and 140 New York State Reporter

to make any sales of cement.-Jackson v. Alpha | as defendants parties because of an alleged Portland Cement Co. (Sup.) 1052.

agreement to share in the expense.-Cozzens v. American General Engineering Co. (Sup.) 4

CONTRIBUTORY NEGLIGENCE.

See "Negligence," § 2.

Of passenger, see "Carriers," § 3.

Of person injured by obstruction in street, see "Municipal Corporations," § 7.

Of person injured by operation of railroad, se
"Railroads," § 5.

Of person injured by operation of street rail-
road, see "Street Railroads," § 2.
Of servant, see "Master and Servant," §§ 2, 7.

9, 11.

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

§ 3. Modification and merger.

A parol contract by which plaintiff's brokers agreed not to close his account without calling on him for more margin held not modified by plaintiff's receipt of memoranda of speculative transactions containing a printed clause authorizing the closing of accounts without notice, which plaintiff never read.-Bosoian v. Hubbard (Sup.) 178.

4. Rescission and abandonment.

*One rescinding a contract on the ground of fraud must restore to the other party any benefits received under it, or the value thereof. Moore v. Mutual Reserve Fund Life Ass'n (Sup.) 255.

§ 5. Performance or breach.

Where plaintiff, having contracted with defendant to construct a first-class walk, built a poor one, defendant could refuse to pay for it. -Spears v. Sorge (Co. Ct.) 141.

§ 6. Actions for breach.

Under a complaint alleging a contract to furnish materials and labor and to erect buildings, certain evidence held admissible and not subject to the objection of variance.-McKane v. Williamson (Sup.) 92.

Plaintiffs held entitled to recover from defendants for repairs made on a city prison as an extra under defendants' contract with the city. Collins v. Carlin (Sup.) 235.

In an action to recover for work performed and materials furnished by plaintiff for defendant, certain evidence held admissible under a general denial.-Clark v. Ford (Sup.) 462.

CONVERSION.

*A will held not to effect an equitable conversion.-Westervelt v. Mahony (Sup.) 637. *Will construed, and held to create an equitable conversion of the real estate.-Foersch v. Schmitt (Sup.) 935.

CONVEYANCES.

Contracts to convey, see "Vendor and Pur
chaser," § 4.
In trust, see "Trusts," § 1.

Conveyances by or to particular classes of
persons.
See "Corporations," § 5.

Particular classes of conveyances. See "Assignments": "Assignments for Benefit of Creditors"; "Chattel Mortgages"; "Deeds"; "Mortgages."

CORONERS.

Bribery of, see "Bribery."

Laws 1887, p. 400, c. 321, and Code Cr. Proc. Under Code Cr. Proc. § 773, as amended by $8 781, 783, a coroner held to have acted within his jurisdiction of issuing a warrant for the arrest of one charged with criminal homicide.People v. Jackson (Sup.) 1046.

CORPORATIONS.

Bequests of corporate stock, see "Wills," § 6. Consolidation of gas companies as monopoly, see "Monopolies," § 1. Extra allowances in action against trustees of dissolved corporation, see "Costs," § 3. False representation by promoters of corporaGrant by state of franchises for use of streets, tion, see "Fraud," §§ 1, 2. see "Municipal Corporations," § 6. Jurisdiction of court of officers of foreign corporation residing in another state, see "Courts," & 1. *Point annotated. See syllabus.

*In an action for services, plaintiff cannot join as defendants those who had agreed with the principal defendant to join in payment of his compensation.-Cozzens v. American General Engineering Co. (Sup.) 548.

Where plaintiff sued an engineering company to recover for services rendered, he cannot join

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-
ing action in United States court to determine
validity of their franchises, see "Courts." § 5.
Relevancy of evidence in proceeding to determine
value of corporate property for taxation, see
"Evidence," § 3.

Restraining operation of electric lighting com-
pany, see "Injunction," § 1.
Restraining transfer of corporate stock, see
"Injunction," § 4.

Sales by foreign corporation as involving inter-
state commerce, see "Commerce," § 1.
Taxation of bequests to corporation, see "Taxa-
tion." § 5.

Taxation of corporations and corporate prop
erty, see "Taxation," §§ 1, 2.

Transfer taxes on sale of corporate stock, see
"Taxation," § 5.

Particular classes of corporations.
See "Building and Loan Associations":
changes"; "Municipal Corporations"; "Rail-
roads"; "Street Railroads."
Banks, see "Banks and Banking.”
Gas companies, see "Gas."

