CODE OF CIVIL PROCEDURE-Continued.
Examination before trial of an officer of a defendant corpora-
tion - he cannot assert the dissolution of the corporation as a reason for staying
his examination.
See STERNE v. METROPOLITAN TEL. Co. (No. 2)..
$ 1759 The amendment of 1895 to section 1759 of the Code of Civil
Procedure is not retrospective, and gives to the court no power to modify a judg
ment entered before its enactment.
See HAUSCHELD . HAUSCHELD.
1913-Judgment — a money judgment only can be sued upon under
Code C. P. 1913-what is not a money judgment.
See MATTER OF VAN BEUREN..
§ 2125 - Town board of audit· -a claim rejected for informality may
be again presented its further rejection may be reviewed by a writ of certiorari,
served within four months, but after the adjournment of the board.
See PEOPLE EX REL. ANDRUS v. TOWN AUDITORS.....
$ 2350 Infant-petition for the sale of an infant's real estate·
irregular — when the petition is that of the guardian and not that of the infant.
See MATTER OF HOPKINS..
- § 2471a- - City of Hornellsville — proceeding to compel the delivery of the
books of the city clerk- when the vote of the mayor for a city clerk is not to be
counted prima facie evidence of appointment to that office.
See MATTER OF DUDLEY.
- Surrogate's Court-power of, to open a decree, more than two
years after its entry, because of an arithmetical error.
See MATTER OF HENDERSON..
$3234 Costs—recovery by the plaintiffs on but one of two causes of
action alleged in the complaint when the defendant is not entitled to costs of
the other cause of action.
§ 3296-New York city-fees of commissioners of assessment for serv-
ices rendered, after the new charter went into effect, in proceedings previously
instituted chapter 21 of chapter 378 of 1897 does not apply to street openings,
and is not retrospective.
§ 3343, subd. 12-Attachment - annulment of, by the entry of a judg
ment in favor of the defendant — the annulment is suspended where an appeal is
taken and a stay given.
[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]
CODE OF CRIMINAL PROCEDURE § 177 - Base ball playing on Sun-
day-duty of police commissioners to arrest the players although no warrant is
issued.
[See table of sections of the Code of Criminal Procedure cited, ante, in
this volume.]
COLLATERAL- To secure an indebtedness.
See DEBTOR AND CREDITOR.
COLLATERAL INHERITANCE TAX:
COLLEGE POINT- New York city-members of the police force of the vil
lage of College Point, appointed after the passage of the Greater New York
charter and before January 1, 1898, are entitled to positions on the police force
of the new city.
See PEOPLE EX REL. WOHLFARTH . YORK................
COMMISSIONERS OF FISHERIES, GAME AND FORESTS - The
use, without license, of nets beyond the mile limit in Lake Ontario - the estab-
lishment of rules and regulations is a condition precedent to the obligation to
obtain such license — judicial notice of rules appearing in the bound colume of the
Session Laws.
COMMITTEE - Of an insane person.
See INSANE.
COMMON CARRIER:
See CARRIER.
COMPENSATION - Of commissioners of assessment for services rendered,
after the new charter went into effect, in proceedings previously instituted in the
city of New York.
See MUNICIPAL CORPORATION.
COMPETITION — An agreement between the receivers of a railroad company
and a trustee of a mortgage given by it to secure its bonds, to prevent competition
at a foreclosure sale, is void.
See CONTRACT.
COMPLAINT:
See PLEADING.
COMPROMISE - Assignee for the benefit of creditors — authority of, to com-
promise a lease of his assignor for an unexpired term.
CONCEALMENT - - In an application for insurance.
See INSURANCE.
See SALE.
CONFESSION :
See ADMISSION.
CONFLICT OF LAWS- Foreign corporation · an instrument transferring
its property to a trustee who is to pay the proceeds to such of its creditors as
accept the conditions imposed — invalid under the New York Statute of Frauds,
as in fraud of creditors, although valid in the foreign State· -rights of New
York creditors-pleading the Statute of Frauds, when unnecessary.
See DEARING v. MCKINNON DASH & H. Co.....
CONSTITUTIONAL LAW Greater New York charter-section 1351
thereof relating to the Municipal Court of New York city-it contemplates the
erection of a distinctly new local court, not of record the Legislature may pre-
scribe the method of appointing or electing its justices — they must be elected in
odd years.
Poncer of the Legislature to delegate to a municipality the power to author-
ize a sealer of weights and measures to charge for unsolicited services.
See FORD v. N. Y. CENTRAL & H. R. R. R. Co...
Limitation of action - the period of limitation cannot be so shortened as
Of statutes.
See SESSION LAWS.
See STATUTE.
Of wills.
See WILL.
CONTRACT For the building of a boat to be completed at a certain time·
imposition of a per diem penalty for delay-insolvency of the vendor-effect
of the vendee's taking the unfinished boat from the assignee of the vendor.] 1.
