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and 140 New York State Reporter

were also rendered.-In re Quackenbush (Sup.) | a certain price held ultra vires.-Gause v. Com773. monwealth Trust Co. (Sup.) 288.

*Under Bankr. Act July 1, 1898, c. 541, § 17, subd. 2, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], a simple claim for conversion of money deposited with defendant is barred by defendant's discharge in bankruptcy.-Lewis v. Shaw (Sup.) 1012.

*The term "fiduciary capacity," as used in Bankr. Act July 1, 1898, c. 541, § 17, subd. 4, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], held limited to express trusts such as that of a public officer, executor, administrator, guardian, or trustee, and does not include commercial transactions in which trust and confidence is reposed in the bankrupt.-Lewis v. Shaw (Sup.) 1012.

*A bankrupt's discharge held to have barred plaintiff's action to recover money deposited with the bankrupt which he embezzled; he not having held the same in a fiduciary capacity within Bankr. Act July 1, 1898, c. 541, § 17, subd. 4, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428].-Lewis v. Shaw (Sup.) 1012.

BANKS AND BANKING.

Subscriptions to bank stock, see "Corporations," § 3.

§ 1. Functions and dealings.

*A banker is presumed to know the signature of his depositor, and if he pays a forged check he cannot charge the amount to his account.Timbel v. Garfield Nat. Bank (Sup.) 497.

*Where the drawer of a check has prepared his check so negligently that it can be easily altered without suspicion, and alterations are afterwards made, the bank cannot be held liable for paying the check so altered.-Timbel v. Garfield Nat. Bank (Sup.) 497.

§ 2. National banks.

BAR.

Of action by former adjudication, see “Judgment," § 4.

Pleas in bar, see "Pleading," § 3.

BASTARDS.

Support of by county, see "Paupers," § 1.
§ 1. Illegitimacy in general.
*Where illegitimacy of the issue of a married
woman is asserted, it must be incontrovertibly
shown that there was no such access as could
have enabled the husband to be the father.—
Mayer v. Davis (Sup.) 1041.

2. Custody, support, and protection. *Under the express provisions of Code Cr. Proc. § 839, a mother is liable for the support of her bastard child, if able to support it, and, if she wrongfully neglects or refuses to do so, she may be prosecuted for abandonment or proceeded against under section 857.-People v. Chamberlain (Sup.) 149.

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BILL OF EXCHANGE.

In an action against a national bank for the alleged payment of a raised check, evidence considered, and held sufficient to take to the jury the questions as to whether the plaintiff did not in fact authorize the check for the full amount See "Bills and Notes." paid and as to his negligence in issuing the check.-Timbel v. Garfield Nat. Bank (Sup.)

497.

§ 3. Loan, trust, and investment companies.

The right of a trust company to guarantee a sale of certain stock and bonds at a specified price within a certain time being questionable, the holder of the stock was put on inquiry as to the authority of an officer of the trust company to execute a guaranty of that nature on behalf of the company.-Gause v. Commonwealth Trust Co. (Sup.) 288.

Evidence held to show no ground for enforcing an ultra vires contract of a corporation on the ground of performance by the other party. Gause v. Commonwealth Trust Co. (Sup.) 288.

BILL OF PARTICULARS.

See "Pleading," § 7.

BILLS AND NOTES.

Notes for price of goods sold, see "Sales," § 3.
Overdraft by partner on account of unearned

profits as asset of firm, see "Partnership," § 1. Parol or extrinsic evidence, see "Evidence," $ 4. Recovery of money paid by mistake on draft, see "Money Received."

§ 1. Requisites and validity.

Notes given to an employment agency for the procurement of a position, representing fees demanded by the agency in excess of those authorized by Laws 1904, p. 1055, c. 432. § 5, are void. -Hapgoods v. Barrett (Co. Ct.) 189. *Point annotated. See syllabus.

Contract of president of trust company guaranteeing the sale of certain bonds and stock at

2. Actions.

In an action for a balance due on the price
of notes sold, evidence tending to show agency
held improperly stricken out.-Stallo v. Humph-
reys (Sup.) 456.

