Courts may use journals and debates of the Constitutional Convention
in interpreting the Constitution.] Courts may consult the journals and debates
of the Constitutional Convention which formulated a given article or section
of the Constitution, in order to throw light upon its correct interpretation or
application. Id.
Civil service-discharge of a veteran as registrar of vital statistics — it
must be upon notice and a hearing. that he had not passed a civil service
examination when appointed is immaterial.
See PEOPLE EX REL. HANNAN v. BOARD OF HEALTH.
Discharge of public employees — where the services are of the same char-
acter, a veteran should be retained in preference to another employee — alterna-
See MATTER OF MCCLOSKEY. WILLIS..
ASSAULT AND BATTERY Charge to the jury in an action for assault
and battery. -the defendant is "presumed to be innocent" and the plaintiff has
the burden of proof.
ASSESSMENT — For municipal works.
Ses MUNICIPAL CORPORATION.
For the purposes of taxation.
When it represents a gift rather than an obligation — in
the former case interest is not chargeable.] 1. A father, having executed a
paper by which, in consideration of love and affection," he assigned to his
son "six-tenths of the claims in my suits against Cypress Hills Cemetery, sub-
ject to six-tenths of the expenses and costs of collection, said suits being now
in progress before a referee," added thereto and signed a memorandum, which
read: "I have this day made an assignment to my son of a certain share of
my interests in three suits pending in the Supreme Court of the State of
New York. What my interests in the suits mentioned may be worth is
uncertain, but my intention is that my son shall realize at least three thou-
sand and two hundred dollars out of the share assigned to him, as an equi-
table amount due him from property left in my hands by his mother,
invested and reinvested by me in lots in Cypress Hills Cemetery, and
which constitute a considerable part of my claim for lots against said
cemetery.
Held, that the instruments afforded no warrant for the assumption that the
property, mentioned as having been received from the mother, ever belonged
to the son, nor did they justify the inference that the father had committed
a breach of trust, and was chargeable with interest on that account;
That the words, "in consideration of love and affection," used in the first
paper, indicated that the father, in speaking of the "equitable amount due"
his son, in the second paper, had in mind a moral obligation only, and not
one which he could be forced to perform, and that his intention evidently was
that, as soon as he, or any one on his behalf, realized $3,200 out of six-tenths
of his interest in the cemetery property, that amount should go to his son,
not as a matter of legal right, but as a manifestation of good will and
paternal affection:
That, consequently, the son was not entitled to interest upon such sum of
$3,200;
That, if regarded as a trustee, the father, not having been shown to be neg-
ligent, should not be charged with interest on a fund which had earned
none. PALMER . PALMER..
General assignment. construction of a preference of "such_portion
of said promissory notes as the holders shall fail to collect from makers thereof."]
The meaning and intention of an assignor is to be gathered from the
whole instrument, and, where two different constructions are possible, that is
to be chosen which sustains and does not destroy the instrument.
A provision contained in a general assignment, to the effect that a prefer-
ence in favor of the holders of certain enumerated promissory notes is "to
apply only to such portion of said promissory notes as the holders shall fail
to collect from makers thereof," does not render the assignment void on its
face as a matter of law.
In such a case, the clause "as the holders shall fail to collect from
makers thereof " will be read "as the holders shall not collect from makers
thereof." PEARSON . EGGERT...
An assignment of a bond and mortgage, acknowledged before one of the
assignees, is a nullity -its record is invalid -
- a subsequent assignee bound by the
defect- want of possession of the bond and mortgage.
Fraudulent conveyance — transfer to a corporation of all the property of
a firm which the next day executes a general assignment for creditors.
See TRADESMEN'S NATIONAL BANK . YOUNG..
Mortgage-assignment thereof without notice to the mortgagor — right
of set-off on his part — what will impress the mortgage with a trust.
See CENTRAL TRUST CO. . WEEKS..
Funeral expenses — equitable assignment by a next of kin of his interest
in the estate-parties to an action to enforce it.
See CONGREGATION S. L. A. SAKOLER . SINDRACK..
ATTACHMENT -- Vacated as to all but one of several partners, it ceases to
be a lien on the firm assets.] 1. Where, after an action has been begun
against three persons, as partners and joint debtors, by service of process
upon one of them, another action is commenced against the same persons,
and an attachment, granted against all of them, and levied upon the firm prop-
erty, is subsequently vacated as to two of them, such attachment is no
longer a lien upon the firm property; and an execution, issued in the action
first begun, against the personal property of the joint debtor previously
attached in that action (and, if that were insufficient, against the partnership
property of all the joint debtors), will have precedence in payment from the
firm property over an execution subsequently issued under a judgment
recovered in the action in which the attachment was sustained only as
against one of the partners. SOULS . CORNELL.
