Page images

Coler, 119.


he did not appear upon the argument ance for services therein.
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 omit-
ted to present any argument or author-
ities 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 conclud-
ed by what has been stated in the opin-
ion whenever a case involving the same
question arises. Lyman, Matter of, 26.

[blocks in formation]


Suspension-false affidavits.—An attorney who, on disputed taxation of costs, deposes positively to what he knows to be untrue, or without personal 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, Compensation-services under assignment 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

People v




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 continuance of the attorney originally assigned, does not amount to a re-assignment, so as to give him the status of a newly assigned counsel to prosecute the appeal. People v. Coler, 119.

Negligence in conduct of case—liabil ity to client.-To a complaint for damages for the breach of an agreement not to be performed within a year, which did not disclose whether the contract 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 defense, if the evidence disclosed a contract within the statute. It was held in said action, however, by the court of appeals, contrary to the former deci sions of the same court, that the statute of frauds, to be available as a defense, must be specially pleaded, and judgment went against the defendant because of the omission to make such plea. Held, that since such decision made a radical change in the system of pleading, which the attorney could not reasonably have anticipated, he was not guilty of negligence in the conduct of the defense. Patterson v. Powell, 381.


a. What constitutes.
b. Remedies of client.


1. Action against attorney.
2. Defense and counterclaim
to action by attorney for

3. Substitution of attorneys
and denial of provision for
payment for services.
c. Liability to third persons.
d. Damages.

Lien-money impounded to alimonu.-Where the attorney for a di




vorced wife secured an order requiring davit of denial. Persons v. Kruger, the husband to deposit one-third of the 100. surplus arising from a foreclosure sale NOTE.-SERVICE OF NOTICE OF PROof his property with the chamberlain to secure her right of dower, and also to deposit a sum to secure the payment of alimony, he is not entitled to a lien such funds for his services, the funds not being the property of his client. Mooney v. Mooney, 257.



[merged small][merged small][ocr errors][merged small][merged small][merged small]


-proof of service.-In an 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 alli

a. Mode of Service.
1. Oral notice.

2. Written notice to partyModes of service.

3. Service upon agent.

4. Service where party is dead.
5. Service upon partners.
6. Service upon parties joint-
ly liable.

7. Service upon bankrupt. b. Time of service.

c. Foreign bills and notes-Conflict of laws.

Notarial certificate-admissibility in evidence.-Under the statute of Pennsylvania providing that the protests and attestations of notaries public, properly certified by them, in respect to the dishonor of all bills and notice 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.


Courts not of record-order of court not demanded until trial effect.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

not been exhibited. Held, that where
defendant, being sued for money loaned,
alleged in his answer a claim for serv-
ices greater than plaintiff's demand,
and plaintiff made no demand nor re-
quested any order of the court to be
made requiring a bill of particulars of
defendant's demand until defendant
undertook to introduce evidence there-
of, it was error to exclude the evidence.
De Gregori v. Saitta, 369.



See Appeal.

§ 465

§ 467

See Adoption.

See Divorce and Separation.


§ 14..

§ 14, subd. 4.

§ 190

§ 191, subd. 1.

191, subd. 2. § 191, subd. 4. § 220

§ 230

§ 460

$ 463

$ 516

8 525

§ 526

§ 546

§ 575, subd. 3.

§ 644

§ 723

§ 779.

§ 784


& 860

§ 865


See Conditional Sale.


§ 2284

§ 2436


§ 2463


§ 2481, subd. 11.


§ 2528



§ 2553 228 § 2557 .216n. § 2561

32, 33

.31, 33 152n.

§ 46

.234 § 2718

§ 66....

..165n., 166n., 168, 170, 171 | § 2942 § 111..209n., 210n., 211n., 212, 213, § 2952 .214, 254n. § 2957. ..127n. § 2961 .30n., 127n., 29n. § 3070 .29n., 229n., 232n. § 3156......314n., 316, 316n., 317, 318 .231n. § 3208..

369n., 372 ...366 .363n., 364n., 367 ..136 .140


..73n ..80n

[blocks in formation]

§ 836..343n., 346, 347, 347n., 350, .359, 360, 361

§ 1325

§ 1337

§ 1338

$ 1577

§ 1579

§ 1769

§ 1771. § 1772

.98n. 211n.


.269, 275n., 276n., 278n.

345, 346, 348, 358

§ 1773

§ 1835

§ 1836

§ 1879

.229n. § 3228, subd. 1.
.229n. § 3254..
.122n. § 3322..
.123n.§ 3328..
.123n. § 3329..

§ 2253

$ 2269

$ 2281

.173n., 174, 175, 175n.

