Distelhurst (Slip.)- 634. . . ♦Point annotated. See syllabus.
*1172 1172 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Where a deed stipulated that certain classes of buildings should not be erected on the premises under a penalty “of the forfeiture of the said lot,” such penalty was equivalent to a provision for re-entry by the grantors.—Richter v. Distelhurst (Sup.) 634. One by a deed of land held not to convey his claim for damages for land taken for a street. —Harris v. Kingston Realty Co. (Sup.) 1104. § 2. Pleading and evidence. A deed regular on its face and properly executed and delivered by a grantor who has not been adjudged incompetent will be presumed valid in ejectment.—Smith v. Ryan (Sup.) DEFAMATION. See “Libel and Slander.” DEFAULT. Judgment by, see “Judgment,” § 1. , DEFICIENCY. On foreclosure of mortgage, see “Mortgages,” § 3. DELIVERY. Of,gift, see “Gifts,” § 1. Of goods sold, see “Sales,” § 5. DEMAND. On principal in action on bond of highway officer, see “Highways,” § 1. DEMURRER. In pleading, see “Pleading,” § 4. DENIALS. In pleading, see “Pleading,” § 2. DEPOSITIONS. See “Witnesses,” An affidavit for a commission to take testimony on oral questions outside of the state, as provided by Code Civ. Proc. § 893, held insufficient where it failed to show that the witnesses were adverse to plaintiff or that any effort had been made to obtain information from them.—Depue v. Depue (Sup.) 412. Where witness, in answer to interrogatories, stated that minutes refreshed her memory, the facts she could recall should have been stated or read from the minutes shown her, and embodied in her answers to the interrogatories.—In re Tifft’s Will (Sup.) 1072. DEPOSITS. In bank, see “Banks and Banking,” § 1. Recovery of deposits on purchase price of land, see “Vendor and Purchaser,” § 3. DESCENT AND DISTRIBUTION. See “Executors and Administrators"; “Wills.” Inheritance and transfer taxes, see “Taxation,” § 3. § 1. Persons entitled and their respective shares. Under 2 Rev. St. (1st Ed.) pt. 2, c. 6, tit. 1, art. 3, § 49, as amended by Laws 1869, p. 40, c. 22, a will held to mention a child born after testator’s death so as to deprive the child of the right to take as if the testator died intestate.—Stachelberg v. Stachelberg (Sup.) 178. § 2. Rights and liabilities of heirs and distributees. ♦The interests of a widow and children in real property descending from the deceased husband and father are subject to the debts of the decedent, whether liens on his estate or not.— Lyons Ñat. Bank v. Shuler (Sup.) 62. DESCRIPTION. Of devisees or legatees in will, see “Wills,” § 3. Of property conveyed, see “Boundaries,” § It “Deeds,” § 1. Of property mortgaged, see “Mortgages,” § 2. DETINUE. See “Replevin,” § 1. DEVISES. See “Wills.” , DILIGENCE. Of party asking relief, see “Specific Performance,” § 1. DIRECTING VERDICT. In civil actions, see “Trial," § 3. DISABILITIES. Effect on limitation, see “Limitation of Actions,” § 1. DISBARMENT. Of attorney, see “Attorney and Client,” § 1. DISCHARGE. From employment, see “Master and Servant,” § 1. From indebtedness, obligation, or liability. See “Accord and Satisfaction”; “Bankruptcy,” § 2; “Release.” ♦Point annotated. See syllabus;
