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PUBLIC DEBT.

See "Counties," § 3; "Municipal Corporations,"
§ 8.

PUBLIC IMPROVEMENTS.

By municipalities, see "Municipal Corpora-
tions," § 4.

PUBLIC POLICY.

Affecting validity of contract, see "Contracts,"
§ 1.

PUBLIC SCHOOLS.

See "Schools and School Districts," § 1.

PUBLIC SERVICE CORPORATIONS.
See "Carriers"; "Corporations," §§ 2, 7; "Rail-
roads"; "Street Railroads"; "Telegraphs and
Telephones."

Consolidation of gas companies, as monopoly,
see "Monopolies," § 1.
Gas companies, see "Gas."

Restraining operation of electric lighting com-
pany, see "Injunction," § 1.

PUBLIC USE.

Dedication of property, see "Dedication."
Taking property for public use, see "Eminent
Domain."

QUANTUM MERUIT.

See "Work and Labor."

QUESTIONS FOR JURY.

In civil actions, see "Trial," § 4.

QUIETING TITLE.

81. Right of action and defenses.
*Action to determine claim to real estate dis-
missed; defendant alone being in possession.-
Hoyt v. Forrest (Sup.) 1083.

RAILROADS.

See "Street Railroads."

As employers, see "Master and Servant."
Carriage of goods and passengers, see "Car-
riers.'

Discharge of surface waters from track as nui-
sance, see "Nuisance," § 1.

Extra allowances in action for overflow caused
by construction of railroad bridge, see "Costs,"
§ 3.

Liability for injuries caused by explosion of
dynamite, see "Explosives."

Liability for obstruction of water course, see
"Waters and Water Courses," § 2.

Property included in railroad mortgage, see
"Mortgages," § 2.

Review by certiorari of determination of rail-
road commissioners, see "Certiorari," § 1.

§ 1. Control and regulation in general.
Laws 1860, p. 16, c. 10, held not to affect the
right to construct a railroad on Long Island or
under the East river.-New York & L. I. R. Co.
v. O'Brien (Sup.) 909.

Under Laws 1890, p. 1089, c. 565, § 16, em-
bracing Laws 1880, p. 872, c. 582, amended by
Laws 1892, p. 1450, c. 702, making certain pro-
visions retroactive, to include corporations or-
ganized under Laws 1850, p. 211, c. 140, an
ordinance adopted December 31, 1890, permit-
ting the construction of a tunnel under New
York City streets was valid.-New York & L. I.
R. Co. v. O'Brien (Sup.) 909.

§ 2. Railroad companies.

The provision in Laws 1850, p. 211, c. 140.
should state the places from which and to
that the certificate of incorporation of a railroad
which the road is to be constructed, is satisfied
by naming the towns, villages, or cities which
are the termini of the road.-New York & L.
I. R. Co. v. O'Brien (Sup.) 909.

A railroad held not to have forfeited its cor-
porate rights conferred by Laws 1850, p. 211,
c. 140, as amended by Laws 1867, p. 1903, c.
775, by lapse of time.-New York & L. I. R.
Co. v. O'Brien (Sup.) 909.

Ten per cent. of the capital stock of a rail-
road held not paid in cash, as required by Rail-
road Law, § 2, Laws 1892, p. 1383, c. 676, that
the certificate of public convenience and neces-
sity required by section 59 (page 1395) may be
of any avail. People v. Public Service Commis-
sion Second Dist. (Sup.) 968.

3. Right of way and other interests

in land.

*Where the owner of land through which a
railroad right of way passed used certain cross-
ings, no cause of action against the railroad ac-
crued to him by reason of slight alterations of
the grade of the tracks and roadway of the
railroad.-Townsend v. New York Cent. & H.
R. R. Co. (Sup.) 381.

*A railroad may make such reasonable chan-
ges in its tracks as may be necessary for the
advantageous use of its property and its grow-
ing needs.-Townsend v. New York Cent. & H.
R. R. Co. (Sup.) 381.

*A landowner held not injured by the erection
of a platform for the shipment of fruit on de-
fendant railroad's right of way.-Townsend v.
New York Cent. & H. R. R. Co. (Sup.) 381.

Where permits were granted a railroad by
the board of aldermen of New York City to
tunnel under land given the city by Laws 1870,
p. 390, c. 137. § 99, as amended by Laws 1871,
p. 1242, c. 574, § 6, subd. 10, and in control
of the dock board, held, that the city could not
revoke them on the ground of their irregularity
after the expenditure of large sums thereunder.
-New York & L. I. R. Co. v. O'Brien (Sup.)
909.

*Point annotated. See syllabus.

4. Construction,

equipment.

and 140 New York State Reporter
maintenance, and

A finding that a railroad company failed to
construct in its roadbed a sufficient culvert held
warranted. Strong v. Rutland R. Co. (Sup.)
85.