§ 5. Corporate powers and liabilities.
Under the express terms of Code Civ. Proc.
§§ 2878, 2879, 2881, service of summons on a
local agent and local treasurer of a casualty
company was personal service on the company.
-People v. Tilden (Sup.) 247.

Evidence held insufficient to show that the
person upon whom summons was served was not
defendant company's agent.-People v. Tilden
(Sup.) 247.

That a corporation's life was limited to a
specified period would not necessarily affect its
rights to acquire property, in the enjoyment of
which its successors and assigns would be pro-
tected. In re Consolidated Gas Co. of New
York (Sup.) 407.

6. Insolvency and receivers.

*Where it is not shown that a corporation
"Ex-is insolvent, or that its property is to be taken
from the court's jurisdiction, or is going to be
lost, injured, or destroyed, a receiver will not
be appointed at the instance of a stockholder,
under Code Civ. Proc. § 713.-Hastings v.
Tousey (Sup.) 639.

Insurance companies, see "Insurance."
Telegraph and telephone companies, see "Tele-
graphs and Telephones."
Trust companies, see "Banks and Banking," § 3.

§ 1. Incorporation and organization.
Under Stock Corporation Law (Laws 1901, p.
314, c. 130, § 33) a clause of articles of incor-
poration held contrary to the policy of the
state, and hence the Secretary of State was
without authority to file the same pursuant to
General Corporation Law (Laws 1892, p. 1802,
c. 687, § 5) and Business Corporation Law
(Laws 1892, p. 2042, c. 691, § 2), and could not
be compelled to do so by mandamus.-People v.
Whalen (Sup.) 434.

§ 2. Corporate existence and franchise.
*The Legislature may extend the life of a
public service corporation if necessary. In re
Consolidated Gas Co. of New York (Sup.) 407.
§ 3. Capital, stock, and dividends.

The issuance of stock to officers of a corpora-
tion without the knowledge of another officer,
to be used to his detriment, enjoined.-Whitaker
v. Kilby (Sup.) 511, 1149.

*Purchaser of bank stock held under the evi-
dence entitled to recover from the directors
price paid for the stock bought on false state-
ment of condition of bank by the directors.-
Taylor v. Thomas (Sup.) 538.

*Directors of bank held liable to purchaser of
stock in a common-law action for deceit.
Taylor v. Thomas (Sup.) 538.

§ 4. Members and stockholders.
stockholder within the stock corporation law
(Laws 1892, p. 1824, c. 688), and entitled to in-
spect the stock-book during at least three busi-
ness hours of the defendant, and to information

An executor of a deceased stockholder is a

106 N.Y.S.-74

*Conclusions that officers' salaries are excess-
ive ought not to permit of a receiver for a
corporation, where there is nothing to show
that plaintiff's rights may not be fully secured
without such arbitrary interference with the
exercise of the corporate franchise.-Hastings
V. Tousey (Sup.) 639.

Plaintiff's personal interests, other than as a
stockholder, held not to the point in an action
to have a receiver appointed for a corporation
for its sole benefit.-Hastings v. Tousey (Sup.)
639.

§ 7. Consolidation.

Consolidation of certain gas companies in the
city of New York, neither of which had an ex-
clusive privilege, nor the right to control either
stock under Stock Corporation Law, § 40 (Laws
the supply or price of gas, by the purchase of
1892, p. 1834, c. 688), and section 58 (Laws 1896,
1151, c. 476) held not an abuse of corporate
p. 996, c. 932, as amended by Laws 1900, p.
(Laws of New York 1899, p. 1514, c. 690).-In
powers nor a violation of Anti-Monopoly Act
re Consolidated Gas Co. (Sup.) 407.

*Laws 1895, p. 222, c. 382, § 36, giving a
remedy in the event of a merger of two or more
corporations to its dissenting stockholder, held
not applicable until the merger is effected, and
not to prevent the court in a proper case from
enjoining the merger.-Colby v. Equitable Trust
Co. of New York (Sup.) 801.

*Rights of minority stockholder in a contract
between two corporations having common di-
rectors, ratified to his injury by a majority of
the stockholders, determined. Colby v. Equi-
table Trust Co. of New York (Sup.) 801.

*Merger between two corporations enjoined
as unfair to the rights of a stockholder in one
*Point annotated. See syllabus.

