Transfer tax ·

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PAGE.

PERSONAL PROPERTY
where a will directs that land
be sold and the proceeds be divided, and a beneficiary dies before the sale, the
interest passing under the beneficiary's will is taxable as personal property.
See MATTER OF MILLS..

Architect's 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...

Conversion - the withdrawal from a bank of money of a corporation
deposited by its treasurer to his credit as treasurer contrary to its by-laws.
See SANITARY CAN Co. v. MULLINS..

555

356

450

compelled.

Specific performance of a contract relating to personal property — when
See BATEMAN v. STRAUS

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540

Sales of

See SALE.

PLACE OF TRIAL:

See VENUE.

PLEADING — Reply — not compelled to an answer containing statements
denying what the plaintiff must prove in order to succeed -
- a waiver of the
requirements of a contract cannot be proved under an allegation of performance.]
1. The complaint in an action upon a bond, given by the defendant to
insure the performance of a contract between the plaintiff and a third party,
alleged that the third party had failed to perform the contract and that the
defendant was liable upon the bond. The complaint specifically alleged
that the plaintiff had complied with all the conditions of the contract made
and entered into by the defendant, upon his part to be kept and performed,
and then set out the contract of guaranty in full.

The defendant's answer contained a general denial, and then set forth an
allegation that it was provided in the agreement between the plaintiff and
the defendant that the defendant should be notified in writing of any act on
the part of the principal which would involve loss for which the defendant
would be liable: that no such notice was given, and that the defendant was
thereby relieved from obligation upon the bond.

It further alleged that the bond contained a provision that any action
thereon should be brought within six months after the breach of the con-
tract, and that the action was not brought within said six months.

Held, that the allegations of the answer above set forth were simply
specific denials of the allegations of the complaint, supplementing the gen-
eral denial incorporated in the answer;

That such allegations did not consist of new matter, and that the defend-
ant was not entitled to require the plaintiff to serve a reply thereto;

That the plaintiff, having alleged in his complaint performance of the
contract made between himself and the defendant, would not be entitled to
prove upon the trial a waiver by the defendant of the provisions of the con-
tract in the particulars specifically set forth in the answer.

2.

BURR v. UNION SURETY & GUARANTY Co....

Motion to dismiss because the complaint does not state a cause of action
· waiver thereof — amendment, on appeal, of the complaint to conform it to the
proof] Where a motion made at the opening of a case to dismiss the com-
plaint on the ground that it does not state facts sufficient to constitute a cause
of action is denied with leave to renew such motion, if the defendant fails, in
motions subsequently made by him for the dismissal of the complaint, to
specify the insufficiency of the pleading as one of the grounds of such
motions and also neglects to object to evidence introduced as not being
within the pleadings, he must be deemed to have waived the objection that
the complaint did not state a cause of action, so far as to authorize the trial
court, if the evidence given upon the trial warrants a judgment for the
plaintiff, to amend the complaint to conform to the proof; in such a case the

545

PLEADING - Continued.

PAGE.

power to amend the complaint may be exercised by the Appellate Division
upon an appeal from a judgment in favor of the plaintiff, if it is necessary
to do so in order to sustain the judgment. JOHNSON v. CITY OF ALBANY... 567
3. Matter not stricken out as irrelevant or redundant, where any reason-
able doubt exists as to its being so.] An order expunging allegations from a
pleading as irrelevant and redundant should not be made unless it is very
clear and manifest that such allegations are not material or relevant, and that
no evidence under them can be introduced upon the trial of the action.

If there is any reasonable doubt on this point relief against the sup-
posed y objectionable allegations should be sought by demurrer or other
objection at the proper time. JOHN CHURCH Co. v. PARKINSON..

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4. Striking out allegations therefrom—not encouraged · not done, where
they are averments of evidence · - it is discretionary.] Motions to strike out
allegations contained in pleadings are not encouraged or granted save on
grievance shown; if the only fault of the allegations in question is that they
are averments of evidence, the motion will not be granted.

163

The relief rests largely in the discretion of the court. VOGT v. VOGT.... 437
5. Corporation—a director thereof may verify a pleading served by it.]
A director of a domestic corporation is an officer thereof within the meaning
of section 525 of the Code of Civil Procedure, which provides that the verifi-
cation of a pleading interposed by such a corporation must be made by one
of its officers. EASTHAM T. YORK STATE TELEPHONE Co...

— Slander - charge that the plaintiff, a supervisor, "is short six thou-
sand dollars in his accounts and ought to be behind the bars' a justification
thereof, that for other acts the plaintiff "ought to be behind the bars" is
bad- the charge must be proved, and the justification cover it, in its
entirety. STOCK . KEELE...

See SLANDER.