The negligence of a railroad company in al-
lowing ice to accumulate in a culvert in its
roadbed held for the jury.-Strong v. Rutland
R. Co. (Sup.) 85.

Evidence in an action against a railroad for
running its train over a fire hose held to war-
rant a finding that defendant's servants knew
the hose was lying across the tracks.-Phenix
Ins. Co. of Brooklyn v. New York Cent. & H. R.
R. Co. (Sup.) 696.

REAL ACTIONS.

See "Ejectment."

REAL ESTATE AGENTS.

*Railroad Law, Laws 1897, p. 794, c. 754,
$60, relating to the elimination of grade cross-
ings, construed, and held to authorize the elimi-
nation of sidings or switches crossing highways
at grade, where the railroad concedes that the See "Brokers."
board of railroad commissioners may deal with
them. In re Terminal Ry. of Buffalo (Sup.)
655; Appeal of Town of Cheektowaga, Id.;
In re Terminal Ry. of Buffalo (Sup.) 659; Ap-
peal of Town of West Seneca, Id.

RECEIVERS.

Comity between courts of different states in
receivership proceedings, see "Courts," § 5.
Deposit of amount of judgment with receivers
In action to foreclose mortgage, see "Mort-
as payment, see "Judgment," § 7.
gages," § 3.

*Railroad Law, Laws 1897, p. 796, c. 754,
§ 62, relating to the power of the board of rail-
road commissioners to abolish grade crossings,
construed, and held to confer on the board des-
ignated powers, subject to judicial review.-In
re Terminal Ry. of Buffalo (Sup.) 655; Ap-In supplementary proceedings, see "Execution,"

peal of Town of Cheektowaga, Id.; In re Ter-
minal Ry of Buffalo (Sup.) 650; Appeal of
Town of West Seneca, Id.

*Where parallel streets extend across rail-
road tracks, and the crossings are dangerous,
the board of railroad commissioners may de-
termine the number of viaducts and adjudge on
what streets traffic shall be diverted.-In re

Terminal Ry. Co. (Sup.) 655; Appeal of Town
of Cheektowaga, Id.; In re Terminal Ry. of
Buffalo (Sup.) 659: Appeal of Town of West
Seneca, Id.

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$ 3.

Of corporations in general, see "Corporations,”
§ 6.

Review of discretionary rulings as to appoint-
ment of, see "Appeal," § 8.

§ 1. Nature and grounds of receiver-
ship.

*Generally stated, the principal ground for
the appointment of a receiver is danger of the
loss of, or injury to, the property or thing in
controversy, before the court can make a dis-
position thereof by a final decree on the merits.
-Hastings v. Tousey (Sup.) 639.

Code Civ. Proc. § 713, providing for receivers,
excludes all cases except those specified and
prohibits an appointment except as authorized.
-Hastings v. Tousey (Sup.) 639.

An order directing forfeiture of an initial
payment made by a purchaser at a receiver
sale, who failed to comply with his bid, held
to make the money so paid assets in the receiv-
er's hands for disbursement.-Coe v. Patterson
(Sup.) 659.

§ 2. Allowance and payment of claims.
Ordinarily, a judgment against a receiver in
his official capacity gives the judgment creditor
no preference over other creditors in the same
class.-Coe v. Patterson (Sup.) 659.

§ 3. Actions.

*In an action for injuries in a collision with
defendant's train, whether plaintiff was guilty
of contributory negligence in failing to look and A court's order for expenditures which a re-
listen, etc., held a question for the jury.ceiver made in reliance thereon, protects the
Noakes v. New York Cent. & H. R. R. Co. receiver while in force, though it may be after-
(Sup.) 522.
wards reversed.-Coe v. Patterson (Sup.) 659.

*In an action against a railroad company for
injuries sustained in a collision at a crossing,
an instruction held properly refused as being in
substance a request to find for defendant.-
Noakes v. New York Cent. & H. R. R. Co.
(Sup.) 522.

*An action against a receiver in his official
capacity held an election not to charge him per-
sonally, so that the judgment recovered against
him merely amounted to the establishment of a
claim against him as receiver.-Coe v. Patter-
son (Sup.) 659.

*Point annotated. See syllabus.

INDEX.

4. Accounting and compensation.
Where the last approved account of a receiver
showed a balance in his hands of $1,200, he
was not relieved from liability to account there-
for by a subsequent account, not shown to have
been acted on, showing an expenditure of more
than such balance.-Coe v. Patterson (Sup.) 659.
§ 5. Liabilities on bonds or undertak-
ings.

Sureties of a receiver are not responsible for
the receiver's application of funds not assets
of the trust estate.-Coe v. Patterson (Sup.)

659.