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 Law, Laws 1896, p. 856, c. 908, § 181, as amended by Laws 1901, p. 1364, c. 558, in the absence of pleading and proof that plaintiff was ized to do business under the general corporaa "stock" corporation or a corporation author tion law.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

*Where two corporations having common directors agree as to a merger, and it cannot be properly ratified against the objection of a dissenting stockholder, the merger will be enjoined. Colby v. Equitable Trust Co. of New York (Sup.) 801.

8. Dissolution and forfeiture of franchise.

*A corporation will not be dissolved at the state's instance for alleged misconduct, except for a violation of the law of the corporation's being, which produces, or tends to produce, injury to the public.-In re Consolidated Gas Co. of New York (Sup.) 407.

*Defendants in a suit by a foreign corporation in the Supreme Court of New York, in order to attack plaintiff's capacity to sue, held required to allege and prove that by some spe cific provision of law plaintiff was probibited from suing in such court.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

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 the duty of the court, in the absence of any ques- corporation, plaintiff's incapacity to sue for nona foreign "stock" tion of fact for the jury, under Code Civ. Proc. § 1800, to pass on the application with the compliance with Laws 1892, p. 1805, c. GST, § 15, as amended by Laws 1904, p. 1250, c. 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.

The directors as trustees of a dissolved New Jersey corporation, with power to close its affairs and be sued individually, under Gen. St. N. J. p. 918, §§ 57, 58, 59, held properly sued without joining the corporation to compel the transfer of letters patent and licenses, as required by Rev. St. U. S. § 4898 [U. S. Comp. St. 1901, p. 3387] under a contract between the corporation and plaintiff's assignor.-General Ry. Signal Co. v. Cade (Sup.) 729.

§ 9. Foreign corporations.

Laws 1896, p. 856, c. 908, § 181, as amended by Laws 1901, p. 1364, c. 558, imposing a license tax on foreign corporations, held inapplicable to a foreign corporation which had neither applied for nor received a license to do business in New York under the general corporation law.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

(Sup.) 649.

In the absence of proof that a defendant for

eign insurance company is an insurance corporation, and that it has filed a written appointment of the superintendent of insurance as its attorney to receive service of process against it, required by Laws 1892, p. 1945, c. 690, § 30, as a condition precedent to its doing business tion. McKeever v. Supreme Court I. O. F. in the state, the court does not have jurisdic (Sup.) 1041.

of insurance as attorney for foreign insurance Service of process upon the superintendent companies, as provided by Laws 1892, p. 1945, c. 690, § 30, is deemed to be made within the territorial jurisdiction of the court issuing the process. McKeever v. Supreme Court I. O. F. (Sup.) 1041.

§ 6.

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 Of irregularities and errors at trial see "Trial.” 1892, p. 1805, c. 687, § 15, as amended by Laws 1904, p. 1250, c. 490, prohibiting a foreign stock corporation from doing business in New York without a certificate from the Secretary of State, etc.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

*The prohibition against the right of a foreign corporation to sue contained in Corporation Law, Laws 1892, p. 1805, c. 687, § 15, as amended by Laws 1904, p. 1250, c. 490, held not to relate to the time of the commencement of the action, but to prohibit any action on a contract made in the state before compliance with such provision.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

*Under the express provisions of Code Civ. Proc. 1779, a foreign corporation with power to sue, if otherwise qualified, may sue in the courts of New York.-Portland Co. v. Hall & Grant Const. Co. (Sup.) 649.

COSTS.

Liability of attorney for costs, see "Attorney and Client," § 1.

In particular actions or proceedings. See "Partition," § 1.

Accounting by executor or administrator, see "Executors and Administrators," § 6. Condemnation proceedings, see "Eminent Domain," § 2.

§ 1. Nature, grounds, and extent of right in general.

Under Code Civ. Proc. §§ 822, 3228, 3229, 3230, defendant held entitled to costs on dismissal of a complaint for want of prosecution of the action.-Murthey v. Burke (Sup.) 98. *Point annotated. See syllabus.

Under Code Civ. Proc. § 2892, held, on re-
covery of less than defendant's offer, a single
judgment should be entered for plaintiff for the
actual amount recovered, with costs to the time
of offer, less defendant's costs after the offer.
Spears v. Sorge (Co. Ct.) 141.

§ 2. Persons, property, and funds liable.
*The person beneficially interested in an ac-
tion held liable for the costs, under Code Civ.
Proc. 3247.-Hiscock v. Tuck (Sup.) 700.

