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§ 5. Operation.

and 146 New York State Reporter

A railroad company held, as bearing on its freedom from negligence in a collision with a street car, killing the street car conductor, entitled to show that its intersection agreement, made under section 12 of the railroad law (Laws 1890. p. 1087, c. 565, as amended by Laws 1892, p. 1382, c. 676), with the street railroad, provided that it should be under no obligation to warn and protect the cars and employés of the street railway company.-Cox v. Delaware & Hudson Co. (Sup.) 443.

In case of collision of a steam railroad train with a street car at a crossing within the yards of the railroad company, held, that evidence of interlocking switch and signal devices at other places was not admissible on the question of negligence under section 36 of the railroad law (Laws 1890, p. 1095, c. 565, as amended by Laws 1898, p. 1174, c. 465).-Cox v. Delaware & Hudson Co. (Sup.) 443.

§ 350. In an action for an injury at a railroad crossing, whether plaintiff was negligent held for the jury.-Robison v. New York Cent. & H. R. R. Co. (Sup.) 905.

REAL ESTATE AGENTS.

See Brokers.

RECEIVERS.

In supplementary proceedings, see Execution,
$ 6.
Jurisdiction to restrain prosecution of action
by receiver in another state, see Courts, § 3.
Of corporations in general, see Corporations, § 5.
Of partnership, see Partnership, § 4.
§ 1. Title to and possession of property.
A receiver by his appointment held to become
a party to the insolvent's debt, so far as con-
cerns the validity of a promise to the receiv-
er by a debtor of insolvent to pay part of his
indebtedness to a creditor of insolvent.-Buffalo
Forge Co. v. Columbus & Hocking Clay Const.
Co. (Sup.) 460.

A receiver, with no other authority than being duly appointed, held not authorized to make a compromise.-Buffalo Forge Co. v. Columbus & Hocking Clay Const. Co. (Sup.) 460.

A receiver held required to have special authority to pay a creditor of insolvent.-Buffalo Forge Co. v. Columbus & Hocking Clay Const. Co. (Sup.) 460.

§ 2. Accounting and compensation.

§ 202. Under 2 Rev. St. (1st Ed.) pt. 3, c. 8, tit. 4, § 86, relating to receivers upon voluntary dissolution of corporations, made applicable to receivers appointed under Code Civ. Proc. § 2429, by Laws 1880, p. 367, c. 245, and expressly excepted from repeal, held, that a referee should be appointed to state the receiver's account, to allow a judgment creditor to prove objections specific enough to compel the receiver to be examined under oath.-In re Home Book Co. (Sup.) 1012.

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§ 1. Proceedings to procure and effect of removal.

*Where a cause is removed to a federal court, held, the state court has no jurisdiction, under *Point annotated. See syllabus.

RETURN.

Code Civ. Proc. § 623, in view of U. S. Rev.
St. § 629 (U. S. Comp. St. 1901, pp. 503-516),
to order a reference to ascertain damages sus- Of execution, see Execution, § 5.
tained by an injunction issued in the cause be-
fore removal.-Byrne v. Lathrop, Shea & Hen-
wood Co. (Sup.) 273.

REMOVAL OF CLOUD.

See Taxation.

REVENUE.

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See Quieting Title.

RENT.

See Landlord and Tenant, § 4.

Water rents, see Waters and Water Courses, Of will, see Wills, § 1.

§ 3.

REPAIRS.

REVOCATION.

Of premises demised, see Landlord and Ten- Of liquor license, see Intoxicating Liquors, § 3.
ant, § 3.

Of probate of will, see Wills, § 2.
Of will, see Wills, § 1.

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and 146 New York State Reporter
action for pur-

Right to bill of particulars in
chase price, see Pleading, § 5.
Sales by or to particular classes of persons.
See Hawkers and Peddlers.

Agent, see Principal and Agent, § 2.

Sales of particular species of, or estates or interests in, property.

See Intoxicating Liquors; Public Lands, § 2. Partnership property, see Partnership, § 2. Property of decedent, see Executors and Administrators, § 2.

