ing that the assignment was shown not to have been made in fraud of credit-
ors, granted the plaintiff relief against the wife and the insurance company
upon the second ground. Bryan v. Madden, 638.

See Banks; Executors and Administrators.

BANKS.

1. Stockholder's liability — When payment of principal does not discharge
interest-Demand excused by debtor's insolvency.- Payment to a depositor
of an insolvent State bank in the hands of a receiver, by various dividends of
the full amount due at the time of its closing for the deposit and contractual
interest thereon does not relieve a stockholder from proportionate individual
liability, to the extent of the amount of his stock at the par value thereof, to
the depositor for interest upon the unpaid balances of this sum from the time
of the closing of the bank down to the time of the payment of the last divi-
dend. It is unnecessary and useless that a creditor should before suit demand
of an insolvent bank payment of his claim against it. Parker v. Adams, 325.

-

2. National Action by receiver to collect a second assessment on stock ·
Defense that the first assessment would have been sufficient had not the re-
ceiver been dilatory and negligent Statute of Limitations.- In an action
by the receiver of a national bank, located in Texas, against a domestic stock-
holder, to recover a second assessment of nineteen per cent. levied on his stock
in 1898 by the comptroller of the currency and made necessary by interest and
expenses, it appeared that the defendant had paid an assessment of thirty-five
per cent. levied in 1894, that the receiver collected only one-quarter of this
first assessment, that had he in 1895 collected all of that assessment and real-
ized on the assets, all the debts as then existing might have been paid, that it
did not appear that he could have done this, and that although he subsequently
sold a large amount of the assets for about nine per cent. of their face value,
he had acted in so doing under an order of the Federal court. Held, that the
above facts did not constitute a defense. The time within which such an
action must be brought is three years (Code C. P., § 394), reckoning, not from
the date when the bank suspended payment, but from the time when the comp-
troller of the currency declared the entire liability, or the particular portion
of it, to be due. Beckham v. Hague, 606.

BENEFIT SOCIETIES.

1. Right of illegitimate children to recover as “dependents ".- Illegitimate
children of a man insured in a benefit order, described by him in the applica-
tion as his adopted children and whom he had supported for years at the home
of their mother, are entitled upon his death to recover under a certificate lim-
ited as to beneficiaries to wife, children, dependents or blood relatives, as
they are "dependents." Hanley v. Supreme Tent, 161.

66

2. Illegal suspension of member.—Where the by-laws of a benefit order pro-
vide that a member accused of having become intemperate after joining the
order shall before suspension therefor have full opportunity for defense and
may be represented on the trial by counsel, a suspension, amounting to an ex-
pulsion, is illegal where it is made without notice to the member of the hear-
ing of the charges against him and where his subsequent appeals to higher
courts of the order are determined by them without notice to him of the hear-
ings. Fay v. Supreme Tent, 427.

3. Death before membership became complete · Waiver and estoppel.-
Where membership in a benefit society is stipulated not to be in force until a
certificate of membership has been delivered to the applicant during his life
and while in good health, his death before such a certificate has even been
mailed to him by the society absolutely precludes him from ever having been
a member in contemplation of law. Where a contract of membership has never
had a valid inception the doctrines of waiver and of estoppel cannot apply to
it. Roblee v. Masonic Life Assn., 481.

4. Distribution of a relief fund, in this State, impressed with a trust for
certain classes of persons — Rights of foreign and domestic receivers.— A relief
fund, on deposit in a bank in the State of New York, belonging to a foreign
benefit order and by its constitution, by-laws and certificate of membership
expressly secured to members disabled and, in case of death, to beneficiaries,
is impressed with a trust for those purposes and so remains where the order,
upon its insolvency, passes into the hands of a receiver appointed in the for.
eign State. The fund, when insufficient to pay all, must be distributed pro rata
among the disabled members and beneficiaries, wherever resident, whose claims
had been allowed when the receiver was appointed. No preference in distribu
tion should be given or can, by attachment in this State, be gained by cred
itors residing here; nor should any preference be given, as against each other,
to persons who belong to the same grade or class as established by the con-
stitution, laws and regulations of the order. Where receivers of the order
have also been appointed in this State, the court may protect domestic cred-
itors to the extent of directing the deposit in question to be paid to the New
York receivers, they, after deducting the expenses of their receivership to pay
the balance to the foreign receiver, he to give a bond to distribute it upon the
principles above stated. National Park Bank v. Clark, 558.

