lateral for an antecedent debt.-Sutherland v. Of covenant, see "Covenants," § 1. Mead (Sup.) 504. Of warranty, see "Sales," §§ 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 that, a note having been fraudulently diverted from its purpose, the holder has the burden of proving he acquired title in due course.-Suther- land v. Mead (Sup.) 504.
Whether the maker of a note acquiesced in the application of a payment to the last note of a series, instead of the first, held a question for the jury.-Root v. Kelley (City Ct. Ñ. Y.) 482.
The presumption that a deed of land bounded by an existing road carries the fee to the center thereof is strengthened by a recital of a pur- pose to dispose of the entire estate. - Van Winkle v. Van Winkle (Sup.) 612.
To overcome the presumption that a convey- ance of land bounded by an existing road car- ries the fee to the center thereof, there must be express words explicitly excluding the high- way.-Van Winkle v. Van Winkle (Sup.) 612.
§ 1. Establishment, construction, and maintenance. The action of a town board in rejecting a claim for services in the repair of a bridge, pre- sented by the commissioners of highways as re- quired by Laws 1890, c. 568, § 10, as amended, held not a bar to proceedings by the claimant to procure audit and payment.-People v. Town Board of Oyster Bay (Sup.) 309.
In auditing the claim of a person employed by the commissioners of highways to repair bridge, the town board may act on their own knowl- edge of the facts.-People v. Town Board of Oyster Bay (Sup.) 309.
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. Town Board of Oyster Bay (Sup.) 309.
§ 2. Regulation and use for travel.
Under Laws 1881, c. 700, the fact that a high- way commissioner was without funds with which to repair a damaged bridge held a de- fense in an action against the town for injuries caused by the giving way of a defective bridge. -Lee v. Town of Berne (Sup.) 107.
In an action against a town for injuries caus- ed by defective bridge, highway commissioner held not guilty of negligence.-Lee v. Town of Berne (Sup.) 107.
§ 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 wrongfully converted, held demurrable for failure to show that defendants were in default.-Cowen v. Voyer (Sup.) 29.
Rule for accounting between stockbroker and purchaser defined.-Tuell v. Paine (Sup.) 956.
Where a stockbroker, being ordered to pur- chase stocks, never purchases them, the cus- tomer is excused from demanding them.-Tuell v. Paine (Sup.) 956.
Broker, having bought stocks on margin, can- not sell them out unless the customer waives tender, demand of payment, and notice of sale.
It is presumed that the owner of land bordering-Tuell v. Paine (Sup.) 956. 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.) 956.
§ 2. Compensation and lien.
Evidence held suflicient to show an employ- ment of plaintiff by defendant, and an agree- ment to pay the reasonable value of the serv- ices.-Hart v. Maloney (Sup.) 293.
Real estate broker held not entitled to com- missions.-Hausman v. Herdtfelder (Sup.) 1039,
and 114 New York State Reporter
§ 1. Carriage of goods.
Evidence in action against express company for loss of goods held sufficient to warrant sub- mitting issues of shipment and destruction by fire en route to jury.-Rowan v. Wells, Fargo & Co. (Sup.) 226.
In action for loss of goods en route, express company held entitled to instruction that re- covery could not exceed amount stipulated in contract of carriage, where disclosure of nature of goods was not made.-Rowan v. Wells, Far- go & Co. (Sup.) 226.
Mere fact that goods in process of transporta- tion by express company were destroyed by fire held insufficient to charge company, in view of express stipulation in contract of shipment. -Rowan v. Wells, Fargo & Co. (Sup.) 226.
Express company held not negligent for fail- ure to search ruins of express car after fire to recover gold shipped.-Rowan v. Wells, Fargo & Co. (Sup.) 226.
Shipping receipt held not to relieve express company of liability, though the claim was not presented within 90 days, as required.-Secu- rity Trust Co. of Rochester v. Wells, Fargo & Co. Express (Sup.) 830.
Shipping receipt held not to relieve express company of liability for wrongful delivery.- Security Trust Co. of Rochester v. Wells, Far- go & Co. Express (Sup.) 830.
Negligence of consignor held not to relieve ex- press company for wrongful delivery.-Security Trust Co. of Rochester v. Wells, Fargo & Co. 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 v. 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- rity Trust Co. of Rochester v. Wells, Fargo & Co. Express (Sup.) 830.
§ 2. Carriage of passengers.
The slowing up of a street car after being signaled held not an invitation to the one who signaled to board the car before it stops.-Mon- roe v. Metropolitan St. Ry. Co. (Sup.) 177.
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.
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 would not know the conductor.-Foley v. Met- ropolitan St. Ry. Co. (Sup.) 249.
