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Property included in railroad mortgage, see

“Mortgages," 8 2.
See "Counties,” $ 3; “Municipal Corporations,” Review by certiorari of determination of rail-
§ 8.

road commissioners, see “Certiorari," $ 1.

§ 1. Control and regulation in general.

Laws 1860, p. 16, c. 10, held not to affect the
By municipalities, see “Municipal Corpora- | under the East river.- New York & L. I. R. Co.

right to construct a railroad on Long Island or
tions,” 8 4.

v. O'Brien (Sup.) 909.

Under Laws 1890, p. 1089, c. 565, § 16, em-

bracing Laws 1880, p. 872, c. 582, amended by
Affecting validity of contract, see “Contracts," Laws 1892, p. 1450, c. 702, making certain pro-
$ 1.

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
See "Schools and School Districts,” 8 1.

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,
See “Carriers”; “Corporations,” $$ 2, 7; "Rail should state the places from which and to

that the certificate of incorporation of a railroad
roads"; "Street Railroads"; "Telegraphs and which the road is to be constructed, is satisfied

by naming the towns, villages, or cities which
Consolidation of gas companies, as monopoly, are the termini of the road.— New York & L.
see “Monopolies," $ 1.

I. R. Co. v. O'Brien (Sup.) 909.
Gas companies, see "Gas."
Restraining operation of electric lighting com-

A railroad held not to have forfeited its cor-
pany, see "Injunction," § 1.

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-
Dedication of property, see “Dedication."
Taking property for public use, see “Eminent road Law, $ 2, Laws 1892, p. 1383, c. 676, that

road held not paid in cash, as required by Rail-

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.
See “Work and Labor."

8 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-
In civil actions, see “Trial," $ 4.

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 y. New York Cent. & H.

R. R. Co. (Sup.) 381.
§ 1. Right of action and defenses.

* Action to determine claim to real estate dis *A railroad may make such reasonable chan-
missed; defendant alone being in possession.-ges in its tracks as may be necessary for the
Hoyt v. Forrest (Sup.) 1083.

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
See "Street Railroads."

of a platform for the shipment of fruit on de-
As employers, see “Master and Servant."

fendant railroad's right of way.--Townsend v.
Carriage of goods and passengers, see "Car- | New York Cent. & H. R. R. Co. (Sup.) 381.

Where permits were granted a railroad by
Discharge of surface waters from track as nui- the board of aldermen of New York City, to
sance, see “Nuisance," & 1.

tunnel under land given the city by Laws 1870,
Extra allowances in action for overflow caused p. 390, c. 137, $ 99, as amended by Laws 1871,

by construction of railroad bridge, see "Costs,” p. 1242, c. 574, 86, subd. 10, and in control
$ 3.

of the dock board, held, that the city could not
Liability for injuries caused by explosion of revoke them on the ground of their irregularity
dynamite, see “Explosives."

after the expenditure of large sums thereunder.
Liability for obstruction of water course, see - New York & L. I. R. Co. v. O'Brien (Sup.)
“Waters and Water Courses," 8 2.

* Point annotated. See syllabus.


and 140 New York State Reporter § 4. Construction, maintenance, and Evidence in an action against a railroad for equipment.

running its train over a fire hose held to warA finding that a railroad company failed to rant a finding that defendant's servants knew construct in its roadbed a sufficient culvert held the hose was lying across the tracks.-Phenix warranted.-Strong V. Rutland R. Co. (Sup.) Ins. Co. of Brooklyn v. New York Cent. & H. R. 85.

R. Co. (Sup.) 696. The negligence of a railroad company in allowing ice to accumulate in a culvert in its roadbed held for the jury.-Strong v. Rutland R. Co. (Sup.) 85.

See "Ejectment." *Railroad Law, Laws 1897, p. 794, c. 754, $ 60, relating to the elimination of grade crossings, construed, and held to authorize the elimi

REAL ESTATE AGENTS. 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, ld.;

RECEIVERS. In re Terminal Ry. of Buffalo (Sup.) 659; Appeal of Town of West Seneca, Id.