*1173 DISCOVERY. In proceedings to annul marriage, see “Marriage.” Of property owned by judgment debtor, see “Execution,” § 3. § 1. Under statutory provisions. ♦Plaintiff held entitled under Code Civ. Proc. §§ 870-872, to an order for examination of defendant to enable him to frame his complaint.— Hill v. McKane (Sup.) 411. ♦Where defendant in an action for royalties pleaded a written release and an agreement whereby plaintiff accepted another as debtor, plaintiff held entitled to a discovery.—DeKoven v. Ziegfeld (Sup.) 586. ♦In an action against a corporation, an examination of an officer thereof as such cannot be had apart froto, an examination of the corporation itself.—Shumaker v. Doubleday, Page & Co. (Sup.) 587. A motion for an examination of defendant before trial held properly denied.—Shumaker v. Doubleday, Page & Co. (Sup.) 587. ♦Defendant in a case in which under the facts he might he guilty of a crime cannot be compelled to he examined in regard to them, he stating that his answers will accuse him of a crime. Const, art. 1, § 6; Code Civ. Proc. § 837; Pen. Code § 142—Chappell v. Chappell (Sup.) 846. DISCRETION OF COURT. Granting new trial, see “New Trial,” § 2. Review in civil actions, see “Appeal,” § 6. DISMISSAL AND NONSUIT. Dismissal of motion to open default, see “Judgment,” § 1. Modification' of order of dismissal on appeal, see “Appeal,” § 7. Presumptions on appeal from judgment of non-suit, see “Appeal," § 6. Right to costs on dismissal, see “Costs,” § 2. Scope and extent of review of judgment of nonsuit, see “Appeal,” § 6. In particular actions or proceedings. See “Mandamus,” § 3. Appeal, see “Appeal,” § 5. By or against foreign corporation, see “Corporations,” § 7. By or against infant, see “Infants,” § 1. § 1. Involuntary. ♦Where all adjournments after a cause had been noticed for trial were had either at the request or with the consent of the defendant, it was not entitled to a dismissal for want of prosecution under Code Civ. Proc. § 822, and Gen. Prae. Rule 36.—McHugh v. Metropolitan St. Ry. Co. (Sup.) 95. ♦Where case was not placed on calendar for over three years after issue joined, motion to dismiss for failure to prosecute should have ♦Point annotate 1173 been granted unconditionally.—Anderson v. V. J. Hedden & Sons Co. (Sup.) 585. DISPOSSESSION. Of tenant, see “Landlord and Tenant,” § 6. DISSOLUTION. Of partnership, see “Partnership,” § 4. DISTRIBUTION. Of assets of partnership on dissolution, see “Partnership,” § 4. Of estate of decedent, see “Descent and Distribution” ; “Executors and Administrators,” §3. DIVIDENDS. On corporate stock, see “Corporations,” § 2. DIVORCE. § 1. Defenses. ♦Plaintiff’s adultery cannot be successfully interposed as a defense to an action for divorce unless pleaded and sustained by the proof. —De Marco v. De Marco (Sup.) 600. § 2. Jurisdiction, proceedings, and relief. ♦Plaintiff’s adultery held insufficiently proved to constitute a defense to plaintiff’s action for divorce.—De Marco v. De Marco (Sup.) 600. ♦Defendant in an action for divorce for adultery, having put such charge in issue, held entitled to a trial thereof by jury, under Code Civ. Proc. § 1757.—Wilcox v. Wilcox (Sup.) 828. Defendant in an action for divorce for adultery held not to have waived her right to have such issue tried by a jury by noticing the cause for trial at special term.—Wilcox v. Wilcox (Sup.) 828. General practice rule 31, regulating trials of special issues by jury, held inapplicable to the trial of an issue of adultery in a suit for divorce, specially regulated by Code Civ. Proc. § 1757.—Wilcox v. Wilcox (Sup.) 828. Where defendant in suit for divorce for adultery denied the adulterous acts and pleaded insanity, she was not entitled to a trial of the issue of insanity to a jury.—Wilcox v. Wilcox (Sup.) 828. § 3. Alimony, allowances, and disposition of property. Code Civ. Proc. § 1241, specifying the instances in which a defendant may be punished for disobeying a judgment, held inapplicable to a judgment for alimony.—Stanley v. Stanley (Sup.) 725. Prior to the institution of contempt proceedings for the enforcement of a judgment for alimony, under Code Civ. Proc. § 1773, a certified copy of the decree was properly served 1. See syllalms.
