Page images


Opinion Evidence.

afterwards raise it at the close of plaintiff's

case by a motion to dismiss.--Knapp v. New
See "Evidence,” 5-7.

York El. R. Co., (Super. N. Y.) 21 Y. Y, S.


To show cause, see “Mandamus," 3–5.

Sale by executors pending suit for par-
Conditional acceptance.

tition-Disposition of proceeds.
1. Where a person who is to pay for the After an action for partition of land de-
erection of a building in specified payments ac, vised to plaintiffs and defendants, the er.
cepts an order drawn by the contractor, and ecutors sold it, and defendants united in a con-
agrees to pay it when the latter becomes enti- veyance of it to the purchaser, the power of
tled to a certain payment, the acceptor is not the executor to sell being questioned by plain.
liable in an action thereon, in the absence of tiffs. Held, that a motion requiring the er-
any evidence that the drawer was entitled to ecutors to pay the proceeds of the sale into
such payment.-Quinn v. Aldrich, (Sup.) 24 N. court was properly denied, since, if the sale
Y. S. 33.

by the executors was valid, the surrogate's
2. The fact that such acceptor paid money court, on settlement of the executors' accounts.
to the drawer on such payment and the sub- had jurisdiction to decree distribution, and, if
sequent payment is immaterial, and does not their sale was invalid, plaintiffs could not in-
justify the inference of fraud, since the former sist on the other devisees paying into court the
had a right to give the latter any money he amount they had received from a purchaser
chose, and on any account he pleased.—Quinn for their interest in the land.-Myers 5. Bolton,
V. Aldrich, (Sup.) 24 N. Y. S. 33.

(Sup.) 24 N. Y. S. 181.


Prohibiting employment of child as dancer, see Power of partner to assign for creditors, see
“Constitutional Law," 3.

“Assignment for Benefit of Creditors," 3.
Custody of child.

Firm property.
A child will not be taken from the cus- 1. As against an assignment of partnership
tody of its father and given to its mother, property for the benefit of creditors, property in
where it does not appear that its welfare re- the possession of, and used by the firm, cannot
quires the change.-Day v. Day, (Super. N. be claimed to have been the individual property
Y.) 24 N. Y. S. 873.

of a member of a firm, by one to whom such

member subsequently assierel it.-Sherman 1.
Parol Evidence.

Jenkins, (Sup.) 24 N. Y. S. 180.
See “Evidence," 9, 10.

Dissolution, settlement, and accounting.

2. In an action by a partner against his

(opartner in a city contract, to recover mon-
Particulars, Bill of.

ey alleged to have been given to defendant for
See “Pleading,” 7.

use in the interest of the business, and be him
appropriated, plaintiff testified that defendant

represented that certain persons (without nam-

ing them) were to have 4 per cent. of the re-
In action by life tenant, see “Eminent Do- of money was delivered by plaintiff, in the pres.

ceipts on the contract, and that the package
main," 8.

ence of defendant, to W., to be given to the
for accounting, see "Equity,” 6.

person presenting a card from defendant. W.
on bond, see "Mechanics' Liens," 6.
In foreclosure proceedings, see "Mortgages,” but did not remember to whom he gave it. De

admitted receiving the money from plaintif,
9, 10.

fendant denied the statements by plaintiff.
Who may sue, see “Action," 1.

Held that, defendant having authority to obtain
Joinder of defendants.

the money himself from W., his failure to dis-
1. Where it is claimed that, in the execu-

close who actually received 'it entitled plaintiff
tion and delivery of a note, the maker acted as

to recover.-Berau v. O'Connell, (Sup.) 24 N.
agent for another, an action thereon cannot be Y. S. 597.
maintained against both the alleged principal

3. Where a partner is entitled to a certain
and agent.--First Nat. Bank v. Turner, (Sup.) per cent of the profits for each year, it is prop
24 N. Y. S. 793.

er, in determining such profits to charge off

the amount of interest on firm debts and cares
Manner of making objections.

--Conville v. Shook, (Super. X. Y.) 24 N. Y. &
2. An objection to parties, unless taken by 547.
answer or demurrer, is waived, in an action 4. Where a partner in a manufacturing
at law.-Maitland v. Baldwin, (Sup.) 24 N. Y. concern is entitled to a certain per cent. of the
S. 29.

profits for each year, it is proper, in estimating
3. Where it appears by the pleadings that such profits, to charge off a certain per cent.
there is a defect of parties, and defendants do of the cost of the plant each year, for deprecia.
not raise the objection either by demurrer or tion in the value thereof.-Conville v. Shook,
answer, they waive such objection, and cannot (Super. N. Y.) 24 N. Y. S. 547.