Comity between courts of different states in *Railroad Law, Laws 1897, p. 796, c. 754, Deposit of amount of judgment with receivers

receivership proceedings, see "Courts," $ 5. $ 62, relating to the power of the board of railroad commissioners to abolish grade crossings, In action to foreclose mortgage, see “Mort

as payment, see "Judgment," $ 7. construed, and held to confer on the board designated powers, subject to judicial review.-In In supplementary proceedings, see "Execution,"

gages," $ 3. re Terminal Ry. of Buffalo (Sup.) 635; Appeal of Town of Cheektowaga, Id.; In re Ter

$ 3. minal Ry. of Buffalo (Sup.) '650; Appeal of Of corporations in general, see "Corporations." Town of West Seneca, Id.

$ 6.

Review of discretionary rulings as to appoint*Where parallel streets extend across rail

ment of, see “Appeal," 8. road tracks, and the crossings are dangerous, the board of railroad commissioners may de- $ 1. Nature and grounds of receivertermine the number of viaducts and adjudge on

ship. what streets traffic shall be diverted.-In re

*Generally stated, the principal ground for Terminal Ry. Co. (Sup.) 655; Appeal of Town the appointment of a receiver is danger of the of Cheektowaga, Id.; In re Terminal Ry. of loss of, or injury to, the property or thing in Buffalo (Sup.) 659; Appeal of Town of West controversy, before the court can make a disSeneca, Id.

position thereof by a final decree on the merits. $ 5. Operation.

-Hastings v. Tousey (Sup.) 639. *In an action for killing plaintiff's cow, a Code Civ. Proc. $ 713, providing for receivers, mere showing that the cow was struck by the excludes all cases except those specified and defendant's electric car and killed was insuffi- prohibits an appointment except as authorized. cient to support a verdict for plaintiff.-Craft --Hastings v. Tousey (Sup.) 639. V. Peekskill Lighting & R. Co. (Sup.) 232. *The rule that failure to look and listen be- payment made by a purchaser at a receiver

An order directing forfeiture of an initial fore crossing a railroad track is contributory sale, who failed to comply with his bid, held negligence held subject to limitations on

to make the money so paid assets in the receircount of the age, sex, and condition of plaintiff er's hands for disbursement.-Coe v. Patterson and the surrounding circumstances: -- Noakes v. (Sup.) 639. New York Cent. & H. R. R. Co. (Sup.) 522.

*It is ordinarily the duty of a passenger in a § 2. Allowance and payment of claims. vehicle to look and listen before crossing a rail

Ordinarily, a judgment against a receiver in road track.- Noakes v. New York Cent. & H. his official capacity gives the judgment creditor R. R. Co. (Sup.) 522.

no preference over other creditors in the same

class.-Coe v. Patterson (Sup.) 659. *In an action for injuries in a collision with defendant's train, whether plaintiff was guilty & 3. Actions. of contributory negligence in failing to look and A court's order for expenditures which a relisten, 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 *An action against a receiver in his official injuries sustained in a collision at a crossing, capacity held an election not to charge him peran instruction held properly refused as being in sonally, so that the judgment recovered against substance a request to find for defendant.-him merely amounted to the establishment of a Noakes v. New York Cent. & H. R. R. Co. claim against him as receiver.-Coe v. Patter(Sup.) 522.

son (Sup.) 659.
*Point annotated. See syllabus.



$ 4. Accounting and compensation. Previous decisions of court as controlling ref-

Where the last approved account of a receiver eree, see "Courts," $ 2.
showed a balance in his hands of $1,200, he Review of discretionary rulings as to, see "Ap-
was not relieved from liability to account there- peal," $ 8.
for by a subsequent account, not shown to have Rights of purchasers at referee's sale, see "Ju-
been acted on, showing an expenditure of more dicial Sales."
than such balance.-Coe v. Patterson (Sup.) 659.
§ 5. Liabilities on bonds or undertak- 8 1. Nature, grounds, and order of ref-

Sureties of a receiver are not responsible for the court on an order of reference held waived

*An objection that all parties are not before
the receiver's application of funds not assets
of the trust estate.-Coe v. Patterson (Sup.) where not taken on the return of the order.-

Knickerbocker Inv. Co. v. Voorhees (Sup.)

455; In re Davies, Stone & Auerbach, Id.
A receiver's sureties are not liable for his
failure to pay a judgment rendered against him $ 2. Report and findings.
personally.-Coe v. Patterson (Sup.) 659.

