PRINCIPAL AND SURETY -

2.

-

Continued.

PAGE.

Guardian's sureties when they may be sued, although proceedings
for an account have not been instituted against the guaraian.] Compliance
with the rule that an action cannot be maintained against the sureties on the
bond of a general guardian, until proceedings for an accounting have been
had against the general guardian and his default established therein, will be
excused where it appears that the guardian is insolvent and has absconded
from and permanently left the State of New York; that the plaintiff has
been unable to ascertain his whereabouts or serve him with process, and
that it is impossible for the plaintiff to obtain a judicial settlement of the
guardian's accounts. KURZ v. HESS....

3. Surety for a receiver — liability upon his bond exists only after the
receiver's accounts have, upon notice to the surety, been passed upon.] When
a receiver's accounts have been passed upon by the court an action will
not lie upon his bond if viewed simply as a statutory obligation, unless it
appears that the surety was given notice of such accounting, as is required
by section 715 of the Code of Civil Procedure.

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

4. An action previously brought should be dismissed, but not upon the
merits.] If the surety did not receive such notice the complaint should be
dismissed, but not upon the merits. Id.

5. Liability on the bond as a common-law obligation.] Quare, whether
the failure to give notice of the accounting to the surety would be fatal, if
a right of action existed on the bond, considered as a common-law
obligation. Id.

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.........

See GUARDIAN AND WARD.

PROCESS-Service of a surrogate's citation by publication - eight days
need not elapse between the last publication and the return day.
MATTER OF DENTON...

529

551

50

359

See SURROGATE.

Partition the action is not pending against a defendant named
therein until the summons is served on him. HART v. HART.......

236

PAGE.

RAILROAD-Mileage book, tendered for the fare within the State of New
York on a trip, part of which was in another State and was paid for by a
ticket purchased for that distance · - a railroad company, the successor of one
having a right to fix its charges for transportation, is subject to the Mileage Book
Acts. 1. A mileage book, issued under chapter 1027 of the Laws of 1895, as
amended by chapter 577 of the Laws of 1898, by a railroad company whose
road is located partly in the State of New York and partly in the State of
Pennsylvania, contained the following provision: "This book is good only
for transportation wholly within the State of New York and will not be
accepted for a trip which passes through any portion of another State en
route.
It will be accepted for transportation only for journeys
wholly within the State of New York and will not be accepted for a journey
which passes through any portion of another State en route."

* *

The holder of one of such mileage books boarded a train at Lackawaxen
in the State of Pennsylvania for the purpose of making a single through
trip to Cochecton in the State of New York. He tendered an ordinary ticket
in payment of his fare from Lackawaxen to Narrowsburg, which is in the
State of New York, and, on reaching Narrowsburg, attempted to use the
mileage book in payment of his fare from Narrowsburg to Cochecton.
Held, that the passenger had acted within his rights;

That the use attempted to be made of the mileage book was not prohibited
by the conditions contained therein;

That the fact that the railroad company was the successor of another
railroad company, which had the general right to fix its charges for trans-
portation, did not relieve it from the operation of the statute under which
the mileage book was issued. HORTON v. ERIE RAILROAD Co.....

-

379

2. Change of a railroad grade crossing the remedy of a property
owner injured thereby is by action and not by proceedings under the Village Law.]
Where a railroad crossing in a village is changed from a grade cross-
ing to an overhead crossing pursuant to sections 62 et seq. of the Railroad
Law (Laws of 1890, chap. 565, added by Laws of 1897, chap. 754 and
since amended), and the village neglects to acquire, by purchase or by con-
demnation proceedings, the lands, rights and easements necessary for the
purpose of carrying out the improvement, as the sections of the Railroad
Law in question contemplate that it shall do, the remedy of a property owner
who has suffered damage in consequence of the change of grade is to bring
an action to recover damages against the village which is alone liable therefor.
The property owner is not entitled to proceed against the village under
section 159 of the Village Law (Laws of 1897, chap. 414, as amd. by Laws
of 1901, chap. 68), relative to a change of grade, by a village, of a street
over which it has exclusive jurisdiction and control, as this provision of the
Village Law is not applicable to the case. MATTER OF TORGE..... ...... 211

Negligence-injury to a passenger who puts his arm through the
glass in a swing door on an elevated railroad platform while trying to pre-
vent the door from striking him-proof that such an accident had never
before happened - degree of care required of the railroad company.
FAHNER v. BROOKLYN HEIGHTS R. R. Co....................