*1174 1174 101 NEW YORK SUPPLEMENT and 135 New York State Reporter on defendant and a personal demand made.— Stanley v. Stanley (Sup.) 725. Code Civ. Proc. § 1773 specifically authorizes a contempt proceeding for the enforcement of a judgment directing the payment of alimony.— Stanley v. Stanley (Sup.) 725. DOCKETS. Of judgments, see “Judgment,” § 3. DOCUMENTS. Mandamus to compel granting of permission to construct electric conduits, see “Mandamus,” § 3. The right of a corporation under permission granted by a city council, to construct certain subways, held to have lapsed where it failed to_ procure the approval by the board of commissioners of its plans for the construction thereof within 60 days after the passage of Laws 1885, p. 852, c. 499, and where no attempt was made for over 20 years to act under the permission granted.—People v. Ellison (Sup.) 55. As evidence in civil actions, see “Evidence,” § 7. Production and inspection of writing, see Discovery,” § 1. DOMICILE. *In a proceeding for the imposition of a transfer tax, evidence held- insufficient to support a finding of a New York domicile.—In re White’s Estate (Sup.) 551. A franchise obtained by an electric light' company from a city, was irrevocable by the city where it was not forfeited by any term of the agreement with the city.—People v. Ellison (Sup.) 444. Under Laws 1885, p. 852, Tn an action against railroad company for illegal arrest by its servant, evidence that he believed that plaintiff’s act was a misdemeanor held inadmissible on issue of false imprisonment.—East v. Brooklyn Heights R. Co. (Sup.) FALSE PRETENSES. On prosecution for larceny in obtaining a loan by false representations, it was no defense that the contract for loan was usurious.—People v. Roller (Sup.) 518. FEES. Of attorney, see “Attorney and Client,” §§ 2, 3. Of broker, see “Brokers,” § 1. FELLOW SERVANTS. See “Master and Servant,” § 3. FILING. Record on appeal, see “Appeal,” § 4. FINAL JUDGMENT. Appealability, see “Appeal,” § 1. FINDINGS. Review on appeal, see “Appeal,” § 6. FIRE INSURANCE. See “Insurance.” See syllabus. 101 NEW YORK SUPPLEMENT and 135 New York State Reporter and
*1179 INDEX, 1179 FIRES. Municipal fire department, see “Municipal Corporations,” § 2. FIXTURES. Under the facts, plaintiff held not entitled to recover for the removal of fixtures by his vendor. —Brunswick Const. Co. v. Burden (Sup.) 716. *The vendor of a residence held to have the right under the contract of sale to remove mantels, etc.—Brunswick Const. Co. v. Burden (Sup). 716. *Where a vendor reserved right to remove fixtures from the residence sold, the question as to what constituted fixtures within the contemplation of the parties was a question of law. —Brunswick Const. Co. v. Burden (Sup.) 716. FOOD. Adulteration as a public offense, see “Adulteration.” FORCIBLE ENTRY AND DETAINER. Conclusiveness of adjudication in summary proceedings to recover possession of land, see “Judgment,” § 7. FORECLOSURE. Conclusiveness o£ allegation on party pleading in action to foreclose lien, see “Pleading,” § 1. Of lien, see “Mechanics’ Liens,” § 2. Of mortgage, see “Mortgages,” § 3; “Railroads,” § 4. FOREIGN CORPORATIONS. See “Corporations,” § 7. Constitutional restriction on enactment of retrospective laws affecting, see “Constitutional Law,” § 4. FOREIGN LANGUAGE. Exhibits in foreign language as evidence, see “Evidence,” § 7. FORESTS. See “Woods and Forests.” FORFEITURES. In deeds, see “Deeds,” § 1. FORGERY. Testimony of accomplices, see “Criminal Law,” § 2. ♦Point annotated. FORMER ADJUDICATION. See “Judgment,” §§ 6, 7. FORMS OF ACTION. See “Action,” § 1; “Ejectment” ; “Replevin”; “Trespass,” § 2; “Traver and Conversion.” FRANCHISES. Assessment of franchise tax, see “Taxation,” § 2. Corporate franchises, see “Corporations,” § 1. Of corporation engaged in interstate commerce, see “Commerce,” § 1. Of electric light companies, see “Electricity.” Of street railroads, see “Street Railroads,” § 1. Power of corporation to transfer, see “Corporations,” § 5. FRAUD. See “False Pretenses”; “Fraudulent Conveyances.” Bill of particulars in action in which defense is fraud, see “Pleading,” § 6. Effect of knowledge on limitation in action for deceit, see “Limitation of Actions,” § 1. In bill or note, see “Bills and Notes,” § 1. In exchange of corporation shares, see “Corporations,” § 2. § 1. Actions. Evidence in an action to hold persons as partners on the ground of fraud in inducing plaintiff to sign a contract by misrepresenting themselves as a corporation held not to’sustain plaintiff’s contention.—Rossow v. Burke (Sup.) 608. FRAUDS, STATUTE OF. § 1. Promises to answer for debt, default, or miscarriage of another. *A promise of directors to guaranty their proportionate share of a loan to the corporation/, held within the statute of frauds, Laws 1897, p. 510, c. 417, § 21.—Mechanics’ & Traders’ Bank v. Stettheimer (Sup.) 513. § 2. Agreements not to be performed within one year. A paroi lease for one year is valid, even if it is to take effect at a future date.—Fishman v. Wolf (Sup.) 16. *A contract for one year held not within the statute of frauds, though it provides for a renewal beyond the year.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. § 3. Requisites and sufficiency of writing. ♦A contract held to satisfy the statute of frauds.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. § 4. Pleading, evidence, trial, and review. In an action on a contract certain evidence held immaterial.—General Electric Inspection Co. v. Ebling Brewing Co. (Sup.) 648. See syllabus.
