Coler, 119. NOTE. COMPENSATION OF As .119-124 he did not appear upon the argument ance for services therein. People v. of the case, but submitted his points, and failed to notice the objection that a forfeiture of a tax certificate could only follow a criminal conviction, and omitted to present any argument or authorities upon the subject, and that such a construction of the statute will greatly embarrass him in the administration of the law, it will not be granted, but the court will not regard itself as concluded by what has been stated in the opinion whenever a case involving the same question arises. Lyman, Matter of, 26. ATTORNEYS. NOTE. DISBARMENT OF ATTOR NEYS ... a. Grounds. .1-8 a. In criminal cases. b. In actions in forma pauperis. Re-assignment-appeal.-The denial of the application of the accused, intermediate the conviction and appeal, for a change of attorneys and the continudoes not amount to a re-assignment, so ance of the attorney originally assigned, as to give him the status of a newly assigned counsel to prosecute the appeal. People v. Coler, 119. Disbarment--evidence.--In proceedNegligence in conduct of case—liabil ings to disbar, evidence of grave mal-ity to client.-To a complaint for dampractice, for which an attorney may be ages for the breach of an agreement not disbarred for life, should establish guilt to be performed within a year, which beyond a reasonable doubt. Mashbir, did not disclose whether the contract Matter of, 1. was oral or in writing, defendant's attorney pleaded a denial of the contract, under which answer according to the practice recognized by the decisions of the state courts for over 50 years, the statute of frauds was available as a dec. Evidence. fense, if the evidence disclosed a cond. Punishment. tract within the statute. It was held e. Restoration. in said action, however, by the court of Suspension--false affidavits.-An at- appeals, contrary to the former deci torney who, on disputed taxation of sions of the same court, that the statcosts, deposes positively to what he ute of frauds, to be available as a deknows to be untrue, or without person-fense, must be specially pleaded, and al knowledge or verification of the facts, recklessly deposes to what is in fact untrue, should be suspended from practice, especially when his previous depositions as to the same matters had been challenged. Mashbir, Matter of, 1. as Compensation-services under signment by court.-Under Code Cr. Proc. § 308, as amended by Laws 1897, c. 427, which provides that, where the court assigns counsel to defend one accused of a crime punishable with death, the court in which the defendant is tried, or in which an appeal is finally determined, may allow counsel a reasonable fee, not exceeding $500, which allowance shall be a charge on the county in which the indictment is found, an attorney who defended a person accused of murder, and to whom the trial court awarded $500 as compensation for his services, is not, on the case being appealed to the court of appeals, entitled to an additional allow judgment went against the defendant NOTE.-NEGLIGENCE OF ATTORNEYS a. What constitutes. was .381-396 vorced wife secured an order requiring on such funds for his services, the .257-258 Lien-surrogate's decree.-Irrespective of § 66 of the Code of Civil Procedure, which regulates attorney's liens, an attorney has a lien upon a decree obtained in a surrogate's court for services rendered in obtaining such decree. Regan, Matter of, 165. Enforcement by surrogate's court.The surrogate's court has jurisdiction to allow and enforce an attorney's lien for services against a decree procured therein. Regan, Matter of, 165. NOTE. ATTORNEY'S LIEN IN SURROGATE'S COURT. . . NOTE. LIABILITY ...165-167 FOR DISBURSEMENTS OF ATTORNEYS ...398-401 BILLS AND NOTES. Notice of protest-service on agent.— Service of notice of protest on the agent of an indorser on a draft was sufficient to charge the latter where the agent was authorized by power of attorney to make and indorse drafts, checks, etc., and acted as general agent for defend ant in all his business with plaintiff bank, and had full charge of all his dealings with the bank, and indorsed the draft in suit for his principal. Persons v. Kruger, 100. -proof of service.