BOARD OF TRADE.

See "Exchanges."

BOARDS.

Town boards, see "Towns," § 1.

BONA FIDE PURCHASERS.

Of goods, see "Sales," § 2.

See "Bail."

BONDS.

Bonds to prevent or discharge mechanic's lien,
see "Mechanics' Liens," §§ 2, 4.
Harmless error in rulings in action on liquor
tax certificate bond, see "Appeal," § 8.
Liquor dealer's bond, see "Intoxicating Liq-
uors," § 2.

Municipal bonds, see "Municipal Corporations,"
§ 8.

Of receivers, see "Receivers," $ 5.
On appeal, see "Appeal," §§ 5, 10.

Sureties on bonds, see "Principal and Surety."

BOUNDARIES.

§ 1. Description.
*Description in a deed construed, and held to
pass to defendant the fee in an adjoining street
to the center thereof.-Hudson River Telephone
Co. v. Forrestal (Sup.) 404.

BREACH.

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See "Exchanges"; "Factors"; "Principal and
Agent."

Grounds for new trial in action for broker's
commissions, see "New Trial," § 1.
Insurance brokers, see "Insurance," § 1.
Modification of broker's contract, see "Con-
tracts," § 3.

Ship brokers, see "Shipping," § 2.

§ 1. Employment and authority.

The mere employment of a broker as such
bring the parties together, but not to make a
only authorizes him to act as intermediary to
contract of sale.-Rowland v. Hall (Sup.) 55.
§ 2. Compensation and lien.

*A broker, under the facts, held not entitled
to a commission.-William P. Rae Co. v. Kane
(Sup.) 47.

*In an action for broker's commissions, where
the negotiations did not result in a sale, the
broker was bound to prove not only that his
proposed customer was willing, but able, to
purchase on the seller's terms.-Corbin v. Me-
chanics' & Traders' Bank (Sup.) 573.

*A broker held not entitled to recover com-
missions where the sale was not consummated
because his principal was unable to obtain title
through foreclosure proceedings.-Corbin v. Me-

Of contract, see "Contracts," § 5; "Sales," § 1. chanics' & Traders' Bank (Sup.) 573.
Of warranty, see "Sales," § 4.

BRIBERY.

Limitations applicable, see "Criminal Law," § 2.

*The people, instead of prosecuting one for
asking for or agreeing to receive a bribe, may
elect to prosecute him for asking for, agreeing
to receive, and actually receiving, a bribe, as
one offense.-People v. Gibson (Sup.) 590.

On a trial for bribery, evidence held to sup-
port a conviction.-People v. Gibson (Sup.) 590.
The decision of a coroner that he had no ju-
risdiction to proceed with the case of one charg-
ed with crime and brought before him held an
official act.-People v. Jackson (Sup.) 1046.

Under Pen. Code, § 72, and Code Cr. Proc. §
773, as amended by Laws 1887, p. 400, c. 321,
a coroner receiving a bribe for releasing one

*A broker is not bound to see that the ven-
dor has a good title or enters into an enforce-
able contract; the broker's services being com-
pleted when he produces a purchaser ready,
willing, and able to purchase on the vendor's
terms.-King v. Knowles (Sup.) 760.

condition precedent, and the broker, to recover
*A provision in a brokerage agreement held a
the compensation provided for, must show per-
formance, or that the owner was responsible for
nonperformance.-Janpol v. Gold (Sup.) 891.
§ 3. Actions for compensation.

In action to recover compensation for at-
tempted sale of bonds not completed because
of alleged acts of defendant, complaint held not
to state a cause of action.-Lenkeit v. Mitchell
(Sup.) 549.

*A contract between vendor and purchaser
held conclusive in favor of the vendor's broker,
as to performance of his services, in the ab-
*Point annotated. See syllabus.

and 140 New York State Reporter

CANDIDATES.

sence of evidence that it had not been deliver-
ed or had been modified by parol with the
broker's knowledge.-King v. Knowles (Sup.) For office, see "Elections," §§ 1, 2.

760.

