See Executors and Administrators; Guardians; Trustees.
1. To cancel judgment— Guaranty of payment — Merger · Rate of interest.
Where the holder of a note made in, and secured by a mortgage on land in,
another State, recovers judgment in the State of New York against a guar-
antor of the payment of the note, the remedy of the holder against the maker
and his land is merged in the judgment, bearing 6 per cent. interest, and there-
fore where the holder subsequently forecloses the mortgage on the land in the
foreign State and buys it in at a price which covers his debt, the guarantor is
entitled to maintain an action here to have the New York judgment cancelled,
and the holder of the note is not entitled to compute interest, on that judgment
up to the time of the sale and foreclosure, at 12 per cent., the legal rate of the
foreign State. Taylor v. Simpkins, 246.
2. Vendor and purchaser — After a contract for the sale of land has been
made easements appurtenant thereto belong to the vendee and the vendor must
account for their value.- Where owners of land abutting on an elevated rail-
road contract to sell it, moneys which they receive, intermediate the making of
the contract and the delivery of the deed, from the railroad for easements ap-
purtenant to the land belong to the purchaser and his assignee may maintain
an action against the vendors to impress a trust therefor upon such moneys.
Marvin v. Bernheimer, 344.
ADVERTISEMENT.
See Foreclosure.
AFFIDAVIT.
See Arrest; Attachment.
1. Several liability of agent and of undisclosed principal when disclosed.-
An agent for an undisclosed principal, and the latter when disclosed, are sev-
erally liable on a contract made by the agent within the scope of his employ-
ment, and there is no misjoinder of causes of action where both are sued on
such a contract in the same action. Tew v. Wolfsohn, 54.
2. Principal and agent. The principal, by suing the agent for the moneys,
does not ratify the agent's collection of them but, on the contrary, repudiates
it. Holland Coffee Co. v. Johnson, 187.
1. Sale of adulterated milk.- A violation of that part of the Agricultural
Law (L. 1893, chap. 338) which forbids the sale or exposure for sale of impure
or adulterated milk is not shown by testimony of State inspectors that when
they stopped the driver of the truck carrying the milk he stated to them that
he was then on his way to deliver it to certain places in the city of New York
- where there is no proof that it was ever delivered there or anywhere. The
defendant's evidence that he tested the milk before sending it out to customers
falls short of proving a sale or an exposure for sale. People v. McDermott-
Bunger Dairy Co., 365.
2. Penalty for using oleomargarine in a restaurant — Proof.—The keeper
or proprietor of a restaurant who keeps, uses and serves for food, to his guests,
customers and patrons, and for cooking, an article known as oleomargarine,
made in imitation or semblance of butter produced from unadulterated milk
or cream, subjects himself to the penalty imposed therefor by the Agricultural
Law (L. 1893, chap. 338, §§ 26, 27, 28) and it need not be alleged or proved by
the plaintiff that the article in question was kept, used or served as butter
by said keeper or proprietor. Testimony that it had the appearance of butter
is admissible upon the part of the plaintiff. People v. Berwind, 315.
1. In the City Court of the city of New York.- Where the Special Term of
the City Court of the city of New York grants a motion for judgment on an
amended answer as frivolous and judgment is entered on the order granting
the relief, the defendant may appeal to the General Term of said court but,
after entry of judgment, should appeal from it only. Where he appeals from
both the order and the judgment and incorporates the order in his notice of
appeal the order is brought up for review, the question brought before said
General Term by the combined appeal is one of law, and from its determina-
tion, vacating the order and reversing the judgment, the plaintiff may appeal
to the Appellate Term. Halliday v. Barber, 116.
2. Transfer tax ·Decree not modified for an error of law where no appeal
was taken in time.- Where, after the time to appeal from a decree fixing the
transfer tax upon an estate has expired, the Court of Appeals decides in an-
other matter that a tax should not be laid upon the commissions of the trus-
tees of the estate, they cannot have the decree modified as the mistake is not
one of fact and an error of law in the decree must be reviewed by an appeal
from it. Matter of Silliman, 226.
3. Transfer tax — Finality of surrogate's determination.— Where a surro-
gate has determined the cash value of an estate for the purposes of the transfer
tax he has no power to modify his determination in order to allow the executor
the amount of a judgment subsequently recovered against the estate by suit
after he had rejected the claim, another claim presented against the estate
after the appraisal and certain expenses of administration. An appeal from
such a determination must be taken within sixty days from the time when
it was made, whether or not the surrogate has performed his statutory duty
of immediately giving notice to all parties known to be interested in the estate
of the tax imposed thereon. Matter of Connelly, 466.
