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nedy, 26 App. Div. 603, 55 N. Y. Supp. 917, enjoining party selling good will of patent-medicine business employing his name, from receiving mail addressed to him; Dwight v. Williams, 25 Misc. 670, 55 V. Y. Supp. 201, holding creditors estopped where debtor could not assert invalidity of oral contract acted upon by third parties; Tobias v. Morris, 126 Ala. 551, 28 So. 517, holding estoppel for jury where wife made deposit, but permitted husband to give check signature to teller; Krakauer v. Chapman, 16 App. Div. 125, 45 N. Y. Supp. 127 (dissenting opinion), majority holding failure of creditor for two months to notify party authorizing purchaser to draw on him for amount of purchase, that first draft not in full, works no estoppel; Bank of Monongahela Valley v. Weston, 172 N. Y. 267, 64 N. E. 946, holding partner permitting use of firm name as accommodation indorser estopped from denying validity of such indorsement made after dissolution of partnership; McGuire v. Hall, 78 App. Div. 643, 80 N. Y. Supp. 1139, holding owner bound by arbitrary agreement with architect as to cost and exchange value building, in estimating commissions; Western New York & P. R. Co. v. Rea, 83 App. Div. 579, 81 N. Y. Supp. 1093, holding owner, inducing lessee to believe that premises were owned by her husband and permitting substantial improvements, estopped to deny validity of lease; Horton v. Erie Preserving Co. 90 App. Div. 261, 85 N. Y. Supp. 503, holding subscriber of funds for building of factory estopped from avoiding same for delay in construction, where he permitted building to go on without protest; Re Turfler, I Power, 402, 1 Misc. 71, 23 N. Y. Supp. 135, holding residuary legatees, assenting to certain payments, estopped from claiming they were made illegally.
Cited in footnote to Old Times Distillery Co. v. Casey, 42 L. R. A. 466, which holds right to enjoin use of trade-mark lost by ten years' delay.
Cited in notes (13 L. R. A. 270) on what constitutes equitable estoppel; (13 L. R. A. 271) on doctrine of estoppel in pais.
Distinguished in Marden v. Dorthy, 160 N. Y. 59, 46 L. R. A. 701, 54 X. E. 726, holding party not estopped even against bona fide mortgagees to deny signature to mortgage where obtained by trick and without negligence; Card v. Moore, 68 App. Div. 336, 74 N. Y. Supp. 18, holding parties forming imperfect corporation not estopped, as between themselves, by contract making it party, to deny its existence; Syracuse Solar Salt Co. v. Rome, W. & 0. R. Co. 67 Hun, 162, 22 N. Y. Supp. 321, holding owner not estopped by silence at foreclosure sale of street railway to assert title to highway against purchaser; Hey v. Collman, 78 App. Div. 587, 79 N. Y. Supp. 778, holding claimant of right of way not ea. topped from asserting title by adverse possession because silent at sale of servient tenement.
Cited in note (64 L. R. A. 336) on municipal ownership of tide lands.
7 L. R. A. 759, WELLS v. SALINA, 119 N. Y. 280, 23 N. E. 870.
On a subsequent appeal in 71 Hun, 565, 25 N. Y. Supp. 134, plaintiff is held to have right of action as equitable assignee of original claim. Powers of municipality.
Approved in People ex rel. ('oon v. Wood, 35 N. Y. S. R. 843, 12 N. Y. Supp. 436, holding town's resolution to pay specified amount per day for prosecution of criminal actions ineffectual to bind it in absence of statutory authority;
People or rel. Bowles v. Burrell, 14 Misc. 220, 35 X. Y. Supp. 608, holding that unauthorized highway commissioners cannot pledge town's credit for repair of highways and bridges, notwithstanding local custom; Queens County Water Co. v. Monroe, 83 App. Div. 110, 82 N. Y. Supp. 610, holding that preliminary requirements of statute authorizing city to acquire land for increasing water supply must be strictly complied with; Water Comrs. v. Westchester County Waterworks ('o. 176 N. Y. 251, 68 V. E. 348, holding appraisal of property of waterworks company, based on illegal contract with village, invalid.