*Where a broker sues for commissions for producing a purchaser able to purchase on defendant's terms, one of which was a cash pay

CANVASS OF VOTES.

ment of $25,000, evidence held insufficient to See "Elections," §§ 1, 3.
show the purchaser's ability to pay $25,000
cash.-Schnitzer v. Price (Sup.) 767.

§ 4. Rights, powers, and liabilities as to
third persons.

*Where a broker employed to sell land, pretending to act for a principal, made a contract to sell to plaintiff's assignor, which was not binding on the owners, and plaintiff's assignor made payment on the contract, plaintiff can recover damages on the broker's warranty of authority to sell.-Rowland v. Hall (Sup.) 55.

Where plaintiff knew when she sued to compel specific performance of a contract to convey land that the contract was worthless, she cannot recover the costs incurred in that action in an action against the agent who made the contract on his warranty of authority to sell. Rowland v. Hall (Sup.) 55.

BUILDING AND LOAN ASSOCIA

TIONS.

A building and loan mortgage contract by which the mortgagors paid a premium to obtain the loan held valid.-Harbor & Suburban Bldg. & Sav. Ass'n v. Wood (Sup.) 173.

In a suit to foreclose a building and loan mortgage, plaintiff having fully complied with its contract until defendant's default, it was no defense that the association might not be able to complete its contract to convey the premises free from incumbrances on the date specified.-Harbor & Suburban Bldg. & Sav. Ass'n v. Wood (Sup.) 173.

BUILDINGS.

See "Shipping."

CARGO.

CARRIERS.

Harmless error in rulings in action for injuries
to passenger, see "Appeal," § 8.
Res gestæ in action for failure to deliver ship-
ment, see "Evidence," § 3.

§ 1. Control and regulation of commen
carriers.

A passenger held not to be aggrieved within the meaning of the statute by the company's re fusal to issue him a transfer.-Bull v. New York City Ry. Co. (Sup.) 378.

§ 2. Carriage of goods.

A shipper held not liable for negligence in understating the weight of an article shipped where an injury occurs in consequence.-Hanna v. Pitt & Scott (Sup.) 145.

Complaint to recover for failure of a common carrier to obey directions for stoppage of goods in transitu held_demurrable.-Oppenheimer v. Wells, Fargo & Co. (Sup.) 547.

*Failure of notice of loss held not to relieve carrier from responsibility for negligence.Richardson v. New York Cent. & H. R. R Co. (Sup.) 702.

In an action for loss of goods, the carrier by its motion for a nonsuit held to waive notice of loss.-Richardson v. New York Cent. & H. R. R. Co. (Sup.) 702.

In an action for loss of goods, the carrier by

Condition and use of hoistways in, see "Negli- its answer in general denial held to waive nogence," § 1.

BY-LAWS.

Of exchange, see "Exchanges."

CALENDARS.

Computation of time, see "Time."

Of causes for trial, see "Trial," § 1.

CANCELLATION OF INSTRUMENTS.
See "Quieting Title."

Grounds for cancellation or rescission of par-
ticular instruments.

See "Contracts," § 4.

tice of loss.-Richardson v. New York Cent. & H. R. R. Co. (Sup.) 702.

In an action for the loss of goods through a carrier's negligence, it was unnecessary for plaintiff to comply with the condition that if a claim for damages be not presented within 30 days after delivery there shall be no liability therefor.-Richardson v. New York Cent. & H. R. R. Co. (Sup.) 702.

§ 3. Carriage of passengers.

*In an action against a street railway company for personal injuries received while being carried, it was error to charge the jury that the company was bound to carry plaintiff safely.O'Neil v. New York & Q. C. Ry. Co. (Sup.) 128.

A finding that the starting of a car while a Contracts for sale of realty, see "Vendor and passenger was alighting was the proximate cause Purchaser," § 3. of an injury to him held warranted.-Randazzo v. Brooklyn Heights R. Co. (Sup.) 193.

Insurance policy, see "Insurance," § 4.

*Point annotated. See syllabus.

*A ticket limiting the carrier's liability for
loss of baggage does not limit its liability, where
the passenger does not know of the stipulation.
-Martin v. Central R. Co. of New Jersey (Sup.)
226.

