recover

and 140 New York State Reporter were also rendered.-In re Quackenbush (Sup.) | a certain price held ultra vires.-Gause y. 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,

BAR. p. 3428), a simple claim for conversion of money deposited with defendant is barred by defend- of action by former adjudication, see "Judgant's discharge in bankruptcy.-Lewis v. Shaw (Sup.) 1012.

ment," § 4.

Pleas in bar, see "Pleading," $ 3. *The term "fiduciary capacity," as used in Bankr. Act July 1, 1898, c. 541, § 17, subd. 4, 30 Stat. 550 [U. $. Comp. St. 1901, p. 3428),

BASTARDS. hell limited to express trusts such as that of a public officer, executor, administrator, guardian, Support of by county, see "Paupers," $ 1. or trustee, and does not include commercial transactions in which trust and confidence is $ 1. Illegitimacy in general. reposed in the bankrupt.-Lewis v. Shaw (Sup.) *Where illegitimacy of the issue of a married 1012.

woman is asserted, it must be incontrovertibly *A bankrupt's discharge held to have barred have enabled the husband to be the father.

shown that there was no such access as could plaintiff's action to with the bankrupt which he embezzled; he Mayer v. Davis (Sup.) 1041. not having held the same in a fiduciary, capacity $ 2. Custody, support, and protection. within Bankr. Act July 1, 1898, c. 541, § 17, subd. 4. 30 Stat. 530 (U. S. Comp: St. 1901, Proc. $ 839, a mother is liable for the support

*Under the express provisions of Code Cr. p. 3428].-Lewis v. Shaw (Sup.) 1012.

of her bastard child, if able to support it, and,

if she wrongfully neglects or refuses to do so, BANKS AND BANKING.

she may be prosecuted for abandonment or pro

ceeded against under section 857.-People v. Subscriptions to bank stock, see "Corporations," Chamberlain (Sup.) 149.

$ 3. § 1. Functions and dealings.

BENEFICIAL ASSOCIATIONS. *A banker is presumed to know the signature of his depositor, and if he pays a forged check Building or loan associations, see "Building and he cannot charge the amount to his account. Loan Associations." Timbel v. Garfield Nat. Bank (Sup.) 497. Mandamus to restore to membership, see "Man

*Where the drawer of a check has prepared damus," § 1. his check so negligently that it can be easily Mutual benefit insurance associations, see "Inaltered without suspicion, and alterations are surance," $ 6. afterwards made, the bank cannot be held liable for paying the check so altered.-Timbel V.

BEQUESTS. Garfield Nat. Bank (Sup.) 497. § 2. National banks.

See “Wills." In an action against a national bank for the alleged payment of a raised check, evidence con

BILL OF EXCHANGE. sidered, 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.)

BILL OF PARTICULARS. 497. § 3. Loan, trust, and investment com- See "Pleading," $ 7.

panies. The right of a trust company to guarantee a sale of certain stock and bonds at a specified

BILLS AND NOTES. price within a certain time being questionable, the holder of the stock was put on inquiry as Notes for price of goods sold, see “Sales," $ 3. to the authority of an officer of the trust com- Overdraft by partner on account of unearned pany to execute a guaranty of that nature on profits as asset of firm, see “Partnership," § 1. behalf of the company.-Gause v. Common- Parol or extrinsic evidence, see “Evidence," $ 4. wealth Trust Co. (Sup.) 288.

Recovery of money paid by mistake on draft, Evidence held to show no ground for enforc

see “Money Received." ing an ultra vires contract of a corporation on 8 1. Requisites and validity. the ground of performance by the other party. --Gause v. Commonwealth Trust Co. (Sup.) procurement of a position, representing fees de

Notes given to an employment agency for the 288.

manded by the agency in excess of those authorContract of president of trust company guar- ized by Laws 1904, p. 1055, C. 432. $ 5, are void. anteeing the sale of certain bonds and stock at -Hapgoods v. Barrett (Co. Ct.) 189.