Distinguished in Birge v. Berlin Iron Bridge Co. 133 N. Y. 486, 31 N. E. 609, holding act permitting special town meetings to vote on raising and appropriating moneys for bridges did not abolish pre-existing limitation upon amount of taxation; Mulnix v. Mutual Ben. L. Ins. Co. 23 ('olo. 80, 33 L. R. A. 832, 46 Pac. 123, holding state not liable on quantum meruit for goods received under illegal purchase. -To borrow money.
Approved in People er rel. Read v. Smithville, 85 Hun, 116, 32 N. Y. Supp. 608, holding town not liable upon indebtedness because vote in incurring same not by ballot as prescribed; Scott v. Twombly, 20 Misc. 653, 46 N. Y. Supp. 1084, holding act authorizing villages to acquire lanıls for parks does not authorize issuing of bonds; Jamaica Sav. Bank v. New York, 61 App. Div. 471, 70 N. Y. Supp. 967 (dissenting opinion), majority holding that town may borrow mony for authorized purpose where supervisors may authorize town to borrow for town purposes.
Cited in note (9 L. R. A. 497) on power of municipal corporations to borrow money.
Limited in New York & R. Cement Co. v. Keator, 62 App. Div. 580, 71 N. Y. Supp. 185, holding that submission of proposition to raise money includes raising by issuing bonds or other obligations.
Distinguished in Birge v. Berlin Iron Bridge Co. 133 N. Y. 486, 31 N. E. 609, holding that special town meeting called for considering question of raising and appropriating moneys may apply for authority to borrow money.
7 L. R. A. 765, CARY LIBRARY v. BLISS, 151 Mass. 364, 25 N. E. 902. Municipalities as trustees.
Cited in note (16 L. R. A. 695) on authority of legislature to remove municipality from trusteeship. Public charities.
Cited in Davis v. Barnstable, 154 Mass. 225, 28 N. E. 165, holding gift to promote public education constitutes public charity; St. Paul's Church v. Atty. Gen. 164 Mass. 198, 41 N. E. 231, upholding gift to library, first mentioning limited number of beneficiaries, but finally providing for use by public.
Cited in footnote to People ex rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 117, which holds promotion of cause of temperance too vague description of purpose for which corporation formed.
Cited in note (13 L. R. A. 218) on power of municipal corporation to take and administer property in trust for charitable uses.
Gifts for benefiting inhabitants of town.
Cited in Sears v. Chapman, 158 Mass. 401, 35 Am. St. Rep. 502, 33 N. E. 604, upholding gift for public charity, the whole to be under exclusive control of inhabitants of town; Boston v. Doyle, 184 Mass. 380, 68 N. E. 851, holding title to charitable fund given by Benjamin Franklin to town of Boston to be in city of Boston. Obligations arising out of acceptance of gift.
Cited in Quincy v. Atty. Gen. 160 Mass. 434, 35 N. E. 1066, holding direction in charitable gift requiring town to guarantee fund with 6 per cent interest not requiring guaranty of specified interest; Atty. Gen. ex rel. Spalding v. Nashua, 67 N. H. 480, 32 Atl. 852, holding by acceptance of gift city agrees to perform conditions attached to it. Power of courts to modify details of management of charitable trusts.
Cited in Lackland v. Walker, 151 Mo. 259, 52 S. W. 414, upholding power of court of chancery to alter administrative details of public charity when reasonably necessary. Power of majority to bind board.
Cited in footnote to Honaker v. Board of Education, 32 L. R. A. 413, which denies power of members of board of education acting separately to bind themselves as board.
Power of state or corporation to take property.
Cited in Woodward v. Central Vermont R. Co. 180 Mass. 603, 62 N. E. 1051, holding amendatory act requiring corporation purchaser at foreclosure sale to pay judgments against mortgagor void; Old Colony R. Co. v. Framingham Water Co. 153 Mass. 563, 13 L. R. A. 334, 27 N. E. 662, holding legislature may author. ize taking of land for public use previously appropriated by legislative authority to different public use.
