SALE-Continued.

PAGE.

that the amount of damages awarded does not exceed the minimum amount
of damages which the vendee suffered by reason of the vendor's refusal to
deliver the number of bags for which the concededly valid portion of the
tender was sufficient to pay. Id.

8. Right to rebate on the price of a part of the goods which is paid for.]
Where, in such an action, it appears that the vendee, before making the con-
tract to purchase the entire lot of bags, had purchased and paid for a portion
thereof under an agreement by which, if he took the entire lot, he was entitled
to have a rebate of five cents apiece upon those he had previously purchased,
he is entitled to recover the amount of such rebate as an element of dam-
ages. Id.

-

Res adjudicata — judgment for the plaintiff in an action to recover
the value of a team purchased by the defendant as the plaintiff's agent - it
is not a bar to an action by such agent to recover money advanced towards
the purchase. CLIFT v. MERCER....

SANITARY CODE OF NEW YORK CITY-§ 63-Possession alone of
adulterated milk is not an offense under section 63 of the New York city Sani-
tary Code
-power of the Legislature to authorize the enactment of that section
the section was not repealed by section 1172 of the New York charter nor is it
controlled by section 22 of the Agricultural Law.

See PEOPLE v. TIMMERMAN.

SATISFACTION - Of a debt.

See PAYMENT.

SECURITY — By a wife not to become a charge upon her husband who has con-
veyed property to her for her support under an agreement for their separation.
See HOLIHAN v. HOLIHAN....

SERVANT:

See MASTER AND SERVANT.

SESSION LAWS-1848, chap. 319- A charitable corporation to which a
boy is committed held not to be liable because of a failure of a foreman to instruct
him how to operate the machine · it is a governmental agency — the rule of
respondeat superior is not applicable.

-

See CORBETT v. ST. VINCENT'S INDUSTRIAL SCHOOL....
1860, chap. 345 — Landlord and tenant what risk as to the condition
of the premises is assumed by the tenant- limitations on his right to leave them.

See SHERMAN v. LUDIN.......
1869, chap. 907 - Tax paid on a railroad in a town bonded for its con-
struction the county is relieved from paying the State tax thereon -a county
which has paid it may recover it from the State.

See COUNTY OF ULSTER v. STATE OF NEW YORK....

-

- 1871, chap. 283 — Tax paid on a railroad in a town bonded for its con-
struction the county is relieved from paying the State tax thereon·
which has paid it may recover it from the State.

-a county

369

565

475

334

37

277

... 277

See COUNTY OF ULSTER v. STATE OF NEW YORK..
1873, chap. 163 - Mandamus· · when title to public office may be tried in
a mandamus proceeding-repeal of a statute by a statute covering the entire
subject-matter thereof which purports to amend it - acceptance, by a police captain
unlawfully retired, of a pension and of another position it does not create an
estoppel.
See PEOPLE EX REL. MCLAUGHLIN v. POLICE COMRS..

-

82

SESSION LAWS- Continued.

PAGE.

1883, chap. 446 - A charitable corporation to which a boy is committed
held not to be liable because of a failure of a foreman to instruct him how to
operate the machine - it is a governmental agency—the rule of respondeat
superior is not applicable.

See CORBETT v. ST. VINCENT'S INDUSTRIAL SCHOOL...

1886, chap. 84, tit. 3, § 7- Notice to a city in which an accident
occurred, after the period specified in the city charter, held to be sufficient.

See WALDEN v. CITY OF JAMESTOWN......

1888, chap. 345 — Petition to compel Buffalo grade crossing commission-
ers to apply for commissioners to appraise damages sustained by the petitioner —
sufficiency thereof.

See PEOPLE EX REL. BOLZA v. ADAM...

1890, chap. 255 — Petition to compel Buffalo grade crossing commission-
ers to apply for commissioners to appraise damages sustained by the petitioner ·
sufficiency thereof.
See PEOPLE EX REL. BOLZA v. ADAM......