§ 2. Security for payment.

a summary remedy for the enforcement of the
liability, does not necessarily exclude other rem-
edies.-Hiscock v. Tuck (Sup.) 700.

the court may direct the person beneficially in-
Though Code Civ. Proc. § 3247 provides that
terested in an action to pay the costs, an action
for the costs may be brought against such per-
son when he is without the jurisdiction of the
Court, and the summary proceeding would not
be an adequate, effective remedy.-Hiscock v.
Tuck (Sup.) 700.

CO-TENANCY.

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. Amount, rate, and items.

COUNCIL.

*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., Id.

*Where trustees of a dissolved corporation re-
sisted liability through protracted litigation on
technicalities in which they were unsuccessful,
the court properly charged defendants with
costs and granted plaintiff an extra allowance
-General Ry. Signal Co. v. Cade (Sup.) 729.
§ 4. Taxation.

*Generally, a motion for retaxation of costs
is in the nature of an appeal from the action
of the clerk, and the court upon a motion for
retaxation will not consider any items save
those to which objection was made before the
clerk.-Leyden v. Brooklyn Heights R. Co. (Sup.)

769.

A clerk held to have no right to tax costs
against defendant in a case within Code Civ:
Proc. § 3228, subd. 5, where plaintiff recovered
but $50, and hence the merits of plaintiff's
right to costs should have been determined upon
the motion for retaxation, irrespective of de-
fendant's failure to object before the clerk.-
Leyden v. Brooklyn Heights R. Co. (Sup.) 769

5. On appeal or error, and on new
trial or motion therefor.

On disposing of an appeal from a justice's
judgment, held no costs should be allowed.
Spears v. Sorge (Co. Ct.) 141.

Under Code Civ. Proc. §§ 3053, 3063, costs
for amendment to the case on appeal to the
Appellate Division from a judgment of the
County Court, on appeal from a Justice's Court,
in that the evidence was reduced to narrative
form, held not allowable; the same not being
within section 3251.-Brick v. Favilla (Co. Ct.)

188.

6. Payment and remedies for collec-
tion.

The liability of a person beneficially interested
in an action for the costs existed at common
law, and hence Code Civ. Proc. § 3247, giving

COUNTIES.

See "Municipal Corporations."
Allegations as to jurisdiction of county court,
see "Pleading," § 1.
Larceny of county funds by county officer, see
"Larceny," §§ 1, 2.
Right of county officer to appeal, see "Appeal,"
§ 3.
Support of paupers, see "Paupers," § 1.
§ 1. Government and officers.

The "veteran acts" are limited in their oper-
ation to subordinate positions, and the office of
a transfer tax appraiser is not one of the po-
sitions affected thereby. Civil Service Law,
Laws 1899, pp. 808, 809, c. 370, §§ 20, 21.-Peo-
ple v. Glynn (Sup.) 956.

The transfer tax appraiser for a county, though
Comptroller of the State without notice or any
a veteran, may be removed from office by the
stated charges of incompetency or misconduct.-
People v. Glynn (Sup.) 956.

§ 2. Property, contracts, and liabilities.
A contractor to remove bodies from a ceme-
tery and to remove and reset tombstones, under
Laws 1900, pp. 616, 618, c. 277, §§ 6, 7, held
only entitled to the awards made for the removal
of bodies not removed by relatives and friends,
and for the removal and resetting of stones in
such cases, and not to the awards for land
damages.-People v. Neff (Sup.) 747.

§ 3. Fiscal management, public debt,
securities, and taxation.

*A county treasurer is protected in paying
out money belonging to the county by a proper
warrant, though its purpose was to defraud the
county, unless the treasurer was a party to the
fraud or had knowledge thereof.-People v. Neff
(Sup.) 747.

Payment of fraudulent county warrants would
not transfer title to the money to the persons
wrongfully obtaining possession thereof, nor
give them any right to possession.-People v.
Neff (Sup.) 747.

*Point annotated. See syllabus.

COURTS.

and 140 New York State Reporter

ing from a default judgment of the City Court of Hudson has expired, a motion to open the 247.

Allegations as to jurisdiction of court, see judgment is too late.-People v. Tilden (Sup.) "Pleading," § 1.

Clerks, see "Clerks of Courts."
Contempt of court, see "Contempt."
Docketing of judgment of municipal court in
county clerk's office as condition precedent to
lien on debtor's property, see "Judgment," 8 6.
Jurisdiction of proceeding for revocation of
probate of will, see "Wills," § 4.
Jurisdiction of surrogate court to appoint ad-
ministrator of estate of Indian, see "Indians."
Justices' courts, see "Justices of the Peace."
Repeal of laws authorizing extraordinary terms
of Supreme Court, see "Statutes," § 2.
Review of decisions, see "Appeal."
Right to trial by jury, see "Jury," § 1.
Validity of contract ousting jurisdiction of
court, see "Contracts," § 1.