Slander- -a general denial and in a single count a defense in justifica-
tion and in mitigation. a demurrer to the latter, where it is sufficient as a
defense in mitigation and insufficient as one in justification, is bad.

DOYLE v. FRITZ....

See SLANDER.

Building contract

under a complaint alleging performance thereof,
excuse for non- performance cannot be shown-nor where such proof is
received over objection can the complaint be thereafter made to conform to
the proof. ROWE v. GERRY...............

See CONTRACT.

Complaint alleging a cause of action both for criminal conversation
and for alienation of a wife's affections- the unlawful intercourse constitutes
matter in aggravation of damages.

562

136

515

349

WESTON v. WESTON.....

159

See HUSBAND AND WIFE.

How far the demand for relief determines whether an action is at law

or in equity. BATEMAN v. STRAUS..

540

See SPECIFIC PERFORMANCE.

Fire insurance —a defense of fraud must be specifically pleaded.
CHEEVER V. BRITISH-AMERICAN INS. Co......

POWER-Transfer tax-date of payment thereof determined by the exer-
cise of a power of appointment - the amendment of 1899 as to property

PAGE

PRACTICE—A complaint containing two causes of action, to each of which a
counterclaim is interposed·
action and granting a new trial involves a new trial of both causes of action
an order setting aside a verdict as to one cause of
and of the counterclaim-right thereto, not waived by not moving to resettle an
improper order.

See VERNON v. O'BANNON Co...

Settlement of a case without the knowledge of the defendant's attorney.
application by such attorney to put the case on the calendar with a view to his
recovering costs—appeal in the defendant's name from its refusal — proper pro-
cedure for its review.
See POMERANZ v. MARCUS...

....

Reference "to take proof and report the same to the court" superseded by
a reference "to hear and determine" in an action subsequently brought in which
by stipulation the issues under the first order of reference are tried.

See VALENTINE v. STEVENS..

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New trial- -a plaintiff who obtains a verdict cannot object to a condi-
tion, 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.

Order-extent of relief granted when the order is made on default, and
where it is made after a hearing of both parties—defect in an affidavit of merits
not available for the first time upon appeal.
See HEADDINGS v. GAVETTE..

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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.

See HART v. HART

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

See GEIN v. LITTLE...

Motion to dismiss because the complaint does not state a cause of action
— waiver thereof — amendment, on appeal, of the complaint to conform it to the
proof.
See JOHNSON v. CITY OF ALBANY.....

374

321

481

472

592

236

503

567

Guardian's sureties—when they may be sued, although proceedings for
an account have not been instituted against the guardian.
See KURZ v. HESS

529

When a complaint may be dismissed although a verdict has been rendered
in favor of the plaintiff — when a new trial should be granted.
See GLENNON v. ERIE R. R. Co..

397

Change of a railroad grade crossing
injured thereby is by action and not by proceedings under the Village Law.
-the remedy of a property owner
See MATTER OF TORGE

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211

A judgment sustaining a demurrer to a portion of an answer should be
interlocutory - it should not authorize the collection of costs.

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PRE-EXISTING DEBT — As a consideration for a note.

See BILLS AND NOTES.

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PAGE

PRINCIPAL AND AGENT - Real estate broker — when his commissions
are earned.] 1. William Dempsey, who was attorney in fact for Mary E.
Dempsey, the owner of a tenement house in the city of New York, employed
Thomas F. Cody to sell or exchange the tenement house in such a way as to
realize $35,000 or $40,000 in cash. On January 20, 1902, through Cody's
efforts, a contract was entered into between Mary E. Dempsey and Florence
L. E. Willmann for the exchange of the tenement house for certain lots.

*

The contract contained a clause reciting that it was "predicated upon the
procurement by the party of the first part of a loan of forty thousand
($40,000) dollars, **which loan is to be made simultaneously with
the closing of title mentioned herein, but upon failure to procure said loan
by either party from any source whatever, each of the parties will be released
from any and every obligation, covenant or agreement thereunder, express
or implied." Cody agreed to waive his commission in the event of the failure
of the contract by reason of the loan not being secured.

The contract was not consummated on February 3, 1902, as was provided
by its terms. March 20, 1902, the parties, who had continued to treat the
original contract as still in force, without consultation with or further agree-
ment on the part of Cody, entered into an agreement modifying the original
contract by providing for a loan of $35,000 instead of $40,000, and in some
other incidental matters. The agreement, as modified, was carried out and
the exchange effected.

Held, that Cody was entitled to recover his commissions.
CODY v. DEMPSEY...

2.