4. Papers defective under Code C. P., § 1351.- The provisions of Code C. P.,
§ 1351, relative to appeals to the Appellate Division, declaring that the appeal
must be taken within thirty days after service, upon the attorney for the appel-
lant, of a copy of the judgment or order appealed from, and a written notice
of the entry thereof, must have strict compliance. Where the copy, served, of
an interlocutory judgment varied from the original in that it did not purport
to be under seal, was of a slightly different date, gave the clerk's name as
"Thomas L. Hamilton" instead of "Thos. L. Hamilton", and the required
notice of entry merely stated that the judgment was
"filed in the office of
the clerk, the court held that the time to appeal was not limited by the papers
served. Gabay v. Doane, 661.
See Contempt; Jurisdiction.
APPELLATE DIVISION.
See Appeal.
APPELLATE TERM.
See Appeal.
Review of award.- An award of an arbitrator can be attacked only on the
grounds stated in Code C. P., §§ 2374, 2375, and the merits cannot be rein-
vestigated. Where the arbitrator has honestly decided the case and consist-
ently with the legal principles which he adopted and believed to be the law,
equity cannot review his award for alleged mistakes of law. Dobson v. Cen-
tral R. R. Co., 582.
1. Order of Motion to vacate on original papers, how made in the First
Judicial District - Code C. P., §§ 568, 769.- A motion to vacate an order of
arrest, made in an action triable in the First Judicial District, upon the papers
on which it was granted may be made before a judge in that district other than
the one who granted the order. Section 568 of the Code of Civil Procedure,
when read in connection with section 769 thereof, means that an application to
vacate an order of arrest founded only upon the papers on which the order was
granted must, when made to the court, be upon notice, but, when made to the
judge who granted the order, may be upon or without notice as he may deem
proper. Skinner Manufacturing Co. v. Fagenson, 121.
2. Affidavit for order to arrest agent - Fraud - - Order when vacated.—
Where a principal seeks an order of arrest against his agent for moneys col-
lected of customers and not returned, he should make direct proof of the pay-
ments to the agent or excuse the failure to do so, and where he does neither
in his affidavit, for the order, it is insufficient. The principal cannot procure
an order of arrest on allegations that the agent fraudulently extended credit
to a customer, fraudulently represented to him that he had authority to receipt
the bill and received in exchange therefor a suit of clothes made for him by the
customer, as the fraud, if any, was committed upon the customer only. An
order of arrest, granted on two causes of action, must be vacated where it
includes one cause of action upon which the defendant is not liable to arrest.
Holland Coffee Co. v. Johnson, 187.
3. Order of Not granted, in divorce, on an affidavit where there is no com-
plaint in existence – Code C. P., $$ 550, 557.- An order of arrest cannot be
granted in an action for divorce upon an affidavit alone where no complaint is
in existence, as Code C. P., § 550, requires proof of the judgment demanded.
Such proof is not afforded by the facts that the summons states the action to
be one for absolute divorce and that the affidavit demands alimony. Lichstrahl
v. Lichstrahl, 331.
Consideration.-Assignments, having scroll seals and reciting that they were
made for value received, must, in the absence of proof to the contrary, be
deemed to nave been made for a good consideration. McDonough v. Ætna
Life Ins. Co., 625.
Insurance by assessment — Right to increase the rate of a death benefit from
that of the age of entry to that of the age attained.— A certificate of member-
ship in an assessment insurance association, which made the constitution and
by-laws a part of the contract, provided that a death benefit assessment should
be made at such rates "according to the age of each member ", as the directors
might establish. The constitution provided that such an assessment should be
apportioned among the members as per the rates named in the certificate of
membership", referring to a table of rates annexed thereto. A member, whose
age at entry was forty-three years, was assessed for a death benefit at the rate
of his attained age, fifty-five years, and, refusing to pay, his policy was can-
celled. Held, that the action of the association was justifiable and that it had
a right to increase the rate of the age of entry to that of the age attained.
Crosby v. Mutual Reserve Fund Life Assn., 708.
Affidavit-Proof of defendant's nonresidence - The damage must be ascer·
tainable where the damages are unliquidated. An attachment may properly
be granted against a nonresident of the State of New York upon the plaintiff's
affidavit that "the defendant is not a resident of this State, but resides at
No. 37 Montcalm street east, in the city of Detroit, State of Michigan, as de-
ponent is informed by Gerhard G. Jansen, whose affidavit is hereto annexed,
showing that the said defendant is a resident of said State and now resides at
the aforesaid address". The affidavit of Jansen when annexed, although not
sufficiently authenticated to secure its admission in evidence in our courts,
may properly be considered, on a motion to vacate the attachment on the
papers upon which it was granted, as constituting the source from which the
plaintiff derived the information which she alleged in her affidavit. Where
the claim is for unliquidated damages the moving papers must set forth facts
from which a conclusion can properly be drawn that the plaintiff has been
damaged in a sum ascertainable. Mallon v. Rothschild, 8.
See Bankruptcy; Master and Servant; Trespass.