*In an action to enjoin a nuisance, where a
*An action cannot be maintained against the referee's report is confirmed by the court, the
sureties on a receiver's bond for his failure to adjudication necessarily rests thereon, although
pay a judgment against him, as receiver, with the report is not binding on the court.-Saal v.
out an accounting and decree establishing his South Brooklyn Ry. Co. (Sup.) 996.
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. See “Compromise and Settlement";
tioned only for the faithful performance of ment."
his duties as receiver.-Coe v. Patterson (Sup.)

Of particular classes of rights and liabilities.
*Before a suit can be maintained against See “Chattel Mortgages," $ 4; · "Mechanics'
sureties on a receiver's bond, all remedies avail- Liens," $ 2.
able against the receiver must be exhausted.- Liability of tenant for rent, see "Landlord and
Coe v. Patterson (Sup.) 659.

Tenant," § 4.
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 Of evidence in civil actions, see "Evidence,"
enforce the judgment, were entitled to show

8 3.
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.)

Bequests to, see "Wills," $ 4.
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

pay, held insufficient.-Coe v. Patterson
(Sup.) 639.

Creation by will, see "Wills," 8 5.

*One's right to recover land in which he has

a remainder interest held not to accrue till
Courts of record, see "Courts," $ 2.

death of the life tenant.-Bush v. Halsted (Sup.)
Docketing of judgment of municipal court in 133.
county clerk's office as condition precedent to
lien on debtor's property, see "Judgment,”

$ 6.
of chattel mortgage, see "Chattel Mortgages,"Of cause on appeal, see "Appeal," $ 9.

88 1, 3.
Transcript on appeal or writ of error,
“Criminal Law," 8 7.





Effect on jurisdiction of equity, see “Injunc.

tion," $ 1.
Contempt by referee, see Contempt," § 1. Effect on jurisdiction of equity to restrain un-
In suit for divorce, see “Divorce," $ 1.

lawful combination, see "Monopolies,” $ 1.
*Point annotated. See syllabus.

and 140 New York State Reporter REMOVAL.

RES IPSA LOQUITUR. Of county officer, see “Counties," $ 1.

Injuries to employés, see “Master and Serv.
Of justice of the peace, see “Justices of the ant," $ 10.
Peace," $ 1.


See "Judgment,” 88 4, 5.
Change of venue or place of trial, see “Venue,"

$ 1. Transfer of causes as between dockets on cal

RESOLUTION. endars, see “Trial," $ 1.

Of municipal council, see "Municipal Corpora

tions," 8 8. REMOVAL OF CLOUD.

RESTRAINT OF TRADE, See "Quieting Title."

Trusts and other combinations, see “MonopoRENEWAL.

lies," § 1. Of lease, see “Landlord and Tenant," 2.


See “Trusts," $ 1.
See "Landlord and Tenant," $ 4.


Of election, see "Elections," $ 3.

To writ of certiorari, see "Certiorari," $ 1. Of bridge, see “Bridges," $ 1.


See “Taxation."
Of statute, see "Statutes," $ 2.


See "Appeal"; "Certiorari"; "Criminal Law,"

7; “Justices of the Peace," $ 2. § 1. Right of action and defenses. * Plaintiff, in actual possession of personalty,

REVIVAL. cannot maintain replevin therefor.-Mahr v. Livingstone (Sup.) 308.

Of statute, see “Statutes," $ 2.


REVOCATION. Of commissioners in condemnation proceed or licenses relating to real property, see "Li

ings, see “Eminent Domain,” $ 2. On reference, see "Reference," § 2.

censes," 8 1. Of license to railroad company to construct

tunnel, see "Railroads," $ 3. RESCISSION,

Of liquor license, see "Intoxicating Liquors,"

$ 2. Of contract, see "Contracts," & 4.

Of probate of will, see "Wills," $$ 3, 4. Of contract for sale of land, see “Vendor and Of sentence in criminal prosecution, see "CrimPurchaser," $ 3.

inal Law," $ 6. Of insurance policy, see "Insurance," $$ 3, 4.


See "Easements."
In deeds, see "Deeds," 8 1.

Of railroads, see "Railroads," § 3.
Indian reservations, see "Indians."


Assumed by employé, see "Master and Sery. In civil actions, see "Evidence," $ 3.

ant," $$ 6, 9, 11. * Point annotated. See syllabus.



