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and 140 New York State Reporter to make any sales of cement.-Jackson v. Alpha | as defendants parties because of an alle Portland Cement Co. (Sup.) 1052.

agreement to share in the expense.-Cozzeds. $ 2. Construction and operation.

American General Engineering Co. (Sup.) 55 *Where a contract binding a theatrical manager to furnish to another routes covering CONTRIBUTORY NEGLIGENCE. theaters under his control did not specify the place of delivery of the routes, the place of See “Negligence," $ 2. delivery was at the office of the manager. Of passenger, see "C'arriers," $ 3. Perley v. Schubert (Sup.) 593.

Of person injured by obstruction in street, te *A contract construed, and held not to make "Municipal Corporations," $ 7. time of the essence.-Perley v. Schubert (Sup.) Of person injured by operation of railroad. 593.

“Railroads," $ 5. A deposit of shares of stock with a bank, to Of person injured by operation of street ssibe paid defendants as they should advance mon- of servant, see "Master and Servant," $$ 2, 7,

road, see “Street Railroads," $ 2. ey for boring a well, held not to make the shares

9, 11. the property of defendants.-Pardee v. Douglas (Sup.) 775.

CONVENTION. *Contract of sale of corporate stock construed, and certain agreements therein held not con- Nominating convention, see “Elections," $ 1. ditions precedent to the seller's right to recover, but, at most, independent agreements, a violation of which might justify an action against

CONVERSION. the seller for damages.-Alden Speare's Sons Co. v. Casein Co. of America (Sup.) 980.

*A will held not to effect an equitable con

version.-Westervelt v. Mahony (Sup.) 637. $ 3. Modification and merger. A parol contract by which plaintiff's brokers table conversion of the real estate.-Foersch v.

*Will construed, and held to create an ei agreed not to close his account without calling Schmitt (Sup.) 935. on him for more margin held not modified by plaintiff's receipt of memoranda of speculative transactions containing a printed clause author

CONVEYANCES. izing the closing of accounts without notice, which plaintiff never read.--Bosoian v. Hub- Contracts to convey, see "Vendor and Pur bard (Sup.) 178.

chaser," $ 4. $ 4. Rescission and abandonment.

In trust, see “Trusts," $ 1. *One rescinding a contract on the ground of Conveyances by or to particular classes of fraud must restore to the other party any bene

persons. fits received under it, or the value thereof.--- See "Corporations," $ 5. Moore v. Mutual Reserve Fund Life Ass'n (Sup.) 255.

Particular classes of conveyances. $ 5. Performance or breach.

See "Assignments”: “Assignments for Benefit Where plaintiff, having contracted with de

of Creditors"; "Chattel Mortgages" : "Deeds" ; fendant to construct a first-class walk, built a

"Mortgages." poor one, defendant could refuse to pay for it. -Spears v. Sorge (Co. Ct.) 141.

CORONERS. $ 6. Actions for breach.

Bribery of, see “Bribery." Under a complaint alleging a contract to furnish materials and labor and to erect buildings,

Under Code Cr. Proc. $ 773, as amended by certain evidence held admissible and not subject Laws, 1887, p. 400, c. 321, and Code Cr. Proc. to the objection of variance.-McKane v. Wil- $8 781, 783, a coroner held to have acted with

in his jurisdiction of issuing a warrant for the liamson (Sup.) 92.

arrest of one charged with criminal homicide, Plaintiffs held entitled to recover from de- People v. Jackson (Sup.) 1046. fendants for repairs made on a city prison as an extra under defendants' contract with the city.-Collins v. Carlin (Sup.) 235.

CORPORATIONS. In an action to recover for work performed Bequests of corporate stock, see "Wills," $ 6. and materials furnished by plaintiff for defend- Consolidation of gas companies as monopoly, see ant, certain evidence held admissible under a "Monopolies," $ 1. general denial.-Clark v. Ford (Sup.) 462.

Extra allowances in action against trustees of *In an action for services, plaintiff cannot

dissolved corporation, see "Costs," $ 3. join as defendants those who had agreed with False representation by promoters of corporathe principal defendant to join in payment of Grant by state of franchises for use of streets,

tion, see “Fraud," $$ 1. 2. his compensation.—Cozzens v. American General Engineering Co. (Sup.) 548.

see "Municipal Corporations," $ 6.