*1180 1180 101 NEW YORK SUPPLEMENT and 135 New York State Reporter FRAUDULENT CONVEYANCES. 5 1. Transfers and transactions invalid. ♦A sale of a stock of goods held within Laws 1897, p. 511, c. 417, § 24, in relation to sales in defraud of creditors.—Hall v. Frith (Sup.) 31. -§ 2. Remedies of creditors and purchasers. *A creditor as against whom a sale is void for fraud under Laws 1897, p. 511, c. 417, may levy on the goods sold without bringing any action to have the bill of sale set aside.—Hall v. Frith (Sup.) 31. On an issue whether a sale of goods was fraudulent as against creditors held, that the evidence showed that the purchaser had notice of the vendor’s fraudulent intent.—Hall v. Frith (Sup.) 31. GARNISHMENT. See “Attachment,” GAS. Preliminary injunction in suit to restrain gas company from refusing to supply gas, see “Injunction,” § 2. GIFTS. Transfer taxes, see “Taxation,” § 3. § 1. Inter vivas. ♦A gift inter vivas held established by the unsupported testimony of the donee’s wife.— Andrews v. Nichols (Sup.) 977. Admission in favor of defendant, claiming a gift from • decedent, of statements of decedent to a third person, held not error.—Andrews v. Nichols (Sup.) 977. ♦Delivery alone of a bond and real estate mortgage held enough to constitute a gift.— Andrews v. Nichols (Sup.) 977. GOOD FAITH. Of purchaser, see “Vendor and Purchaser,” § 2. Of trustee in speculation with trust funds, see “Trusts,” § 3. GUARANTY. See “Indemnity”; “Principal and Surety.” ■Grounds for reformation of guaranty, see “Reformation of Instruments,” § 1. Power of national bank to execute contract of guaranty, see “Banks and Banking,” § 2. Requirements of statute of frauds, see “Frauds, Statute of,” § 1. | 1. Requisites and validity. ♦Defendant’s reply to plaintiff’s inquiry as to ■defendant’s willingness to guaranty certain payments, and plaintiff’s acts in pursuance of such reply, held to show a complete meeting of the minds, without any formal acceptance of the ♦Point annotate guaranty by plaintiff.—Drucker v. Heyl-Dia (Sup.) 796. § 2. Construction and operation. A letter of guaranty by a corporate officer held to bind defendant personally, and not intended to guaranty plaintiff personally as distinguished from his assigns.—Nachod v. Hindley (Sup.) 840. A contract held a mere guaranty of collection and not of payment, obligating the person guarantied to use diligent efforts to collect collateral before resorting to the guaranty.—Nachod v. I-Iindley (Sup.) 840. HABEAS CORPUS. § 1. Nature and grounds of remedy, ♦On habeas corpus only jurisdiction of court to make order restraining relator can be attacked.—People v. Feenaughty (Sup.) 700. HARMLESS ERROR. In civil actions, see “Appeal,” § 6. HEALTH. Adulteration as a public offense, see “Adulteration.” HEIRS. See “Descent and Distribution.” HIGHWAYS. See “Municipal Corporations,” §§ 4, 5. Dedication, see “Dedication,” § 2. Injuries to pedestrian caused by operation of railroad, see “Railroads,” § 6. Operation of telegraph and telephone line along, see “Telegraphs and Telephones,” § 1. § 1. Highway districts and officers. The complaint and official bond of a commit sioner of highways sued on held, in view of Town Law, Laws 1890, pp. 1219, 1221, c. 569, §§ 50, 63, to sufficiently show the obligation was to plaintiff town.—Town of Hadley v. Garner (Sup.) 777. Demand on the principal held not a necessary condition to action on the bond of a commissioner of highways of a town. Town Law, Laws 1890, p. l22s, c. 569, § 84.—Town of Hadley v. Garner (Sup.) 777. The allegation of the complaint on the bond of a commissioner of highways of a town that he did not, after expiration of his term, pay over to his successor all moneys remaining in his hands, held to include allegations that he had received money and had it in his hands after expiration of Ms term.—Town of Hadley v. Gamer (Sup.) 777. § 2. Regulation and use for travel. ♦A pile of manure drawn onto a highway by abutting owners held an unlawful obstruction of 1. See syllabus.