5. Benefit insurance ·Exempt from execution by L. 1901, ch. 397.-The
provisions of L. 1901, ch. 397, exempt from execution moneys held by benefit
societies and due a widow as beneficiary of her husband. The court therefore
has no power to direct the societies to pay over the moneys on an execution
issued upon a judgment recovered against the widow by a creditor. Ettenson
v. Schwartz, 669.

See Associations.

BILL OF PARTICULARS.

Divorce.-A wife charged by her husband with adultery, is entitled to a
bill of particulars showing with precision the time, place and circumstances
of each of her alleged acts of adultery. Hunter v. Hunter, 672.

BOARDS OF HEALTH.

New York city - Provision of Sanitary Code as to the escape of smoke.—
A violation of that provision of the Sanitary Code of the city of New York
which forbids any one from allowing smoke to escape or be discharged from
his premises is not made out by simple proof that smoke did escape as it must
also appear that such escape was detrimental or annoying to some person.
Department of Health v. Philip & William Ebling Brewing Co., 537.

BONDS.

Husband and wife-Contract for her maintenance after separation.-
Where persons, married in the State of New York, after separating bring in
this and another State actions for divorce and the wife discontinues her action
in this State and releases her husband upon his giving her a bond to pay her
a certain amount weekly for her support and that of their child in her cus-
tody, and the husband subsequently secures a divorce in his action in a foreign
State, she may enforce the bond in equity and probably at law, under Laws
1896, chapter 272, section 21, as the bond is not a contract "to alter or dis-
solve the marriage or to relieve the husband from his liability to support his
wife." France v. France, 459.

BOUNDARIES.

1. Marketable title-Boundary line. The establishment of a boundary
line between two lots, and its practical maintenance for more than twenty
years, conclude any question as to its correct position unless, when it was orig
inally placed, the intention to fix it was absent. Wentworth v. Braun, 702.

2. When it excludes an abutting road.- A mortgagee's release of a plot,
making part of a tract shown on a map made by the mortgagor as intersected

by roads, describing it by metes and bounds and making one course run "to the
West side of a private road" shown on said map and the next course thence
North along the same to" another point, does not release the land in the road
or give the person receiving the release any rights in or over the road. Queens
County Savings Bank v. Graham, 711.

CALENDAR.

1. Preference of an action for libel, in the First Department Code C. P.,
8791, subd. 11.-The statutory preference on the calendar given an action for
libel will not, in the First Judicial Department, be permitted to advance such
an action over issues noticed for trial at prior trial terms, and to secure such
a result some additional reason must appear. Such an action is, otherwise,
only entitled to a preference over other issues of the same term as that for
which it is noticed. Eising v. Young, 12.

-

2. Preference of an action by a trustee in bankruptcy, in the First Depart
ment Code C. P., § 791, subd. 5.- The statutory preference given an action
brought by a trustee in bankruptcy as sole plaintiff will not, in the First Ju-
dicial Department, be permitted to advance such an action over issues noticed
for trial at prior trial terms, and to secure such a result some additional
reason must appear. Such an action is, otherwise, only entitled to a preference
over other issues of the same term as that for which it is noticed. Davis v.
Westervelt, 13.

3. Preference, under Code C. P., § 791, in the county of New York.— The
rule, that, in motions made in the county of New York under Code C. P., § 791,
some other fact, than that the action is one specified in said section, must be
shown to justify a preference of it over other issues noticed for trial for prior
terms, is satisfied where a sole plaintiff, suing as administratrix, alleges by
affidavit that she was absolutely dependent upon her intestate for support
and that by his death, caused as alleged by the negligence of the defendant, she
is left without any means except such as she can obtain from the charity of
friends. Dooley v. Paget, 44.