* Point annotated. See syllabus.

§ 2. Actions.

brought before him charged with criminal homi-
In an action for a balance due on the price cide and held to bail held guilty of bribery.--
of notes sold, evidence tending to show_agency People v. Jackson (Sup.) 1046.
held improperly stricken out.-Stallo v. Humph-
reys (Sup.) 456.

BRIDGES.
BOARD OF TRADE.

| 1. Establishment, construction, and

maintenance.
See "Exchanges."

*Under General Village Laws, Laws 1870,

p. 703, c. 291, $ 27, and Laws 1897, p. 414,
BOARDS.

c. 414, 88 141-143, a village held not bound to
repair a bridge where it never assumed the

duty after incorporation.-Taylor v. Village of
Town boards, see “Towns," $ 1.

Mattea wan (Sup.) 811,

BONA FIDE PURCHASERS.

BROKERS.
Of goods, see "Sales," $ 2.

See “Exchanges"; "Factors"; "Principal and

Agent."
BONDS.

Grounds for new trial in action for broker's

commissions, see “New Trial,” 8 1.
See "Bail."

Insurance brokers, see "Insurance," $ 1.
Bonds to prevent or discharge mechanic's lien, Modification of broker's contract, see "Con-
see "Mechanics' Liens,” $$ 2, 4.

tracts," $ 3.
Harmless error in rulings in action on liquor Ship brokers, see “Shipping," $ 2.

tax certificate bond, see "Appeal,” $ 8.
Liquor, dealer's bond, see “Intoxicating Liq-8, Employment and authority.

*The mere employment
uors," $ 2.

a broker as such
Municipal bonds, see "Municipal Corporations,” only authorizes him to act as intermediary to

bring the parties together, but not to make a
$ 8.
Of receivers, see "Receivers," $ 5.

contract of sale.-Rowland v. Hall (Sup.) 55.
On appeal, see "Appeal," $8 5, 10.

§ 2. Compensation and lien.
Sureties on bonds, see "Principal and Surety.” *A broker, under the facts, held not entitled

to a commission.-William P. Rae Co. v. Kane

(Sup.) 47.
BOUNDARIES.

*In an action for broker's commissions, where
§ 1. Description.

the negotiations did not result in a sale, the
*Description in a deed construed, and held to broker was bound to prove not only that his
pass to defendant the fee in an adjoining street proposed customer was willing, but able, to
to the center thereof.-Hudson River Telephone purchase on the seller's terms. -Corbin v. 'Me-
Co. v. Forrestal (Sup.) 404.

chanics' & Traders' Bank (Sup.) 573.

*A broker held not entitled to recover com-

missions where the sale was not consummated
BREACH.

because his principal was unable to obtain title

through foreclosure proceedings.-Corbin v. Je-
Of contract, see "Contracts," $ 5; "Sales,” § 1. chanics' & Traders' Bank (Sup.) 573.
Of warranty, see "Sales," $ 4.

*A broker is not bound to see that the ven-

dor has a good title or enters into an enforce-
BRIBERY.

able contract; the broker's services being com-

pleted when he produces a purchaser ready,
Limitations applicable, see “Criminal Law,” & 2. willing, and able to purchase on the vendor's

terms.-King v. Knowles (Sup.) 760.
*The people, instead of prosecuting one for
asking for or agreeing to receive a bribe, may condition precedent, and the broker, to recover

*A provision in a brokerage agreement held a
elect to prosecute him for asking for, agreeing the compensation provided for, must show per-
to receive, and actually receiving, a bribe, as formance, or that the owner was responsible for
one offense.-People v. Gibson (Sup.) 590.

nonperformance.-Janpol v. Gold (Sup.) 891.
On a trial for bribery, evidence held to sup- $ 3. Actions for compensation:
port a conviction.--People v. Gibson (Sup.) 590.