161
An attachment of property of a corporation by an assignee of a
director does not impair the cause of action- -the preference thus secured over
other creditors, how avoided.] Where a director of an insolvent corporation
assigns his claim against the corporation and the assignee obtains an attach-
ment and levies upon the property of the corporation, the fact that these
proceedings on the part of the assignee result in an unlawful preference
in favor of the director, as against other creditors of the corporation, does
not constitute a defense to the cause of action.
The remedy in such a case is to move to vacate the attachment and to
set aside the execution. WELLING . IVOROYD MANUFACTURING CO......
Justice's Court — insufficient forms, of the return of service of a sum-
mons and of an attachment—what facts do not show a fraudulent purpose.
See PROCTOR . WHITCHER.
ATTORNEY AND CLIENT- An action for abuse of legal process -a
subpæna issued to coerce payment - the proceeding complained of need not have
been terminated oral proof of the contents of a letter.
See DISHAW . WADLEIGH..
BAILMENT — A contract to deliver produce, to be manufactured and sold by
another, creates a bailment.] Under a contract providing that "the manufac-
ture and sale of all the products of the Long Island Farmers' Co. shall be
done by J. A. Meierdiercks & Sons," a corporation made up of farmers
agreed to deliver, to a firm at a factory previously owned or controlled by
the farmers, certain vegetables at specified prices, each farmer to receive, in
addition to the specified prices, twenty per cent pro rata according to the pro-
duce delivered by him, the manufacture and sale of all produce to be made
by the firm, which was to furnish all labor, machinery, etc., the expense of
which was to come out of the gross receipts of sales-the contract providing
that, if at any time the business of the corporation should cease and the prop-
erty, including buildings, utensils, etc., should be sold, the corporation guar-
anteed to the firm thirty five per cent of the amount realized.
The bills of sale by which the product was sold read, one "J. A. Meier-
diercks & Sons * * * agts. Long Island Farmers' Co." and the other
"Bought of the Long Island Farmers' Co., J. A. Meierdiercks & Sons,
Agents," and the checks therefor were made payable to the company, which
refused to give the firm power to indorse them.
Held, that the contract was one of bailment and not one of sale:
That the title to the produce delivered to the firm remained in the farmers,
or in the corporation through which the business was transacted.
SATTLER. HALLOCK.
BANKING - A savings bank deposit in trust, not intended to give the cestui
que trust an interest therein, remains the property of the depositor.] When-
ever a deposit is made in a savings bank by a person in his own name, in trust
for another, and there are no circumstances rebutting such presumption, it
will be conclusively presumed that the depositor has divested himself of the
legal and beneficial title to the fund, and has vested himself with the legal
title as trustee for the person named as cestui que trust; but when the depositor
does not make the deposit in trust with the intention of giving to the person
named as cestui que trust any beneficial interest in the fund, but for his own
benefit, he does not divest himself of his legal title to the deposit, but continues
to be its beneficial owner, notwithstanding the form of the deposit.
Bond-for faithful service "during his continuance in office,” “ecen
though he hold under successive appointments - the liability under it is continu-
ous, although he holds over without reappointment.
See ULSTER COUNTY SAV. INST. e. YOUNG..
A bond given by a bank official, elected for one year, and who continued
to serve for several years — it expires with the year in which it is given.
See ULSTER COUNTY SAV. INST. c. OSTRANDER....
Savings bank deposit in trust - the intention, to be gathered from the cir-
cumstances, determines its character the trust is irrevocable.
See DECKER . UNION DIME SAVINGS INSTITUTION..
BANKRUPTCY Loan and investment company — when insolvent — lia-
bility of the directors for illegal payments—it is not extinguished by the churg-
ing off of liabilities to shareholders · when the purposes of a corporation are
defeated by insolvency.
See PEOPLE . EMPIRE LOAN & INVESTMENT CO.....
Corporate notes, issued in contemplation of insolvency, how avoided —
evidence of authority to make a corporate note.
See BANGS . NATIONAL MACARONI Co.....
BASTARD — Bastardy proceedings upon an appea! from a filiation order
trial de novo in the County Court.] 1. Upon an appeal from a filiation order
made by a police justice, the County Court is not confined to a determination
of the question whether the police justice erred on the evidence before him,
as section 864 of the Code of Criminal Procedure requires a trial de noro
in the County Court.