-

4. Waiver of preference, under Code C. P., § 791, in the county of New York.
Where a sole plaintiff, suing as administratrix in an action triable in the
county of New York, serves, for the April term, 1902, a notice of trial and a
notice of motion for a preference on the calendar under Code C. P., § 791, and
they are neither withdrawn nor acted upon at the commencement of that term,
she cannot obtain a preference by serving similar papers for the May term,
1902, as her failure to make that motion at the commencement of the April
term operated as a waiver of her right to a preference. Emerick v. Metropol-
itan St. R. Co., 45.

CANALS.

Corporation · Discontinuance of a canal affected by the public interest.—
The act (L. 1899, ch. 469, §§ 3, 4) empowering the Delaware & Hudson Canal
Company to discontinue the use of the canal which it long ago constructed
between the Delaware and Hudson rivers contemplated an actual physical dis-
continuance and one made upon a vote of the managers of the said company,
and therefore, as against a corporation entitled to use a part of the canal so
long as that part remains a canal, no legal or effectual discontinuance is
brought about by the mere posting, by a mesne grantee of the Delaware & Hud-
son Canal Company, along that part of the canal of notices stating that the
canal is private property, has been closed to the public use and that trespass-
ing is forbidden under penalty of the law. New York Cement Co. v. Consoli-
dated Rosendale Cement Co., 518.

CARRIERS.

1. When the consignor may suc- Storage of goods, for fifty-two days, by
the carrier as warehouseman after a qualified rejection of them. The pre-
sumption that the consignee of goods is their owner may be rebutted and if

-

in an action brought by the consignor against the carrier for nondelivery or
loss or injury to the goods, that presumption be overcome, the action is prop-
erly brought in the consignor's name. The consignor and manufacturer of a
suit of clothes to be made to order for the consignee and be subject to his in-
spection in a distant city before acceptance has until acceptance all the title
and must take the risk of transportation, and therefore he or his assignee may
sue the carrier if he has against it a cause of action arising out of the trans-
portation of the goods. Where, however, the carrier tenders the goods to the
consignee and he refuses then to accept them but says that he will shortly call
for them, and the carrier as warehouseman stores them for fifty-two days,
and the consignee then absolutely rejects them, and the consignor upon being
promptly informed of this refuses to order their return, on the ground that
they are no longer of any use to him, neither he nor his assignee can recover
of the carrier as for negligence or on any other ground. Levy v. Weir, 361.

-

2. Presumption of knowledge of the contents of the bill of lading — Negli-
gence where liability is limited by the bill.- Consignors who accept a bill of
lading from a common carrier are presumed to know the contents of the bill
whether or not they read it. Where it stipulates against liability for any
loss by "wet", the consignors must show affirmatively that their alleged loss
by wet occurred from negligent wetting, and that is not proved by evidence
that the goods were wet when delivered to them and were two days beyond
the usual time in being delivered. Dobson v. Central R. R. Co., 582.

CERTIORARI.

See Taxes.

CHILDREN.

See Benefit Societies.

CITY OF NEW YORK.

1. Construction of ordinances relative to hacks in front of a hotel. Section
453 of the revised ordinances of the city of New York, imposing a fine of ten
dollars on the "owner or driver of any hackney coach or cab, which shall stand
waiting for employment at any other place than as herein provided (mean.
ing thereby public hack stands and in front of private premises upon consent
of the owner and a special permit from the city), is valid. In view of it, liv
erymen, who by agreement with and the consent of the proprietor of a hotel in
the borough of Manhattan but without permission from the city of New York
keep cabs in front of his hotel for hire by his guests, are subject to the fine,
where, although they have paid the usual yearly license fee of three dollars
for each cab as a "special hack", they have not paid the additional special
license fee of twenty-five dollars required by sections 12 and 13 of the general
ordinances of the city, approved May 22, 1899, "for each hack allowed any
stand other than a public hack stand". Said sections 12 and 13 are valid al-
though they permit the temporary use by hacks or cabs of a portion of the
street in front of the hotel, as the city has power to regulate the number of
them which shall stand in front of a hotel. The payment of the fee of twenty-
five dollars does not necessarily carry to the licensee the exclusive use of the
stand. The proprietor of a hotel in the borough of Manhattan has no more
right to use the street in front of his hotel as a carriage stand for hire than
have the liverymen and hence although the latter obtain the consent of the
former to such use they still lack the consent of the city and for that con-
sent it may subsequently exact a license fee. Under such an agreement the
liverymen are not the agents of the hotel proprietor in carrying on the car-
riage service of the hotel and his consent does not carry to them whatever right
he may have to use the street as a carriage stand. City of New York v. Rees-
ing, 129.