A contract was made by an engineering company with a steamboat com
pany to build and deliver to the latter a steamboat which was to be finished
on or before August 22, 1893, and to be paid for by the steamboat company
by installments, the contract providing that if the engineering company
should not complete the steamer on or before the 22d of August, 1893, it
should forfeit to the steamboat company the sum of $100 damages for each
day's delay, and that, if the steamer should not be completed within two
months after that time the steamboat company might accept or reject her
upon completion, and that if it did reject her the engineering company
should pay to the steamboat company all sums which the former had received
under such agreement.
The engineering company entered upon the construction of the boat and
continued such work until August 30, 1893, receiving on account thereof from
the steamboat company $42,500, at which date the boat had been launched,
but she was never completed by the engineering company, which made a gen-
eral assignment on August 30, 1893, and the boat, which was then unfinished,
passed into the hands of the assignee who had no power to complete the boat,
being required by the terms of the assignment to sell it and apply the pro-
ceeds to the payment of the engineering company's debts. The boat remained
in the hands of the assignee in its unfinished state until October 9, 1893, when
it was taken away by the steamboat company.
In an action upon a bond given to the steamboat company by the engi-
neering company to secure the performance of the contract
Held, that, by the terms of the contract, the boat was required to be com-
pleted on the 22d day of August, 1893, that being a necessary inference
from the imposition of a penalty for the failure to have the boat constructed
at that date, although, after that time and until the twenty-second of Octo-
ber (two months later), the steamboat company would have been bound to
receive the boat if it had been completed and tendered to it;
That, until delivered to the steamboat company, the boat remained the
property of the engineering company, and that the title thereto passed to the
assignee of the latter company;
That, upon the execution of such assignment, it then being out of the
power of the engineering company (having parted with the title) or its
assignee (whose powers over the property were controlled by the assignment)
to complete the boat, the steamboat company was at liberty to regard the con-
tract as at an end, and that there arose a right of action in its behalf against
the sureties on the bond given by the engineering company;
That the subsequent taking of the boat by the steamboat company did not
operate as an acceptance of her under the contract, but at the most only went
to the question of damages. VANDEGRIFT v. COWLES ENGINEERING ČO....
2. Effect of a provision that in case of a breach of a contract a previous con-
tract should be revived — in case of a breach damages under the previous contract
charged against money advanced under the later one.] In an action brought to
recover money advanced by the plaintiff under a contract, which was never
completely carried out, the defendant alleged a breach of the contract by the
plaintiff, and set up certain counterclaims arising therefrom, and on the trial
it appeared that under an agreement of 1894 the defendant was to furnish
the plaintiff with certain magnolia metal, to be taken within a time specified
in the agreement, which further provided that if for any reason, the plain-
tiff should fail in carrying out the contract, any portion of the amount of
metal therein stipulated and ordered should not apply under a previous con-
tract of March 25, 1891, but that if the plaintiff should fail to accept delivery
or to make due payment therefor, the agreement should be terminated and
the contract of March 25, 1891, be then considered as still in existence, and
delivery of metal, as therein required, considered to be due from March 1,
1894.
Held, that, the plaintiff having been guilty of a breach of the agreement of
1894, the defendant was entitled to take advantage of the provision of that
agreement, under which, upon a failure of the plaintiff to comply with such
agreement, the contract of 1891 should be revived;
That the advance payment received by the defendant under the agree
ment of 1894 was subject to deduction in defendant's favor to the extent of
the damages suffered by the defendant by reason of the failure of the plain-
tiff to carry out the contract of 1891; the proper measure of which damages
would be the difference between the contract price of the metal during the
period of the 1891 contract and the cost of its production to the defendant;
That the fact that one of the members of the plaintiff's firm was not a
member thereof in 1891, was immaterial, for the reason that, by the agree-
ment of 1894, the firm, as then constituted, agreed, in the event of its failure
to accept metal ordered pursuant to the agreement of 1894, to consider metal
due from March 1, 1894, according to the terms of the 1891 contract;
That a counterclaim, based upon the failure of the plaintiff to receive metal
under the agreement of 1894, was not maintainable, for the reason that the
defendant, having elected to revive the contract of 1891, must look to the
damages arising thereunder, and could not have damages under both con-
tracts. LAWLOR v. MAGNOLIA METAL Co.......
3. Sale-tender of colored coffee-violation of the Health Law.] The
mere fact that coffee is colored is not of itself sufficient to make the sale of
it illegal under the provisions of section 41 of the Public Health Law (Chap.
661 of the Laws of 1893) prohibiting the sale of adulterated food, nor is
the intent with which the coloring is put upon the coffee of any importance.
CROSSMAN v. LURMAN..
4. Evidence of an expert effect of the decision of “graders” appointed
under the terms of the contract.] In an action brought to recover damages
because of the refusal of the defendant to complete a contract for the sale
of coffee, involving the question whether colored coffee was properly
deliverable thereunder, the testimony of a dealer in coffee, familiar with the
article and with the manner of dealing with it, and with the effect pro-
duced by coloring matter applied to coffees, is competent to show that the
effect of the artificial coloring of coffee, especially where the coloring matter
used is a ferric salt of a yellow color-as was the fact in the case at issue —
would be to enhance its apparent value or make it appear better than it
really was.