5. In an action by a partner against his goods a note made by third persons, and in-
copartner for an accounting, though defendants dorsed by himself, and gives a chattel mort-
assumed the responsibility of keeping the firm gage on the goods, conditioned for the dis-
books, where it appears that the accounts charge of all liability as indorser of the note,
were actually kept by various subordinates, but containing no acknowledgment of an in-
subject to the order of all the partners, de- debtedness to the seller or promise to pay any
fendants are not necessarily liable for all ap- sum, it will be presumed that the note was re-
parent deficiencies in assets.-Jamer v. Jacobs, ceived in payment for the goods, and the seller
(Sup.) 24 N. Y. S. 1126.

cannot recover on the original indebtedness.-
Firm and private creditors.

Manning v. Lyon, (Sup.) 24 N. Y. S. 265.
6. Where a partner joins his copartner in Application.
a mortgage on the partnership property with- 2. Under separate contracts to erect two
out reservation, the mortgage includes his in- buildings on neighboring lots, forming a sin-
terest under a prior mortgage to himself on gle block, under a single plan of an architect,
his copartner's interest in the premises.-Bar- there was evidence that payments were made
ber v. Palmer, (Sup.) 24 N. Y. S. 451; First by one of the parties on estimates of the
Nat. Bank v. Same. Id.

architect made under the contracts as a whole,
7. The lien of a mortgage made by one part and that the payments amounted to what
ner on his interest in the partnership property is plaintiff was entitled to at the time on the
subordinate to a subsequent mortgage by the whole work; that the payor stated that he
firm to secure a firm debt.–Barber v. Palmer, was paying the bills until the other owner
(Sup.) 24 N. Y. S. 451; First Nat. Bank v. could make a loar., the latter being payor's
Same, id.

nephew, whom he desired to assist in building

the block. Held, that the payments were prop-
Coming in of new member Liability erly applied in 'equal proportion on each con-
for debts of old firm.

tract. --O'Brien v. McCarthy, (Sup.) 24 N. Y.
8. A person contemplating entering a firm s. 1108.
as a special partner cannot bind the prospective
firm to the payment of debts of the old firm.

-In re Wyatt, (Sup.) 24 N. Y. S. 273; In re Evidence.
Ryan, 1d.
9. Where a firm hypothecates goods con- making of a note, evidence by the payee that

1. On a trial for perjury in denying the
signed to it, and uses the proceeds thereof, a the word "date" was written by defendant is
new firm, formed to succeed it, which never sufficiently corroborated by the testimony of ex-
receives any of the goods or the money obtained perts that it was written by the same person
therefor, and never agrees to assume the lia- who signed it, admittedly, the defendant.-Peo-
bilities of the old firm, or to guaranty the pay-ple v. Hayes, (Sup.) 24 N. Y. S. 194.
ment of its debts, is not liable for such goods.
-In re Wyatt, (Sup.) 24 N. Y. S. 273; In re affidavit of defense, the uncorroborated evi-

2. On a trial for perjury in making an
Ryan, Id.
10. The fact that after the formation of the affidavit is sufficient to establish such fact.-

dence of the notary as to the making of the
new firm, a special partnership, the general People v. Hayes, (Sup.) 24 N. Y. S. 194.
partner, the member who had been in the old
firm, rendered a stock account to the consignors
of the old firm falsely indicating the posses,

sion by the new firm of the goods which had See "Powers,” 2; “Wills,” 25.

eriously been hypothecated, would not bind
the firm, or estop it from showing the real facts.
-In re Wyatt, (Sup.) 24 N. Y. S. 273; In re

Personal Injuries.
Ryan, Id.

See “Damages;” “Negligence."
Part Payment.

Indemnity against action for, see "Indemnity,"

To remove bar of statute, see "Limitation of To passenger, see “Carriers,” 1-7.
Actions,” 6.

To servant, see “Master and Servant,” 3–19.

To traveler on defective street, see "Municipal

Corporations," 12–16.
Right to place window in wall.

Personal Representatives.
One owning part of a party wall has no
right to place windows therein.-National Com | See "Esecutors and Administrators."
mercial Bank v. Gray, (Sup.) 24 N. Y. S. 997.


See "Pleading," 1.
Of mortgage debt, see “Mortgages," 3.

Acceptance of negotiable paper - Pre- See, also, “Assumpsit," 1; "Conspiracy."

Amendment before referee, see "Reference," 6.
1. Where a purchaser, under a contract of In action against city, see "Municipal Corpora-
sale, delivers to the seller for the price of the tions,” 21, 22.