2. Scope of the discretion of the city comptroller in auditing a county charge
of the district attorney - Expenses incurred by a "county detective" in secur
ing evidence of violations of the Liquor Tax Law- - L. 1897, ch. 378, § 1583.-

-

CITY OF NEW YORK-Continued.

The district attorney of the county of New York has power to authorize,
within the appropriation allowed his office, an expenditure of $54.30 made at
his instance by a "county detective" in purchasing liquors for himself and
associates at various saloons in a police precinct to secure evidence of viola-
tions there of the Liquor Tax Law, upon which the district attorney proposes
to prosecute the captain of the precinct for wilful neglect of duty in having
wilfully failed and neglected to take means to prevent such violations and ar-
rest offenders. Such an expenditure of public moneys is not against public
policy. Under the city charter (Laws of 1897, chap. 378, § 1583) the power
and discretion of the city comptroller in auditing county charges of the dis
trict attorney, if directly related to the management of his office, extend only
to the "reasonableness thereof," meaning thereby in amount, and consequently
the city comptroller is not justified in refusing audit merely because he deems
the expenditure an incentive to crime, or the services performable by the regu
lar police force, or beyond the scope of the district attorney's powers, or unnec-
essary because the violations might as he thinks have been established with-
out purchase of the liquors. People ex rel. McLennan v. Grout, 181.

3. Pay of medical officers of the fire department who had served the former
city of New York-L. 1897, ch. 378, § 740.- The charter of the city of New
York (L. 1897, ch. 378, § 740), declaring that the pay or compensation of the
officers of the fire department should be and remain fixed at the amount which
they were receiving or were entitled to receive from the municipal corporation
in whose employ they were prior to the taking effect of said statute determines
the salary of medical oflicers of the fire department of the former city who
have been retained by the present city, whether or not they were entitled to be
classed as members of the " uniformed force" of the former city, and therefore
their contention that certain acts of the fire commissioners and board of esti-
mate and apportionment of the former city, done in 1897, had increased their
salary from the present city beyond the sum they received from the former city
is untenable and the said acts can be given no effect. Lyons v. City of New
York, 253.

4. Definition of an "aisle" in a city theatre as used in L. 1897, ch. 378,
762. The word "aisle" as used in the charter of the city of New York
(L. 1897, chap. 378, § 762) means the aisle of a theatre in said city as actually
constructed and as in present use and does not mean a theoretical aisle of the
minimum width permissible under the Building Code of said city; and conse-
quently the manager of a theatre in said city subjects himself to the penalty
imposed by section 773 of said charter if he permits patrons to occupy stools
and chairs in a side aisle, of his theatre, as constructed and refuses to re-
move them when duly notified to do so. Sturgis v. Coleman, 302.

5. Status of a mechanic in the street cleaning department.-In view of the
provisions of the charter of the city of New York (L. 1897, ch. 378, § 536), au-
thorizing the commissioner of the department of street cleaning to appoint such
and so many mechanics and helpers as may be necessary, their aggregate sal-
aries, however, not to exceed in any year the amount appropriated therefor by
the city, a person appointed as a mason in said department has no right to con-
tinuous employment, and therefore, where the commissioner lays him off or puts
him on half time in order to keep the expenses within the appropriation or be-
cause there is no work for him to do, he cannot subsequently recover of the city
for the periods during which he was willing to work but was not permitted to
do so, and particularly where he assented to the commissioner's acts. Dris-
coll v.
City of New York, 453.

6. Revisory power of the board of estimate and apportionment L. 1901,
ch. 466, §§ 243, 980.-The board of estimate and apportionment of the city
of New York has power to revise or alter, once for all, determinations of its
predecessor, the board of public improvements, relative to apportioning the
expense of street openings between the city and the property benefited, made
in December 1901 during the last days of the existence of said board. While