*Possession of cotton cloth belonging to plain-

tiffs by selling agents, according to a custom of
See "Highways."

the cotton converting business, held not such as
Streets in cities, see "Municipal Corporations," to deprive plaintiffs of the right to recover the
$8 6, 7.

cloth from the agents' pledgees.-Schwab v. Oat-

man (Sup.) 741.

$ 3. Remedies of seller.

Under a complaint to recover the contract
Under patent, see “Patents," $ 1.

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.)

Orders, see "Motions."

*ln 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
Sales by foreign corporation as involving in-contract for printed matter for a travelling

terstate commerce, see "Commerce," $ 1. band held not to depend on defendant's relation
Tender of price in suit by seller, see “Tender.” to the band, delivery of the matter or questions
Sales by or to particular ola8888 of persons.

concerning additional printing:-W. J. Morgan

& Co. v. Heitmann (Sup.) 253.
See “Executors and Administrators," $ 2; “Re-
ceivers," $ 1.

In an action on notes given for a soda foun-
Assignee for benefit of creditors, see "Assign- tain, the defense that the notes were obtained
ments for Benefit of Creditors," $ 1.

by false representations held not sustained.

Carbonating Apparatus Co. v. Geary (Sup.) 768.
Sales of particular species of, or estates or
interests in, property.

In an action on notes given for a soda foun-

tain, the defense that there was a failure of
See "Intoxicating Liquors."

consideration held not sustained.-Carbonating
Realty, see “Vendor and Purchaser."

Apparatus Co. v. Geary (Sup.) 768.
Sales on judicial or other proceedings. Where a corporation officer, in his individual
See "Judicial Sales."

capacity, sold stone to defendant, defendant
Of property of decedent under order of court, because he had a claim against the corporation

could not defeat an action for its value merely
see "Executors and Administrators,” $ 4.
On foreclosure of mortgage, see "Mortgages," and supposed plaintiff made the sale in his of-
$ 3.

ficial capacity.-Pizzutielle v. Graham (Sup.)

Tax sales, see "Taxation," $ 3.

The owner of stone sold by him to defendant
§ 1. Performance of contract.

can recover its value, even though he did not at
*In an action for breach of a contract of sale, the time of the sale inform defendant of his
of a monument, evidence held sufficient to sus- ownership, and defendant supposed plaintiff was
tain a verdict that the monument was rejected acting as an officer of a corporation.-Pizzutielle
within a reasonable time after the purchaser v. Graham (Sup.) 1099.
had opportunity to examine.-Tomkins v. J. &
R. Lamb (Sup.) 6.

In an action for goods sold and delivered,

where it is shown that plaintiff was the owner
*In an action for breach of a contract of sale of the goods, defendant's testimony that he
of a monument, evidence held to support a ver- supposed he was dealing with plaintiif as an of-
dict of nonperformance.-Tomkins v. J. & R. ficer of a corporation is neither controlling nor
Lamb (Sup.) 6.

competent.--- Pizzutielle v. Graham (Sup.) 1099.
§ 2. Operation and effect.

*In an action for the price of goods sold posi-
*Goods paid for and segregated as the prop- chased the goods, as against that of both defend-

tive testimony of plaintiff that defendants pur-
erty of the buyer, but retained by selling agents
until called for, according to custom, and after ants who denied receiving it, presents a ques-
wards stored and pledged by such agents, who tion of fact for the jury. -Chautauqua Lake
became insolvent, held the property of the buy-

Mills v. Hewes (Co. Ct.) 1026.
as against the warehouseman pledgee.- 8. 4. Remedies of buyer.
Schwab v. Oatman (Sup.) 741.

*A purchaser under an executory sale may
* The rule that a bona fide purchaser of prop- have an action for breach of the contract as
erty for a valuable consideration, in the course

well as for a breach of warranty or_upon a
of trade, without notice of an adverse claim, rescinded contract.–Tomkins v. J. & R. Lamb
will be protected against the original owner,

(Sup.) 6.
only applies where the latter has, by his own In case of breach of a contract of sale and re-
voluntary act, conferred on the seller an appar- jection of the article paid for, the purchaser is
ent right to the property as owner or of dispos- entitled to recover its value without regard to
al as an agent.--Schwab v. Oatman (Sup.) 741. the price or the value of the article delivered

*Point annotated. See syllabus.
106 N.Y.S.-77


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