In attachment, see "Attachment," 6.

able, plaintiff will be required to give a bill of
Manner of making objection as to joinder of particulars showing whether any of the alleged
parties, see “Parties," 2, 3.

agreements or requests for his services are in

writing, and, if so, their date, tenor, and ef-

fect, and by whom signed; but he will not be
1. County courts are of limited jurisdic- required to give an itemized bill of the various
tion, and therefore, in actions therein, the ju services rendered by him, and how, when, and
risdictional facts must be alleged.-Peck V. to whom rendered, or of the different requests
Dickey, (Co. Ct.) 24 N. Y. S. 834.

made by defendants, or to specify by which of

the defendants the requests were made.-Fry
2. Where an answer denies material allega- : Manbattan Trust Co., (Super. Ct. n. Y. :1

N. Y. S. 573.
tions of the complaint, and also alleges a de-
fense which arose subsequent to the com-

mencement of the action, plaintiff cannot at-
tack the sufficiency of the new matter alleged Assignment or pledge, see "Assignment for
by defendant by a demurrer to the entire Benefit of Creditors," 2.
answer as not setting up a defense. -McBride Power of ancillary administrator, see "Execu-
V. American Surety Co., (Sup.) 24 N. Y. S. 178.

tors and Administrators," 23.
3. When an action for libel was called for

Police Power.
trial, defendant sought to file an amended an- See “Constitutional Law,” 3.
swer alleging that a retraction was made three
days after the publication of the libelous ar-
ticle. Answer had been filed more than six

months, and an amended answer had after- of stream, see "Waters and Water Courses," 2.
wards been put in on motion. No reason was
given for the delay, except the unverified state
ment of counsel that he knew nothing thereof POOR AND POOR LAWS.
until the day before. Held, that the refusal
to allow the amendment was not an abuse of Settlement.
discretion.--Heyler 1. New York News Pub. Italian laborers, who come to the Coitel
Co., (Sup.) 24 V. Y. S. 499.
4. Where, in an action on a note, there in Italy, and are employed in constructing rail-

States in search of work, leaving their families
was evidence of a diversion, but no such de- roads, liable to be discharged at any time, and
fense was made in the answer, and judgment free to leave their employment when they see
was rendered for plaintiff, the appellate court fit, and living in rough shanties built by the
will not amend the answer to conform to the railroad contractors, do not gain a settlemet
proof, as this is done, not to reverse, but only in a town in which they work for a year, under
to sustain, a judgment. Weems v. Shaugh- 3 Rev. St. (Banks' 8th Ed.) p. 2111, $ 29, pr.
nessy, (Sup.) 24 N. X. S. 271.

viding that every person of full age, who shall
Pleading and proof—Variance.

be "a resident and inhabitant of any town for
5. In an action to recover money lost in one year,” shall be deemed settled in said town.
certain investments, which plaintiff had been-In re Town of Hector, (Co. Ct.) 24 N. Y. S.
induced to make with a certain firm through 475; In re Zebedio, Id.
false representations of defendant, the fact that
no money passed at the dates mentioned in the

complaint between plaintiff and defendant did
not show a variance between the proof and See "Continuance."
cause of action alleged, since, if defendant had
collected any money belonging to plaintiff, as
the proof indicated, and then reinvested it,

having procured plaintiff's consent to such re-
investment by fraud and deceit, this was suffi- Testamentary powers.
cient.--James v. Work, (Sup.) 24 N. Y. S. 149. 1. A provision in a will giving at the death

6. On complaint for the price of goods of testator's wife a certain sum in such man-
sold and delivered, alleging that defendant ob- ner and form, and to such person or persons
tained credit by false representations, the sale as she, by last will and testament, maş direct,
being proved, but not the fraud, the court limit, and appoint," does not require the wife
may properly treat the averments in tort as to make a direct, absolute gift, but allows ber
surplusage, and refuse a nonsuit. -Dodge y. to dispose of the money in trust or otherwise.-
Eckert, (Sup.) 24 N. Y. S. 1074.

Maitland v. Baldwin, (Sup.) 24 N. Y. S. 29.
Bill of particulars.

Suspension of power of alienation.
7. In an action by a promoter of financial 2. 1 Rev. St. p. 737, $ 128, declarios that
and business companies against various persons the period during which the absolute right of
and corporations on a contract made by defend- alienation may be suspended by any instrument
ants to pay him a certain sum for various serv- in execution of a power shall be computed. not
ices rendered in bringing about the incorpora- from the date of such instrument, but from
tion of a certain firm, and associating defend the time of the creation of the power, espressi
ants with the enterprise, out of which they recognizes the right to suspend, by such instru-
realized large profits on the sale of stock, from ment, the power of alienation. Maitland F.
which the sum claimed by plaintiff became pay. | Baldwin, (Sup.) 24 N. Y. S. 29.