Jurisdiction of court of officers of foreign Where plaintiff sued an engineering company corporation residing in another state, see to recover for services rendered, he cannot join “Courts," $ 1.

*Point annotated. See syllabus.

Larceny of corporate funds by officer of corpora | as to the affairs of the corporation.-In re Has-
tion, see "Larceny," $ 2.

tings (Sup.) 938.
Power of state court to restrain action by at-

torney general to dissolve corporations pend- $ 5. Corporate powers and liabilities.
ing action in United States court to determine Under the express terms of Code Civ. Proc.
validity of their franchises, see “Courts." $ 5.88 2878, 2879, 2881, service of summons on a
Relevancy of evidence in proceeding to determine local agent and local treasurer of a casualty
value of corporate property for taxation, see company was personal service on the company.
"Evidence," $ 3.

-People v. Tilden (Sup.) 247.
Restraining operation of electric lighting com-
pany, see “Injunction," $ 1.

Evidence held insufficient to show that the
Restraining transfer of corporate stock, see person upon whom summons was served was not
"Injunction," $ 4.

defendant company's agent.-People v. Tilden
Sales by foreign corporation as involving inter- (Sup.) 247.
state commerce, see "Commerce," $ 1.

That a corporation's life was limited to a
Taxation of bequests to corporation, see “Taxa- specified period would not necessarily affect its
tion," 8 5.

rights to acquire property, in the enjoyment of
Taxation of corporations and corporate prop which its successors and assigns would be pro-
erty, see "Taxation," 88 1. 2.

tected.-In re Consolidated Gas Co. of New
Transfer taxes on sale of corporate stock, See York (Sup.) 407.
"Taxation," $ 5.

& 6. Insolvency and receivers.
Particular classes of corporations.

*Where it is not shown that a corporation
See "Building and Loan Associations" : "Exis insolvent, or that its property is to be taken

changes" ; Municipal Corporations"; "Rails from the court's jurisdiction, or is going to be
roads"; "Street Railroads."

lost, injured, or destroyed, a receiver will not
Banks, see "Banks and Banking."

be appointed at the instance of a stockholder,
Gas companies, see "Gas."

under Code Civ. Proc. $ 713.-Hastings v.
Insurance companies, see "Insurance."

Tousey (Sup.) 639.
Telegraph and telephone companies, see "Tele-
graphs and Telephones."

*Conclusions that officers' salaries are excess-
Trust companies, see "Banks and Banking,” $ 3. ive ought not to permit of a receiver for a

corporation, where there is nothing to show
8 1. Incorporation and organization. that plaintiff's rights may not be fully secured

Under Stock Corporation Law (Laws 1901, p. without such arbitrary interference with the
314, c. 130, $ 33) a clause of articles of incor- exercise of the corporate franchise.-Hastings
poration held contrary to the policy of the v. Tousey (Sup.) 639.
state, and hence the Secretary of State was

Plaintiff's personal interests, other than as a
without authority to file the same pursuant to stockholder, held not to the point in an action
General Corporation Law (Laws 1892, p. 1802, to have a receiver appointed for a corporation
c. 687, 5) and Business Corporation Law for its sole benefit.-Hastings v. Tousey (Sup.)
(Laws 1892, p. 2012, c. 691, $ 2), and could not | 639.
be compelled to do so by mandamus.--People v.
Whalen (Sup.) 434.

8 7. Consolidation.
§ 2. Corporate existence and franchise city of New York, neither of which had an ex-

Consolidation of certain gas companies in the
*The Legislature may extend the life of a clusive privilege, nor the right to control either
public service corporation if necessary.-In re the supply or price of gas, by the purchase of
Consolidated Gas Co. of New York (Sup.) 407. stock under Stock Corporation Law. $ 40 (Laws
$ 3. Capital, stock, and dividends.

