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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-
tings (Sup.) 938.
torney general to dissolve corporations pend- $ 5. Corporate powers and liabilities.
validity of their franchises, see "Courts." & 5. $8 2878, 2879, 2881, service of summons on a
value of corporate property for taxation, see 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
That a corporation's life was limited to a
rights to acquire property, in the enjoyment of
tected.-In re Consolidated Gas Co. of New
f 6. Insolvency and receivers.
*Where it is not shown that a corporation
changes": "Municipal Corporations"; "Rail- 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.
*Conclusions that officers' salaries are excess-
corporation, where there is nothing to show
Under Stock Corporation Law (Laws 1901, p. without such arbitrary interference with the
Plaintiff's personal interests, other than as a
§ 7. Consolidation.
Consolidation of certain gas companies in the
the supply or price of gas, by the purchase of
1892, p. 1834, c. 688), and section 58 (Laws 1896,
p. 996, c. 932, as amended by Laws 1900, p.
(Laws of New York 1899, p. 1514, c. 690).-In
re Consolidated Gas Co. (Sup.). 407.
*Laws 1895, p. 222, c. 382, $ 36, giving a
not applicable until the merger is effected, and
not to prevent the court in a proper case from
*Rights of minority stockholder in a contract
between two corporations baving common di-
rectors, ratified to his injury by a majority of
the stockholders, determined.-Colby v. Equi-
*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 *Where two corporations having common di
Law, Laws 1896, p. 856, c. 908, 8181, as rectors agree as to a merger, and it cannot be
amended by Laws 1901, p. 1364, c. 558, in the properly ratified against the objection of a dis
absence of pleading and proof that plaintiff was senting stockholder, the merger will be enjoined.
a "stock" corporation or a corporation author-Colby v. Equitable Trust Co. of New York
ized to do business under the general corpora(Sup.) 801.
tion law.-Portland Co. v. Hall & Grant Const.
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
tion in the Supreme Court of New York, in state's instance for alleged misconduct, except required to allege and prove that by some spe
order to attack plaintiff's capacity to sue, held for a violation of the law of the corporation's cific provision of law plaintiff was probibited 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 Generaltion
*Where, in an action by a foreign corporafor leave to sue to dissolve a corporation, it was
tion, neither the complaint nor the answer
charged that plaintiff was a foreign “stock" the duty of the court, in the absence of any ques
corporation, plaintiff's incapacity to sue for nontion of fact for the jury, under Code Civ. Proc.
compliance with Laws 1892, p. 1803, c. 687, $ 1800, to pass on the application with the
$ 15, as amended by Laws 1904, p. 1250, e 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
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
In the absence of proof that a defendant forJersey corporation, with power to close its affairs and be sued individually, under Gen. St.
eign insurance company is an insurance corpo N. J. p. 918, 88 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
as a condition precedent to its doing business the_corporation and plaintiff's assignor.-Gener
in the state, the court does not have jurisdie
tion.-McKeever v. Supreme Court I. 0. F. al Ry. Signal Co. v. Cade (Sup.) 729.
(Sup.) 1041. 8 9. Foreign corporations.
Service of process upon the superintendent Laws 1896, p. 856, c. 908, $ 181, as amended lof'
of insurance as attorney for foreign insurance by Laws 1901, p. 1364, c. 558, imposing a li
on companies, as provided by Laws 1892, p. 1945. cense tax on foreign corporations, held inap
habilc. 690, § 30, is deemed to be made within the plicable to a foreign corporation which had
territorial jurisdiction of the court issuing the neither applied for nor received a license to
process.-McKeever v. Supreme Court I. O. F. do business in New York under the general
(Sup.) 1041. corporation law.--Portland Co. v. Hall & Grant up.) Const. Co. (Sup.) 649.
CORRECTION. *Transactions of a foreign corporation in New York held to constitute doing business of a there within General Corporation Law, Laws Of
Of assessment of taxes, see "Taxation," & 2
Of irregularities and errors at trial see "Trial. 1892, p. 1803, c. 687, § 15, as amended by
$ 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 "Attorney
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. $$ 822, 3228, 3229 to sue, if otherwise qualified, may sue in the 3230, defendant held entitled to costs on discourts 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
Though Code Civ. Proc. $ 3247 provides that
terested in an action to pay the costs, an action
son when he is without the jurisdiction of the
be an adequate, effective remedy.-Hiscock v.
Tuck (Sup.) 700.
An order that a commission issue to take tes-
unt, rate, and items.
Allegations as to jurisdiction of county court,
§ 1. Government and officers.
The "veteran acts” are limited in their oper-
a transfer tax appraiser is not one of the po-
The transfer tax appraiser for a county, though
A contractor to remove bodies from a ceme-
tery and to remove and reset tombstones, under
Laws 1900, pp. 616, 618, c. 277, 88 6, 7, held
of bodies not removed by relatives and friends,
damages.-People v. Neff (Sup.) 747.
securities, and taxation.
*A county treasurer is protected in paying
fraud or had knowledge thereof.-People v. Neff
not transfer title to the money to the persons
•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.