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lateral for an antecedent debt.-Sutherland v. Of covenant, see "Covenants," 1.
Mead (Sup.) 504.

Of warranty, see “Sales," 88 4, 6.
Fraudulent diversion of a note held an af-
firmative defense, which must be pleaded.-

Sutherland v. Mead (Sup.) 504.

Under Negotiable Instruments Law, $ 98, held $ 1. Establishment, construction, and
that, a note having been fraudulently diverted

from its purpose, the holder has the burden of The action of a town board in rejecting a
proving he acquired title in due course. -Suther-claim for services in the repair of a bridge, pre-
land v. Mead (Sup.) 504.

sented by the commissioners of highways as re-

quired by Laws 1890, c. 568, § 10, as amended,
Whether the maker of a note acquiesced in held not a bar to proceedings by the claimant
the application of a payment to the last pote of to procure audit and payment. - People v. Town
a series, instead of the first, held a question for Board of Oyster Bay (Sup.) 309.
the jury.--Root v. Kelley (City Ct. N. Y.) 482.

In auditing the claim of a person employed by

the commissioners of highways to repair bridge,
BONA FIDE PURCHASERS. the town board may act on their own knowl-

edge of_the facts.- People v. Town Board of
Of bill of exchange or promissory note, see "Bills Oyster Bay (Sup.) 309.

and Notes," $ 1.
Pledgees as bona fide purchasers, see "Pledges." | by Laws 1895, c. 606, and' Laws 1899, c. 84,

Under Laws 1890, c. 568, § 10, as amended

the commissioners of highways may employ a

person to superintend the repair of a bridge at

the expense of the town board.-People v.
Of liquor dealers, see "Intoxicating Liquors," Town Board of Oyster Bay (Sup.) 309.

$ 1.
Sureties on bonds, see “Principal and Surety."

$ 2. Regulation and use for travel.

Uuder Laws 1881, c. 700, the fact that a high-
Bonds for performance of duties of trust or way commissioner was without funds with

which to repair a damaged bridge held a de-
See “Executors and Administrators,” $81, 8; fense in an action against the town for injuries
"Sheriffs and Constables," 1.

caused by the giving way of a defective bridge.

-Lee v. Town of Berne (Sup.) 107.
Bonds in legal proceedings.

In an action against a town for injuries caus-
See “Attachment,” § 6; “Bail”; “Costs," § 1. ed by defective bridge, highway commissioner

held not guilty of negligence.-Lee v. Town of

Berne (Sup.) 107.
As evidence, see “Evidence," $ 7.

Production for examination before trial, see
“Discovery,” g 1.

§ 1. Duties and liabilities to principal.

Complaint in an action to recover money al-

leged to have been paid on account of stock to

be purchased by defendants, and wrougfully
See "Towns," 1.

converted, held demurrable for failure to show

that defendants were in default.-Cowen v.
§ 1. Description.

Voyer (Sup.) 29.
The presumption that a deed of land bounded
by an existing road carries the fee to the center

Rule for accounting between stockbroker and
thereof is strengthened by a recital of a purpurchaser defined.–Tuell v. Paine (Sup.) 956.
pose to dispose of the entire estate. - Van Where a stockbroker, being ordered to pur-
Winkle v. Van Winkle (Sup.) 612.

chase stocks, never purchases them, the cus-
To overcome the presumption that a convey. tomer is excused from demanding them. –Tuell
ance of land bounded by an existing road car-

v. Paine (Sup.) 950.
ries the fee to the center thereof, there must Broker, having bought stocks on margin, can-
be express words explicitly excluding the high- not sell them out unless the customer waives
way.--Van Winkle v. Van Winkle (Sup.) 612. tender, demand of payment, and notice of sale.

It is presumed that the owner of land bordering –Tuell v. Paine (Sup.) 936.
on a canal has title to the center of the stream. Duty of stockbroker, on receiving order to
-Warner v. City of Gloversville (Sup.) 912. purchase stocks, defined.–Tuell v. Paine (Sup.)