1892, p. 1834, c. 688), and section 58 (Laws 1896,
The issuance of stock to officers of a corpora: 1151, c. 476) 'held not an abuse of corporata

p. 996, c. 932, as amended by Laws 1900, p.
tion without the knowledge of another officer,
to be used to his detriment, enjoined.- Whitaker powers por a violation of Anti-Monopoly Act

(Laws of New York 1899, p. 1514, c. 690).-In
v. Kilby (Sup.) 511, 1149.

re Consolidated Gas Co. (Sup.). 407.
*Purchaser of bank stock held under the evi-
dence entitled to

*Laws 1895, p. 222, c. 382, $ 36, giving a
recover from the directors
price paid for the stock bought on false state remedy in the event of a merger of two or more
ment of condition of bank by the directors.- corporations to its dissenting stockholder, held
Taylor v. Thomas (Sup.) 538.

not applicable until the merger is effected, and

not to prevent the court in a proper case from
*Directors of bank held liable to purchaser of enjoining the merger:--Colby v. Equitable Trust
stock in a common-law action for deceit.- Co. of New York (Sup.) 801.
Taylor v. Thomas (Sup.) 538.

*Rights of minority stockholder in a contract
§ 4. Members and stockholders.

between two corporations having common di-
An executor of a deceased stockholder is a

rectors, ratified to his injury by a majority of
stockholder within the stock corporation law the stockholders, determined. --Colby v. Equi-
(Laws 1892, p. 1824, c. 688), and entitled to in table Trust Co. of New York (Sup.) 801.
spect the stock-book during at least three busi- *Merger between two corporations enjoined
ness hours of the defendant, and to information as unfair to the rights of a stockholder in one

*Point annotated. See syllabus.
106 N.Y.S.-74

and 140 New York State Reporter of the companies and his fellow stockholders. *In an action by a foreign corporation it -Colby v. Equitable Trust Co. of New York was no defense that it had not paid the license (Sup.) 801.

fee nor received the receipt required by Tax *Where two corporations having common di- Law, Laws 1896, p. 856, c. 908, & i81, as rectors agree as to a merger, and it cannot be amended by Laws 1901, p. 1364, c. 558, in the properly ratified against 'objection of a dis- absence of pleading and proof that plaintiff was senting stockholder, the merger will be enjoined: ized to do business under the general corpora

a "stock" corporation or a corporation author-Colby v. Equitable Trust Co. of New York tion law.-Portland Co. v. Hall & Grant Coast. (Sup.) 801.

Co. (Sup.) 649. § 8. Dissolution and forfeiture of fran

*Defendants in a suit by a foreign corpora. chise. *A corporation will not be dissolved at the order to attack plaintiff's capacity to sue, held

tion in the Supreme Court of New York, in state's instance for alleged misconduct, except for a violation of the law of the corporation's required to allege and prove

that by some spe being, which produces, or tends to produce, in- from suing in such court.-Portland Co. v. Hall jury to the public.-In re Consolidated Gas Co. & Grant Const. Co. (Sup.) 649. of New York (Sup.) 407. On an application by the Attorney General tion, neither the complaint nor the answer

*Where, in an action by a foreign corporafor leave to sue to dissolve a corporation, it was charged that plaintiff was a foreign "stock" the duty of the court, in the absence of any question of fact for the jury,

under Code Civ. Proc. corporation, plaintiff's incapacity to sue for non$ 1800, to pass on the application with the $15, as amended by Laws' 1904, p. 1250, e

compliance with Laws 1892, p. 1805, c. 687, same degree of care as though it were called on 490, 'was not pleaded and could not be proved. to pass judgment of dissolution.-In re Con- --Portland Co. v. Hall & Grant Const. Co solidated Gas Co. of New York (Sup.) 407.

(Sup.) 649. The directors as trustees of a dissolved New Jersey corporation, with power to close its af

In the absence of proof that a defendant forfairs and be sued 'individually, under Gen. st. eign insurance company is an insurance corpo N. J. p. 918, $ 57, 58, 59, held properly sued ration, and that it has filed a written appointwithout joining the corporation to compel the ment of the superintendent of insurance as its transfer of letters patent and licenses, as re- attorney to receive service of process against it, quired by Rev. St. U. S. § 4898 (U. S. Comp. required by. Laws 1892, P. 1945, c. 600, 30, St. 1901, p. 3387] under a contract between in the state, the court does not have jurisdie

as a condition precedent to its doing business the corporation and plaintiff's assignor.-Gener- tion.—McKeever v. Supreme Court I. O. F. al Ry. Signal Co. v. Cade (Sup.) 729.