See NEGLIGENCE.

Eminent domain-

-

measure of damage where only a part of a tract of

land is taken by a railroad company.

SOUTH BUFFALO RAILWAY Co. v. KIRKOVER...
See EMINENT DOMAIN.

Injury on.

See NEGLIGENCE.

RATIFICATION - Of acts of agent

See PRINCIPAL AND AGENT.

REAL ESTATE AGENT:

See PRINCIPAL AND AGENT.

REAL PROPERTY - Proceedings for the sale of a decedent's real property
for the payment of debts — a mortgage given by a devisee pending such proceed
ings to which he, but not the mortgagee, is a party is cut off by a sale thereunder

488

REAL PROPERTY — Continued.

-

PAGE.

-machinery placed in a mill property by a devisee thereof to replace other
machinery therein held to be realty.

See RICHMOND v. FREEMAN'S NATIONAL BANK......

·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—the money is not recoverable by the
beneficiary of the trust fund.

See WELCH v. POLLEY.....

-

·Assessment for a local improvement in Rochester - it may be enforced
against the deceased owner's personal estate although the real property assessed
has been sold therefor and bid in by the city, the title not having become absolute.
See MATTER OF ELSNER...

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.
See BURDICK v. BURDICK..

·Transfer tax· 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 bene-
ficiary's will is taxable as personal property.

See MATTER OF MILLS

-

.......

·Annuities payable from a trust fund are general legacies - intent to
charge debts upon real estate it must be in exoneration, not merely in aid, of
the personally-proof required thereof.
See TURNER v. MATHER

Res adjudicata — a judgment in an equitable action defining a boundary
line is conclusive between the same parties on the subsequent trial of an ejectment
suit.

See BECKER v. STUDEMAN.

Tax sale of property in the city of Rochester - meaning of words “sub-
ject, however, to all the claims which the people of this State may have thereon
for taxes."

152

260

207

383

555

172

94

See CITY OF ROCHESTER V. KAPELL.

224

· Legacies charged on real estate-knowledge of the testator that his per-
sonal property would be insufficient to pay them.
See MCMANUS v. MCMANUS

240

Erection of telephone poles in a street — an injunction pendente lite to
prevent it refused.

See WEEKS v. NEW YORK & N. J. TELEPHONE Co......
Effect of the omission from letters patent of conditions contained in prior

Real estate broker's commissions on the sale or leasing of.

See PRINCIPAL AND AGENT.

RECEIVER Removal of opportunity to answer charges should be given
him the fact that he was a director and the treasurer of a corporation does
not prevent his being its receiver.] A judgment creditor of a corporation, who
had brought an action to procure a judgment sequestrating the property
of the corporation, procured an order to show cause why a receiver of the
property of the corporation should not be appointed.

The order to show cause directed that service of the moving papers be
made on the corporation and on the Attorney-General. A Deputy Attorney-

RECEIVER- Continued.

PAGE.

General, assuming to act on behalf of the Attorney-Generai, admitted service
of the moving papers. On the return of the order to show cause the cor-
poration appeared, and also an attorney on behalf of the Attorney-General.
No objection being made thereto, one Jennings was appointed temporary
receiver of the corporation and he immediately qualified. Fourteen days
later the Attorney-General made a motion to vacate the order appointing the
receiver upon the ground that the Deputy Attorney-General, who assumed
to admit service on his behalf, had no authority to do so. Upon the return
of such order to show cause, a further order was made directing that the
order appointing Jennings as receiver be opened, and that the application for
the appointment of a receiver be heard at a later date.

On the return of the last-mentioned order none of the interested parties
objected to the appointment of a receiver, but an affidavit was presented on
behalf of the Attorney-General and certain other parties, in which they
attacked the qualifications and fitness of Jennings to act as receiver. Jen-
nings was afforded no opportunity to answer such affidavit, except by an oral
statement, which he made in open court. The proceeding resulted in an order
continuing, ratifying and confirming Jennings' appointment.

Held, that the order should be affirmed, without prejudice to a direct appli-
cation to remove Jennings as receiver, upon the hearing of which application
full opportunity for a hearing could be given to the receiver and to all parties
interested;

That the fact that Jennings had been a director and the treasurer of the
defendant corporation was not of itself a sufficient reason why he should not
have been appointed receiver, or why he should be removed from such posi-
tion. TOWNSEND v. ONEONTA, C. & R. S. R. Co.