A deed construed, and held not to convey any
part of the street mentioned as one of the $ 2. Compensation and lien.
boundaries.-Jacquemin v. Finnegan (Co. Ct.) Evidence held sufficient to show an employ-

ment of plaintiff by defendant, and an agree-

ment to pay the reasonable value of the sery-

ices.-Hart v. Maloney (Sup.) 293.
Of contract, see “Contracts," $ 4; "Sales," $ 3; Real estate broker held not entitled to com-
"Vendor and Purchaser," § 1.

missions.-Hausman v. Herdtfelder (Sup.) 1039,



and 114 New York State Reporter
§ 3. Actions for compensation.

Shipping receipt held not to relieve express
Evidence in an action to recover commission company of liability, though the claim was not
for selling real estate held to justify a finding presented within 90 days, as required. Secu-
that plaintiff's employment continued until the rity Trust Co. of Rochester v. Wells, Fargo

completed.-Diamond Wheeler & Co. Express (Sup.) 830.
(Sup.) 416.

Shipping receipt held not to relieve express
Evidence in an action to recover a commission company of liability for wrongful delivery.-
for negotiating a loan held insufficient to justify Security Trust Co. of Rochester v. Wells, Far-
a verdict for plaintiff.–Faulkner v. Cornell go & C.. Express (Sup.) 830.
(Sup.) 526.

Negligence of consignor held not to relieve er.

press company for wrongful delivery.-Security

Trust Co. of Rochester v. Wells, Fargo & Co.
Of insurance companies, see "Insurance," $ 7. Express (Sup.) 830.

An express company, delivering goods to a per-

son other than the consignee, is liable for con-

version.-Security Trust Co. of Rochester 5.
Of causes for trial, see “Trial," $ 1.

Wells, Fargo & Co. Express (Sup.) 830.

An express company is liable for a wrongful

delivery, though its liability is merely that of a

warehouseman of an involuntary bailee.--Secu-
See "Waters and Water Courses," $ 1.

rity Trust Co. of Rochester v. Wells, Fargo &
As boundaries, see “Boundaries," $ 1.

Co. Express (Sup.) 830.

§ 2. Carriage of passengers.
CANCELLATION OF INSTRUMENTS. The slowing up of a street car after being

signaled held not an invitation to the one who
See “Quieting Title"; "Reformation of Instru- signaled to board the car before it stops.--Mon-

roe v. Metropolitan St. Ry. Co. (Sup.) 177.
Setting aside fraudulent conveyances,
"Fraudulent Conveyances," § 1.

In an action against a street railway com-
pany for injury to a passenger, held error to

leave the question of the conductor's negligence

to the jury.-Monroe v. Metropolitan St. Ry.

Co. (Sup.) 177.
For office, see "Elections," $ 1.

Positiveness of plaintiff's testimony that the

conductor who ejected him was the one he paid

his fare to held not affected by his testimony

at the trial, a year after the event, that he
See "Elections,” 2.

would not know the conductor.-Foley v. Met.

ropolitau St. Ry. Co. (Sup.) 249.

A verdict of $1,500 for ejection of a passen-

ger held not excessive.-Foley v. Metropolitan
Assessment of capital stock of corporation, see

St. Ry. Co. (Sup.) 249.
"Taxation," $ 3.

The doctrine of res ipsa loquitur held to apply

to cases of injuries to passengers caused by the

derailment of a street car.–Adams v. Union

Ry. Co. of New York City (Sup.) 264.
§ 1. Carriage of goods.

An instruction in an action for injury to a
Evidence in action against express company passenger on a street car held erroneous in as-
for loss of goods held sufficient to warrant sub- suming that it was the duty of the motorman
mitting issues of shipment and destruction by to have anticipated the accident. -Suse v. Met.
fire en route to jury.--Rowan v. Wells, Fargo & ropolitan St. Ry. Co. (Sup.) 513.
Co. (Sup.) 226.