PRACTICE IN CIVIL CASES. W. was her financial and personal representa-

tive, and the manager of her company. Held,
See, also, “Abatement and Revival;" "Appeal;" that the evidence was sufficient to submit the

"Appearance;' "Continuance;" "Costs;" question of Wi's authɔrity to act for defendant
“Courts;" “Discovery;" "Evidence;" "Judg: to the jury.-Walton v. Mather, (City Ct. N. Y.)
ment;" "Jury;" “New Trial;" "Pleading;' 24 N. Y. S. 307, 4 Misc. Rep. 261.
"Reference;" "Trial;" “Witness;" "Writs.

2. One's authority as agent cannot be
Examination of adverse party, see "Discovery,” shown by his own declarations.-Fullerton v.

McLaughlin, (Sup.) 24 N. Y. S. 280.
Production of books, see "Discovery,” 5. Powers of agent.
Dismissal of action.

3. An agent authorized to collect accounts
1. It is not an abuse of discretion to dis- has no power, in the absence of evidence to
miss without costs an action to enjoin defend that effect, to receive a check for less than
ants from acting as fire commissioners of a the amount due his principal, where there is
city, where defendants were legislated out of

no evidence of mistake in the account.-Sage
office while the action was pending. -Johnston

v. Burton, (Sup.) 24 N. Y. S. 130.
v. Garside, (Sup.) 24 N. Y. S. 243.

4. The authority of an agent to make con-

tracts for the sale of lots presumptively ter-
Striking cause from calendar.

minates when contracts are made, and the bur-
2. A motion to strike a case from the den is on one asserting it to show a continu-
calendar, made when the case is regularly ance of authority.-Fullerton v. McLaughlin,
reached, will be granted where the issue rep- (Sup.) 24 N. Y. S. 280.
resented on the calendar has been superseded 5. The fact that one is agent for the owner
by a new issue under an amended complaint of lots, to make contracts to sell them, and
and answer.-Romaine v. Bowdoin, (Sup.) 24 has authority to insert the description in a
N. Y. S. 67.

blank left in a contract, does not give him any
Affidavits in support of motions.

authority to cancel, extend, or modify the con-
3. General Rules Prac. 25, provides that, tract:-Fullerton v. McLaughlin, (Sup.) 24 N.
if the affidavit in support of an ex parte appli- Y. S. 280.
cation for an order omits to state whether any

6. Admissions by the owner of lots, dur-
previous application therefor has been made, ing negotiations for their sale, that a certain
any order made on such application “may” be person does all his business for him, apply only
revoked. Held, that such omission is not an to the business of selling lots, and are not ad-
irregularity which compels the court to refuse the missions that the agent has authority to change
order, or to vacate it after it has been granted.

or extend a contract.-Fullerton v. McLaughlin,
Wooster v. Bateman, (Super. N. Y.) 24 N. (Sup.) 24 N. Y. S. 280.
Y. S. 112.

Apparent authority.

7. In an action to recover for goods sold
4. Where plaintiff, after the complaint has to a corporation at the instance of its agent,
been served, inserts in a stipulation extending plaintiff need not show express authority in the
defendant's time to answer,"Date of issue to agent to purchase goods on uefendant's credit,
be of this date,” the issue referred to is the but it is sufficient to show such a course of
issue to be joined by the service of the an-

dealing between the parties as justified the in-
swer, and not that joined by a demurrer to the ference that he had such authority.- Wilson v.
complaint.-- Romaine v. Bowdoin, (Sup.) 24 N. Wyandance Springs Imp. Co., (Com. Pl. N. Y.)
Y. S.

24 N. Y. S. 557.


8. In an action on a certificate of in-
See “Easements;" "Limitation of Actions."

surance it appeared that after proofs of

death were delivered to the company its agent

had an interview with plaintiff, who referred

him to her husband as to an adjustment of
Of delivery of deed, see “Deed," 1.

her claim, and that at an interview between
On appeal, see “Appeal," 10.

the husband and the agent, which plaintiff

knew was to take place, the husband agreed

to accept $100 in full settlement. The policy

was accordingly surrendered, and the $100
Action for, see “Sale," 4.

was paid to the husband in a draft, which
plaintiff received from him, and had cashed,

knowing_that it was paid on the insurance
PRINCIPAL AND AGENT. policy. Held, that plaintiff was bound by the

settlement made by her husband.-Haar v.
Declarations of agent, see "Evidence," 2.
Oflicers and agents of corporation, see “Corpo 1035.