A verdict of $1,500 for ejection of a passen- ger held not excessive.-Foley v. Metropolitan St. Ry. Co. (Sup.) 249.
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.
An instruction in an action for injury to a passenger on a street car held erroneous in as- suming that it was the duty of the motorman to have anticipated the accident.-Suse v. Met- ropolitan St. Ry. Co. (Sup.) 513.
An instruction in an action for injury to a passenger on a street car held erroneous in stat- ing that defendant would be liable for certain negligence, though it did not contribute to the accident.-Suse v. Metropolitan St. Ry. Co. (Sup.) 513.
Evidence in an action by a passenger on a street car for injury examined, and held to pre- sent a question as to want of care on the part of the street car company for the jury.-Suse v. Metropolitan St. Ry. Co. (Sup.) 513.
Question of passenger's contributory negligence in jumping from street car to avoid threatened collision with approaching railroad train keld for the jury.-Robson v. Nassau Electric R. Co. (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."
thereby 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.
CHATTEL MORTGAGES.
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.
A street railway company is not liable for an assault on a passenger by a conductor, provoked by the passenger's violence.-James v. Metropoli- tan St. Ry. Co. (Sup.) 710.
Provision on railroad ticket held not such as to exempt carrier from liability for injuries from its negligence.-Dow v. Syracuse, L. & B. Ry. (Sup.) 941.
1. Removal or transfer of property by mortgagor.
Facts held not to show intent to defraud, so as to create criminal liability, under Pen. Code, § 571, punishing chattel mortgagor fraudulent- y disposing of goods.-People v. Staton (Sup.) 2.
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.
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 the car as he was alighting.-Tooker v. Brook- lyn Heights R. Co. (Sup.) 969.
To review tax assessment, see "Taxation," § 3.
1. Proceedings and determination. Code Civ. Proc. § 2131. has changed the com- mon-law rule under which the writ of certiorari effected a stay.-People v. Sturgis (Sup.) 194.
That the commissioner of the fire department was prejudiced against the chief of the fire de- partment is no ground for a stay on certiorari 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 erroneous rulings of the commissioner is for
the appellate division.-People v. Sturgis (Sup.)
Certiorari to review dismissal of chief of city 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. §§ 2135, 2136, to review proceedings in removing a patrolman, held, that they could not contradict their record, made by them pursuant to Greater New York Charter, §§ 298, 300, 1543, 1546, and rules of the board of police commissioners (rule 28, par. "m").-People v. York (Sup.) 300.
See "Guardian and Ward"; "Infants."
CHOSE IN ACTION.
Assignment, see "Assignments."
See "Municipal Corporations." CLAIM AND DELIVERY.
Against estate of decedent, see "Executors and Administrators," § 4.
Against insolvent corporation, see "Corpora- tions," § 5.
Against municipal corporation, see "Municipal Corporations," § 10.
To property levied on, see "Attachment," § 5.
COLLATERAL AGREEMENT.
Parol evidence, see "Evidence," § 8.
COLLATERAL INHERITANCE TAXES. See "Taxation," § 5.
COLLATERAL SECURITY.
COLLECTION.
Of costs, see "Costs," § 3.
Of estate of decedent, see "Executors and Ad- ministrators," § 3.
and 114 New York State Reporter
Carriage of goods and passengers, see "Car- pay examined, and held to justify a finding that riers."
Evidence in an action against a firm for a debt which it had given its moral obligation to 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 creditor held to constitute a moral obligation to
Inquisition of lunacy, see "Insane Persons," § 1. pay in full.-Taylor v. Hotchkiss (Sup.) 1042. To take testimony, see "Depositions."
Of health department officers, see "Municipal Corporations," § 3.
COMPROMISE AND SETTLEMENT.
See "Accord and Satisfaction"; "Compositions with Creditors"; "Payment"; "Release." Evidence held insufficient to show executor of an estate should be charged with a certain note.-Magee v. Magee (Sup.) 757.
Of period of limitation, see "Limitation of Ac- tions," § 2.
CONCLUSION.
Of witness, see "Evidence," § 9.
CONDEMNATION.
Taking property for public use, see "Eminent Domain."
On opening default, see "Judgment," § 2.
CONFIDENTIAL RELATIONS.
Disclosure of communications, see "Witnesses," § 1.
CONFLICT OF LAWS.
Of municipal officers, see "Municipal Corpora- Conflicting jurisdiction of courts, see "Courts," tions," § 2.
Of policemen, see "Municipal Corporations," § 3. Of receiver, see "Receivers," § 2.
Of surviving partner for winding up business, see "Partnership," § 2.
Of trustee, see "Trusts," § 5.
COMPETENCY.