In action to recover compensation for at-
The decision of a coroner that he had no ju- tempted sale of bonds not completed because
risdiction to proceed with the case of one charg- of alleged acts of defendant, complaint held not
ed with crime and brought before him held an to state a cause of action.-Lenkeit v. Mitchell
official act.-People v. Jackson (Sup.) 1046. (Sup.) 549.

Under Pen. Code, $ 72, and Code Cr. Proc. $ *A contract between vendor and purchaser
773, as amended by Laws 1887, p. 400, c. 321, held conclusive in favor of the vendor's broker,
a coroner receiving a bribe for releasing one as to performance of his services, in the ab

* Point annotated. See syllabus.

and 140 New York State Reporter sence of evidence that it had not been deliver

CANDIDATES. ed or had been modified by parol with the broker's knowledge.-King v. Knowles (Sup.) For office, see "Elections,” $8 1, 2. 760.

*Where a broker sues for commissions for producing a purchaser able to purchase on de

CANVASS OF VOTES. fendant's terms, one of which was a cash payment of $25,000, evidence held insufficient to See “Elections,” 88 1, 3. show the purchaser's ability to pay $25,000 cash.-Schnitzer v. Price (Sup.) 767.

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

See “Shipping." *Where a broker employed to sell land, pretending to act for a principal, made a contract

CARRIERS. to sell to plaintiff's assignor, which was not binding on the owners, and plaintiff's assignor Harmless error in rulings in action for injuries made payment on the contract, plaintiff can recover damages on the broker's warranty of au

to passenger, see "Appeal," $ 8. thority to sell.-Rowland v. Hall (Sup.) 55.

Res geste in action for failure to deliver ship

ment, see "Evidence," § 3. Where plaintiff knew when she sued to compel specific performance of a contract to convey : 1. Control and regulation of common land that the contract was worthless, she can

carriers. not recover the costs incurred in that action A passenger held not to be aggrieved within in an action against the agent who made the the meaning of the statute by the company's ro contract on his warranty of authority to sell.- fusal to issue him a transfer.-Bull v. Ne Rowland v. Hall (Sup.) 55.

York City Ry. Co. (Sup.) 378. BUILDING AND LOAN ASSOCIA

$ 2. Carriage of goods.

A shipper held not liable for negligence in TIONS.

understating the weight of an article shipped

where an injury occurs in consequence.-Hanba A building and loan mortgage contract by v. Pitt & Scott (Sup.) 145. which the mortgagors paid a premium to obtain Complaint to recover for failure of a common the loan held valid.-Harbor & Suburban Bldg. carrier to obey directions for stoppage of goods & Sav. Ass'n y. Wood (Sup.) 173.

in transitu held demurrable.—Oppenhei'ner . In a suit to foreclose a building and loan Wells, Fargo & Co. (Sup.) 547. mortgage, plaintiff having fully complied with *Failure of notice of loss held not to reliere its contract until defendant's default, it was carrier from responsibility for negligence.no defense that the association might not be Richardson v. New York Cent. & H. R. R. able to complete its contract to convey the Co. (Sup.) 702. premises free from incumbrances on the date specified.—Harbor & Suburban Bldg. & Sav. its motion for a nonsuit held to waive notice of

In an action for loss of goods, the carrier by Ass'n v. Wood (Sup.) 173.

loss.- Richardson v. New York Cent. & H. R.

R. Co. (Sup.) 702.
BUILDINGS.

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 now gence," $ 1.

tice of loss.-Richardson v. New York Cent.

& H. R. R. Co. (Sup.) 702. BY-LAWS.

In an action for the loss of goods through

a carrier's negligence, it was unnecessary for Of exchange, see "Exchanges."

plaintiff to comply with the condition that it

à claim for damages be not presented within CALENDARS.

30 days after delivery there shall be no lia

bility therefor.-Richardson y. New York Cert Computation of time, see “Time."

& H. R. R. Co. (Sup.) 702. Of causes for trial, see "Trial," $ 1.