The fact that the party offering such testimony has been allowed to
introduce other testimony as to the effect of this coloring matter upon the
coffee, does not excuse the error of the court in the exclusion of further
testimony upon this subject; neither, in such an action, does the decision
of graders," to whom, under the terms of the contract, the matter of
grading was to be submitted, that, although the coffee delivered inder
such contract was artificially colored, yet it practically complied with that
provision of the contract requiring it to be above a stated standard grade,
preclude the purchaser from showing that, although the coffee was up to
grade, yet that, having been adulterated, by being colored in such a way as
to appear better than it really was, and of greater value, in contravention of
section 41 of the Public Health Law, such adulteration constituted a good
defense. Id.
5. Contract for the sale of an exclusive right to sell a certain book-
injunction to prevent the violation of the contract.] A party to whom a pub-
lishing company has sold the right to print and sell for three years from
plates, maps, charts and illustrations owned by the company a certain book,
the contract providing that the publishing company will not make a simi-
lar agreement with any other parties nor sell the work itself from the plates,
except in a manner specified in the contract, is entitled to an injunction
against such company and against a person with whom it has entered into a
contract, under which the plates of the book in question were sold to such
person without any limitation of the right to use them, restraining the sale
of the book in a way not permitted by the first-mentioned contract.
An assignee of the party with whom the first contract for the use of such
plates was made is also entitled to such an injunction, although the assign-
ment to him does not comply with a condition of a provision contained in
such contract conferring the right to assign it (it being claimed that the con-
tract was one in its nature not assignable), where it appears that the pub-
lishing company, after having acquired knowledge of the assignment,
permitted the assignee to proceed with the performance of the contract and
to incur considerable expense and liabilities in connection therewith, and
that the party with whom the publishing company made the second con-
tract was aware of such facts long before the execution of such contract.
STANDARD Aм. PUB. Co. v. METHODIST BOOK..
6. Contract providing "payments to be made on monthly estimates"
proof that monthly estimates were made is essential to a recovery thereon ·
ecidence of a custom in conflict with the contract is inadmissible.] A proposi-
tion to prepare plans and specifications for certain buildings, to formulate the
contracts for their construction and to supervise the work for the sum of
three per cent on the total cost of the work, was accepted in the following
form: Payments to be made on monthly estimates. Accepted, condi-
tioned upon this agreement terminating in twenty-four months from June
1, 1896," which acceptance was "agreed to" by the party making the
proposition.
Held, that the agreement clearly contemplated payments each month of
three per cent upon the estimated cost of each month's work, and that, in
an action brought to enforce payment for services rendered, the plaintiff
could not recover in the absence of evidence of any monthly estimates hav-
ing been made or of any fact entitling him to payment upon this construction
of the contract;
That evidence of a custom entitling architects, under contracts of this
general nature, upon the completion of the plans and specifications, to two
per cent of the total estimated cost of the work, being in direct conflict with
the written agreement of the parties, was incompetent.
DAVIS 2. NEW YORK STEAM Co....
Parol evidence is not admissible to vary an unambiguous written con-
tract.] Semble, that as the contract was unambiguous, testimony in regard to
conversations preceding and acccompanying the execution of the contract,
tending to show a contemporaneous parol agreement as to the time of pay-
ment analogous to that covered by the custom, was inadmissible. Id.
8. Contract for the continuing sale of goods—delivery to the purchaser by
a corporation succeeding the vendor· the question of notice of the change, by the
corporation to the purchaser, and of the existence of a new contract between the
parties, is one for the jury.] One A. S. Holmes entered into an individual
contract for the continuing sale and delivery of oil, against which he drew
drafts upon the purchaser in excess of the value of the oil so delivered up
to the date thereof; subsequently, no new or modified contract having been
entered into, oil was furnished to such purchaser by the A. S. Holmes Retin-
ing Company. In an action brought by the latter company to recover for
such oil which, subsequent to its incorporation, it had consigned to the pur-
chaser, the question arose under the evidence, whether, until after the oil in
question had been furnished, the purchaser had notice of the incorporation
of the company.
Held, that a question was presented for the jury whether the purchaser
had a right to assume that, when such oil was shipped, it was on account
of A. S. Holmes, and that A. S. Holmes and the A. S. Holmes Refining Com-
pany were the same; and whether the minds of the parties to the action ever
met on any new contract or arrangement different from the contract made
with Holmes. HOLMES REFINING Co. v. UNITED REFINERS' CO.......
9. Effect of changing a name in the transaction of business without expla-
nation to the other party.] It seems, that simply changing a name in the
transaction of business without explanation to the other party, and continu-
ing to transact the business the same as before the change, may justify the
APP. DIV.-VOL. XXXIII. 83
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