and giving him power to carry on the business of the corporation, and direct-
ing the delivery of the books and papers of the corporation to the receiver
was unauthorized. FALLON v. UNITED STATES DIRECTORY CO....
Remedies of the corporation.] Quare, as to what remedies, if any,
were available to the corporation in the premises. Id.
Conversion the withdrawal from a bank of money of a corpora-
tion deposited by its treasurer to his credit as treasurer contrary to its by-laws.]
In an action in which the issue litigated was whether the defendant, as the
treasurer of the plaintiff corporation, had converted the proceeds of a
check received by the defendant from a debtor of the corporation, it
appeared that the defendant deposited the proceeds of the check in the bank
to the credit of "Robert F. Mullins, Treas.;" that he made withdrawals
from the deposit by checks thus signed and applied the money to various
purposes. The defendant contended that such purposes were legitimate,
while the plaintiff denied it.
Held, that the refusal of the court to allow the plaintiff corporation to
prove that one of its by-laws provided that checks should be drawn only
when signed by the president and countersigned by the treasurer constituted
prejudicial error, as, if the defendant deposited the money and thereafter
drew it out contrary to the rules formulated by his principal, such act would
tend to prove a conversion. SANITARY CAN Co. v. MULLINS..
4. Foreign stock corporations doing business in the State of New York
without a certificate — right of, after obtaining a certificate, to enforce a contract
made before doing so.] Under section 15 of the General Corporation Law
(Laws of 1892, chap. 687), which, as it existed prior to the amendment made
by chapter 538 of the Laws of 1901, provided, "No foreign stock corpora-
tion doing business in this State without such certificate (viz., the certificate
of authority to do business) shall maintain any action in this state upon any
contract made by it in this state until it shall have procured such certifi-
cate," a foreign stock corporation, upon obtaining the necessary certificate,
could enforce a contract made in the course of business transacted by it in
the State of New York after the passage of the law and before procuring
such certificate. LEWIS PUBLISHING Co. v. LENZ......
The acts on this subject are not retroactive, or, if so, are unconstitu
tional.] If the section, as amended in 1901, which provides, "No foreign
stock corporation doing business in this State shall maintain any action in
this state upon any contract made by it in this State unless prior to the
making of such contract it shall have procured such certificate," was intended
to be retroactive, it is, to that extent, unconstitutional.
The further provision of the amended section, that "No such corporation
now doing business in this State shall do business herein after December 31,
1892," indicates that it is limited to corporations doing business at the time
of the passage of the act in 1892, and refers to contracts then existing. Id.
Injunction to prevent the execution of a resolution adopted by the
votes of members worshipping at chapels connected with a parent church—
where such practice has been acquiesced in for many years, and no property
rights are involved, equity will not interfere. DAVIE v. HEAL...
Taxation of a corporation paying more than six per cent dividends
basis of the assessment - money invested in stocks and bonds of other cor-
porations, when it is and when it is not capital employed within the State of
New York-capital in excess of the capital stock.
PEOPLE EX REL. COM. CABLE Co. v. MORGAN..
See TAX.
What statement, filed by an electric illuminating company with tax
commissioners, is sufficient to present the questions of overvaluation and of
inequality of assessment of its plant.
PEOPLE EX REL. EDISON EL. ILL. Co. v. FEITNER..
See TAX.
Receiver-removal of - opportunity to answer charges should be
given him-the fact that he was a director and the treasurer of a corpora-
tion does not prevent his being its receiver.
TOWNSEND v. ONEONTA, C. & R. S. R. Co.....
See RECEIVER.
Specific performance of a contract to deliver stock of a corporation
when insufficient ground is shown therefor. BATEMAN v. STRAUS...
See SPECIFIC PERFORMANCE.
A director of a corporation may verify a pleading served by it.
EASTHAM V. YORK STATE TELEPHONE Co......
To carry on insurance business.
See INSURANCE.
Liability of a gas company for the bursting of a gas receiving tank.
COSTS — Upon an appeal from a surrogate's decree vacating a transfer tax
assessment — they are governed by Code Civ. Proc. § 3240.] 1. A decree of
a surrogate vacating and setting aside the assessment of a transfer tax there-
tofore made by him is a final order in a special proceeding, and the costs
which may be awarded upon an appeal therefrom are governed by section
3240 of the Code of Civil Procedure. MATTER OF BABCOCK
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2. The order allowing them need not specify the items allowed nor fix
the rates - disbursements may be taxed although not expressly allowed.] If the
appellate court awards costs, such costs are by the express provisions of
the section allowable at the rates allowed upon an appeal from a judgment,
and in the same manner; the order of the appellate court need not, there-
fore, specify the items of costs allowed nor the rates at which they shall be
allowed, but the amount of such costs should be fixed on a taxation thereof
by the surrogate. The order of the appellate court need not specify that
disbursements as well as costs were allowed, as under section 3256 of the
Code of Civil Procedure the award of costs carries with it an allowance
of the disbursements specified in such section. Id.