*A statute authorizing a carrier to limit its
liability for loss of baggage held not to apply
to cases of negligence resulting in the loss of
baggage.-Martin v. Central R. Co. of New Jer-
sey (Sup.) 226.

An answer in an action against a carrier for
loss of a passenger's baggage held bad for fail-
ing to allege that the passenger did not pay for
the extra baggage.-Martin v. Central R. Co.
of New Jersey (Sup.) 226.

A passenger held to have sufficiently complied
with a rule of a street car company, requiring
passengers to demand transfers at the time of
payment of fare.-Sullivan v. Brooklyn Heights
R. Co. (Sup.) 378.

CERTIFICATE.

Liquor tax certificates, see "Intoxicating Liq-
uors," § 2.

Of foreign corporations, see "Corporations," § 9.
Of incorporation of railroad, see "Railroads,"
§ 2.
Of nomination for office, see "Elections," § 1.

CERTIORARI.

Review by certiorari of municipal assessment,
see "Municipal Corporations," § 8.
To review tax assessments, see "Taxation," § 2.
§ 1. Proceedings and determination.
*Granting of certiorari to review determina-
tion of Board of Railroad Commissioners in
granting a certificate of public convenience and
necessity held seasonable within Code Civ. Proc.
§ 2125 (Railroad Law, § 59, Laws 1890, p. 1082,
In an action against a street railway company
c. 565, as amended by Laws 1892, p. 1395, c.
for negligence causing the death of plaintiff's 676, and Tax Law, § 180, Laws 1896, p. 855,
intestate, an instruction requiring defendant C. 908. as amended by Laws 1897, p. 272, c.
to give notice of the danger caused by unusual 369).-People v. Public Service Commission, Sec-
speed at a curve held erroneous.-Loewe v. New ond Dist. (Sup.) 968.
York City Ry. Co. (Sup.) 488.

*A gate on the side of the platform of a sur-
face street car is an appliance within the rule
requiring a carrier of passengers to exercise
the utmost human skill in the maintenance of
its appliances for protection of passengers.-
Stappers v. Interurban St. Ry. Co. (City Ct.)
854.

*A return by the police commissioner to a writ
of certiorari held insufficient.-People v. Bing-
ham (Sup.) 1079.

*Under the express provisions of Code Civ.
Proc. § 2135, if a return to a writ of certiorari
is defective, the court may direct a further re-
turn.-People v. Bingham (Sup.) 1079.

CHANGE OF VENUE.

*Where a street car platform gate broke and
a passenger fell off the car, whether the car-
rier exercised the utmost care in the mainte- Of civil actions, see "Venue," § 1.
nance of the gate was for the jury.-Stappers Of criminal prosecutions, see "Criminal Law,"
v. Interurban St. Ry. Co. (City Ct.) 854.
§ 1.

CHARACTER.

*A passenger is not called on to provide
against a defective appliance unless the defect
is known to him, or under the circumstances Of accused, in prosecution for drunkenness, see
should have been observed.-Stappers v. Inter-
urban St. Ry. Co. (City Ct.) 854.

The failure by a passenger to use precaution
against loss of balance held not contributory
negligence as a matter of law where the cause
of action was not based on negligent operation,
but on negligence in the maintenance of a gate.
-Stappers v. Interurban St. Ry. Co. (City Ct.)
854.

CASE ON APPEAL.

Making and settlement, see "Appeal," § 6.

CAUSE OF ACTION.

See "Action."

CEMETERIES.

Contract with county for removal of bodies
from, see "Counties," § 2.

CENSUS.

Judicial notice of, see "Evidence," § 1.

"Drunkards.""

CHARGE.

Of legacies on property by will, see "Wills," §§
5, 6.

CHARITIES.

Restrictions on devises or bequests for charita-
ble purposes, see "Wills." §§ 1, 6.
Taxation of bequests to charitable corporation,
see "Taxation," § 5.

CHARTER.

Of municipal corporations, see "Municipal Cor-
porations," §§ 1, 4.

