ATTORNEY AND CLIENT- Continued.
2. Money collected by an attorney on a claim and paid over by him to a
third person to whom the client had assigned the claim the client cannot recover
such money from the third person.] Among the claims which passed to an
assignee for the benefit of creditors was one in favor of his assignors against
an Indiana firm for $2,200. The assignee employed an Indiana lawyer to
collect the claim, and the latter, between June 23, 1897, and May 4, 1898, col-
lected $1,083.76 on account of the claim, and paid $238.50 thereof to the
assignee.
June 25, 1898, the assignee, pursuant to an order of the court, sold the
uncollected accounts held by him at public auction, the account against the
Indiana firm, which was listed at $2,036.54, being among those sold. All
the accounts were bid off by one Albee for $6.50. At the time of the sale
neither the assignee nor Albee knew that the Indiana attorney had collected
any more of the claim than the $238.50 already paid over. A month later
the Indiana attorney paid to Albee $610.50 on account of the moneys col-
lected by him.
Held, that the assignee was not entitled to recover from Albee the $610.50
thus paid over to him. CURTIS v. ALBEE...
3. Champerty-purchase of a chose in action by an attorney with intent
to sue thereon-the attorney's donee or assignee may enforce it for her own
benefit.] While an attorney who buys a chose in action for the purpose of
bringing any suit thereon cannot himself enforce the same, he acquires a
good title to the chose in action, which he may transfer to another either by
gift or for value, and his donee or assignee may enforce such chose in action
for her own benefit, although she was cognizant of the unlawful purpose
with which the attorney purchased it. BEERS v. WASHBOND
Presumption that it is enforced for the donee's or assignee's benefit.]
If it appears that the action brought by the attorney's donee or assignee is
brought in the interest of the attorney the court may refuse relief, but the
presumption in such a case is that the action is brought solely in the
interest of the donee or assignee, even though she be the wife of the
attorney. Id.
5. - Attorney's lien on a life insurance policy.] An attorney who
receives a policy of life insurance from the beneficiary named therein, after
the insured's death, with instructions to prepare and file the proofs of death
and take all necessary proceedings to collect the amount of the policy, has a
lien upon the insurance policy for the value of the services rendered by him
in connection therewith. MATTER OF SWEENEY
Proof of the attorney's employment.] What is sufficient evidence
of the attorney's employment to collect the policy, considered. Id.
7. - Attorney's compensation the result of his services is important.]
The result of a lawyer's services is a very important element in determining
their value, and one which should be taken into account on an application
to fix his compensation. TOWN OF HEMPSTEAD v. CITY OF NEW YORK.... 300
BANKING — When the Statute of Limitations begins to run against a cer-
tificate of deposit.] 1. A certificate of deposit by which the bank issuing it
agreed to pay the sum deposited to the order of the depositor, together
with interest, if the deposit was permitted to remain with the bank for six
months, does not become due until it is presented for payment, and, until
that time, the Statute of Limitations does not begin to run against the
depositor's right to enforce such certificate. MATTER OF COOK...... 586
2. The statute authorizing a proceeding to enforce payment, or the can-
cellation, of a lost certificate of deposit is unconstitutional.] Chapter 451 of
the Laws of 1899, as amended by chapters 171 and 503 of the Laws of 1901,
authorizing a person claiming to be the owner of a certificate of deposit,
which is alleged to have been lost or destroyed, to maintain a proceeding
to enforce payment of such certificate, or, in the event of the petitioner's
having given a bond of indemnity to the bank and his having thus secured
payment of the certificate of deposit, to procure an adjudication that the
certificate of deposit is null and void and that the bond be discharged-
which statute does not protect the rights of third parties in the certificate,
save by requiring notice of the application to be published in two newspa
pers is not a statute of limitations, and so far as the statute relates to cer-
tificates of deposit issued before its passage, it is unconstitutional. Id.
3. Right to appeal from orders made thereunder.] A bank against
which such a proceeding is instituted is entitled to appeal from a final order
made therein and from the order directing publication. Id.
4. Power of a court of equity on the giving of a bond to allow a recovery
upon a lost instrument.] The right to recover upon a lost instrument upon
the giving of indemnity does not rest upon the statute, but the power to
permit such recovery has always existed in a court of equity. Id.
A note made and payable in Canada is governed by Canadian laws-
a lead pencil entry by the bank at which the note is payable of an indorser's
address on the back of the note will not relieve the indorser - notice of
dishonor under the Canadian Bills of Exchange Act - when not sufficient.
MERCHANTS' BANK OF CANADA v. BROWN...
See BILLS AND NOTES.
BANKRUPTCY - Chattel mortgage
provision authorizing the sale of
the mortgaged chattels by the mortgagor and the use of the proceeds to pay
the debt or buy other goods - effect of a failure to file it when it is not
accompanied by a change of possession when it does not render it void as
what creditor can attack it.
to a trustee in bankruptcy of the mortgagor
SKILTON . CODINGTON..