3. Costs on appeal from an interlocutory order, by what Code provisions
governed.] Semble, that the costs upon an appeal from an interlocutory order
are governed by section 3236 and subdivision 3 of section 3251 of the Code
of Civil Procedure. Id.
4. ·A judgment sustaining a demurrer to a portion of an answer should
be interlocutory-it should not authorize the collection of costs.] A judgment
sustaining a demurrer to a counterclaim interposed in an answer contain-
ing other issues should be interlocutory, and should not permit the col-
lection of the costs until judgment is rendered on the other issues.
5. Arrest of a plaintiff suing in tort, for non-payment of costs.] In an
action of tort, in which the defendant is liable to arrest and imprisonment
if the plaintiff is successful, a judgment in favor of the defendant for costs
may be enforced by an execution against the person. SAFFIER v. HAFT..... 284
Slander- a general denial and in a single count a defense in justifica-
tion and in mitigation- a demurrer to the latter, where it is sufficient as a
defense in mitigation and insufficient as one in justification, is bad- the
judgment should, in any event, be interlocutory and not final costs to be
collected when the whole issue is tried. DOYLE v. FRITZ.....
Action under section 2653a of the Code of Civil Procedure to obtain an
adjudication that a will was made through undue influence and without testa-
mentary capacity - additional allowance of costs. HAUGHIAN v. CONLAN.. 290
See WILL.
Taxpayer's action — the construction of a school building not enjoined
upon purely technical objections - extra allowance. LAWSON v. LINCOLN.. 217
The costs should be paid by the moving party where a new trial is
granted because of error in the amount of the verdict.
COUNTERCLAIM:
See SET-OFF.
COURT - Power of a court of equity on the giving of a bond to allow a recovery
upon a lost instrument.
A refusal to punish for contempt is reviewable at the Appellate Division.
See BROWN v. BRAUNSTEIN..
CRIME-Selling pools on a horse race—when an indictment therefor suf-
ciently states the crime and the acts constituting it—when it is not defective for
duplicity - if the defendant is not advised with sufficient definiteness of the
acts with which he is charged, he should apply for a bill of particulars.] 1. An
indictment charging the defendants with the crime of pool selling in viola-
tion of section 351 of the Penal Code consisted of two paragraphs. The
1st paragraph alleged that the grand jury accused the defendants of the
crime of feloniously, outside of any trotting course, race course, authorized
by or entitled to the benefits of Chapter 570 of the Laws of the State of New
York for the year 1895,
as amended by Chapter 446 of the Laws
of the State of New York for the year 1897, engaging, assisting, aiding
and abetting in pool selling, and selling pools upon the result of a trial of
and contests of, speed and power of endurance of beasts, committed as
follows."
The 2d paragraph of the indictment charged that the defendants, on a
specified day, at a specified place, did feloniously outside of a trotting
course, race course authorized by and entitled to the benefits of Chapter 570
of the Laws of the State of New York, for the year 1895,
amended by Chapter 446 of the Laws of the State of New York, for the
year 1897, engage, aid, assist and abet in pool selling and selling pools upon
the result of a trial and contest of speed and power of endurance of beasts, to
wit: horses, on the nineteenth day of January in the year nineteen hundred
and three, taking place, being conducted and had at Oakland in the State
of California and New Orleans in the State of Louisiana."
Held, that the indictment was not demurrable upon the ground that it
did not comply with the rule that an indictment must first state the crime
and then the acts constituting the crime;
That the crime was sufficiently charged in the 1st paragraph of the
indictment, and that the acts constituting the crime were sufficiently
charged in the 2d paragraph thereof;
That if the defendants believed that they were not sufficiently advised
by the indictment as to the particular facts which would be proved against
them, it was their duty to apply for a bill of particulars;
That the indictment was not invalid for duplicity. PEOPLE v. CORBALIS. 531
2. New York city magistrate jurisdiction of-disorderly conduct.]
A magistrate of the city of New York has no jurisdiction to try a person
accused of a felony or a misdemeanor as those terms are defined in sections
4, 5 and 6 of the Penal Code.
Section 1458 of the Consolidation Act (Laws of 1882, chap. 410), which
declares that any person in the city and county of New York who commits
any of the offenses defined in that section "shall be deemed guilty of dis-
orderly conduct that tends to a breach of the peace," is still in force, and the
police magistrates of the city of New York have jurisdiction to try persons
accused of such offenses. PEOPLE EX REL. SMITH . Van De Carr..
3. - Legislative power to make certain conduct an offense in New York city
but not elsewhere.] It was entirely competent for the Legislature to declare
the conduct defined in the section to be an offense in the city of New York
and to provide for its punishment even though it would not be a penal
offense elsewhere, or would be a crime of a higher degree if committed
elsewhere. Id.
4. — Misdemeanor under Penal Code, § 675.] A person convicted under
subdivision 3 of such section is not entitled to be discharged on a writ of
habeas corpus or a writ of certiorari, because the offense which he com-
mitted was also a misdemeanor under section 675 of the Penal Code. Id.