A receiver's sureties are not liable for his
failure to pay a judgment rendered against him
personally. Coe v. Patterson (Sup.) 659.

1215

Previous decisions of court as controlling ref-
eree, see "Courts," § 2.

Review of discretionary rulings as to, see "Ap-
peal," § 8.

Rights of purchasers at referee's sale, see "Ju-
dicial Sales."

1. Nature, grounds, and order of ref-

erence.

*An objection that all parties are not before
the court on an order of reference held waived
where not taken on the return of the order.-
Knickerbocker Inv. Co. v. Voorhees (Sup.)
455; In re Davies, Stone & Auerbach, Id.
§ 2. Report and findings.

*In an action to enjoin a nuisance, where a
referee's report is confirmed by the court, the
adjudication necessarily rests thereon, although
the report is not binding on the court.-Saal v.
South Brooklyn Ry. Co. (Sup.) 996.

*An action cannot be maintained against the
sureties on a receiver's bond for his failure to
pay a judgment against him, as receiver, with-
out an accounting and decree establishing his
inability to pay.-Coe v. Patterson (Sup.) 659.
*An order on notice to a receiver, but not to
his sureties, directing the receiver to pay a judg
ment within 10 days, held not to add to the
force of the judgment as against the sureties. See "New Trial."
Coe v. Patterson (Sup.) 659.

*A judgment against a receiver held not con-
clusive as to the merits of the creditor's claim
against the receiver's sureties on a bond condi-
tioned only for the faithful performance of
his duties as receiver.-Coe v. Patterson (Sup.)
6.59.

*Before a suit can be maintained against
sureties on a receiver's bond, all remedies avail-
able against the receiver must be exhausted.-
Coe v. Patterson (Sup.) 659.

Where a purchaser of property at a receiver's
sale failed to complete his bid, and subsequently
recovered judgment against the receiver for the
alleged amount of his initial payment, the re-
ceiver's sureties, in an action on his bond to
enforce the judgment, were entitled to show
that the purchaser only paid a less sum on the
property, or that a portion of such payment
had been returned.-Coe v. Patterson (Sup.)
659.

A complaint against sureties on a receiver's
bond failing to allege an accounting, lack of
assets in the receiver's hands, or his_inability
Patterson
pay, held insufficient.-Coe v.

to

(Sup.) 659.

RECORDS.

Courts of record, see "Courts," § 2.
Docketing of judgment of municipal court in
county clerk's office as condition precedent to
lien on debtor's property, see "Judgment,"
§ 6.

REHEARING.

RELEASE.

See "Compromise and Settlement";
ment."

"Pay-

Of particular classes of rights and liabilities.
See "Chattel Mortgages," § 4; "Mechanics'
Liens," § 2.

Liability of tenant for rent, see "Landlord and
Tenant," § 4.

RELEVANCY.

Of evidence in civil actions, see "Evidence,"
$ 3.

RELIGIOUS SOCIETIES.

Bequests to, see "Wills," § 4.

REMAINDERS.

Creation by will, see "Wills," § 5.

*One's right to recover land in which he has
to accrue till
a remainder interest held not
death of the life tenant.-Bush v. Halsted (Sup.)
133.

REMAND.

Of chattel mortgage, see "Chattel Mortgages," Of cause on appeal, see "Appeal," § 9.
§§ 1, 3.
Transcript on appeal or writ of error, see
"Criminal Law," § 7.

REFERENCE.

Contempt by referee, see "Contempt," § 1.
In suit for divorce, see "Divorce," § 1.

REMEDY AT LAW.

Effect on jurisdiction of equity, see "Injunc
tion," § 1.

Effect on jurisdiction of equity to restrain un-
lawful combination, see "Monopolies," § 1.

*Point annotated. See syllabus.

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Of commissioners in condemnation proceed- of licenses relating to real property, see “Li-
ings, see "Eminent Domain," § 2.

On reference, see "Reference," § 2.

RESCISSION.

Of contract, see "Contracts," § 4.

Of contract for sale of land, see "Vendor and
Purchaser," § 3.

Of insurance policy, see "Insurance," §§ 3, 4.

RESERVATIONS.

In deeds, see "Deeds," § 1.
Indian reservations, see "Indians."

RES GESTÆ.

censes," § 1.

Of license to railroad company to construct
tunnel, see "Railroads," § 3.

Of liquor license, see "Intoxicating Liquors,"
§ 2.

Of probate of will, see "Wills," $$ 3, 4.
Of sentence in criminal prosecution, see "Crim
inal Law," § 6.

RIGHT OF WAY.

See "Easements."

Of railroads, see "Railroads," § 3.

RISKS.

In civil actions, see "Evidence," § 3.

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*Point annotated. See syllabus.

See "Highways."

ROADS.

