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CODE OF CIVIL PROCEDURE—Continued.

PAGE.

counterclaim for damages for the amount of such dower interest cannot be
interposed although the plaintiff was the sole devisce and legatee of her husband's

will.

See BURNETT v. BURNETT..

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§ 525 — Corporation — a director thereof may verify a pleading served

See EASTHAM v. YORK STATE TELEPHONE Co.......

715-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.

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See STRATTON v. CITY TRUST, SAFE DEPOSIT & S. Co....

§ 829-Action to set aside a deed as procured by fraud-proof that
after its execution the grantor, since deceased, made a lease of the premises in the
presence of the grantee - the grantee may testify to her reasons for allowing such
lease to be made.

――――

§ 1022- Short decision under Code of Civil Procedure, section 1022-
when the grounds thereof are not sufficiently stated the judge who made it being
no longer on the bench, a new trial will be ordered.

-

See GEIN v. LITTLE.

§ 2336- Incompetent death of, pending proceedings to determine the
compensation to be paid the petitioner for his disbursements, costs, etc.-the
executor of the incompetent should be made a party and the proceedings be con-
tinued―the compensation is a charge on the estate.

See MATTER OF FERRIS.

See BURDICK v. BURDICK.

383

$999- New trial- — a plaintiff who obtains a verdict cannot object to a
condition, on compliance with which by him the verdict is allowed to stand·
the costs should be paid by the moving party where a new trial is granted because
of error in the amount of the verdict.

See LAWRENCE v. WILSON...

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§ 2472, subds. 3, 4-Surrogate-jurisdiction of, to order securities,
found by an administrator in his decedent's safe deposit vault, to be delivered over
to one claiming ownership thereof - proof that the administrator, as such, holds
the securities Code of Civil Procedure, section 2472, subdivisions 3 and 4, is
not applicable to such a case.

See MATTER OF CASE v. SPENCER.


§ 2524-Service of a surrogate's citation by publication — eight days
need not elapse between the last publication and the return day.

See MATTER OF DENTON.

estate.

- § 2596 — 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.
See MATTER OF FARDETTE v. U. S. F. & G. Co..

§ 2606 Surrogate his power to turn an accounting instituted by the
executors of a deceased executor into a judicial settlement.

See MATTER OF FURNISS...

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§ 2653a Action under section 2653a of the Code of Civil Procedure to
obtain an adjudication that a will was made through undue influence and with-
out testamentary capacity — direction of a verdict · additional allowance of

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costs.

See HAUGHIAN v. CONLAN.


§ 2750-Executor's commissions -
See MATTER OF FURNISS..

§ 3236-Costs upon an appeal from a surrogate's decree vacating a transfer
tax assessment · costs on appeal from an interlocutory order, by what Code pro-
visions governed.

See MATTER OF BABCOCK..

.....

386

not allowed until the settlement of the

562

551

472

503.

559

454

359

50

96

290

96

563

CODE OF CIVIL PROCEDURE - Continued.

PAGE.

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§ 3240 Costs upon an appeal from a surrogate's decree vacating a
transfer tax assessment — they are governed by Code Civ. Proc. § 3240 — the
order allowing them need not specify the items allowed nor fix the rates ― dis-
bursements may be taxed although not expressly allowed — costs on appeal from
an interlocutory order, by what Code provisions governed.

See MATTER OF BABCOCK...

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§ 3251, subd. 3— Costs upon an appeal from a surrogate's decree vacating
a transfer tax assessment - costs on appeal from an interlocutory order, by what
code provisions governed.

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See MATTER OF BABCOCK.....

[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]

$3256-Costs upon an appeal from a surrogate's decree vacating a
transfer tax assessment — they are governed by Code Civ. Proc. § 3240-dis-
bursements may be taxed although not expressly allowed. MATTER OF BABCOCK. 563

CODE OF CRIMINAL PROCEDURE:

[See table of sections of the Code of Criminal Procedure cited, ante, in this
volume.]

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COMPENSATION - Of an attorney — the result of his services is important.

See ATTORNEY AND CLIENT.

Of an executor and administrator.

See EXECUTOR AND ADMINISTRATOR.
Upon a loan procured by a broker.
See PRINCIPAL AND AGENT.

......

COMPLAINT — In criminal prosecution.

See INDICTMENT.

See PLEADING.

CONDITION — In an insurance policy.

See INSURANCE.

On compliance with which a verdict is allowed to stand.
See NEW TRIAL.

CONFESSION - When competent as evidence.
See EVIDENCE.

563

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CONFIDENTIAL COMMUNICATION — Between a husband and wife,
written in the former's presence.

See EVIDENCE.