See MORTGAGE.
Payment under a guaranty of the indebtedness of a partner to his
firm construction of the will of the guarantor, giving a share of her estate
to such partner, by him and the other parties in interest, charging such pay-
ments against his share when conclusive as against his trustee in bank-
ruptcy when it is the proper construction. HUNT v. OSBORN.......
Purchase-money mortgage-it has not priority over a subsequent
mortgage, first recorded, given to a creditor who, in consideration thereof,
extends the time of payment of a pre-existing debt-such priority is not
affected by the institution of bankruptcy proceedings against the mortgagor
within four months. O'BRIEN . FLECKENSTEIN. (No. 3)......
Real property fraudulently purchased with trust funds and conveyed
by the trustee-money received by the trustee in bankruptcy of such trustee
on the compromise of a creditor's suit brought for its recovery
is not recoverable by the beneficiary of the trust fund.
it passes to a trustee in bankruptcy.
purchaser thereof may state that he is "the successor" of the firm.
Good will of a partnership
Advancement effect of the insolvency of a residuary legatee to
whom more than his share has been advanced. MATTER OF MERRITT... 179
See WILL.
BAR- When an action in partition is not barred by another suit to partition
the same premises, although the plaintiff in the action had knowledge of the com-
mencement of the other action.
BILL OF PARTICULARS- As to matter contained in an indictment.
BILLS AND NOTES — Pre-existing debt as a consideration for a note.
must constitute payment thereof or extend the time of payment in order to be
enforcible against an accommodation indorser.] 1. While, under section 51 of
the Negotiable Instruments Law (Laws of 1897, chap. 612), "an antecedent
or pre-existing debt constitutes value," a note given as security for a pre-
existing debt is not enforcible in the hands of the creditor against an accom-
modation indorser thereof; in order to be enforcible against the accommo-
dation indorser it must appear that the note was taken in payment of the
pre-existing debt or that the creditor extended the time for the payment
thereof. ROSEMAN . MAHONY.
2. Refusal to charge a correct proposition of law not within the issue
presented by the evidence.] The refusal of a judge presiding at a jury trial
to charge a proposition of law which was correct in itself, but which bore
upon an issue not embraced within the evidence, does not constitute an
error requiring the reversal of a judgment. Id.
3. - A note made and payable in Canada is governed by Canadian laws.] A
note made in Canada, and by its terms payable there, is a contract governed
by the laws of the Dominion of Canada.
MERCHANTS' BANK OF CANADA . BROWN........
4. A lead pencil entry by the bank at which the note is payable of an
indorser's address on the back of the note - · it will not relieve the indorser.] A lead
pencil entry on the back of a promissory note beneath an indorser's signature
of the words "Glens Falls, N. Y.," made by the manager of the bank at which
the note is payable pursuant to a custom of the bank and for the purpose
of aiding its clerks in keeping the bank records, does not constitute an
alteration of the contract of indorsement which will relieve the indorser
from liability. Id.
5. Notice of dishonor under the Canadian Bills of Exchange Act — when
not sufficient.] Under the Canadian Bills of Exchange Act, 1890 (53 Vict.
chap. 33, 49) which provides with reference to the service of notice of
dishonor of bills and notes, "Where the drawer or endorser is dead, and
the party giving notice knows it, the notice must be given to a personal
representative, if such there is, and, with the exercise of reasonable dili-
gence, he can be found," the mailing of notice of dishonor to an indorser
known to be dead, directed to a post office known to be one at which he
had not received his mail while living, is not a good notice of dishonor. Id.
Banking - when the Statute of Limitations begins to run against a
certificate of deposit the statute authorizing a proceeding to enforce pay-
ment, or the cancellation, of a lost certificate of deposit is unconstitutional
-right to appeal from orders made thereunder — power of a court of equity
on the giving of a bond to allow a recovery upon a lost instrument.
MATTER OF COOK...
See BANKING.
BOARD Of city officers.
See MUNICIPAL CORPORATION.
BOND- Surety for a receiver- liability upon his bond exists only after the
receiver's accounts have, upon notice to the surety, been passed upon — an
action previously brought should be dismissed, but not upon the merits-
liability on the bond as a common-law obligation.
STRATTON . CITY TRUST, SAFE DEPOSIT & S. Co.....
See PRINCIPAL AND SURETY.
A surety company's liability on a guardian's bond for money of the
infant left in the guardian's possession at the time of his appointment.
MATTER OF FARDETTE v. U. S. F. & G. Co....
Power of a court of equity on the giving of a bond to allow a recovery
upon a lost instrument. MATTER OF COOK....
Of the authority of a foreign corporation to do business in the State of
New York.