$ 3. Carriage of passengers. CANCELLATION OF INSTRUMENTS.

*In an action against a street railway com

pany for personal injuries received while being See "Quieting Title."

carried, it was error to charge the jury that the

company was bound to carry plaintiff safely.Grounds for cancellation or rescission of par O'Neil v. New York & Q. C. Ry, Co. (Sup.) ticular instruments.

128. See "Contracts," § 4.

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 Insurance policy, see "Insurance," $ 4. v. Brooklyn Heights R. Co. (Sup.) 193.

* Point annotated. See syllabus.

*A ticket limiting the carrier's liability for

CERTIFICATE.
loss of baggage does not limit its liability, where
the passenger does not know of the stipulation. Liquor tax certificates, see “Intoxicating Liq-
-Martin v. Central R. Co. of New Jersey (Sup.)

uors," $ 2.
220.

Of foreign corporations, see "Corporations," $ 9.
*A statute authorizing a carrier to limit its Of incorporation of railroad, see “Railroads,"
liability for loss of baggage held not to apply

$ 2.
to cases of negligence resulting in the loss of Of nomination for office, see "Elections," $ 1.
baggage.-Martin v. Central R. Co. of New Jer-
sey (Sup.) 226.

CERTIORARI.
An answer in an action against a carrier for
loss of a passenger's baggage held bad for fail Review, by certiorari of municipal assessment,
ing to allege that the passenger did not pay for see "Municipal Corporations," $ 8.
the extra baggage.-Martin v. Central R. Co. To review tax assessments, see "Taxation," 8 2.
of New Jersey (Sup.) 226.

§ 1. Proceedings and determination.
A passenger held to have sufficiently complied *Granting of certiorari to review determina-
with a rule of a street car company, requiring tion of Board of Railroad Commissioners in
passengers to demand transfers at the time of granting a certificate of public convenience and
payment of fare.-Sullivan v. Brooklyn Heights necessity held seasonable within Code Civ. Proc.
R. Co. (Sup.) 378.

$ 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 ...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 return by the police commissioner to a writ
*A gate on the side of the platform of a sur-

of certiorari held insufficient.--People v. Bing-
face street car is an appliance within the rule ham (Sup.) 1079.
requiring a carrier of passengers to exercise *Under the express provisions of Code Civ:
the utmost human skill in the maintenance of Proc. $ 2135, if a return to a writ of certiorari
its appliances for protection of passengers.- is defective. the court may direct a further re-
Stappers v. Interurban St. Ry. Co. (City Ct.) turn.-People v. Bingham (Sup.) 1079.
834.
*Where a street car platform gate broke and

CHANGE OF VENUE.
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.
*A passenger is not called on to provide

CHARACTER.
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 "Drunkards."
urban St. Ry. Co. (City Ct.) 854.
*The failure by a passenger to use precaution

CHARGE.
against loss of balance held not contributory
negligence as a matter of law where the cause of legacies on property by will, see “Wills,” $8
of action was not based on negligent operation, 5, 6.
but on negligence in the maintenance of a gate.
-Stappers v. Interurban St. Ry. Co. (City Ct.)

CHARITIES.
854.

Restrictions on devises or bequests for charita-
CASE ON APPEAL.

ble purposes, see “Wills," $81, 6.

Taxation of bequests to charitable corporation,
Making and settlement, see "Appeal," $ 6. see "Taxation,” 8 5.

CAUSE OF ACTION.

CHARTER.
See "Action."

Of municipal corporations, see “Municipal Cor-

porations,” 88 1, 4.
CEMETERIES.

CHATTEL MORTGAGES.
Contract with county for removal of bodies
from, see "Counties," $ 2.

§ 1. Construction and operation.

*A second mortgagee held to have taken the
CENSUS.

same with notice of prior recorded mortgage. -

Independent Brewing Co. v. Durston (Co. Ct.)
Judicial notice of, see "Evidence," $ 1.