-In an action against the indorser of a draft, proof that the notice of dishonor which was returned to plaintiff bank, to which the draft had been negotiated by defendant, was mailed to defendant in the usual course of the bank's business, is sufficient to justify a finding of service of notice, where defendant was not sworn as a witness, and did not file an affidavit that no notice was received pursuant to Code Civ. Proc. § 923, making a notarial certificate of service of such a notice presumptive evidence of the facts certified unless defendant files an affi 507 davit of denial. Persons v. Kruger, NOTE.-SERVICE OF NOTICE OF PRO- a. Mode of Service. 2. Written notice to party— 3. Service upon agent. 4. Service where party is dead. 7. Service upon bankrupt. c. Foreign bills and notes--Conflict of laws. Notarial certificate-admissibility in evidence.-Under the statute of Pennand attestations of notaries public, sylvania providing that the protests the dishonor of all bills and notice to properly certified by them, in respect to the drawers or indorsers thereof, may be read in evidence as proof of the facts stated therein, the certificate of a notary in Pennsylvania is admissible to prove protest for nonpayment and notice in that state in an action against an indorser brought in New York. Persons v. Kruger, 100. BILLS OF PARTICULARS. not demanded until trial effect.Courts not of record-order of court Code Civ. Pro. § 2942, provides that, when issue is joined in a court not of record, the court, on request, may require the adverse party to exhibit his account or demand, and state the nature thereof, and, on failure to comply with such order, the party may be precluded from giving evidence of such parts of the account or demand as have defendant, being sued for money loaned, not been exhibited. Held, that where alleged in his answer a claim for services greater than plaintiff's demand, and plaintiff made no demand nor requested any order of the court to be made requiring a bill of particulars of defendant's demand until defendant undertook to introduce evidence thereof, it was error to exclude the evidence. NOTE.-BILLS OF PARTICULARS IN De Gregori v. Saitta, 369. COURTS NOT OF RECORD.....369-37L .374n. .98n. .211n. 308.... 286, 287n. CODE OF CRIMINAL PROCEDURE. .374n., 375n. ...121n., 123 § 230 8 460 $ 463 § 465 § 467 § 516 § 525 § 526 § 546 § 575, subd. 3.. § 644 § 723 § 779. § 784 $834. .225 ..83n. .269, 275n., 276n., 278n. § 836..343n., 346, 347, 347n., 350, CONDITIONAL SALE. Right to reclaim property-waiver by suit for price-notes.-Where it is agreed that the giving of notes in payment for machinery shall not affect the retention of the title to the machinery in the seller until such notes are paid, the seller does not abandon his right to reclaim the property by an unsuccessful attempt to collect the notes by suit. American Box Machine Co. v. Zentgraf, 182. .157, 158n. NOTE.-EFFECT OF SUIT FOR PRICE .109 ON .263 SALE.. a. As to vendee. .173n., 174, 175, 175n. ..182-192 .98n. ..264 .126n., 130 b. As to transferee. Foreclosure-conditional lease-filing .231n.conversion.-Plaintiff sold R. certain machinery, taking a lease thereon, which provided that the title was to remain in him until the notes were paid. This lease was filed as a chattel mortgage, which continued it in force, as notice to third parties, for one year ..415 ...80 .75n., 80 .236n., 256n. .243n., 249, 300, 302, 307 .251n. from the date of filing. No refiling .229n .128, 230n CONTEMPT. Nonpayment of alimony-imprisonment.-Imprisonment for three months for failure to pay temporary alimony granted by an order pendente lite is no bar to imprisonment for nonpayment of alimony awarded by the final decree. Reese v. Reese, 209. Successive punishments. An imprisonment of defendant for contempt un an interlocutory order before judgment will not prevent his subsequent imprisonment for disobedience to final judgment in the same action, under Code Civ. Pro. § 111, which provides that "the prisoner shall not again be imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted;" "process," as there used, referring to process after final judgment. Reese v. Reese, 209. NOTE. DURATION OF IMPRISON- Bern Fine.