§ 1. Nature, extent, and exercise of ju-
risdiction in general.

A court cannot compel the officers of a foreign corporation residing in another state to obey its decrees respecting the management of the affairs of the corporation.-Mock v. Supreme Council Royal Arcanum (Sup.) 155.

2. Establishment, organization, and procedure in general.

In an action involving a street assessment, held, the referee should have followed a previous decision of the Appellate Division of the Supreme Court.-Bussing v. City of Mt. Vernon (Sup.) 195.

Under the express provisions of Greater New York Charter (Laws 1897, p. 481, c. 378, & 1351; Laws 1901, p. 575, c. 466, § 1351), the Municipal Court of the city of New York is a court not of record.-Taylor v. Bell (Sup.) 273.

Under Municipal Court Act, Laws 1902, pp. 1553, 1557, 1559, 1584, 1590, c. 590, §§ 216, 231, 238, 330, 347, plaintiff held entitled to the clerk of the Municipal Court to obtain a tax as disbursements several jury fees paid to jury after each succeeding adjournment directed by the court because of a failure to reach the case for trial.-Cohen v. New York City Ry. Co. (Sup.) 561.

Municipal Court Act Laws 1902, p. 1559, c. 580, § 238, providing that no adjournment shall be granted in the Municipal Court after the return of a jury unless the party deposit a jury fee for another jury, held applicable only to adjournments granted at the request of a party-Cohen v. New York City Ry. Co. (Sup.)

561.

An action to recover damages for loss of plaintiff's wife's services because of personal injury she received through defendant's negli gence is within the jurisdiction of the Munic ipal Court.-Leyden v. Brooklyn Heights R. Co. (Sup.) 769.

A complaint held not to give the Municipal Court of the city of New York jurisdiction, under Laws 1902, p. 1488, c. 580, § 1. subd. 18McKeever v. Supreme Court I. O. F. (Sup.) 1041.

An order of court amending a judgment after appeal therefrom, and directing defendant to serve a new notice of appeal and file a new undertaking, held too broad.-Frankland Schoenfeld (Sup.) 1101.

v.

Error in procedure in correcting a judgment, under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254, held waived by a failure to make proper objections.-Frankland v. Schoenfeld (Sup.) 1101.

*The construction of statutes of the state by the Supreme Court, unless clearly erroneous, should be followed by a justice sitting at special term, rather than the decision of a federal Circuit Court of similar jurisdiction. In re Interborough Metropolitan Co. (Sup.) 416. *Const. 1894, art. 6, § 2, as amended in 1905, does not affect the power of the Appellate Division to appoint Trial and Special Terms, conferred by Code Civ. Proc. § 232, as amended by Laws 1895 (Laws 1895, p. 808, c. 946, § 232).ance of an attachment against a domestic corCode Civ. Proc. § 636, providing for the issuPeople v. Neff (Sup.) 747.

Code Civ. Proc. § 234, authorizing the Governor to appoint extraordinary terms of the Supreme Court, having been amended in 1895 (Laws 1895, p. 808, c. 946, § 234), its validity must be tested by the Constitution as it then existed, and not by the constitutional amendment in force January 1, 1906.-People v. Neff (Sup.) 747.

The Governor is authorized by Code Civ. Proc. 234 to appoint extraordinary Trial Terms of the Supreme Court, notwithstanding Const. 1894, art. 6, § 2.-People v. Neff (Sup.) 747.

§ 3. Courts of limited or inferior juris

diction.

|

A municipal judge held to have had power to amend a judgment under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254.-Frankland v. Schoenfeld (Sup.) 1101.

poration, under section 3160, does not apply to the City Court.-Granieri v. New York Shoe Repairing Co. (City Ct.) 1107.

§ 4. Courts of probate jurisdiction.

The right of an executor and testamentary trustee to offset as trustee an alleged debt on which as executor he might have a right of action held to require an exercise of equitable jurisdiction not possessed by the Surrogate's Court, and refusal of jurisdiction by the Supreme Court held error.-Meeks v. Meeks (Sup.) 907.

The Surrogate's Court has no jurisdiction to determine the validity of an alleged debt to a testator, claimed to be owing from a cestui que trust, which he denies.--Meeks v. Meeks (Sup.) 907.

Under the express terms of Laws 1895, c. 751, p. 1599, § 137, where the time for appeal*Point annotated. See syllabus.