*1181 INDEX, 1181 the highway, rendering such owners liable for injuries to a traveler occasioned thereby.—Sweet V. Perkins (Sup.) 163. HOLDING OVER. By officer, see “Officers,” § 1. HOMICIDE. Instructions in general, see “Criminal Law,” § 3. Reversal on appeal, see “Criminal Law,” § 4. § 1. Evidence. ♦A conviction of manslaughter in the first degree held supported by the evidence.—People v. Mallon (Sup.) 814. Evidence held sufficient to sustain a conviction of murder.—People v. Yoskow (Sup.) 1062. § 2. Trial. ♦On a trial for homicide, the submission of the issue of self-defense held not required under the evidence.—People v. Mallon (Sup.) 814. ♦An instruction on a trial for homicide defining self-defense held properly refused.—People v. Mallon (Sup.) 814. HOSPITALS. Right to pension money of patient, see “Exemptions,” § 1. HUSBAND AND WIFE. See “Divorce"; “Marriage.” Requisites and validity of note of married woman, see “Bills and Notes,” § 1. Singleness of cause of action for enticing wife, see “Action,” § 2. § 1. Mutual rights, duties, and liabilities. ♦A husband held liable for services of a nurse for his wife.—Schneider v. Rosenbaum (Sup.) 529. § 2. Enticing and alienating. ♦Complaint in an action for enticing a wife, held to state a cause of action.—De Ronde v. Bell (Sup.) 497. IMPAIRING OBLIGATION OF CONTRACT. See “Constitutional Law,” § 3. IMPEACHMENT. Of record, see “Appeal,” § 4. Of witness, see “Witnesses,” § 3. IMPLIED CONTRACTS. See "Account Stated”; “Money Lent”; “Money Paid” ; “Use and Occupation”; “Work and Labor.” ♦Point annotated. IMPRISONMENT. See "False Imprisonment.” Habeas corpus, see “Habeas Corpus.” IMPROVEMENTS. Compensation for, in action of partition, see “Partition,” § 1. Liens, see “Mechanics’ Liens.” On premises demised, see “Landlord and Tenant,” § 4. Public improvements, see “Municipal Corporations,” § 3. IMPUTED NEGLIGENCE. See “Negligence,” §§■ 2, 3. INADEQUATE DAMAGES. See “Damages,” § 2. INCOME. Bequest of, see “Wills,” § 3. INCUMBRANCES. On property of intestate, see “Descent and Distribution,” § 2. INDEMNITY. See “Guaranty”; “Principal and Surety.” Indemnity insurance, see “Insurance,” §§ 4, 11. ♦In an action to recover an amount paid by plaintiff to satisfy a judgment from which defendant was bound to save him harmless, plaintiff held not entitled to recover attorney’s fees: paid in supplementary proceedings against him.. —Ogilby v. Munro (Sup.) 753. INDIANS. Subjects of statutes relating to, see “Statutes,”1 §2. Revocation of letters of administration granted by surrogate’s court of Seneca Nation must be sought by appeal to the council of the nation under its constitution.—Jimeson v. Lehley (Sup.) 215. INDORSEMENT. Of promissory note, see “Bills and Notes,” § 2„ INFANTS. Injuries to minor servants, see “Master and! Servant,” § 3. Laws forbidding employment of infants, as denial of liberty to contract, see “Constitutional Law,” § 1. See syllabus.