1890, chap. 564, § 48- Transfer of a claim by an insolvent corporation
to secure a prior indebtedness-it is not a violation of section 48 of the Stock
Corporation Law when made pursuant to an oral agreement entered into when
the corporation was solvent-the secretary of the company may make the oral
agreement.

See MATTER OF ROGERS CONSTRUCTION Co........

1890, chap. 568, § 16-Negligence- when a town is not chargeable
because of a failure to rebuild a bridge—presumption as to funds — defense of
want of funds duty to protect the public against the use of the bridge.
See LEE v. TOWN OF BERNE....

-

1891, chap. 105, chap. 1, § 17. - Ordinance requiring a license for the
sale of fresh, salt or smoked meat or sausage outside of the public markets"
sustained-proper motives and valid reasons therefor presumed - remedy where
personal pique or political motive is shown.

See CITY OF BUFFALO v. HILL..........

1892, chap. 688- Transfer of a claim by an insolvent corporation to
secure a prior indebtedness—it is not a violation of section 48 of the Stock
Corporation Law when made pursuant to an oral agreement entered into when
the corporation was solvent-the secretary of the company may make the oral
agreement.

-

See MATTER OF ROGERS CONSTRUCTION Co......
1893, chap. 338, §§ 20, 22-Adulterated milk. the fairness of the
test, when not a question for the jury — the provision as to the "mixed milk of the
herd of cows" not applicable to a peddler — intent to adulterate, when not mate-
rial-evidence as to herd sample not having been taken.

1893, chap. 338, § 22- Possession alone of adulterated milk is not an
offense under section 63 of the New York city Sanitary Code-power of the
Legislature to authorize the enactment of that section- the section was not
repealed by section 1172 of the New York charter nor is it controlled by section
22 of the Agricultural Law.

See PEOPLE v. TIMMERMAN

-

1895, chap. 559, § 51 - Cemetery association created by special act·
removal of dead bodies from the authority of the Supreme Court to direct it is
statutory only.

See MATTER OF OWENS.

1896, chap. 909- · Election return-power of the court to order it
changed so as to show that a political party polled 10,000 votes and is thus
entitled to make nominations by convention.

334

433

306

306

419

214

402

419

384

565

236

See PEOPLE EX REL. BOIES v. BD. OF CANVASSERS.

514

1897, chap. 378- Constitutional law — payment of municipal funds to

a volunteer fire company.

See PEOPLE EX REL. RICHMOND H. & L. Co. v. GROUT..

61

SESSION LAWS- Continued.

PAGE.

1897, chap. 378, § 1172 — Possession alone of adulterated milk is not an
offense under section 63 of the New York city Sanitary Code-power of the
Legislature to authorize the enactment of that section—the section was not
repealed by section 1172 of the New York charter nor is it controlled by section 22
of the Agricultural Law.

See PEOPLE v. TIMMERMAN.

-

-

1897, chap. 420, § 6-Partnership enforcement of a firm debt against
the executor of a deceased partner — collusion as to the return unsatisfied of an
execution against the surviving partner· the sheriff must be alleged to be a party
thereto effect of the firm assets having been transferred to a corporation subject
to the firm debts · effect of a transfer of property by the surviving partner to the
firm creditor on the creditor's rights against the estate of the deceased partner.
See LEGGAT v. LEGGAT...

ment

1898, chap. 182, §§ 96, 98- Salary of the commissioner of public works
in cities of the second class it is fixed by the board of estimate and apportion-
the giving of a receipt in full for a less salary and a report to the com-
mon council setting it forth do not prevent his recovering his full salary.
See GRANT v. CITY OF ROCHESTER......

1898, chap. 231, § 2

......

Notice to a city in which an accident occurred,
after the period specified in the city charter, held to be sufficient.

See WALDEN v. CITY OF JAMESTOWN..

- 1898, chap. 596- Mandamus - when title to public office may be tried in
a mandamus proceeding — repeal of a statute by a statute covering the entire
subject-matter thereof which purports to amend it — acceptance by a police captain
unlawfully retired of a pension and of another position -it does not create an
estoppel.

See PEOPLE EX REL. MCLAUGHLIN v. POLICE COMRS.