CERTIORARI - Office of a writ of certiorari in a criminal case as compared
with that of a writ of habeas corpus.
PEOPLE EX REL. SMITH v. VAN DE CARR..
Review of proceedings to punish for a criminal contempt.
Purchase of a chose in action by an attorney with intent to
- the attorney's donee or assignee may may enforce it for her own
benefit — presumption that it is enforced for her benefit.
See BEERS v. WASHBOND...
CHARGE- Of the judge.
See TRIAL.
- Upon lands devised.
See WILL.
CIVIL SERVICE - A deputy tax commissioner in the department of taxes and
assessments of the city of New York cannot be summarily removed.] 1. A deputy
tax commissioner in the department of taxes and assessments of the city of
New York is not excluded from the protection given to a veteran fireman by
section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by chap.
270 of the Laws of 1902), which prohibits his removal "except for incompe-
tency or misconduct shown after a hearing," by that clause of such section
which provides that nothing therein contained shall be construed to apply
to the position of private secretary, cashier or deputy of any official or
department." PEOPLE EX REL. RYAN v. WELLS
270
2. What officer is a "deputy" within the meaning of section 21 of the Civil
Service Law.] The deputies intended to be excluded from the protection
APP. DIV.-VOL. LXXXVI. 41
CIVIL SERVICE - Continued.
of section 21 of the Civil Service Law, as thus amended, are only such as
occupy a confidential relation to the head of the department. Id.
3. A person employed to furnish and drive a horse and wagon for the New
York city department of public works is not a “person holding a position
by appointment or employment."] An honorably discharged exempt fireman,
engaged by the department of public works in the city of New York to
furnish a horse and wagon to the city and to drive the same for a certain
sum per day occupies a contractual relation to the city and is not a “person
holding a position by appointment or employment," within the meaning of
section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by
chap. 270 of the Laws of 1902). PEOPLE EX REL. SEIB v. REDFIELD....... 367
4. Dismissal of an employee because of a reduction in the salary appro-
priation for a city department — such reduction does not require that each salary
be scaled down and all the employees be retained.] Where the appropriation
for salaries made to the department of health of the city of New York for
a certain year is insufficient to enable the department to retain all of its
employees at the salaries which they have previously received, it is not
obliged to scale down the salaries of all the employees, thus making it pos-
sible to retain the entire force, but may, in its discretion, dismiss a portion
of the employees. PEOPLE EX REL. STEERS v. DEPT. OF HEALTH
5. Employees so dismissed are not entitled to make an explanation.] If
it elects to adopt the latter course, a dismissed employee, not a regular clerk
or head of a bureau, is not entitled to be afforded an opportunity to make a
personal explanation, as such an explanation would be unavailing. Id.
Effect of there being a surplus in the salary appropriation at the end
of the year.] The fact that, at the end of the year a surplus of the salary
appropriation exists, showing that it had not been necessary to dismiss all of
such employees in order to keep within the limits of the appropriation for
salaries, does not establish that the department was guilty of bad faith in
dismissing such employees or entitle any one of them to reinstatement. Id.
7. Trial of a member of the New York police force the charges may be
heard before a deputy and the sentence be fixed by the police commissioner.]
Under sections 300 and 302 of the revised Greater New York charter (Laws
of 1901, chap. 466) the police commissioner of the city of New York has
jurisdiction to punish a police officer who has been tried and convicted upon
charges preferred against him before a deputy police commissioner.
PEOPLE EX REL. REARDON v. PARTRIDGE.....
8. Where such sentence was based on four charges sustained by the deputy,
two of which were not established by the proof, the Appellate Division ordered a
new trial.] Where, in a certiorari proceeding to review the dismissal of a
police captain in the city of New York, after he had been convicted upon
four charges, it appears that only two of the charges were sufficiently estab-
lished by the evidence, and that, in fixing the punishment, the police com-
missioner procecded upon the erroneous assumption that all four charges had
been established, the Appellate Division, in view of the fact that the accused
had been a member of the force for a period of thirty-four years, during
which time he had been reprimanded but once and been fined altogether but
six days' pay. considered that, if the police commissioner had based his
judgment only upon the two charges which were sustained by the evidence,
he might have inflicted a much lighter punishment upon the accused officer,
and accordingly reversed the determination of the police commissioner and
directed a new trial of the officer upon the charges which had been sustained
by the weight of evidence. Id.
CLAIM-Against a decedent's estate.
See EXECUTOR AND ADMINISTRATOR.
CODE OF CIVIL PROCEDURE—§ 11 — Commitment for a criminal con-
tempt in the immediate presence of the court when it does not sufficiently specify
the particular circumstances of the offense.
See PEOPLE EX REL. PALMIERI V. MAREAN.
501-Action for admeasurement of dower in land conveyed, by the
husband (since deceased) of the plaintiff, by a deed in which she did not join — a
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