(Sup.) 1041. § 9. Foreign corporations. Laws 1896, p. 856, c. 908, § 181, as amended of insurance as attorney for foreign insurance

Service of process upon the superintendent by Laws 1901, p. 1364, c. 558, imposing a li- companies, as provided by Laws 1892, P. 1945. cense tax on foreign corporations, held inap; lc. 690, & 30, is deemed to be made within the plicable to a foreign corporation which had neither applied for nor received a license to territorial jurisdiction of the court issuing the do business in New York under the general process. McKeever v. Supreme Court I. O. F.

(Sup.) 1041. corporation law.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 619.

CORRECTION. *Transactions of a foreign corporation in New York held to constitute doing business of assessment of taxes, see “Taxation," & 2 there within General Corporation Law, Laws 1892, p. 1803, c. 687, § 15, as amended by Of irregularities and errors at trial see Trial."

$ 6. Laws 1904, p. 1250, c. 490, prohibiting a foreign stock corporation from doing business in New York without a certificate from the Secre

COSTS. tary of State, etc.-Portland Co. v. Hall & Grant Const, Co. (Sup.) 649.

Liability of attorney for costs, see "Attomes

and Client," § 1. *The prohibition against the right of a foreign corporation to sue contained in Corpora- In particular actions or proceedings. tion Law, Laws 1892, p. 1805, c. 687, § 15, as See "Partition,” $ 1. amended by Laws 1904, p. 1250, c. 490, held Accounting by executor or administrator, see not to relate to the time of the commencement

"Executors and Administrators," $ 6. of the action, but to prohibit any action on a Condemnation proceedings, see "Eminent De contract made in the state before compliance

main," $ 2. with such provision.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 619.

§ 1. Nature, grounds, and extent of *Under the express provisions of Code Civ.

right in general. Proc. & 1779, a foreign corporation with power Under Code Civ. Proc. $8_822, 3228, 32-29 to sue, if otherwise qualified, may sue in the 3230, defendant held entitled to costs on dis courts of New York.-Portland Co. v. Hall & missal of a complaint for want of prosecution Grant Const. Co. (Sup.) 619.

of the action.-Murthey v. Burke (Sup.) 98. *Point annotated. See syllabus.

Under Code Civ. Proc. $ 2892, held, on re a summary remedy for the enforcement of the
covery of less than defendant's offer, a single liability, does not necessarily exclude other rem-
judgment should be entered for plaintiff for the edies.-Hiscock v. Tuck (Sup.) 700.
actual amount recovered, with costs to the time
of offer, less defendant's costs after the offer.- the court may direct the person beneficially in-

Though Code Civ. Proc. $ 3247 provides that
Spears v. Sorge (Co. Ct.) 141.

terested in an action to pay the costs, an action
§ 2. Persons, property, and funds liable. for the costs may be brought against such per-
*The person beneficially interested in an ac-

son when he is without the jurisdiction of the
tion held liable for the costs, under Code Civ. court, and the summary proceeding would not
Proc. $ 3247.-Hiscock v. Tuck (Sup.) 700.

be an adequate, effective remedy.-Hiscock v.

Tuck (Sup.) 700.
$ 242. Security for payment.

An order that a commission issue to take tes-
timony on behalf of plaintiff held unauthorized

where there had been no sufficient compliance
with an order that security for costs be given, See “Tenancy in Common.”
which operated as a stay of proceedings.-Stu-
art v. Spofford (Sup.) 903.

§ 3.

unt, rate, and items.
*An owner suing a railroad for overflowing See "Municipal Corporations," § 4.
his land in consequence of the negligent con-
struction of a bridge across a stream held not
entitled to an additional allowance as costs.-

Cooper v. New York, L. & W. Ry. Co. (Sup.)
611; Same v. Delaware, L. & W.R. Co., fa. See “Municipal Corporations.”

Allegations as to jurisdiction of county court,
*Where trustees of a dissolved corporation re see "Pleading," 8 1.
sisted liability through protracted litigation on Larceny of county funds by county officer, see
technicalities in which they were unsuccessful, "Larceny," $$ 1, 2.
the court properly charged defendants with Right of county officer to appeal, see “Appeal,"
costs and granted plaintiff an extra allowance § 3
-General Ry. Signal Co. v. Cade (Sup.) 729. Support of paupers, see “Paupers," $ 1.
$ 4. Taxation.