1899, chap. 128, § 62- Audit by a committee of the common council —
it cannot legally exceed a sum fixed, pursuant to statutory direction, by the com-
mon council the enforcement of the audit by mandamus may be resisted on that
ground-it is not a collateral attack.

See PEOPLE EX REL. SMITH v. CLARKE....

-

1899, chap. 336 — Tax paid on a railroad in a town bonded for its con-
struction-the county is relieved from paying the State tax thereon-a county
which has paid it may recover it from the State.

See COUNTY OF ULSTER v. STATE OF NEW YORK....

1899, chap. 370— Civil service - a veteran's fitness is conclusively deter-
mined by the civil service commissioners — his application need not state that he
did not serve in the Confederate army or navy.

See PEOPLE EX REL. HAMILTON v. STRATTON..

1899, chap. 370, § 21- Civil service — abandonment of a bridge in New
York city-its effect on the office and rights of the bridgetender, a veteran
volunteer fireman.

See PEOPLE EX REL. CHAPPEL v. LINDENTHAL..........

1899, chap. 581, § 7-Salary of the commissioner of public works in
cities of the second class· it is fixed by the board of estimate and apportionment
- the giving of a receipt in full for a less salary and a report to the common
council setting it forth do not prevent his recovering his full salary.

-

See GRANT v. CITY OF ROCHESTER...

1899, chap. 712- Special Franchise Tax Act—unconstitutional so far
as it devolves upon the State Board of Tax Commissioners the assessing of prop-
erty formerly assessed by local assessors — assessment of the special franchise,
independent of tangible property — what violates the home rule provision of the
Constitution.

See PEOPLE EX REL. MET. ST. R. Co. v. TAX COMRS.....

1900, chap. 82- Constitutional law — payment of municipal funds to

a volunteer fire company.

See PEOPLE EX REL. RICHMOND H. & L. Co. v. GROUT......

565

141

460

433

78

277

149

43

460

183

61

SESSION LAWS- Continued.

PAGE.

1900, chap. 101 - ·Adulterated milk the fairness of the test, when not
a question for the jury the provision as to the "mixed milk of the herd of
cones" not applicable to a peddler-intent to adulterate, when not material·
evidence as to herd sample not having been taken.

See PEOPLE v. LAESSER.

-

1900, chap. 101 - ·Possession alone of adulterated milk is not an offense
under section 63 of the New York city Sanitary Code-power of the Legislature
to authorize the enactment of that section -the section was not repealed by section
1172 of the New York charter nor is it controlled by section 22 of the Agricultural
Laro.

See PEOPLE v. TIMMERMAN.

--

--

removal

1900, chap. 715 - Cemetery association created by special act
of dead bodies from the authority of the Supreme Court to direct it is statutory
only.

See MATTER OF OWENS...
1901, chap. 128 - Penal Code, section 640d, requiring an agent to obtain
written authority to sell real estate is unconstitutional - what the court may
consider in determining whether a statute is reasonable limitations on the
legislative power to regulate business.

-

See GROSSMAN v. CAMINEZ..
1901, chap. 466, § 27

- powers of the board of aldermen in respect thereto.
See PEOPLE EX REL. KRULISH v. FORNES...

384

565

236

15

Canvass of votes for alderman in New York city

618

1901, chap. 466, § 383- Mandamus to compel the president of the borough

of Brooklyn to appoint a superintendent of incumbrances ·
when it should not be granted.

-

who may apply there-

See PEOPLE EX REL. KAY v. SWANSTROM.....

94

-

1901, chap. 466, § 722 — Constitutional law — payment of municipal

funds to a volunteer fire company.

See PEOPLE EX REL. RICHMOND H. & L. Co. v. GROUT..
See STATUTE.

61

[See table of Session Laws cited, ante, in this volume.]

SEVERANCE — Of an action.

See TRIAL.

SPECIAL FRANCHISE TAX:

See TAX.