..98n. 264 .126n., 130


.75n., 80 .236n., 256n. .243n., 249, 300, 302, 307


[ocr errors]

.252n. .145, 153n.

.145, 151n., 153n.


286, 287n. CODE OF CRIMINAL PROCEDURE. .374n., 375n.



.121n., 123





132n., 135, 136, 137

133 ..134

..263 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.

a. As to vendee.

b. As to transferee.


Foreclosure-conditional lease-filing .231n.conversion.-Plaintiff sold R. certain .415 machinery, taking a lease thereon, 80 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

[ocr errors]

from the date of filing. No refiling was had. R. gave defendant a chattel mortgage on this machinery, which he filed before the expiration of that year. The mortgage was foreclosed, and defendant purchased the machinery at the sale. Plaintiff had no notice of the mortgage, but demanded the property from defendant, who at the time of the sale was notified that R. was not the owner of the machinery. Held, plaintiff could maintain an action for conversion of the machinery, although he had not refiled his lease after the expiration of the year, as defendant's right to the property arose under his mort gage, and not merely as a purchaser at the sale. American Box Machine Co. v. Zentraf, 182.

[blocks in formation]


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 judg ment 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.


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

the supplementary costs, on finding him guilty of contempt for false swearing, is not excessive, where the value of the property transferred exceeded the judgment. Bernheimer v. Kelleher, 216. NOTE. PERJURY AS CONTEMPT


a. Statutes.

b. What perjury constitutes contempt.

c. Constitutionality of proceedings to punish.

d. Extent of punishment.



See Conditional Sale.

to punish-misconduct of sheriff-adjudication.-Code Civ. Pro. 8 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 official misconduct in refusing to execute an attachment denied the charge on 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 had committed the offense, or that plaintiff's rights were in any manner impaired by his acts, the order imposing such fine will be reversed. Dailey v. Fenton, 222.



NOTE. DURATION MENT IN CIVIL ACTION......209-211 Fse swearing.-A litigant's false swearing will justify a finding that he is guilty of contempt of court. Bern-ence, or other proceeding in the action heimer v. Kelleher, 216.

of Court-trial.-Code Civ. Proc. § 1579, authorizing a court, on entry of final judgment confirming a sale in partition, to direct that the costs and expenses of any trial, refer

be paid out of the share of any party in the proceeds, does not justify a judg 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


Partition-power of referee.-A referee, before whom the issues in a partition action are tried, has no power to award costs by his report. Wells v. Vanderwerker, 73.

tire proceeds of the sale of the land, but such costs should be paid from the shares of the defendants who caused the litigation. Wells v. Vanderwerker, 73. -NOTE.-COSTS IN PARTITION AC.73-81 TIONS.. ....

a. In general.

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.

trial on the adjourned day. Farber v. Flauman, 267.

Municipal courts of New York. Code Civ. Proc. § 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. Presentment of claim.
b. Unreasonable resistance or ne-
glect of payment.

c. Costs against executor or admin-
istrator personally.
d. Failure to file consent to refer

or reserve.
e. Practice-How
and amount.

costs awarded

Motion costs.-Motion costs granted to a party in the municipal court should be included in his judgment or set off against the costs of the successful party. Farber v. Flauman, 267.


a. Cost in former action.
1. When stay granted-In

1. When stay becomes operative.

2. What proceedings stayed. 3. Waiver. Condition to amendment-payment—

--Under the Code prior to amend-retaxation.-Where costs are awarded ment of September 1, 1895, now em- against defendant, as a condition of braced in Code Civ. Proc. § 1836, allow- leave to file an amended answer, plaining costs against executors where they tiff, having received the costs, cannot. have "refused to refer the claim as pre- again tax the same costs on finally sucscribed by law," an offer by a claimant ceeding in the action. Cahill v. New to refer his claim against an estate, York, 320. 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.-TAXATION OF COSTS PREVIOUSLY PAID AS TERMS.....320-328 a. When paid by party finally successful.

b. When paid by party finally unsuccessful.





costs imposed as a condition of an adjournment sought by a defendant does not impair his right to take part in the

2. Intermediate transfer of
cause of action.

3. Different tribunal.
4. Practice.

b. Costs in same action.


See Adoption.
See Pleading.

Jurisdiction-nonresident trustees.The supreme court has jurisdiction of an action by a resident of another state against trustées under a will residing in England, where service of summons can be had upon them, to recover the price of land in another state purchased by their testator in his lifetime.. Belden v. Wilkinson, 48.



a. Scope of note-References.
b. In general-Consent-Waiver-

c. Foreign lands.

d. Foreign personal torts.

[ocr errors]
« PreviousContinue »