Of evidence in civil actions, see "Evidence," § 3. Of jurors, see "Jury," § 2.
Of accord, see "Accord and Satisfaction." Of contract, see "Contracts," § 1. Proof of, in action on note, see "Bills and Notes," § 4.
CONSTITUTIONAL LAW.
Of witnesses in general, see "Witnesses," § 1. See "Jury," § 1; "Taxation," § 1.
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, § 2; "Indictment and Information."
COMPOSITIONS WITH CREDITORS. See "Compromise and Settlement."
Evidence in an action against a firm exam- ined, and held to warrant the finding that it was able to pay.-Taylor v. Hotchkiss (Sup.) 1042.
That an administrator, imprisoned for con- tempt in failing to make good devastavit, has been adjudicated a bankrupt, is no reason why he should be discharged from imprisonment.- In re Collins (Sur.) 1119.
CONTEST.
Of will, see "Wills," § 3.
CONTINGENT REMAINDERS. Creation, see "Wills," § 8.
Plaintiff held entitled to postponement of her divorce suit for absent witnesses.-Church V. Church (Sup.) 770.
In an action for divorce, defendant held es- topped to oppose motion for a postponement on the ground that plaintiff was negligent in preparing for the trial. Church v. Church (Sup.) 770.
Agreements within statute of frauds, see "Frauds, Statute of."
Assignment, see "Assignments." Authority of corporate officer to bind corpora- tion, see "Corporations," $ 4. Damages for breach, see "Damages," § 1. Novation, see "Novation."
Operation and effect of customs or usages, see "Customs and Usages."
Parol or extrinsic evidence, see "Evidence," § 8. Reformation, see "Reformation of Instruments." Restraining performance or breach, see "Injunc- tion," § 1.
Particular classes of implied contracts. See "Account Stated"; "Money Received."
Particular modes of discharging contracts. See "Accord and Satisfaction"; "Compromise and Settlement"; "Payment"; "Release." 81. Requisites and validity.
A contract by an actress for the season of a 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 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 furnish evidence for a third party in actions agreed to be brought to set aside assignments of the patents held against public policy.- Cowles v. Rochester Folding Box Co. (Sup.) 811.
Evidence held insufficient to justify a finding that plaintiff had been induced by fraud to exe- cute a contract.-Nesbit v. Jencks (Sup.) 1085. § 2. Construction and operation.
Acts by parties to option contract, 15 months after the expiration of the option, held not ar election binding on the other party.-Turner v. Baldwin (Sup.) 1089; Moore v. Turner, Id.
hold property in trust for others, who might Where purchaser at partition sale agreed to purchase the same at the end of a year, or al- low him to retain the same on payment of a certain sum, held, that the others must elect at the expiration of the year or in a reason- Moore v. Turner, Id. able time.-Turner v. Baldwin (Sup.) 1089.
3. Modification and merger.
Written contract for loan to complete build-
Specific performance, see "Specific Perform-ings held to supersede previous oral agreement ance.'
Subrogation to rights or remedies of creditors, see "Subrogation."
Contracts of particular classes of parties. See "Corporations," § 3.
Contracts relating to particular subjects. See "Insurance," § 2.
Ground for mechanics' liens, see "Mechanics' Liens." § 1.
Limitation of carrier's liability, see "Carriers," §§ 1, 2.
Particular classes of express contracts. See "Bills and Notes"; "Covenants"; "Insur- ance"; "Partnership"; "Sales." Agency, see "Principal and Agent." Deposit, see "Depositaries."
Employment, see "Master and Servant." Leases, see "Landlord and Tenant."
Mutual benefit insurance, see "Insurance," § 7. Sales of realty, see "Vendor and Purchaser." Separation agreements, see "Husband
between the parties.-Curtis Bros. Lumber Co. v. McLoughlin (Sup.) 1016.
§ 4. Performance or breach.
Failure of the owner to enter and complete a building as authorized by the contract held not a waiver of the contractor's default in per- formance.-Mitchell v. Williams (Sup.) 864.
Where a building contract had not been per- formed as specified, the fact that the owner al- lowed his tenant to enter held not an accept- ance of the work.-Mitchell v. Williams (Sup.) 864.
Where an owner rejected a building, after to do under the contract, it was immaterial completion, for defects, as he was authorized that the work was done during its progress under the owner's supervision.-Mitchell v. Williams (Sup.) 864.
In an action to enforce a building contract, a finding of substantial performance and the rendition of judgment for the contract price, less one-seventh for insufficiency of perform- ance, held error.-Mitchell v. Williams (Sup.) 864.
In action by expert for services for making affidavit for defendant for use in litigation,
« PreviousContinue » |