1. Lien under Code C. P., § 66 Variance.- Where a mortgagee dies before
entry of judgment in actions for foreclosure and his executrix employs another
attorney to continue the actions to judgment, and she buys the mortgaged
property in, the original attorney may, under Code C. P., § 66, maintain an
equitable action against her as executrix to have his services declared a lien
upon the mortgaged property, and this irrespective of the question whether he
has an adequate remedy at law. The variance, that the original attorney de-
clared on his contract of employment and recovered as upon a quantum meruit,
is not material. Skinner v. Busse, 265.
2. Equitable lien refused.— An alleged equitable lien of attorneys for ser-
vices, rendered an executor under a written agreement made by them with him
before he became such, will not be enforced against a bank, having on deposit
moneys of the estate, or against a company, his surety, having possession of
checks drawn by him for payments, which he agreed to make before he became
executor, to the widow of the testator who had threatened to contest the will,
to another woman who also claimed as widow, to his attorneys and to himself,
where the lien of the attorneys is evidently only against his share, where that
share is only one-third, where its amount cannot presently be determined, where
the proposed scheme out of which such written agreement arose, was an at-
tempt to anticipate the orderly settlement of the estate in derogation of the
rights of other creditors and legatees, and where the scheme, if carried out,
might have led to a devastavit of the estate. Kerngood v. Jack, 309.
3. Attorney and client — Action by the former against the latter.- An at-
torney who seeks justice of his client must come into court with hands abso-
lutely clean, and the court will not inquire whether there has been a pecuniary
consideration for any agreement he has entered into with his client or whether
there has been any fraud. Where a client, upon exchanging his mortgaged
farm for another belonging to one Martin and mortgaged in the same amount,
each party to assume the mortgage existing on the farm conveyed to him, is
advised by his attorney, holding the mortgage upon the client's farm, that it
is not necessary for the attorney to give the client a release from his liability
upon the accompanying bond, that the attorney takes Martin in the client's
place, that that releases the client, and that the attorney will fix it in the
deed so that the client will be discharged, the attorney cannot, where he fails
to keep this agreement and the client pays the mortgage on the farm he took
from Martin, subsequently sue the client, on the bond accompanying his mort-
gage, for the debt. Aiken v. Van Wert, 379.
See Supplementary Proceedings.
ATTORNEY AND CLIENT.
See Attorneys.
Deposit, made in lieu thereof, not available to the creditor in a civil action
-Disposition of deposit where it has been released.- A deposit made in lieu
of bail by one indicted for the grand larceny of money cannot be reached in a
civil action by the creditor whose money was feloniously taken as the deposit
is answerable only for the appearance of the accused at the trial and for any
fine that may be imposed as a result thereof. Where the bail is discharged and
the deposit is released after the failure of the jury to agree upon the trial of
the indictment, the deposit must be refunded to the accused although a third
party actually furnished it. People ex rel. Meyer v. Gould, 505.
1. Private banker - Guilty of fraud if he accepts trust moneys for trans-
mission when he knows he is insolvent and cannot repay them Debt not dis-
charged in bankruptcy.- A private banker who, while knowing himself to be
insolvent, accepts trust moneys from one person for the special purpose of
transmitting them to others at a distance, thereupon issues in favor of those
entitled to the moneys checks for the moneys and does not pay the checks when
presented, is guilty of fraud and therefore is not, under the Bankruptcy Law
of 1898, § 17, subd. 4, discharged from liability to the purchaser of the checks
by the fact that the banker was subsequently discharged in bankruptcy and
that his schedules included the debt. Predmore v. Torrey, 127.
2. Law of 1898 - Debt secured by an attachment not provable Trustee's
title defeated by insufficient number of petitioning creditors.- A debt is not
provable in bankruptcy where the creditor is then maintaining in a State court
an attachment against the property of his debtor, the debt being deemed a pref-
erence under such circumstances. Where such a creditor is one of the three
creditors who must petition that the debtor be adjudicated a bankrupt, in a
case where there are more than twelve creditors, the title of the trustee in
bankruptcy fails as the sufficiency of the number of creditors is a jurisdictional
fact and it may be questioned. It may be questioned by senior attachment
creditors of the bankrupt- provided they did not appear on the adjudication
-in order to defeat the trustee's attempt to vacate their attachment. Buck
ingham v. Schuylkill Plush & Silk Co., 306.
3. Complaint by the trustee's mesne assignee to set aside a transfer made
by the bankrupt to his wife as in fraud of creditors and also as an illegal pref-
erence. A complaint, by a mesne assignee of a trustee in bankruptcy who
sold under an order of the Federal court the interest of the bankrupt in certain
contracts securing to him commissions as an insurance agent and which con-
tracts he had before voluntary bankruptcy assigned to his wife, seeking, in
the same cause of action, to set aside this latter assignment, first, as in fraud
of creditors and, second, as an illegal preference under the Bankruptcy Act of
1898, was deemed not to allege inconsistent claims, and the court, after hold-
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