Cited in footnotes to Re Brooklyn, 26 L. R. A. 270, which upholds act author. izing city to acquire property of water company; Butte, A. & P. R. Co. v. Montana U. R. Co. 31 L. R. A. 298, which holds railroad land not actually used or necessary subject to condemnation by other railroad; Diamond Jo Line Steamers v. Davenport, 54 L. R. A. 859, which authorizes condemnation for public wharf of land used by carrier as landing place; Denver Power & Irrig. Co. v. Colorado & S. R. Co. 60 L. R. A. 383, which denies power of reservoir company to condemn land devoted to purpose of railroad unless public necessity requires; Cleveland, C. C. & St. L. R. Co. v. Ohio Postal Teleg. Cable Co. 62 L. R. A. 941, which holds burden upon telegraph company to show right of way sought in railroad property will not interfere with railroad's use of right of way.
L. R. A. 771, MASON v. POMEROY, 151 Mass. 164, 24 N. E. 202.
Second petition for accounting in 154 Mass. 482, 29 N. E. 51. Continuance of testator's business.
Cited in Packard v. Kingman, 109 Mich. 506, 67 N. W. 551, holding it competent for testator to provide for continuance of his business and subject all of his property to such purpose. Remedy of creditors against trustees and estate.
Cited in Mayo v. Moritz, 151 Mass. 485, 24 N. E. 1083, holding creditor could not have whole of trust property sold and proceeds applied to pay his claim;
Odd Fellows Hall Asso. v. McAllister, 153 Mass. 297, 11 L. R. A. 174, 26 N. E. 862, holding, even where trustees are entitled to indemnity from trust estate, judgment at law is against them as individuals; Lyman v. National Bank, 181 Mass. 438, 63 N. E. 923, holding executor may borrow money and pledge property of estate to secure it; Packard v. Kingman, 109 Mich. 506, 67 N. W. 551, holding trustee may contract for trust estate as to exclude his personal liability; O'Malley v. Gerth, 67 N. J. L. 613, 52 Atl. 563, holding trustees may be sued individually for torts, irrespective of their right of indemnity out of trust estate; Wells-Stone Mercantile Co. v. Grover, 7 N. D. 463, 41 L. R. A. 253, 75 N. W. 911, holding creditor must generally look to trustee individually for pay. ment for goods sold to him; Connally v. Lyons, 82 Tex. 670, 27 Am. St. Rep. 935, 18 S. W. 799, holding trustee personally liable for purchase made on credit of trust estate.
Priority of claims.
Followed in Woddrop v. Weed, 154 Pa. 314, 32 W. N. C. 192, 35 Am. St. Rep. 832, 26 Atl. 375, holding upon insolvency of trust to carry on business assets must be distributed pro rata.
Cited in American Loan & T. Co. v. Northwestern Guaranty Loan Co. 166 Mass. 344, 44 N. E. 340, holding mere priority of maturity of a claim against trust fund does not give right to priority of satisfaction; Randolph v. Scruggs, 190 U. S. 538, 47 L. ed. 1170, 23 Sup. ('t. Rep. 710, holding that claim for services rendered voluntary assignee in unsuccessfully resisting adjudication in bankruptcy of assignor, on petition filed within four months after assignment, not provable against bankrupt's estate. Creditor's right to proceed against trust estate.
Cited in Broadway Nat. Bank v. Wood, 165 Mass. 316, 43 N. E. 100, holding creditor of ostensible firm has no prior right to have property applied to payment of his claim over creditors of real firm; Wells-Stone Mercantile Co. v. Grover, 7 N. D. 463, 41 L. R. A. 253, 75 N. W. 911, and Wells-Stone Mercantile Co. v. Aultman, M. & Co. 9 N. D. 522, 84 N. W. 375, holding right of creditors to proceed against trust estate based on trustee's right of reimbursement for expenditures.