CHATTEL MORTGAGES.

§ 1. Construction and operation.
*A second mortgagee held to have taken the
same with notice of prior recorded mortgage.-
Independent Brewing Co. v. Durston (Co. Ct.)
686.

*Point annotated. See syllabus.

sence of evidence that it had ed or had been modified by

and 140 New York State Reporter
not been deliver-
parol with the

CANDIDATES.

broker's knowledge.-King v. Knowles (Sup.) For office, see "Elections," §§ 1, 2.

760.

*Where a broker sues for commissions for producing a purchaser able to purchase on defendant's terms, one of which was a cash pay

CANVASS OF VOTES.

ment of $25,000, evidence held insufficient to See "Elections," §§ 1, 3.
show the purchaser's ability to pay $25,000
cash.-Schnitzer v. Price (Sup.) 767.

§ 4. Rights, powers, and liabilities as to
third persons.

*Where a broker employed to sell land, pretending to act for a principal, made a contract to sell to plaintiff's assignor, which was not binding on the owners, and plaintiff's assignor made payment on the contract, plaintiff can recover damages on the broker's warranty of authority to sell.-Rowland v. Hall (Sup.) 55.

Where plaintiff knew when she sued to compel specific performance of a contract to convey land that the contract was worthless, she cannot recover the costs incurred in that action in an action against the agent who made the contract on his warranty of authority to sell. Rowland v. Hall (Sup.) 55.

BUILDING AND LOAN ASSOCIA-
TIONS.

A building and loan mortgage contract by which the mortgagors paid a premium to obtain the loan held valid.-Harbor & Suburban Bldg. & Sav. Ass'n v. Wood (Sup.) 173.

In a suit to foreclose a building and loan mortgage, plaintiff having fully complied with| its contract until defendant's default, it was no defense that the association might not be able to complete its contract to convey the premises free from incumbrances on the date specified. Harbor & Suburban Bldg. & Sav. Ass'n v. Wood (Sup.) 173.

BUILDINGS.

See "Shipping."

CARGO.

CARRIERS.

Harmless error in rulings in action for .
to passenger, see "Appeal." § 8.
Res gestæ in action for failure to del:
ment, see "Evidence," § 3.

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1. Control and regulation of ‹ carriers.

A passenger held not to be aggriev the meaning of the statute by the con fusal to issue him a transfer.-Bu York City Ry. Co. (Sup.) 378.

2. Carriage of goods.

A shipper held not liable for ro understating the weight of an art where an injury occurs in conseque v. Pitt & Scott (Sup.) 145.

Complaint to recover for failure carrier to obey directions for stop: in transitu held demurrable.-0; Wells, Fargo & Co. (Sup.) 547.

*Failure of notice of loss held carrier from responsibility for Richardson v. New York Cent. Co. (Sup.) 702.

In an action for loss of goods. its motion for a nonsuit held to y loss. Richardson v. New York R. Co. (Sup.) 702.

Condition and use of hoistways in, see "Negli- its answer in general denial gence," § 1.

BY-LAWS.

Of exchange, see "Exchanges."

CALENDARS.

Computation of time, see "Time."

Of causes for trial, see "Trial," § 1.

CANCELLATION OF INSTRUMENTS.
See "Quieting Title."

Grounds for cancellation or rescission of par-
ticular instruments.

See "Contracts," § 4.

In an action for loss of good
tice of loss.-Richardson v.
& H. R. R. Co. (Sup.) 702.

In an action for the loss.
a carrier's negligence, it was
plaintiff to comply with the
a claim for damages be not
30 days after delivery there
bility therefor.-Richardson
& H. R. R. Co. (Sup.) 702.
§ 3. Carriage of passeng
*In an action against a
pany for personal injuries
carried, it was error to che:
company was bound to cari.
O'Neil v. New York & Q.
128.

A finding that the starti

Contracts for sale of realty, see "Vendor and passenger was alighting w
Purchaser," § 3.

Insurance policy, see "Insurance." § 4.

of an injury to him held
v. Brooklyn Heights R. Co.

*Point annotated. See syllabus.

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