An instruction in an action for injury to a
In action for loss of goods en route, express passenger on a street car held erroneous in stat-
company held entitled to instruction that re- ing that defendant would be liable for certain
covery could not exceed amount stipulated in negligence, though it did not contribute to the
contract of carriage, where disclosure of nature accident.-Suse v. Metropolitan St. Ry. Co.
of goods was not made.-Rowan v. Wells, Far- (Sup.) 513.
go & Co. (Sup.) 226.

Evidence in an action by a passenger on a
Mere fact that goods in process of transporta- street car for injury examined, and held to pre-
tion by express company were destroyed by fire sent a question as to want of care on the part
held insuflicient to charge company, in view of of the street car company for the jury.-Suse v.
express stipulation in contract of shipment.- Metropolitan St. Ry. Co. (Sup.) 513.
-Rowan v. Wells, Fargo & Co. (Sup.) 226.

Question of passenger's contributory negligence
Express company held not negligent for fail. in jumping from street car to avoid threatened
ure to search ruins of express car after fire to collision with approaching railroad train held
recover gold shipped.-Rowan v. Wells, Fargo for the jury.-Robson v. Nassau Electric R. Co.
& Co. (Sup.) 226.

(Sup.) 698.

Question of street car company's negligence in

propelling car across railroad track, so as to
threaten collision with an approaching train, For supply of gas, see "Gas.".
therehy causing passenger to jump and receive of legacies on property by will, see "Wills,” $
injuries, held for the jury.-Robson V. Nassau

Electric R. Co. (Sup.) 698.

To jury in civil actions, see "Trial," $ 5.
Defendant's evidence, in an action against a
street railway company for assault by a con-

ductor, held not so incredible as to demand the
setting aside of a verdict in its favor.-James See “Pledges.”
v. Metropolitan St. Ry. Co. (Sup.) 710.

§ 1. Removal or transfer of property by
A street railway company is not liable for an

assault on a passenger by a conductor, provoked Facts held not to show intent to defraud, so
by the passenger's violence.-James v. Metropoli- as to create criminal liability, under Pen. Code,
tan St. Ry. Co. (Sup.) 710.

§ 571, punishing chattel mortgagor fraudulent-
Provision on railroad ticket held not such as hy disposing of goods.-- People v. Staton (Sup.)

to exempt carrier from liability for injuries
from its negligence.-Dow v. Syracuse, L. &

B. Ry. (Sup.) 941.

Acceptance by one from railroad of tickets See “Bills and Notes."
bearing provision exempting railroad from lia-
bility for injuries held not to render such provi-

sion binding on the acceptor of the tickets.-
Dow v. Syracuse, L. & B. Ry. (Sup.) 941. See “Guardian and Ward"; "Infants."

In an action for injuries to a passenger, a
prior sworn statement held not inconsistent with

plaintiff's claim at the trial that his injury
was caused by the sudden forward movement of Assignment, see "Assignments."
the car as he was alighting.-Tooker v. Brook-
lyn Heights R. Co. (Sup.) 969.


See "Municipal Corporations."
See “Animals."


See "Replevin."
To review tax assessment, see "Taxation," g 3.

§ 1. Proceedings and determination.
Code Civ. Proc. & 2131, has changed the com-

Against estate of decedent, see "Executors and
mon-law rule under which the writ of certiorari Against insolvent corporation, see “Corpora-

Administrators," § 4.
effected a stay.-People v. Sturgis (Sup.) 194.

tions," $ 5.
That the commissioner of the fire department Against municipal corporation, see "Municipal
was prejudiced against the chief of the fire de- Corporations," $ 10.
partment is no ground for a stay on certiorari To property levied on, see "Attachment,” 8 5.
issued by the supreme court to review the dis-
missal.- People v. Sturgis (Sup.) 194.

On certiorari to review the removal of the
chief of the fire department, the question of the Parol evidence, see "Evidence," $ 8.
erroneous rulings of the commissioner is for
the appellate division.—People v. Sturgis (Sup.) COLLATERAL INHERITANCE TAXES.

Certiorari to review dismissal of chief of city See “Taxation," $ 5.
fire department by fire commissioner should not
contain a provision staying execution of the or-
der.-People v. Sturgis (Sup.) 194.