*1182 1182 101 NEW YORK SUPPLEMENT and 135 New York State Reporter Right of foreign consul to appear for infant in probate proceedings, see “Ambassadors and Consuls.” § 1. Actions. *The dismissal of an action because of plaintiff’s minority at the time of its institution held error.—McGarity v. New York City Ry. Co. (Sup.) 191. INFERIOR COURTS. See “Courts,” § 2. INFRINGEMENT. Of trade-mark, see “Trade-Marks and Trade-Names,” § 3. INHERITANCE. See “Descent and Distribution.” INHERITANCE TAX. See “Taxation,” § 3. INJUNCTION. before there is further need of its protection.— Olms v. Bingham (Sup.) 1106. § 3. Writ, order or decree, service, and enforcement. Where defendants contracted not to use the name “Harder Knitting Company” an injunction restraining them from using the name “Harder Manufacturing Company” . was too broad.—Union Mills v. Harder (Sup.) 309. § 4. Violation and punishment. Evidence held not to show a violation of injunction.—Maine Products Co. v. .Alexander (Sup.) 464. One held not guilty of contempt for violating an injunction.—Maine Products Co. v. Alexander (Sup.) 464. INNKEEPERS. Right to injunction to protect business from interference by police, see “Injunction,” § 1. IN PAIS. Estoppel, see “Estoppel,” § 2. INSANE PERSONS. Suit for, as single cause of action, see “Action,” S' 2. § 1. Subjects of protection and relief. *Hotel owner held entitled by injunction to protect business from continued interference by police.—Olms v. Bingham (Sup.) 1106. § 2. Preliminary and interlocutory injunctions. The injury to plaintiff by breach of contract held not such that a temporary injunction should be granted.—George Ringler & Co. v. Mohl (Sup.) 454. *In a suit by a customer to restrain a gas company from refusing to supply him with gas at the maximum rate fixed by Laws 1906, p. 235, c. 125, the court held required to exercise its discretion in determining the propriety of awarding a preliminary injunction.—Schneider v. New Amsterdam Gas Co. (Sup.) 535. * While the Appellate Division has the power to exercise the judicial discretion vested in the Supreme Court in the granting of a preliminary injunction, the discretion should first be exercised by the court at Special Term.— Schneider v. New Amsterdam Gas Co. (Sup.) 535. * Where, after the granting of an injunction restraining police officers from interfering with complainant’s property pendente lite, complainants used the same as a poolroom, defendants were entitled to apply for a modification of the injunction, though no leave was reserved in the original .order, under Code Civ. Proc. § 627.— Devlin v. McAdoo (Sup.) 546. ^Temporary injunction held not to be continued where plaintiff has failed to bring case on for trial, and where he can bring it on for trial Evidence as to validity of deed of grantor not ' adjudged incompetent, see “Deeds,” § 2. INSOLVENCY. See “Bankruptcy.” Of trust company, see “Banks and Banking,” § INSPECTION. Of writings, see “Discovery,” § 1. INSTRUCTIONS. In civil actions, see “New Trial,” § 1; “Trial,” §§ 4, 5. In criminal prosecutions, see “Criminal Law,” § 3; “Homicide,” § 2. INSURANCE. Best and secondary evidence in action on policy, see “Evidence,” § 4. Constitutional restriction on enactment of retrospective laws affecting insurance companies, see “Constitutional Law,” § 4. Harmless error in action on policy, see “Appeal,” § 6. Objection for purpose of review in action on policy, see “Appeal,” § 2. Of premises demised, see “Landlord and Tenant,” § 4. Presumptions on appeal in action on policy, see “Appeal,” § 6. Subjects of compensatory damages for breach of contract to receive insurance policy: see “Damages,” § 1. *Point annotated. See syllabus.
*1183 INDEX. 1183 Transfer tax on certificates of insurance, see “Taxation,” § 3. { 1. Insurance companies. In action against directors of life insurance company for malfeasance in renewal of a lease of premises of great v.alue at an inadequate rental, held there was no presumption that the renewal was compulsory under the original lease.—People y. Equitable Life Assur. Soc. (Sup.) 353. Allegations in action by Attorney General against officers of life insurance company for malfeasance in office held not demurrable.—People v. Equitable Life Assur. Soc. (Sup.) 353. Allegations in action by Attorney General against officers of life insurance company as to failure to distribute profits of policy holders held not to state a cause of action against defendants.—People v. Equitable Life Assur. Soc. (Sup.) 353. In action by state’s attorney against directors of a life insurance company for failure to distribute profits held a defect of parties in nonjoinder of policy holders.—People v. Equitable Life Assur. Soc. (Sup.) 353. Attorney General, under Code Civ. Proc. §§ 1781, 1782 can maintain action against officers of insurance company for neglect and malfeasance.