-

SPECIFIC PERFORMANCE - A contract vendee sued in ejectment by a
vendor unable to give a clear title - he is entitled to recover money paid
for the purchase and for the improvement of the premises less the rental
value if the plaintiff has a part interest in the land he should repay a like
part of such money. CROUCH v. NAST....

See VENDOR AND PURCHASER.

STATUTE- Repeal of a statute covering the entire subject-matter thereof by a
statute which purports to amend it.

See PEOPLE EX REL. MCLAUGHLIN 0. POLICE COMRS.....
Constitutionality of.

See CONSTITUTIONAL LAW.

STATUTE OF FRAUDS—A written agreement signed by the vendor and
verbally accepted by the vendee may be enforced against the former.

BRISTOL v. MENTE..

See SALE.

STATUTE OF LIMITATIONS:

See LIMITATION OF ACTION.

STAY-Until debts existing against an estate have been ascertained.

492

82

67

See HALLOCK v. HALLOCK...

Of proceedings, generally.

See PRACTICE.

508

SURROGATE - Ejectment- absence of proof of service of a citation on
infants upon whose written verified petition, alleging such service, a special guar-
dian is appointed.] 1. In an action in ejectment, brought by two heirs at law
of a decedent to recover a parcel of land, of which the decedent had died
seized, and which had been sold to the defendant in a proceeding in the
Surrogate's Court to sell the decedent's real estate for the payment of his
debts, it appeared that at the time the proceeding was instituted the plaintiffs
were infants over the age of fourteen years; that a citation was issued to all
persons interested, including the plaintiffs, but that no affidavit of the serv-
ice of the citation upon the plaintiffs could be found among the surrogate's
records. It appeared, however, that a special guardian was appointed for
the plaintiffs, upon a petition, verified by them, which averred that the cita-
tion had been served upon them. The decree authorizing the sale recited the
service of the citation upon all parties named in it.

The plaintiffs gave no affirmative proof tending to show that the citation
was not served upon them.

Held, that, under section 2473 of the Code of Civil Procedure, which pro-
vides that, when the jurisdiction of a Surrogate's Court is attacked collater-
ally, "the fact that the parties were duly cited is presumptively proved by
a recital to that effect in the decree," the recital, in the decree authorizing the
sale, of service of the citation upon the plaintiffs was sufficient, in the
absence of any proof to the contrary, to sustain a finding that the plaintiffs
had been regularly served with the citation.

MOTT v. FORT EDWARD WATER WORKS Co.......

2. Failure to find in the records an order confirming the contract of sale,
the existence of which is recited in the conveyance.] It further appeared that,
pursuant to a provision in the decree authorizing the sale, the property in
question was sold at private sale and that the conveyance delivered to the
defendant by the administrators recited that, by a decree of the surrogate,
the administrators were authorized to sell and convey the property; that the
contract with the said defendant was for a sum as large as that fixed by the
appraisers in the proceeding, and that the contract with the said defendant
had been approved by the surrogate.

Held, that the failure to find among the surrogate's records an order con-
firming the contract with the said defendant, and directing a conveyance,
was not sufficient to avoid the defendant's title to the lands for which it had
paid and of which it had been in possession for a period of ten years;

That the surrogate having had jurisdiction to order the sale and convey-
ance, the mere regularity of the proceeding would not be investigated in the
ejectment action. Id.

179

3. Appeal to the Appellate Division from a surrogate's decree - where
the decree admits to probate or revokes the probate of a will the Surrogate's Court
cannot act pending the appeal.] Under sections 2585 to 2588, inclusive, of the
Code of Civil Procedure, an appeal to the Appellate Division from a decree
of the Surrogate's Court admitting a will to probate or from a decree of a
Surrogate's Court revoking the probate of a will, operates to remove the pro-
bate proceeding into the Appellate Division, and, until its work is finished
and the matter is finally remitted to the Surrogate's Court, exclusive juris-
diction of the proceeding is vested in the Appellate Division and the Surro-
gate's Court has no authority in the premises. MATTER OF MURPHY........ 541
Infant legatee-concluded by an accounting on behalf of the
deceased executor on which such infant was represented by an administrator
with the will annexed of the testator-not concluded by the settlement on