On a second return of police commissioners in
certiorari, under Code Civ. Proc. $8 2133, 2136,

See “Pledges."
to review proceedings in removing a patrolman,
held, that they could not contradict their record,

made by them pursuant to Greater New York
Charter, $8 298. 300, 1513, 1546, and rules of Of costs, see "Costs," $ 3.
the board of police commissioners (rule 28, par. Of estate of decedent, see "Executors and Ad-
"m").- People v. York (Sup.) 300.

ministrators,” $ 3.

and 114 New York State Reporter

Evidence in an action against a firm for a

debt which it had given its moral obligation to
Carriage of goods and passengers, see "Car- pay examined, and held to justify a finding that

there was a definite promise to pay within the

time allowed.-Taylor v. Hotchkiss (Sup.) 1042.

A letter written by an insolvent firm to a
Inquisition of luuacy, see "Insane Persons,” s 1. pay in full. - Taylor v. Hotchkiss (Sup.) 1042.

creditor held to constitute a moral obligation to
To take testimony, see "Depositions."


See "Accord and Satisfaction"; "Compositions
Of broker, see “Brokers," $ 2.

with Creditors"; "Payment"; "Release."
Of trustee, see “Trusts," § 5.

Evidence held insufficient to show executor of

an estate should be charged with a certain

note.-Magee v. Magee (Sup.) 757.
On charge of crime, see “Criminal Law," § 2.
On conviction of crime, see "Criminal Law," 4.


Of period of limitation, see "Limitation of Ac

tions," 8 2.
See “Carriers."


Of witness, see "Evidence," $ 9.
See "Schools and School Districts," $ 1.


Taking property for public use, see "Eminent


For property taken for public use, see "Eminent
Domain," $ 1.

On opening default, see "Judgment," $ 2.
For services, see "Master and Servant," $ 2.
Of broker, see “Brokers," $ 2.
Of city employés, see "Municipal Corporations,"

$ 4.
Of commissioners of appraisal, see “Eminent Do- Disclosure of communications, see "Witnesses,"
main," § 1.

§ 1.
Of health department officers, see "Municipal

Corporations," $ 3.
Of municipal officers, see "Municipal Corpora- Conflicting jurisdiction of courts, see “Courts,"
tions," $ 2.

§ 3.
Of policemen, see "Municipal Corporations,” $ 3.
Of receiver, see “Receivers," $ 2.

Of surviving partner for winding up business, Of accord, see “Accord and Satisfaction.”

see “Partnership," $ 2.
Of trustee, see “Trusts," $ 5.

Of contract, see "Contracts," $ 1.
Proof of, in action on note, see "Bills and

Notes," § 4.
Of evidence in civil actions, see "Evidence," $ 3.

Of jurors, see "Jury," 2.
Of witnesses in general, see “Witnesses," 1. See “Jury," $ 1; "Taxation,” s 1.

8 1.

Due process of law.

The transportation corporation act (Laws

1890, c. 566), providing that a gas company
In criminal prosecution, see “Criminal Law," shall not charge, either directly or indirectly,
8 2; "Indictment and Information."

any rental for its meters, is not unconstitution-
al, as confiscating property without due process

of law.-City of Buffalo v. Buffalo Gas Co.
See “Compromise and Settlement.”

Evidence in an action against a firm exam-8 Punishment.
ined, and held to warrant the finding that it! Application of administrator, imprisoned for
was able to pay.–Taylor v. Hotchkiss (Sup.) i contempt, to be discharged therefrom, denied. -

In re Collins (Sur.) 1119.

That an administrator, imprisoned for con- Particular classes of implied contracts.
tempt in failing to make good devastavit, has See “Account Stated"; "Money Received.”
been adjudicated a bankrupt, is no reason why
he should be discharged from imprisonment.-

Particular modes of discharging contracts.
In re Collins (Sur.) 1119.

See “Accord and Satisfaction"; "Compromise

and Settlement"; "Payment''; "Release."

$ 1. Requisites and validity.