—People v. Equitable Life Assur. Soc. (Sup.) 354. § 2. Insurance agents and brokers. Insurance agent, having failed to obtain certificate from superintendent of insurance, as required by Insurance Law, Laws 1892, p. 1972, c. 690, § 91, held, not entitled to recover agreed compensation.—Wyatt v. McNamee (Sup.) 790. General agent of insurance company making payments to subagent not holding certificate, as required by Insurance Law, Laws 1892, p. 1972, c. 690, § 91, held not entitled to recover them. —Wyatt v. McNamee (Sup.) 790. § 3. The contract in -general. A fire policy held not a renewal of a prior one.—Arlington Co. v. Empire City Fire Ins. Co. (Sup.) 772. A fire policy held not to cover a certain building in the manufacturing plant insured.—Arlington Co. v. Empire City Fire Ins. Co. (Sup.) 772. A writing executed by a subinsurance agent prior to delivery of a semitontine policy held a mere prospectus, and insufficient to impose a liability on the insurer to pay the estimated accumulation dividends.—Langdon v. Northwestern Mut. Life Ins. Co. (Sup.) 914. § 4. Premiums, dues, and assessments. Where insured accepts from an insurance broker a fire policy which the broker had induced the company to issue, and keeps it for three months, he is prima facie liable for the .premium,—Westchester Fire Ins. Co. v. Gurian (Sup.) 50. In an action by an employers’ indemnity insurance company against an insured for additional premiums, evidence held not to sustain * Point annotate a judgment for plaintiff.—Fidelity & Casualty Co. of New York v. Fischer (Sup.) 545. § 5. Cancellation, surrender, abandonment, or rescission of policy. *The acceptance of a fire policy by a broker from the insured held not to operate as a cancellation thereof barring l'ecovery of the premium.—Westchester Fire Ins. Co. v. Gurian (Sup.) 50. § 6. Avoidance of policy for misrepresentation, fraud, or breach of warranty or condition. '"Recovery could not be had on a life policy issued to a person not in sound health on its date, where application provided that such policy should not be binding unless the applicant was alive and in good health at noon upon its date. —Carmichael v. John Hancock Mut. Life Ins. Co. (Sup.) 602. § 7. Forfeiture of policy for breach of promissory warranty, covenant, or condition subsequent. An agreement to extend the time of paying a premium on a policy then in force held not to violate the terms of a receipt for a partial payment on the premium made at the same time.—Carr v. Prudential Ins. Co. (Sup.) 158. *A general agent and superintendent of a life insurance company held to have authority to extend the time of payment of a premium.—Carr v. Prudential Ins. Co. (Sup.) 158. § 8. Estoppel, waiver, or agreements affecting right to avoid or forfeit policy. *A condition of a policy of insurance providing that insurer should not be liable for any loss resulting from fire built within 50 feet of insured building, held not subject to waiver after the destruction of the building by fire built within the prohibited distance.—Draper v. Oswego County Fire Relief Ass’n (Sup.) 168. *Facts held not to show a waiver by insurer of certain condition of policy.—Draper v. Oswego County Fire Relief Ass’n (Sup.) 168. An unaccepted offer to settle a claim for credit insurance, made in ignorance of a breach of warranty, held not a waiver thereof.—Boer v. American Credit Indemnity Co. (Sup.) 672. ^Provision in an application for credit insurance making a soliciting agent the agent of the insured held to preclude a claim that his knowledge was that of the company.—Boer v. American Credit Indemnity Co. (Sup.) 672. § 9. Risks and causes of loss. Under an accident policy held that there could be no recovery for time lost from orchitis.— Sweeney v. National Relief Assur. Ass’n (Sup.) 797. §10. Extent of loss and liability of insurer. *Under an accident policy held, that there could be no recovery without a showing of disability and necessary confinement to the house for a week.—Schneps v. Fidelity & Casualty Co. of New York (Sup.) 106. 1. See syllabus.
*1184 1184 101 NEW YORK SUPPLEMENT and 135. New York State Reporter § 11. Right to proceeds. ♦An employer’s liability policy held to confer no right of action on a servant who had recovered judgment for injuries against the master, which judgment the servant was unable to collect because of the master’s insolvency.— Beyer v. International Aluminum Co. (Sup.) S3. § 12. Actions on policies. In an action on a life insurance policy, evidence held sufficient to support a finding that the agent of the company extended the time for payment of the premium.—Carr v. Prudential Ins. Co. (Sup.) 158. Evidence as to the mailing of notice required by Laws 1897, p. 92, c. 218, § 92, before forfeiture of a life insurance policy for nonpayment of premiums, held to present a question of fact precluding nonsuit.—Carr v. Prudential Ins. Co. (Sup.) 158. A conflict in evidence as to whether overdue life insurance premiums were received under an extension of time or merely as contingent revivals of the contract, held to raise a question of fact precluding nonsuit.