563

CONFLICT OF LAW-A note made and payable in Canada is governed by
Canadian laws-notice of dishonor under the Canadian Bills of Exchange
Act when not sufficient. MERCHANTS' BANK OF CANADA v. Brown.. ... 599

See BILLS AND NOTES.

CONSIDERATION – For a note.

See BILLS AND NOTES.

PAGE.

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CONSTITUTIONAL LAW – Foreign stock corporation doing business
in the State of New York without a certificate — right of, after obtaining a
certificate, to enforce a contract made before doing so the acts on this
subject are not retroactive, or, if so, are unconstitutional.
Lewis PUBLISHING Co. 0. LENZ...

451
See CORPORATION.

Section 640d of the Penal Code requiring the written authority of the
owner of land to one offering it for sale is unconstitutional.
CODY v. DEMPSEY

335
See PRINCIPAL AND AGENT.

The statute authorizing a proceeding to enforce payment, or the
cancellation, of a lost certificate of deposit is unconstitutional.
MATTER OF COOK..

586
See BANKING.

Legislative power to make certain conduct an offense in New York
city but not elsewhere. PEOPLE EX REL. Smith 0. VAN DE CARR...

9
See CRIME.
[See tables of sections of the New York State and the United States Con-
stitutions cited, ante, in this volume.]
CONTEMPT - Commitment for a criminal contempt in the immediate presence
of the court.] 1. A mandate of commitment for a criminal contempt com-
mitted in the immediate view and presence of the court, which does not
specify the particular circumstances of the offense, as required by section 11
of the Code of Civil Procedure, is defective, and such defect will be held
fatal upon a review of the proceedings by certiorari, although the papers
before the reviewing tribunal clearly establish the sufficiency of the proof
to sustain the conviction. PEOPLE EX REL. PALMIERI V. MAREAN..

278
2. When the commitment does not sufficiently specify the particular
circumstances of the offense.] A statement in the commitment to the effect
that the offender, in the immediate view and presence of the court, behaved
in an insolent and disorderly manner, which tended to interrupt the proceed-
ings of the court and to impair the respect due to its authority, is not a
sufficient statement of the particular circumstances of the offense. Id.

Where the use of a system of figures is enjoined, the placing and use,
before each figure of such system, of the figure 1 is a contempt- a refusal to
punish for contempt is reviewable at the Appellate Division.
BROWN 0. BRAUNSTEIN.

499
See TRADE MARK.
CONTRACT By which a father conveyed land (subject to a mortgage) and a
house and lot in which he had a life estate to his children who agreed to pay

him
the rents and profits thereof during his life construed as to the father's right
to interest on the proceeds of the house and lot which were used to pay the
mortgage.] 1. A man who was the owner of a farm incumbered by a $2,000
mortgage held by third parties and who also had a life interest in a house
and lot, of which his two children owned the fee, entered into a contract
with such children which provided that the father should deed the farm and
his interest in the house and lot to the children, and that the children should
pay over to the father all the rents and profits from the property so con-
veyed during his life, after deducting therefrom the interest on the $2,000
mortgage; that, in case the children should sell the house and lot, the moneys
arising from the sale should be applied in payment of the $2,000 mortgage
or be invested in a bond and mortgage, the interest accruing therefrom to be
paid to the father.

Pursuant to such contract the father deeded the property to the children.
Thereafter the children sold the house and lot for $1,900, and after adding
thereto $100 of their own money, paid the $2,000 mortgage and procured it
to be discharged of record.

Held, that the father was not entitled to the interest or income of the $1,900
for which the house and lot were sold. Ellis v. COLE..

233

PAGE.

66

CONTRACT - Continued.

2. Agreement by a wife to will to her stepson 80 much of the estate left to
ther by his father as might not be used by her - il 18 not enforcible by the sun.]
An agreement made by a husband with his wife, that the wife shall will to
the husband's son by a former wife so much of the property willed to her by
her husband as shall remain at her death, does not entitle the son, in the
event of the death of his stepmother, without performing the contract, to
maintain an action for its specific performance, where he was not a party to
the contract and no consideration moved from him to either of the parties,
and it does not appear that he was an infant at the time the contract was
made, or that either of the parties thereto was under any legal or equitable
obligation to him. Wait v. Wilson....

485
3. Building contract under a complaint alleging performance thereof,
excuse for non-performance cannot be shown.]. Where the complaint, in an
action to foreclose a mechanic's lien for work done under a building con-
tract, alleges that the plaintiff " duly performed all the conditions of said
contract on his part to be performed,” the plaintiff is not entitled to give
evidence excusing non-performance on his part. Rows v. GERRY ...... 349

4. Nor where such proof is received over objection can the complaint be
thereafter made to conform to the proot.) If such evidence is introduced, over
the defendant's objection, taken at the time the evidence is offered, the court
has no power, at the close of the case, to permit the plaintiff to amend his
complaint in order to conform to the facts proved. Id.