A contract by an actress for the season of a
Of will, see "Wills," $ 3.

play to commence May 12, 1902, held not so in-
definite as to be unenforceable.-Shubert V.

Angeles (Sup.) 146.

A contract by a firm of architects to pay part
Creation, see "Wills," $ 8.

of the commissions to one for aiding them in
getting a contract held to have consideration. -

Lord v. Murchison (Sup.) 321.

An agreement by which a patentee was to
Plaintiff held entitled to postponement of her agreed to be brought to set aside assignments

furnish evidence for a third party in actions
dirorce suit for absent witnesses.--Church v. of the patents held against public policy:-
Church (Sup.) 770.

Cowles v. Rochester Folding Box Co. (Sup.)
In an action for divorce, defendant held es-'811.
topped to oppose motion for a postponement Evidence held insufficient to justify a finding
on the ground that plaintiff was negligent in that plaintiff had been induced by fraud to exe-
preparing for the trial. — Church v. Church cute a contract.- Nesbit v. Jencks (Sup.) 1085.
(Sup.) 770.

8 2. Construction and operation.

Acts by parties to option contract, 15 months

after the expiration of the option, held not ap
Agreements within statute of frauds, see election binding on the other party.–Turner v.
"Frauds, Statute of."

Baldwin (Sup.) 1089; Moore v. Turner, Id.
Assignment, see "Assignments.”
Authority of corporate officer to bind corpora-hold property in trust for others, who might

Where purchaser at partition sale agreed to
tion, see "Corporations," $ 4.
Damages for breach, see "Damages," $ 1.

purchase the same at the end of a year, or al-

low him to retain the same on payment of a
Novation, see "Novation."

certain sum, held, that the others must elect
Operation and effect of customs or usages, see

at the expiration of the year or in a reason-
*Customs and Usages."
Parol or extrinsic evidence, see “Evidence," $ 8. able time. Turner, v. Baldwin (Sup.) 1089.

Moore v. Turner, Id.
Reformation, see "Reformation of Instruments."
Restraining performance or breach, see “Injunc- $ 3. Modification and merger.
tion," § 1.

Written contract for loan to complete build-
Specific performance, see "Specific Perform- ings held to supersede previous oral agreement

between the parties.-Curtis Bros. Lumber Co.
Subrogation to rights or remedies of creditors, v. McLoughlin (Sup.) 1016.
see "Subrogation."

§ 4. Performance or breach.
Contracts of particular classes of parties. Failure of the owner to enter and complete a
See "Corporations," $ 3.

building as authorized by the contract held not

a waiver of the contractor's default in per-
Contracts relating to particular subjects. formance.-Mitchell v. Williams (Sup.) 864.
See "Insurance," $ 2.

Where a building contract had not been per-
Ground for mechanics' liens, see "Mechanics' formed as specified, the fact that the owner al-
Liens," $ 1.

lowed his tenant to enter held not an accept-
Limitation of carrier's liability, see "Carriers,” ance of the work.-Mitchell v. Williams (Sup.)
88 1, 2.

Particular classes of express contracts.

Where an owner rejected a building, after
See "Bills and Notes"; "Covenants"; "Insur- to do under the contract, it was immaterial

completion, for defects, as he was authorized
ance"; "Partnership”; “Sales.”

that the work was done during its progress
Agency, see “Principal and Agent.”

under the owner's supervision.-Mitchell v.
Deposit, see "Depositaries."

Williams (Sup.) 864.
Employment, see "Master and Servant."
Leases, see "Landlord and Tenant."

In an action to enforce a building contract,
Mutual benefit insurance, see "Insurance," $ 7.

a finding of substantial performance and the
Sales of realty, see "Vendor and Purchaser."

rendition of judgment for the contract price,
Separation agreements, "Husband and less one-seventh for insufficiency of perform-
Wife," $ 1.

ance, held error.-Mitchell v. Williams (Sup.)
Stipulations in actions, see "Stipulations."

Suretyship, see "Principal and Surety."

In action by expert for services for making
To procure insurance, see "Insurance," § 2. affidavit for defendant for use in litigation,


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