Industrial Ben. Ass'n, (Sup.) 24 N. Y. S.
rations," 3-5, 7-9.
Recovery of money lost at gaming, see "Gam- Rights and liabilities inter se.

9. Where an insurance agent agrees in his
Evidence as to agency.

written contract of employment that the state

of his accounts shall be determined by an in-
1. In an action for wrongful discharge as spection of his books, and that such inspection,
defendant's stage manager, plaintiff testified made by an authorized agent of the company,
that defendant told him several times that one' shall be binding on him, the result of such in-

spection is conclusive. Owiter v. Metropolitan

Life Ins. Co., (Com. Pl. N. Y.) 24 N. Y. S. 731.

10. Where an agent fraudulently induces Of mortgage liens, see “Mortgages," 4, 5.
his principal to convey land in exchange for
other land, of less value than represented, the

agent is liable for the damages thus sustained.
---Palmer v. Pirson, (Super. Buff.) 24 N. Y. S. Appointment and removal of keepers of state

prisons, see "States and State Officers," 1.
11. Where the commissions for the sale of
property are paid in ignorance of fraud on the

Privileged Communications.
part of the agent, in consequence of which he
was not entitled to receive such commissions, See “Libel and Slander,” 4; "Witness," 2.
the amount so paid may be recovered.- Palmer
v. Pirson, (Super. Buff.) 24 N. Y. S. 333.

Probable Cause.

See "Malicious Prosecution," 1, 2,

See, also, “Guaranty."

See “Writs."
Indemnity of cosurety, see "Indemnity," 8.
Surety of negotiable instrument, see "Negotia-
ble Instruments," 8.

Release of surety.

Peremptory or alternative writ.
1. A contract with a city to build a sewer, There is no merit in an appeal from an
providing that the contractors should indemnify order granting a peremptory writ of prohibition
the city for damages to which it might be put to prevent a commitment to prison where the
for injuries caused by their acts, provided that only point made is that it should have been an
so much of the money due them as might be alternative writ, though there was a hearing
considered necessary by the commissioner of on the merits on an order to show cause.
public works might be retained by the city at People v. Mayer, (Sup.) 24 N. Y. S. 621.
its option until all such damages should be set-
tled. Held, in an action by the city on the

contractors' bond, of which the contract was
made a part, for indemnity for a judgment re- See “Breach of Marriage Promise."
covered against it for personal injuries, that it
was no defense that the city made payments
to the contractors after the injured person had

Promissory Notes.
filed his claim for damages against it.-City of See “Negotiable Instruments."
New York v. Brady, (Sup.) 24 N. Y. S. 296.
Remedies of surety against principal.

2. Intestate signed a note to one B., with Service by, see "Writs.”
defendant as surety, and told B. that he was
going to clear certain land of a lien, and give
him a mortgage thereon to take up said note.

B. gave intestate a certificate of deposit for Grants.
the amount of the loan, which a day or so
later intestate gave defendant, with instruc-

Plaintiffs in ejectment for land under
tions to collect it, pay a certain sum to another, the water of a bay on the north side of Long
and return him the balance. Intestate died island claimed under patents which convered
the same day. Defendant paid said sum, but lands bounded on the north "by the bay," and
refused to give up the balance. Held, that he with all havens, harbors," etc., to the said tract

on the south by the Atlantic ocean, together
had no right to retain it as security for the belonging, or in any wise appertaining Hd
performance of intestate's promise to B., nor
a counterclaim, the note, not being due, “bay,” the grant extended only to the water on

that, whatever might be meant by the term
and intestate's estate not being shown to be the north, and did not include the lands in dis-
insolvent.–McCormick v. Sullivan, (Sup.) 24 | pute, it not appearing that the bay on the north
N. Y. S. 1117.

was entitled to be called a haven or a barbor.
Right of surety to enforce conditions - Trustees, etc., of East Hampton v. Vail, (Sup.)

24 N. Y. S. 583.
of contract secured.
3. Where the surety of a contractor com-

Public Policy.
pletes the building, pursuant to the contract,
after abandonment thereof by the contractor, See “Contracts,” 5.
he is entitled to recover from the owner the
amount of the contract price, less the amount
paid the contractor prior to abandonment, rath- RAILROAD COMPANIES.
er than on a quantum meruit.-Board of Edu-
cation of Waterford v. First Nat. Bank, (Sup.) See, also, "Carriers;".. "Eminent Domain;"
24 N. Y. S. 392.

"Master and Servant."

[ocr errors]


« PreviousContinue »