Realty, see Vendor and Purchaser.

Sales on judicial or other proceedings.

See Judicial Sales.

In an action for breach of a seller's contract to deliver goods, the complaint held to sufficiently allege, general damages.-Harrison v. Argyle Co. (Sup.) 477.

In an action for failure to deliver goods as agreed, the evidence held to sustain a finding that defendant's offer to deliver was not in good faith.-Harrison v. Argyle Co. (Sup.) 477.

In an action for breach of a contract to deliver goods, the buyer held not bound to purloss from the seller's breach.-Harrison v. Argyle chase goods elsewhere in order to reduce the Co. (Sup.) 477.

$ 359. In an action for the price of goods claimed to have been ordered by defendants and delivered to a third party, evidence held insuffisued for.-Brown v. Grossman (Sup.) 827.

On foreclosure of mortgage, see Mortgages, § 5. cient to show that the order covered the goods

1.

Requisites and validity of contract.

§ 24. Option to purchase fixtures held sufficient consideration for money deposited by purchaser to be forfeited if he failed to keep the contract.-Nagel v. Cohen (Sup.) 1066.

§ 2. Construction of contract.

Under a contract for the sale of whisky in a bonded warehouse, the seller held authorized to

show, in an action for breach of contract, that there was no delay by him in the shipment of the goods as ordered.-Meyer v. Stone Valley Distilling Co. (Sup.) 615.

A statement by an agent making a sale of whisky in a bonded warehouse in a distant state held not a condition of the contract.-Meyer v. Stone Valley Distilling Co. (Sup.) 615.

§ 3. Performance of contract.

In an action for failure to deliver goods contracted for, that defendant offered to furnish the goods if plaintiff would pay cash for them held not to limit recovery to nominal damages; the offer not being in good faith.-Harrison v. Argyle Co. (Sup.) 477.

§ 176. Where plaintiff contracted to sell defendants skins for June shipment, and a part of them were delivered in June and the remainder tendered in August, but defendants refused to accept them on the specified ground that they were unmerchantable, they could not thereafter object on the ground of delay in delivery. Hess v. Kaufherr (Sup.) 832.

$179. Ordinarily, without warranty, retention of goods waives claim for imperfections therein.-Wilmerding v. Strouse (Sup.) 1091. § 4. Warranties.

§ 288. Breach of warranty is no defense to an action for the price of goods where the buyer retains them.-Wilmerding v. Strouse (Sup.) 1091.

5. Remedies of seller.

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$ 2. Public schools.

Where a teacher was receiving by contract a salary of $960 per annum at the time of the passage of Laws 1897, p. 394, c. 378, § 1091, as amended by Laws 1900, p. 1607, c. 751, § 4, relating to salaries of teachers of schools in the city of New York, and providing for continuance of teacher at the same salary to the end of the school year when he was to be placed on the schedule adopted by the board of education, such teacher was entitled to such salary for the remainder of the school year, when he was entitled to be increased in accordance with the schedule applicable to the class of teachers to which he belonged.-Loewy v. Board of Education of City of New York (Sup.) 4.

amended by Laws 1900, p. 1607, c. 751, § 4. Under Laws 1897. p. 394, c. 378, § 1091. as salaries of teachers existing at time of its passage were to be continued until the end of the school year when the teacher should be placed under the proper schedule.-Loewy v. Board of Education of City of New York (Sup.) 4.

An action by the seller against the buyer of a quantity of folders to be printed held an ac- Greater New York Charter (Laws 1897, p. tion for the price, so that payment of a judg-404, c. 378) § 1117, making positions of teachers ment recovered by the seller transferred title permanent, subject to certain limitations, is not to the folders to the buyer.-Pacific Coast Borax applicable to a teacher in the village of FlushCo. v. Waring. (Sup.) 458. ing, whose license expired within the current

*Point annotated. See syllabus.

year, except for the period limited by the expi- | the judgment, and can only relieve himself by ration of the license.-Wood v. Board of Educa- showing that the judgment creditor is not agtion of City of New York (Sup.) 578. grieved.-Smith v. Geraty (Sup.) 1100.