§ 1. Government and officers.
*Generally, a motion for retaxation of costs

The "veteran acts” are limited in their oper-
is in the nature of an appeal from the action ation to subordinate positions, and the office of
of the clerk, and the court upon a motion for

a transfer tax appraiser is not one of the po-
retaxation will not consider any items save sitions affected thereby. Civil Service Law,
those to which objection was made before the Laws 1899, pp. 808, 809, c. 370, $8 20, 21.-Peo-
clerk.-Leyden v. Brooklyn Heights R. Co. (Sup.) ple v. Glynn (Sup.) 956.

The transfer tax appraiser for a county, though
A clerk held to have no right to tax costs a veteran, may be removed from office by the
against defendant in a case within Code Civ; Comptroller of the State without notice or any
Proc. $ 3228, subd. 5, where plaintiff recovered stated charges of incompetency or misconduct.
but $50, and hence the merits of plaintiff's People v. Ĝlynn (Sup.) 956.
right to costs should have been determined upon
the motion for retaxation, irrespective of de $ 2. Property, contracts, and liabilities.
fendant's failure to object before the clerk.-

A contractor to remove bodies from a ceme-
Leyden v. Brooklyn Heights R. Co. (Sup.) 769

tery and to remove and reset tombstones, under
8 5. On appeal or error, and on new only entitled to the awards made for the removal

Laws 1900, pp. 616, 618, c. 277, 88 6, 7, held
trial or motion therefor.
On disposing of an appeal from a justice's and for the removal and resetting of stones in

of bodies not removed by relatives and friends,
judgment, held no costs should be allowed.- such cases, and not to the awards for land
Spears v. Sorge (Co. Ct.) 141.

damages.-People v. Neff (Sup.) 747.
Under Code Civ. Proc. 88 3053, 3063, costs
for amendment to the case on appeal to the $ 3. Fiscal management, publio debt,
Appellate Division from a judgment of the

securities, and taxation.
County Court, on appeal from a Justice's Court,

*A county treasurer is protected in paying
in that the evidence was reduced to narrative out money belonging to the county by a proper
form, held not allowable; the same not being warrant, though its purpose was to defraud the
within section 3251.-Brick v. Favilla (Co. Ot.) county, unless the treasurer was a party to the

fraud or had knowledge thereof.-People v. Neff

(Sup.) 747.
8 6. Payment and remedies for colleo Payment of fraudulent county warrants would

not transfer title to the money to the persons
The liability of a person beneficially interested wrongfully obtaining possession thereof, nor
in an action for the costs existed at common give them any right to possession.-People v.
law, and hence Code Civ. Proc. $ 3247, giving Neff (Sup.) 747.

•Point annotated. See syllabus.

and 140 New York State Reporter COURTS.

ing from a default judgment of the City Court

of Hudson has expired, a motion to open the Allegations as to jurisdiction of court, see judgment is too late.-People v. Tilden (Sup.) "Pleading," $ 1.

247. Clerks, see "Clerks of Courts." Contempt of court, see "Contempt."

Under Municipal Court Act, Laws 1902, pp. Docketing of judgment of municipal court in 1553, 1557, 1559, 1584, 1390, c. 550, $216, county clerk's office as condition precedent to 231, 238, 330, 347, plaintiff held entitled to lien on debtor's property, see "Judgment,” 8 6. the clerk of the Municipal Court to obtain a

tax as disbursements several jury fees paid to Jurisdiction of proceeding for revocation of probate of will, see “Wills," § 4.

jury after each succeeding adjournment die Jurisdiction of surrogate court to appoint ad rected by the court because of a failure to ministrator of estate of Indian, see " Indians." City Ry. Co. (Sup.) 561.

reach the case for trial.-Cohen v. New York Justices' courts, see "Justices of the Peace." Repeal of laws authorizing extraordinary terms Municipal Court Act Laws 1902, p. 1559, c.

of Supreme Court, 'see “Statutes,” g 2. Review of decisions, see “Appeal.”.