What writing constitutes a substantial compliance with section 640d
of the Penal Code requiring the written authority of the owner of land to one
offering it for sale.] Where the attorney in fact for the owner of a parcel of
real property in a city of the first class employs a broker to effect an exchange
of such real estate and executes and delivers to such broker, with the inten-
tion of authorizing him to negotiate the transfer, the following instrument:
"They will takes 86 st. subject to 1st and 2nd mortgages. We to take 26th
ward lots subject to taxes and assessments not to exceed $6,500.00. William
Dempsey," such instrument is a substantial compliance with section 640d of
the Penal Code, which provides that in cities of the first and second class,
"any person who shall offer for sale any real property without the written
authority of the owner of such property, or of his attorney in fact, appointed
in writing," etc., shall be guilty of a misdemeanor. Id.

3. When a failure to comply with the section does not bar commissions.]
Assuming the statute in question to be constitutional, the failure of a broker,
employed to effect the sale or exchange of real estate in the city of New
York, to procure the written authority required by the statute, will not,
where the contract of sale or exchange has been executed, prevent the
broker from recovering his commissions. Id.

4. The section is unconstitutional.] Semble, however, that the statute
is unconstitutional. Id.

5. Violation of a penal statute in making a lawful contract.] Where a
contract, not unlawful in itself, has been executed, and the parties have
enjoyed the benefits of the contract, the mere fact that one of the parties has
violated a penal statute in the approach to the contract will not prevent the
court from enforcing payment. Id.

6. — Rejection, upon a specified ground, of a loan procured by a broker —
it precludes the principal from setting up, in an action by the broker for his

335

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Continued.

PAGE.

PRINCIPAL AND AGENT -
commissions, another ground of objection.] Where a. person, who employs a
broker to secure a loan for him, refuses to accept the loan from a responsible
party procured by the broker solely because he is dissatisfied with the
amount of the commission to which the broker claims to be entitled, he
cannot, upon the trial of an action brought against him by the broker to
recover his commission, justify his refusal to accept the loan upon the
ground that the letter in which the party procured by the broker accepted
the application for the loan contained a provision that the application was
approved, “provided the rules of this company are complied with and the
loan is accepted within ten days from the date of this notice."

HOTCHKISS v. KUCHLER....

7. Real estate broker's commissions — effect of an admission by his prin-
cipal that he was entitled to them.] In an action brought by a broker to
recover commissions upon a sale of real estate, evidence that subsequent
to the sale the defendant admitted that the plaintiff was entitled to his
commissions, is sufficient to establish the plaintiff's employment and that he
was the procuring cause of the sale and that the sale was effected upon
terms and conditions which were within the scope of the employment.

METCALFE v. GORDON....

265

368

8. Broker's failure to disclose the name of his customer.] The fact that,
previous to the sale, the broker did not disclose to his client the name of the
party who subsequently purchased the property, although he did disclose
to his client a description of the purchaser, has an important bearing upon
the determination of the question whether the broker was the procuring
cause of the sale, but is not necessarily controlling upon that question. Id.
9. Real estate broker · the mere fact that a lease is made to a person
procured by a broker does not entitle the latter to commissions.] To entitle a
broker to recover from a lessor commissions for effecting a lease of the
latter's real estate the broker must show that he was employed by the
lessor to do so; if the broker, without a previous request by the lessor,
brings the lessee to the lessor and the latter, without further acceptance of
the broker's services, executes the lease to such lessee, the broker is not
entitled to compensation. BRADY v. AMERICAN MACHINE & FOUNDRY CO.. 267
See MASTER AND SERVANT.

PRINCIPAL AND SURETY Agreement that the principal would
pay all persons supplying “labor and materials in the prosecution of the
work"-it does not cover the services of a steam lighter used on the work in
question and two other works.] 1. Joseph J. Churchyard had three separate
contracts with the United States government for the erection of certain
buildings, one of which was a marine barracks at Coaster's Harbor island.
The contract for the construction of the latter building provided that
Churchyard would "provide, furnish and deliver, at his own risk and
expense, at Coaster's Harbor Island, Rhode Island, all the necessary
materials, labor, tools and appliances for the construction and completion,
in all respects, of a barracks."

As security for the performance of this contract, Churchyard gave a bond
subject to the provisions of an act of Congress passed August 13, 1894,
which provides that the sureties shall assume an obligation that such con-
tractor or contractors shall promptly make payments to all persons supply-
ing him or them labor and materials in the prosecution of the work provided
for in such contract."

The bond was conditioned that Churchyard should "promptly make pay.
ments to all persons supplying him or them labor and materials in the prose-
cution of the work provided for in the aforesaid contract."

Churchyard chartered a steam lighter with a crew of six men and the
necessary supplies to transport lumber and materials used in the perform-
ance of the three government contracts.

Held, that the surety upon Churchyard's bond was not liable for any
sum due from Churchyard for the use of the steam lighter, even to the
extent that such lighter was used in delivering materials to be used in the
performance of the particular contract, to secure the performance of which
the bond was given. U. S. EX REL. MCALLISTER v. FIDELITY & D. Co.... 475