-In an action for plaintiff's interest in property that defendant had fraudulently transferred, a fine imposed on defendant, of the amount of a judgment secured by plaintiff, together with 509 b. What perjury constitutes contempt. c. Constitutionality of proceedings to punish. d. Extent of punishment. Power to sheriff-adjudication.-Code Civ. Pro. 2281, provides that one accused of a civil contempt may be punished "if it is determined that he has committed the offense charged," etc., and that it was calculated to or did defeat, impair, impede, or prejudice the rights or remedies of the complaining party, etc. Held, that where a sheriff charged with cute an attachment denied the charge official misconduct in refusing to exeon return of the order to show cause why he should not be punished therefor, and the record on appeal from an order fining him for official misconduct failed to show any adjudication that he plaintiff's rights were in any manner had committed the offense, or that impaired by his acts, the order imposing such fine will be reversed. Dailey v. Fenton, 222. punish-misconduct of CONVERSION. See Conditional Sale. COSTS. eree, before whom the issues in a parPartition-power of referee.-A reftition action are tried, has no power to award costs by his report. Wells v. Vanderwerker, 73. Civ. Proc. § 1579, authorizing a court, Discretion of Court-trial.-Code sale in partition, to direct that the on entry of final judgment confirming a costs and expenses of any trial, reference, or other proceeding in the action in the proceeds, does not justify a judgbe paid out of the share of any party ment requiring payment of the costs of the trial of an issue of plaintiff's title in partition, raised by defendant, where plaintiff was successful, out of the en tire proceeds of the sale of the land, but | trial on the adjourned day. Farber v. such costs should be paid from the Flauman, 267. shares of the defendants who caused the litigation. Wells v. Vanderwerker, 73. NOTE.-COSTS IN PARTITION ACTIONS.. a. In general. .73-81 b. To guardian ad litem. c. Additional allowance. Executors and administrators-disputed claim.-Under the Code prior to amendment of September 1, 1895, now embraced in Code Civ. Proc. § 1836, allowing costs against executors where payment of claims "was unreasonably resisted or neglected," the recovery of the full amount sued for in an action on a claim against an estate formally rejected by the executors does not show that payment thereof was unreasonably resisted or neglected, so as to entitle the plaintiff to costs. Ehrenreich v. Lichtenberg, 142. -Under the Code prior to amendment of September 1, 1895, now embraced in Code Civ. Proc. § 1836, allowing costs against executors where they have "refused to refer the claim as prescribed by law," an offer by a claimant to refer his claim against an estate, without any action by the executors, except a mere formal rejection of the claim, does not amount to a refusal to refer it, so as to entitle him to costs on a judgment recovered thereon. Ehrenreich v. Lichtenberg, 142. NOTE.-COSTS ΟΝ DISPUTED CLAIMS AGAINST DECEDENTS' ESTATES...... .142-153 a. Presentment of claim. b. Unreasonable resistance or ne- or reserve. e. Practice-How costs awarded - Municipal courts of New York. Code Civ. Proc. 8 779, providing for staying proceedings of a party defaulting in payment of costs, has no application to the municipal_court of New York City. Farber v. Flauman, 267. NOTE. STAY FOR NONPAYMENT OF COSTS.. .267-279 a. Cost in former action. 2. Intermediate transfer of cause of action. 3. Different tribunal. 4. Practice. b. Costs in same action. 1. When stay becomes operative. 2. What proceedings stayed. 3. Waiver. Condition to amendment-paymentretaxation. Where costs are awarded against defendant, as a condition of leave to file an amended answer, plaintiff, having received the costs, cannot. again tax the same costs on finally succeeding in the action. Cahill v. New York, 320. NOTE.-TAXATION OF COSTS PREVIOUSLY PAID AS TERMS.....320-328 a. When paid by party finally successful. b. When paid by party finally unsuccessful. |