7 L. R. A. 776, FARRELL v. DERBY, 58 Conn. 234, 20 Atl. 460. Municipal powers.
Cited in Central R. & Electric Co.'s Appeal, 67 Conn. 235, 35 Atl. 32 (dissenting opinion), as to possession by municipality of all powers necessary to full operation of those specifically granted, or to attainment of declared objects.
Distinguished in Goodwin v. East Hartford, 70 Conn. 40, 38 Atl. 876, holding towns not liable for expense incurred by statutory board for maintenance and control of highway in employing agents to secure legislation terminating its existence and transferring burden of maintaining highway to state. State control of municipal affairs.
Distinguished in State ex rel. Bulkeley v. Williams, 68 Conn. 161, 48 L. R. A. 497, 35 Atl. 421 (dissenting opinion), majority holding statute imposing expense of maintenance and construction of highway upon benefited towns.
7 L. R. A. 779, WILLIAN ROGERS MFG. CO. V. ROGERS, 58 Conn. 356, 13
Am. St. Rep. 2.8, 20 Atl. 467. Specific enforcement of contract.
Cited in notes (8 L. R. A. 626) on right to specific performance where there is adequate remedy at law; (11 L. R. A. 116) on agreements not specifically enforceable. Rule as to negative enforcement of contracts for personal services.
Cited in Schwier v. Zitike, 136 Ind. 213, 36 N. E. 30, holding school board cannot be enjoined from violating contract for personal services as teacher; E. Jaccard Jewelry Co. v. O'Brien, 70 Mo. App. 435, refusing to enjoin salesman from entering employment of another firm in violation of contract; Jon: v. Williams, 139 Mo. 92, 37 L. R. A. 707, 61 Am. St. Rep. 436, 40 S. W. 353 (dissenting opinion), majority holding corporation enjoinable from breach of contract giving plaintiff, in considerations of purchase of stock, management and editorship of newspaper; Chain Belt Co. v. Von Spreckelsen, 117 Wis. 123, 94 N. W. 78, holding injunction in action to restrain expert mechanic from entering employment of another than plaintiff', properly dissolved.
(ited in notes (!! L. R. A. 550) on special services for professional labor; ( 12 L. R. A. 497) on assignability of contracts for personal services requiring special skill and knowledge; (20 L. R. A. 167) on power of equity to grant mandatory injunctions. Engaging in like business.
Cited in Knoedler v. Glaenzer, 20 L. R. A. 735, 5 C. C. A. 308, 14 U'. S. App. 336, 55 Fed. 898, holding, in absence of contract or fraud, vendor of business and good will not debarred from establishing like business in same place.
ī L. R. A. 782, KE-TUC-E-MUN-GUAH v. MCCLURE, 122 Ind. 341, 23 N. E
1080. Presumption on appeal that amendment was made.
Cited in Taylor v. Calvert, 138 Ind. 84, 37 N. E. 531, holding amendment presumed for purpose of curing immaterial variance.
Distinguished in Lake Erie & W. R. Co. v. Juday, 19 Ind. App. 413, 49 N. E. 843, holding action not removable to Federal court where damages demanded are less than $2,000, though complaint alleges greater. Jurisdiction.
('ited in Stacy v. La Belle, 99 Wis. 524, 41 L. R. A. 422, 67 Am. St. Rep. 879, 75 N. W. 60, holding action ex contractu lies in state court against Indian in absence of statute or treaty to contrary.
7 L. R. A. 784, LOWMAN v. SHEETS, 124 Ind. 416, 24 N. E. 351. Statute of frauds Contract not to be performed within year.
Cited in Langan v. Iverson, 78 Minn. 302, 80 N. W. 1051, holding parol agree. ment upon conveyance of land to pay mortgage not due within year not within .statute.
Cited in footnotes to Lewis v. Tapman, 47 L. R. A. 385, which holds contract to marry "within three years” not within statute of frauds; Weatherford, M. W. & N. W. R. Co. v. Wood, 28 L. R. A. 526, which holds contract to give pass to