5. - Void under the Statute of Frauds remedy where it has been partially
performed.] A party to a contract, void under the Statute of Frauds, can-
not, although the contract has been partially performed, maintain an action
at law to recover damages for a breach of such contract, but his remedy, if
any, is by an action for moneys had and received or other similar action.
SEYMOUR 0. WARREN..

403
6. Omissions in a writing cannot be supplied by oral proof. ] Where a
written memorandum of a contract, within the Statute of Frauds, does not
express all the matters which the Statute of Frauds requires such a memo-
randum to state, oral evidence is not admissible to supply the deficiency. Id.

- City contract — appeal, from the engineer's decision, to other city
officers — what delay in the action of such other officers justifies the con-
tractor in bringing suit – written order for extra work – recovery of extra
compensation for work incidental thereto — compensation for damages
suffered without the contractor's fault --- waiver of a provision that claims
for extra work shall not be allowed unless filed.
JOHNSON 0. CITY OF ALBANY...

567
See MUNICIPAL CORPORATION.

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.
iments against his share — when conclusive as against his trustee in bank.
ruptcy when it is the proper construction. Hunt v. OSBORN....

464
See WILL.

· Reply - not compelled to an answer containing statements denying
what the plaintiff must prove in order to succeed — a waiver of the require-
ments of a contract cannot be proved under an allegation of performance.
BURRO. UNION SURETY & GUARANTY Co....

545
See PLEADING.

Fire insurance policy — an oral agreement contemporaneous with a
written agreement of appraisal is incompetent.
TOWNSEND v. GREENWICH INSURANCE Co.....

323
See INSURANCE.

Mechanic's lien – work performed by a sub-contractor with the
knowledge and consent of the owner. BUTLER v. AQUEHONGA LAND Co.... 439

See LIEN.
Relating to negotiable paper.
See BILLS AND NOTES.

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CONTRACT - Continued.

Law of, relating to bonds.

See BOND.
Of insurance.

See INSURANCE.
Law of, relating to mortgages.

See MORTGAGE.
Of copartnership.

See PARTNERSHIP.
For the services of a broker or agent.

See PRINCIPAL AND AGENT.
Of suretyship.

See PRINCIPAL AND SURETY.
Of sale of personal property,

See SALE.
Specific performance of.

See SPECIFIC PERFORMANCE.
CONVERSION — Of personal property.

See PERSONAL PROPERTY.
Of real into personal property.
See WILL.

PAGE,

COPYRIGHT – Architects building plans after they have been filed with a
building department and the architect has been paid for his services he has no
further property rights therein.
See WRIGHT v. Eisle...

356
CORPORATION Action by a stockholder to have a receiver appointed of
a publishing corporation with power to carry on its business what acts of iis
secretary and treasurer in secreting its books, etc., do not justify it.] 1. The com-
plaint in an action brought by the president of a domestic publishing corpora.
tion, in his own right as a stockholder, against the corporation, its secretary and
treasurer and one of the stockholders thereof, alleged that the secretary and
treasurer took from the safe of the company, without its consent, all the con-
tracts and valuable records of the company, consisting of contract book, vouch-
ers showing payments made on contracts, and has sequestrated and hidden”
the same, and refuses to surrender the same to the plaintiff as president or dis-
close their whereabouts or permit the president to have access thereto; that
these acts have materially injured the business of the corporation in render-
ing it unable to collect moneys due on the contracts and to continue the
publications; that the secretary and treasurer has notified the employees of
the company that their services are no longer required; that the corporation
is dependent upon its contracts to carry on the business, and “that the
said business will be lost unless a receiver be appointed by this court to take
possession of the property of the defendant corporation and complete the
publications above referred to and to carry out the contracts heretofore made
in said business. The relief demanded was, First. For a judgment of
injunction. Second. That a receiver of said defendant corporation be appointed
of all its assets, property, good will, books and contracts of the said defendant
company, with power to carry out the contracts and complete the enterprises
aforesaid, and to collect all of the debts due and owing to it, and to do each
and every other act necessary in the conduct of the said business, and that
the plaintiff have such other and further relief as may be just and equitable
in the premises, and that plaintiff may recover the costs and disbursements
of the action."

No charge of fraud or mismanagement was made against any of the officers
or directors of the corporation except the secretary and treasurer, nor was it
shown that the board of directors had been requested to or bad refused to
institute proceedings for the relief of the corporation.

Held, that the complaint did not state a cause of action, and that an order
made upon motion of the plaintiff appointing a receiver of the corporation

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