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5. - Description of the offense in a warrant of commitment.] A descrip-
tion of the offense, contained in a warrant of commitment under that section
of the Consolidation Act, viz., "disorderly conduct, tending to a breach of
the peace," is sufficient, and it is not essential to the validity of the com-
mitment that the subdivision under which the conviction was had should be
specified or that the facts should be set up.
Quare, whether "disorderly conduct" would be a sufficient description of
the offense. Id.
6. Office of a writ of certiorari as compared with that of a writ of
habeas corpus.] The writ of certiorari as a writ of review in criminal cases
has been abolished, and now the only method of review in a criminal case is
by appeal.
A writ of certiorari to inquire into the cause of the detention of the relator
is not, at least in a case of conviction, any more extensive, nor does it afford
any greater right or remedy than the writ of habeas corpus. The writ was
designed to reach only those cases where the production of the body was
unnecessary to the decision of the question to be presented, and was not
intended to bring the evidence up for review.
In cases of conviction the inquiry both upon the writ of habeas corpus
and the writ of certiorari is whether the magistrate who issued the warrant
of commitment had jurisdiction of the offense, of the relator and to impose
the sentence and whether such sentence has expired; the decision may not
be reviewed. Id.
Matters essential to the magistrate's jurisdiction] All that is essen-
tial to the jurisdiction of the magistrate is that the relator shall be arraigned
before him and apprised of the nature of the offense with which he is
charged, and be afforded an opportunity to defend, and be then duly tried. Id.
8. Arrest without warrant for an offense committed in the officer's pres-
ence.] A person who commits a criminal offense in the presence of a police
officer may be arrested without a warrant, and no formal information need
be filed before he is arraigned. Id.
Testimony as to admissions made by an accused in a conversation
with an officer of the New York Society for the Suppression of Vice-objec-
tion, how presented to that part which relates to other like offenses.
Action for damages for an assault with a loaded firearm the dis-
tinction, in the burden of proof borne by the plaintiff, in a civil action
involving the commission of a crime and in a criminal action.
Evidence-proof insufficient to sustain a conviction of a bartender,
of permitting persons, not servants or members of his employer's family, to
be present in a bar room on Sunday. PEOPLE v. RYAN...
CRIMINAL CONTEMPT:
See CONTEMPT.
CRIMINAL CONVERSATION:
See HUSBAND AND WIFE.
CROSSING - Of a railroad.
DAMAGES - City contract - ·written order for extra work-
extra compensation for work incidental thereto - compensation for damagis
suffered without the contractor's fault.
See JOHNSON 2. CITY OF ALBANY......
Complaint, alleging a cause of action both for criminal conversation and
for alienation of a wife's affections- the unlawful intercourse constitutes
matter in aggravation of damages.
A surety company's liability on a guardian's bond for money of the infant
left in the guardian's possession at the time of his appointment.
See MATTER OF FARDETTE v. U. S. F. & G. Co..
Action for malicious prosecution — proof as to the pecuniary condition of
the defendant is incompetent.
See BROWN v. SMALLWOOD...
DEBTOR AND CREDITOR Purchase-money mortgage-it has not
priority over a subsequent mortgage, first recorded, given to a creditor who, in
consideration thereof, extends the time of payment of a pre-existing debt — such
priority is not affected by the institution of bankruptcy proceedings against the
mortgagor within four months.
See O'BRIEN v. FLECKENSTEIN. (No. 3)....
Real property fraudulently purchased with trust funds and conveyed by
the trustee -money received by the trustee in bankruptcy of such trustee on the
compromise of a creditor's suit brought for its recovery-the money is not
recoverable by the beneficiary of the trust fund.
Chattel mortgage — provision authorizing the sale of the mortgaged
chattels by the mortgagor and the use of the proceeds to pay the debt or buy other
goods-effect of a failure to file it when it is not accompanied by a change of
possession-what creditor can attack it.
See SKILTON v. CODINGTON..
Assessment for a local improvement in Rochester · it may be enforced
against the deceased owner's personal estate, although the real property assessed
has been sold therefor and bid in by the city, the title not having become absolute.
See MATTER OF ELSNER....
is a prerequisite thereto.
· Supplementary proceedings — an execution issued and returned unsatisfied
- when sustained where they are instituted before, and
a receiver is appointed after, the return of the execution.
See MATTER OF LISNER v. TOPLITZ...
Money collected by an attorney on a claim and paid over by him to a third
person, to whom the client had assigned the claim· the client cannot recover
such money from the third person.
-insufficiency of the personal
property to pay the debts, when sufficient evidence of such intent.
Action to have a bill of sale absolute in form adjudged to have been given
as security only - what proof is required to sustain it—fraud or mistake need
not be established.
See DONNELLY v. MCARDLE..
Receiver of the debtor's property.
See RECEIVER.
DECISION - Short decision under Code of Civil Procedure, section 1022 -
when the grounds thereof are not sufficiently stated - the judge who made it being
no longer on the bench, a new trial will be ordered.] An action to recover upon
an undertaking given to perfect an appeal to the Court of Appeals, in
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