The amendments, made in 1890, to sections 749 and 751 of the Code of
Criminal Procedure, relating to a review of "a judgment upon conviction,"
have not changed the character of the proceeding on appeals from orders
in bastardy proceedings; sections 861-880 provide a complete scheme for
appeals in such cases and prescribe the powers of the court on such appeals.
BOARD OF COMRS. e. MCCLOSKEY.
Right of appeal to the Appellate Division.] Quare, whether an
appeal lies to the Appellate Division from an order of the County Court
made in a bastardy proceeding. Id.
BAY WINDOW – Encroachment of, on a street in New York city.
See MUNICIPAL CORPORATION.
BILL OF PARTICULARS:
See PLEADING.
BILLS AND NOTES - An unauthorized alteration, by an agent of the
payee, does not render a note void.] In an action against the makers of a prom-
issory note given in payment for a range, purchased under a contract
which provided that the purchaser should give the vendor company his note
for sixty-nine dollars; that no receipts, discounts or offsets were to be
accepted against such note, and that the contract was the only agreement
or stipulation recognized in the purchase and sale of said range, and no
alteration of above conditions or erasure by salesman is authorized, or
will be recognized by said company," it was alleged as a defense that
the vendor's agent sold the range for sixty-four dollars, and indorsed
upon the note, which had been originally drawn for sixty-nine dollars, the
sum of five dollars to make it conform to the purchase price, and also the
sum of twenty-five cents for his dinner; that when the note was presented
for payment the indorsement was obliterated, and that this constituted
such an alteration as rendered the note invalid.
Held, that even conceding that the action of the agent in stipulating
for a reduced price, and in making the indorsement was binding upon his
principal, yet, as it did not appear but that the obliteration of such
indorsement was made by the agent who had no authority to do so, and
that the act was consequently the act of an unauthorized third person, the
note would not be avoided thereby. WALDORF c. SIMPSON......
Corporate notes, issued in contemplation of insolvency, how avoided —
evidence of authority to make a corporate note.
See BANGS. NATIONAL MACARONI CO.
Checks drawn by an agent to his own order from his principal's bank
account the agent must explain their use.
An order drawn by a contractor takes precedence of a mechanic's lien
filed after notice of the order.
See BRADLEY & CURRIER Co. v. WARD.
A contract, originally usurions, may be purged of usury.
See MCCONKEY . PETTERSON
BOARD OF CLAIMS-Discretion of the Board of Claims as to reopen-
ing a case.] It is a matter within the discretion of the Board of Claims of
this State whether it will reopen a case after it has been finally submitted
and a decision has been rendered. LAKESIDE PAPER CO. . STATE....
BOND Complaint guaranty by a railroad company of the payment of the
principal and interest of the bonds of another company· ichen it becomes liable
for the principal on default in the payment of interest · a suit thereon for both
principal and interest embraces but one cause of action.
See DOUGAN . EVANSVILLE & T. H. R. R. Co...
An assignment of a bond and mortgage, acknowledged before one of the
assignees, is a nullity. its record is invalid - — a subsequent assignee bound by the
defect-want of possession of the bond and mortgage.
Mandamus — commissioners appointed under chapter 493 of the Laws
of 1892 are public officers · - their duties as to the disposition of the bonds issued
thereunder are purely ministerial--such bonds must not be sold on credit.
See PEOPLE EX REL. PENNELL. TREANOR..
A bond given by a bank official, elected for one year, and who continued
to serve for several years. it expires with the year in which it is given the
liability of a surety is strictly construed.
See ULSTER COUNTY SAV. INST. v. OSTRANDER.
For faithful service “during his continuance in office," "even though
he hold under successive appointments" -the liability under it is continuous,
although he holds over without reappointment.
See ULSTER COUNTY SAV. INST. e. YOUNG...
its enforcement in equity against sureties on a bond
given to discharge the lien ·
unnecessary.
a prior judgment against the contractor is
See MILLER v. MCKEON.....
BOUNDARY — Cases involving construction of deeds.
· Assessors cannot, on objections being made to an assessment,
increase it proper items of debit and credit in fixing the assessment of a corpora-
tion calue of patent rights deducted - all objections must be first made to the
assessor's.
See PEOPLE EX REL. N. Y. & N. J. TEL. Co. v. NEFF......
BURDEN OF PROOF:
CANANDAIGUA - Cloud upon title - - an assessment valid upon its face,
but invalid because beyond the jurisdiction of the commissioners of assessment
when a party aggrieved is not confined to a remedy by appeal provided by the
statute- the clear meaning of a statute will not be changed by construction.
See McKECHNIE BREWING Co. v. TRUSTEES..
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