686.
* Point annotated. See syllabus.

non ha "CANDIDATES

CANVASS OF VOTES.

BUILDING AND LOAN ASSOCIA

1162

106 NEW YORK SUPPLEMENT

and 140 New York State Reporter sence of evidence that it had not been deliver

CANDIDATES. ed or had been modified by parol with the broker's knowledge.--King v. Knowles (Sup.) | For office, see "Elections," $8 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 payment of $25,000, evidence held insufficient to See "Elections," 88 1, 3. show the purchaser's ability to pay $25,000 cash.-Schnitzer v. Price (Sup.) 767.

CARGO, 8 4. Rights, powers, and liabilities as to third persons.

See "Shipping." *Where a broker employed to sell land, pretending to act for a principal. made a contra to sell to plaintiff's assignor, which was not

CARRIERS. binding on the owners, and plaintiff's assignor made payment on the contract, plaintiff can re

Harmless error in rulings in action for cover damages on the broker's warranty of au

to passenger, see "Appeal," $ 8. thority to sell.-Rowland v. Hall (Sup.) 55.

| Res gestæ in action for failure to deli

ment, see “Evidence," § 3. Where plaintiff knew when she sued to compel | specific performance of a contract to convey | 8 1. Control and regulation of land that the contract was worthless, she can

carriers. not recover the costs incurred in that action! A passenger held not to be aggrieves in an action against the agent who made the the meaning of the statute by the com contract on his warranty of authority to sell. | fusal to issue him a transfer.-Bui. Rowland v. Hall (Sup.) 55.

York City Ry. Co. (Sup.) 378. 13 2. Carriage of goods.

| A shipper held not liable for rpe TIONS.

understating the weight of an art

where an injury occurs in consequrt A building and loan mortgage contract byv. Pitt & Scott (up.) 13 which the mortgagors paid a premium to obtain Complaint to recover for failurer the loan held valid.-Harbor & Suburban Bldg. carrier to obey directions for stop, & Sav. Ass'n v. Wood (Sup.) 173.

in transitu held demurrable.-01. In a suit to foreclose a building and loan Wells, Fargo & Co. (Sup.) 547. mortgage, plaintiff having fully complied with *Failure of notice of loss held its contract until defendant's default, it was

carrier from responsibility for no defense that the association might not be Richardson v. New York Cent. able to complete its contract to convey the

contract to convey the Co. (Sup.) 702. premises free from incumbrances on the date specified.-Harbor & Suburban Bldg. & Sav.

In an action for loss of goods, Ass'n v. Wood (Sup.) 173.

its motion for a nonsuit held to ti
loss.-Richardson v. New York

R. Co. (Sup.) 702.
BUILDINGS.

In an action for loss of good Condition and use of hoistways in, see “Negli- | its answer in general denial he gence," $ 1.

tice of loss.-Richardson y. N

& H. R. R. Co. (Sup.) 702. BY-LAWS.

In an action for the loss o
Of exchange, see “Exchanges."

a carrier's negligence, it was
plaintiff to comply with the

a claim for damages be not
CALENDARS.

30 days after delivery there

bility therefor.-Richardson F Computation of time, see "Time."

& H. R. R. Co. (Sup.) 702. Of causes for trial, see "Trial," $ 1.

$ 3. Carriage of passenge CANCELLATION OF INSTRUMENTS.

*In an action against a

pany for personal injuries" See "Quieting Title.”

carried, it was error to char

company was bound to carr, Grounds for cancellation or rescission of par O'Neil v. New York & Q.' ticular instruments.

128. See “Contracts,” 4.

| A finding that the starti Contracts for sale of realty, see “Vendor and passenger was alighting ! Purchaser," $ 3.

of an injury to him held ; Insurance policy, see "Insurance,” $ 4. Tv. Brooklyn Heights R. Co.

*Point annotated. See syllabus.