*Possession of cotton cloth belonging to plain-
tiffs by selling agents, according to a custom of
the cotton converting business, held not such as

Streets in cities, see "Municipal Corporations," to deprive plaintiffs of the right to recover the
§§ 6, 7.

ROYALTIES.

Under patent, see "Patents," § 1.

RULES OF COURT.

Orders, see "Motions."

SALES.

Sales by foreign corporation as involving in-
terstate commerce, see "Commerce," § 1.
Tender of price in suit by seller, see "Tender."

Sales by or to particular classes of persons.
See "Executors and Administrators," § 2; "Re-
ceivers," 1.

Assignee for benefit of creditors, see "Assign-

ments for Benefit of Creditors," § 1.
Sales of particular species of, or estates or
interests in, property.

See "Intoxicating Liquors."
Realty, see "Vendor and Purchaser."

Sales on judicial or other proceedings.
See "Judicial Sales."

Of property of decedent under order of court,
see "Executors and Administrators," § 4.
On foreclosure of mortgage, see "Mortgages,"

§ 3.

Tax sales, see "Taxation," § 3.

§ 1. Performance of contract.

*In an action for breach of a contract of sale
of a monument, evidence held sufficient to sus-
tain a verdict that the monument was rejected
within a reasonable time after the purchaser
had opportunity to examine.-Tomkins v. J. &
R. Lamb (Sup.) 6.

*In an action for breach of a contract of sale
of a monument, evidence held to support a ver-
dict of nonperformance.-Tomkins v. J. & R.
Lamb (Sup.) 6.

§ 2. Operation and effect.

*Goods paid for and segregated as the prop-
erty of the buyer, but retained by selling agents
until called for, according to custom, and after-
wards stored and pledged by such agents, who
became insolvent, held the property of the buy-

er

as against the warehouseman pledgee.
Schwab v. Oatman (Sup.) 741.

*The rule that a bona fide purchaser of prop-
erty for a valuable consideration, in the course
of trade, without notice of an adverse claim,
will be protected against the original owner,
only applies where the latter has, by his own
voluntary act, conferred on the seller an appar-
ent right to the property as owner or of dispos-
al as an agent.-Schwab v. Oatman (Sup.) 741.

106 N.Y.S.-77

cloth from the agents' pledgees.-Schwab v. Oat-
man (Sup.) 741.

§ 3. Remedies of seller.

Under a complaint to recover the contract
price of brick, an additional sum cannot be re-
covered in that there was an extra cost of de-
livery caused by vendees.-Clonin v. Lippe (Sup.)
58.

*In an action for a balance due on a contract
for the printing of certain posters, evidence held
sufficient to go to the jury.-W. J. Morgan &
Co. v. Heitmann (Sup.) 253.

Plaintiff's right to recover a balance on a
contract for printed matter for a travelling
band held not to depend on defendant's relation
to the band, delivery of the matter or questions
concerning additional printing.-W. J. Morgan
& Co. v. Heitmann (Sup.) 253.

In an action on notes given for a soda foun-

tain, the defense that the notes were obtained
by false representations held not sustained.-
Carbonating Apparatus Co. v. Geary (Sup.) 768.

In an action on notes given for a soda foun-
tain, the defense that there was a failure of
consideration held not sustained.-Carbonating
Apparatus Co. v. Geary (Sup.) 768.

Where a corporation officer, in his individual
capacity, sold stone to defendant, defendant
because he had a claim against the corporation
could not defeat an action for its value merely
and supposed plaintiff made the sale in his of-
ficial capacity.-Pizzutielle v. Graham (Sup.)
1099.

The owner of stone sold by him to defendant
can recover its value, even though he did not at
the time of the sale inform defendant of his
ownership, and defendant supposed plaintiff was
acting as an officer of a corporation.-Pizzutielle
v. Graham (Sup.) 1099.

In an action for goods sold and delivered,
where it is shown that plaintiff was the owner
of the goods, defendant's testimony that he
supposed he was dealing with plaintiff as an of-
ficer of a corporation is neither controlling nor
competent.-Pizzutielle v. Graham (Sup.) 1099.

*In an action for the price of goods sold posi-
chased the goods, as against that of both defend-
tive testimony of plaintiff that defendants pur-
ants who denied receiving it, presents a ques-
tion of fact for the jury. Chautauqua Lake
Mills v. Hewes (Co. Ct.) 1026.
§ 4. Remedies of buyer.

*A purchaser under an executory sale may
have an action for breach of the contract as
well as for a breach of warranty or upon a
rescinded contract.-Tomkins v. J. & R. Lamb
(Sup.) 6.

In case of breach of a contract of sale and re-
jection of the article paid for, the purchaser is
entitled to recover its value without regard to
the price or the value of the article delivered
*Point annotated. See syllabus.

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