Resolution of school board of borough of Queens appointing a vice principal held subject to limitation of the by-laws of the board of education of the city, of New York that he must hold a first assistant teacher's license.-Wood v. Board of Education of City of New York (Sup.) 578.

One rendering such services as teacher as might be required of him held not a vice principal. within Laws 1900, p. 1605, c. 751.-Wood v. Board of Education of City of New York (Sup.) 578.

SECONDARY EVIDENCE.

SHIPPING.

§ 1. Liabilities of vessels and owners in general.

Statement as to proximate cause of injury_to one making repairs on a tugboat.-Casey v. Lehigh Valley R. Co. (Sup.) 522.

Statement of duty owed by owner of tugboat for safety of a workman of one making repairs on the boat at the owner's invitation.-Casey v. Lehigh Valley R. Co. (Sup.) 522.

Evidence held sufficient to go to the jury that defendant was the owner of the tugboat on which plaintiff was injured while making re522.

In criminal prosecutions, see Criminal Law, § 4. pairs.-Casey v. Lehigh Valley R. Co. (Sup.)

SERVICE.

SIDEWALKS.

Of copy of indictment on accused, see Crim- See Municipal Corporations, § 6.

inal Law, § 5.

Of process, see Process, § 1.

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SLANDER.

See Libel and Slander.

SMOKE.

Liability of city for smoke nuisance, see Municipal Corporations, § 6.

See Associations.

SOCIETIES.

SPECIAL LAWS.

Dismissal of main action on trial and rendition
of judgment on counterclaim, see Trial, § 4.
In action for rent, see Landlord and Tenant,
§ 4.
In action for storage charges, see Warehouse- See Statutes, § 1.

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By executor or administrator see Executors and Demurrer to pleading in action for damages Administrators, § 6.

SEWERS.

Construction of by city, see Municipal Corporations, $$ 3, 7.

Defects or obstructions, see Municipal Corporations, § 6.

SHERIFFS AND CONSTABLES.

1. Powers, duties, and liabilities. § 130. A judgment for the officer receiving an execution in an action by the judgment creditor held erroneous.-Smith v. Geraty (Sup.) 1100.

for failure to obey decree of, see Pleading, $ 4.

Filing of lis pendens, see Lis Pendens. Judgment in action for as res judicata of action for damages for breach of contract, see Judgment, § 5.

§ 1. Contracts enforceable.

*Plaintiff held entitled to specific performance of a contract to convey certain lots, notwithstanding they were worth considerably more than the purchase price.-Robbins v. Clock (Sup.) 246.

*The act of a vendee's attorney in demanding the return of the earnest money because of a defect in the title held to amount to a rescission of the contracts, so that the vendee's subsequent assignee could not maintain specific performance, but could only recover the earnest *Point annotated. See syllabus.

§ 139. An officer, failing to make return of execution is prima facie liable for the amount of

and 146 New York State Reporter

money and expenses of searching the title, interest, and costs.-Monds v. Birchell (Sup.) 249. § 2. Good faith and diligence.

*The fact that a person contracting to convey land does not, at the time, have title to all of it, does not render specific performance of the contract impossible, so as to deprive equity of jurisdiction, where it does not appear that he might not acquire title to the whole of it.-Krasnow v. Topp (Sup.) 546.

3. Proceedings and relief.

*A delay of 14 months in bringing suit for specific performance after the right of action accrued held not such laches as to defeat plaintiff's right to relief.-Robbins v. Clock (Sup.) 246.

*In a suit for specific performance, the fact that the contract misdescribed the land as in Suffolk, instead of Nassau county, held no defense.-Robbins v. Clock (Sup.) 246.

*To justify a decree for damages in a suit for specific performance of a contract to convey, it must appear that specific performance cannot be had.-Will v. Barnwell (Sup.) 462.

In an action to compel specific performance of defendant's contract to convey land, the title to which at the time of the contract, was in his sister, who afterward conveyed it to his wife for his use, the sister and wife held proper defendants, though the deeds to them were not upon express trust.-East River & Astoria Land Co. v. Kindred (Sup.) 540.