580, $ 238, providing that no adjournment shall

be granted in the Municipal Court after the reRight to trial by jury, see "Jury," 1. Validity of contract ousting jurisdiction of fee for another jury, held applicable only to

turn of a jury unless the party deposit a jury court, see “Contracts," $ 1.

adjournments granted at the request of a par. $ 1. Nature, extent, and exercise of ju- ty:; -Cohen v. New York City Ry. Co. (Sup.) risdiction in general.

561. A court cannot compel the officers of a foreign An action to recover damages for loss of corporation residing in another state to obey plaintiff's wife's services because of personal its decrees respecting the management of the injury she received through defendant's negli. affairs of the corporation.-Mock v. Supreme gence is within the jurisdiction of the Munic Council Royal Arcanum (Sup.) 155.

ipal Court.- Leyden v. Brooklyn Heights R. $ 2. Establishment, organization, and Co. (Sup.) 769.

procedure in general. In an action involving a street assessment, Court of the city of New York jurisdiction, un

A complaint held not to give the Municipal held, the referee should have followed a previ- der Laws 1902, p. 1488, c. 580, $ 1. subd. 18ous decision of the Appellate Division of the McKeever v. Supreme Court I. O. F. (Sup.) Supreme Court.-Bussing v. City of Mt. Ver- 1041. non (Sup.) 195. Under the express provisions of Greater New

An order of court amending a judgment after York Charter (Laws 1897, p. 481, c. 378, $ appeal therefrom, and directing defendant to 1351; Laws 1901, p. 575, c. 466, 8 1351), 'the serve a new notice of appeal and file a new Municipal Court of the city of New York' is a undertaking, held too broad.-Frankland . court not of record.— Taylor v. Bell" (Sup.) 273. Schoenfeld (Sup.) 1101. *The construction of statutes of the state

Error in procedure in correcting a judgment, by the Supreme Court, unless clearly erroneous,

under Municipal Court Act, Laws 1902, p. 15+), should be followed by a justice sitting at spe

c. 580, $ 254, held waived by a failure to make cial term, rather than the decision of a federal proper objections.-Frankland v. Schoenfeld Circuit Court of similar jurisdiction.-In re (Sup.) 1101. Interborough Metropolitan Co. (Sup.) 416. A municipal judge held to have had power to

*Const. 1894, art. 6, § 2, as amended in 1905, amend a judgment under Municipal Court Act, does not affect the power of the Appellate Di-Laws 1902, p. 1563, c. 580, $ 254.-Frankland vision to appoint Trial and Special Terms, con v. Schoenfeld (Sup.) 1101. ferred by Code Civ. Proc. $ 232, as amended by

Code Civ. Proc. $ 636, providing for the issuLaws 1895 (Laws 1895, p. 808, c. 946, $ 232).

ance of an attachment against a domestic corPeople v. Neff (Sup.) 747.

poration, under section 3160, does not apply Code Civ. Proc. $ 234, authorizing the Gov- to the City Court.-Granieri v. New York Shoe ernor to appoint extraordinary terms of the Repairing Co. (City Ct.) 1107. Supreme Court, having been amended in 1895 (Laws 1895, p. 808, c. 946, § 231), its valid- $ 4. Courts of probate jurisdiction. ity must be tested by the Constitution as it The right of an executor and testamentary then existed, and not by the constitutional trustee to offset as trustee an alleged debt on amendment in force January 1, 1906.-People which as executor he might have a right of acv. Neff (Sup.) 747.

tion held to require an exercise of equitable *The Governor is authorized by Code Civ. jurisdiction not possessed by the Surrogate's Proc. & 234 to appoint extraordinary Trial Court, and refusal of jurisdiction by the SuTerms of the Supreme Court, notwithstanding preme Court held error.-Meeks v. Meeks (Sup.) Const. 1894, art. 6, $ 2.-People v. Neff (Sup.) 907. 747.

The Surrogate's Court has no jurisdiction to § 3. Courts of limited or inferior juris- determine the validity of an alleged debt to a diction.

testator, claimed to be owing from a cestui que Under the express terms of Laws 1895, ç. trust, which he denies.--Meeks v. Meeks (Sup.) 751, p. 1399, $ 137, where the time for appeal- | 907.

* Point annotated. See syllabus.

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