—Carr v. Prudential Ins. Co. (Sup.) 158. An instruction as to the power of a general agent and superintendent of a life insurance company to bind his company by an extension' for the time of payment of a premium held proper under the evidence.—Carr v. Prudential Ins. Co. (Sup.) 158. *In action on fire policy, evidence of conversations with insured with reference to fires set on farm by particular individual held admissible.—Wells v. Glens Falls Ins. Co. (Sup.) 1059. § 13. Mutual benefit insurance. * Statement of when the limitation for action on a certificate of insurance, provided therein, began to run—Munn v. Masonic Life Ass’n ' (Sup.) 91. Evidence held to show reinstatement in a beneficial association of one whose membership was forfeited by failure to pay an assessment, when due.—Munn v. Masonic Life Ass’n (Sup.) 91. ♦Under the facts held that the one a member of the beneficial association had intended to make his beneficiary was in equity entitled to the proceeds of his certificate.—Tidd v. McIntyre (Sup.) 867. INTENT. Fraudulent, see “Fraudulent Conveyances,” §1. INTEREST. See “Usury.” Effect of pecuniary interest as to credibility of witness, see “Witnesses,” § 3. Liability of receivers of insolvent trust company for, see “Banks and Banking,” § 3. On contract with trust company, see “Banks and Banking,” § 3. On shares in corporation, see “Corporations,” § 2. Payment of interest as part payment within statute x>f limitations, see “Limitation of Actions,” § 2. § I. Rights and liabilities in general. ♦Interest should not be allowed on an unliquidated claim for services rendered under promise to make compensation therefor by will.—Chambers v. Boyd (Sup.) 486. INTERLOCUTORY INJUNCTION. See “Injunction,” § 2. INTERLOCUTORY JUDGMENT. Appealability, see “Appeal,” § 1. Review on appeal, see “Appeal,’.’ § 6. INTERNATIONAL LAW. See “Ambassadors and Consuls.” INTERPLEADER. § 1. Right to interpleader. ♦Where one contracting to erect certain buildings for the United States made a subcontract for painting, and the subcontractor bought materials from plaintiffs for the work, the contractor could not maintain an action of inter-pleader against the subcontractor and the party furnishing the materials to determine the ownership of an unpaid balance of the contract price for the painting.—Mosier y. KurchhoS (Sup.)' 643. INTERROGATORIES. To witnesses, see “Depositions.” Interstate commerce. Regulation, see “Carriers,” § 1; “Commerce.”’ intervention. In actions in general, see “Parties,” § 2. INTESTACY. See “Descent and Distribution.” INTOXICATING LIQUORS. ' § 1. Licenses and taxes. An order discontinuing a proceeding for the cancellation of a liquor tax certificate and directing its surrender reversed.—In re Faber (Sup.) 429. Under Laws 1896, p. 60, c. 112, § 17, subd. 8, consent of owner of fee to issuance of liquor tax certificate held sufficient without that of life tenant.—In re Clement (Sup.) 447. Under Laws 1896, p. 60, c. 112, § 17, subd. 8, double house held to be counted as only one ♦Point annotated. See syllabus.
*1185 INDEX, 1185 building in determining number of consents necessary to issuance of liquor tax certificate.— In re Clement (Sup.) 447. Advice of second deputy commissioner of excise held not to estop commissioner of excise from bringing proceeding to revoke liquor tax certificate.—In re Clement (Sup.) 447. A petition to cancel a liquor tax certificate for violation of Liquor Tax Law, Laws 1897, p. 220,' c. 312, § 17, subd. 8, based on information and belief, held sufficient to confer jurisdiction and authorize the taking of proof under section 28, subd. 2 (page 229).—In re Clement (Sup.) 683. § 2. Criminal prosecutions. ■Reference in the charge, on a prosecution for illegal sale of liquor, to the vote of the town against sale of liquor, held improper where defendant merely claimed he made no sale.—People v. Myers (Sup.) 291. INVESTMENT. By trustee, see “Trusts,” § 3. INVESTMENT COMPANIES. See “Banks and Banking,” § 3. ISSUES. Presented for review on appeal, see “Appeal,” § 2. V; JOINDER. Of causes of action, see “Action,” § 2. JUDGES. Vacation of judgment in municipal court, see “Courts,” § 2. In particular cwil actions or proceedings. See “Injunction,” § 3; “Traver and Conversion,” § 1. On appeal, see “Appeal,” § 7. Personal judgment for deficiency on foreclosure, see “Mortgages,” § 3. Probate proceedings, see “Wills,” § 2. See “Appeal.” Review. § 1. By default. Where_ defendant failed to appear on the hearing of his motion to open a default, the motion should have been dismissed.—Levine v. Munchik (Sup.) 14. An order improperly reciting a denial instead of a dismissal of a motion to open a default was valid until set aside or reversed.—Levine v. Munchik (Sup.) 14. f

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8274629. Public record. Not legal advice.