Provisions relating to particular subjects. See Arrest, § 1; Canals, § 1; Carriers, $$ 2, 3; Courts, § 2; Criminal Law, § 1; Depositaries; Descent and Distribution; Discovery, § 1; Elections, § 1; Extradition, § 1; Highways, § 1; Husband and Wife, $$ 1, 2: Indictment and Information, §§ 1, 3, 5; Infants, §1; Injunction, §§ 1, 3, 5; Insurance, §§ 1, 2; Intoxicating Liquors; Judgment, § 4; Jury, 1; Justices of the Peace, § 1; Licenses, § 1; Master and Servant, § 3; Mechanics' Liens; Mines and Minerals, § 2; Newspapers; New Trial, § 2; Perpetuities; Pleading, $8 2-4, 6; Powers, § 1; Process, $ 1: Quieting Title, § 1; Railroads, §§ 1, 3, 5; Receivers, 2; Removal of Causes, § 1; Schools and School Districts, § 2; Street Railroads, §1; Taxation; Telegraphs and Telephones,

2; Trial, § 2; Trusts, §§ 2-4. 6: Vendor and Purchaser, §§ 1, 2; Warehousemen; Waters and Water Courses, §§ 1, 3; Wills, §§ 2, 3; Witnesses, § 1.

Appliances furnished for use of servants, see
Master and Servant, § 3.

Attorney's lien, see Attorney and Client, § 4.
County depositaries, see Depositaries.
Master's duty to guard dangerous appliances
and machinery, see Master and Servant, § 3.
Receivers in supplementary proceedings, see
Execution, § 6.
Statute of frauds, see Frauds, Statute of.

§ 1. General and special or local laws. § 97. Laws 1895, p. 2067, c. 1018, authoriztinue a certain highway without the consent of the highway commission of Livonia, held violative of Const. art. 3, § 18.-City of Rochester v. Gray (Sup.) 774.

Allegations in an action for specific performing Rochester water commissioners to disconance of a contract to convey land held to state a good cause of action against the alleged equitable owner of the land.-East River & Astoria Land Co. v. Kindred (Sup.) 540.

*In a suit to specifically enforce a contract to convey land, where it appeared, at the close of the trial, that defendant could not specifically perform, a money judgment prayed for was properly rendered.-Krasnow v. Topp (Sup.) 546.

SPIRITUOUS LIQUORS.

See Intoxicating Liquors.

STATES.

Courts, see Courts.
Interstate extradition, see Extradition, § 1.
Regulation of liquor traffic, see Intoxicating
Liquors, § 1.

STATUTES.

As denying due process of law, see Constitutional Law, § 5.

As invading property rights, see Constitutional Law, § 3.

Denying the equal protection of laws, see Constitutional Law, § 4. Determination of constitutionality, see Constitutional Law, § 1.

Powers of court of statutory origin, see Courts, § 2.

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2. Construction and operation.

All the words of a statute should be given a meaning, if possible.-Baxter v. York Realty Co. (Sup.) 455.

*In construing a statute, the words thereof must be given their plain and ordinary meaning. People v. Bashford (Sup.) 502.

*A thing within the intention of a statute is within the statute, though a literal construction excludes it.-In re Board of Rapid Transit Com'rs (Sup.) 619.

*In construing statutes, the intention of the Legislature must be sought and given effect.People v. Glynn (Sup.) 695.

*In construing statutes, the legislative intention is to be determined from the language used, by giving such language its usual and accepted meaning.-People v. Glynn (Sup.) 695.

$ 220. The fact that the Legislature. under the former charter of Rochester as amended by Laws 1893, p. 361, c. 204, and Laws 1897, p. 1150, c. 784, gave the police court jurisdiction to try persons accused of petit larceny, second offense, held to afford legislative construction of the most direct kind that the offense is a misdemeanor.-People v. Craig (Sup.) 781.

*Point annotated. See syllabus.

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