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 v. CITY TRUST, SAFE DEPOSIT & S. Co.....
See PRINCIPAL AND SURETY.

Action by a stockholder to have a receiver appointed of a publishing
corporation to carry on its business - - what acts of its secretary and treasurer
in secreting its books, etc., do not justify it remedies of the corporation.
FALLON v. UNITED STATES DIRECTORY CO.....

See CORPORATION.

In a supplementary proceeding.

See EXECUTION.

RECORD - Purchase-money mortgage-it has not priority over a subse-
quent 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 mort-
gagor within four months. O'BRIEN v. FLECKENSTEIN. (No. 3).......

***See MORTGAGE.

RECOUPMENT:

604

551

29

140

See SET-OFF.

super-

REFERENCE – "To take proof and report the same to the court"
seded 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.]
In order to discharge a notice of lis pendens, filed in 1887 in an action for par-
tition, the attorney of record for the plaintiff in such action, claiming a lien
for his compensation, in 1 02 entered into an agreement with the parties
interested in the action whereby it was agreed that the action should be dis-
continued, and that the attorney's lien for compensation for the services ren-
dered in the partition action should be transferred to a fund to be deposited
with a trust company.

The order of discontinuance provided that if the parties should fail to
agree upon the amount of the attorney's compensation within twenty days
after the entry of the order it be and hereby is referred to Augustus C.
Brown, counselor at law, who is hereby appointed sole referee to take proof

and report the same to the court with his opinion thereon as to what amount
of costs, allowance and fees as attorney and counsel said plaintiff's attorney
should be awarded."

Subsequently, and before the referee had taken any proof in the matter,
the attorney brought an action in which he sought to recover compensation
for the services rendered by him in the partition action and also for other
services. The issues joined in the action were referred by consent to the
referee named in the order discontinuing the partition action, with power
"to hear and determine the same."

Upon the trial before the referee the parties stipulated in open court that
the proceeding in the partition action for the ascertainment of the value of
the attorney's services" be merged in the present action and that the issues
in that proceeding be deemed a part of the issues in this action, the deter-
mination of which shall determine the issues in that proceeding, and that the
determination of this matter shall be deemed res adjudicata as to the previous
proceeding."

The referee found that the plaintiff was entitled to recover and to be paid
out of the fund deposited for that purpose a certain sum for services ren-
dered in the partition action, and directed judgment to be entered to that
effect; as to the other causes of action the referee's decision was adverse to
the plaintiff. An order was subsequently made on the defendant's motion
vacating the judgment entered on the report of the referee and recommitting
the report to the referee, with directions to separate such report into two
parts, one of which should be made pursuant to the order of reference made
in the action for services, and the other pursuant to the order of reference
contained in the order discontinuing the partition action.

The order in question was made upon the theory that, under the order of
reference made in the partition action, the referee had authority only to "take
proof and report the same to the court with his opinion thereon" and not
to hear and determine."

Hel, that this view of the matter was erroneous, and that the order should
be reversed and the defendant remitted to his right to appeal from the judg
ment entered upon the referee's report;

That the defendant had deliberately waived his rights under the first order
of reference by the stipulation made upon the trial before the referee, and
that he could not, after a decision adverse to him, repudiate the stipulation.
VALENTINE v. STEVENS..

RELIGIOUS SOCIETY - Injunction to prevent the execution of a resolution
adopted by the votes of members worshipping at chapels connected with a parent
church where such practice has been acquiesced in for many years, and no
property rights are involved, equity will not interfere.
See DAVIE v. HEAL

REMAINDER- In real property.

See REAL PROPERTY.

RES ADJUDICATA:

See JUDGMENT.

RESIDENCE:

See DOMICILE.

RETURN - Of execution.

See EXECUTION.

RIPARIAN RIGHT- Wharf on a navigable river - if constructed with-
out authority from the State it cannot be used by a steamboat company
without the owner's consentif constructed under letters patent reciting a
grant for the purpose of promoting commerce the owner cannot give to one
steamboat company an exclusive privilege to use it-remedy in equity
effect of the omission from letters patent of conditions contained in prior
letters. THOUSAND ISLAND STEAMBOAT Co. v. VISGER..
See WHARF.

481

517

126