CORPORATION

Continued.

Fraudulent conveyance by a corporation

made under an execution.

PAGE.

set aside to enable a levy to be

See HOME BANK v. BREWSTER & Co..
Taxation

338

assessment upon the personalty of a street railway — the

value of its franchise not covered thereby.

See PEOPLE EX REL. CONEY ISLAND R. R. Co. v. NEFF

585

29

2.

-

-

COSTS-Decision in an equity case· - the Special Term cannot alter it on enter-
ing final judgment.] 1. Where, in an equitable action brought to have an
absolute deed declared to be a mortgage, the decision grants this relief,
"with costs of this action," the direction means that the plaintiff is entitled
to costs, and it is not within the power of the Special Term, on the report of
a referee made under the provisions of the interlocutory judgment, entered
upon such decision, although held by the same justice who decided the case,
to alter, in the final judgment, the direction as to costs. FOLEY. FOLEY.. 276
Costs against executors — when a claim has not been unreasonably
resisted.] A claim against the estate of a decedent cannot be said to have
been unreasonably resisted or neglected by the executors, within the meaning
of section 1836 of the Code of Civil Procedure, where the claimant never
asserted her claim during the lifetime of the decedent, and where it has been,
upon a reference under the statute, materially reduced. RYAN v. MCELROY. 216
3. Extra allowance—not granted where a cause is tried in an hour
and is neither difficult nor extraordinary.] Where an action, brought to
recover for moneys loaned, is tried as a short cause and the trial is concluded
within an hour, and the record does not disclose anything difficult or extra-
ordinary in the case, no basis is furnished for the granting of an extra allow-
ance. GILLESPY . BILBROUGH.

4.

Extra allowance, when excessive.] An extra allowance of $2,000 in
an action in which only three witnesses were examined, and the trial of
which did not occupy an unusual time, although the circumstances constitu-
ted a
difficult and extraordinary case," the court considered should be
reduced to $500. GORDON . STRONG...

5.

Costs to defendant.] Where the defendant in an action obtains a
judgment upon the ground that the contract upon which a cause of action
is based is invalid, such a judgment effectually disposes of that cause
of action and the defendant is entitled to costs.

WELLING. IVOROYD MANUFACTURING CO....

Surrogate's decree costs to an unsuccessful party — stenographer's

212

519

116

The presentation of an excessive bill to a board of supervisors is not

See PEOPLE T. KING.

84

a crime - printing election ballots.

Armorers and janitors of the National Guard - their compensation is a
county charge.

See MATTER OF GOEDEL v. PALMER.

86

Writ of prohibition. to prevent the enforcement of a void decree.
See PEOPLE EX REL. SPRAGUE . FITZGERALD.

Of a justice of the peace.

PAGE.

539

COURT

See JUSTICE OF THE PEACE.

COVENANT - Building restrictions in a covenant contained in a deed-
effect of, upon other grantees of the common grantor holding title under a like
deed modification of the original covenant.

-

See LONGWORTH . DEANE..

461

....

Contract to sell real estate - when the deed must be executed by the vendor
and not by another.

CRIME The presentation of an excessive bill to a board of supervisors is not a
crime - printing election ballots.] 1. Where a claim presented to a board of
supervisors for the printing of election ballots is unliquidated, has not been
contracted for at any specific price, and is not the subject of any statutory
provision, the presentation to the board of a bill containing a statement of
excessive or exorbitant value, unaccompanied by any false statement of col-
lateral circumstances, does not constitute an indictable offense.

Semble, that the presentation of a bill which concealed the fact that a
special contract had been made with county authorities at a lower price,
or purposely computed falsely the gross value of its items, might amount
to an indictable fraud. PEOPLE. KING..

2. 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.] Where
an action is brought to recover damages for an alleged assault and battery,
the defendant is entitled to a charge that he is presumed innocent," as such
a presumption exists in a civil action where a judgment against the defend-
ant will show him to have been guilty of a crime.

A defendant is also entitled to a charge that "the affirmative is upon the
plaintiff;" and a failure by the court, although it has marked as "charged
a written proposition to that effect (handed to it in advance of its charge to
the jury), to so charge the jury, either in substance or effect, constitutes a
material error. GRANT. RILEY...

DAMAGES By an elevated railroad- - an abutter, not showing depreciation,
must show that his property has not shared in the general increase of value
not that the railroad has changed the character of the street.

84

190

See STACEY . METROPOLITAN ELEVATED R. Co..

534

Measure of- where an instrument contains a provision authorizing the

termination of all obligations under it, on a ten days' notice.

See GALLO . MAYOR..

61

Stay of proceedings — appeal by the elerated railroads from a judgment
for past damages, and enjoining the road unless fee damages be paid-security
required.

See ENO v. N. Y. ELEVATED R. R. Co....

336

Principal and surety — the surety may recoup damages sustained by his

principal.

See LORING v. MORRISON...

498

Judgment-error in calculating damages -

the remedy is by motion.
See LOY v. METROPOLITAN ELEVATED RAILWAY CO...

-

1

DE FACTO - Officers.
See OFFICER.

DE JURE

Officers.

See OFFICER.

PAGE.

DEBTOR AND CREDITOR-A counterclaim must constitute a cause of
action sale of collateral, not obligatory · - a delay gives no cause of action-
proof of Wall street custom.] 1. The complaint in an action alleged the mak-
ing by the defendants of a promissory note, which authorized the payee,
upon default in payment, to sell certain collateral; that after default in pay-
ment the collateral was sold by the payee, realizing but a small percentage
of the face of the note.

The answer of one of the defendants alleged that the payee was author-
ized to realize on the collateral in the event of its depreciation; that it
negligently failed to do so until the collateral became nearly worthless, and
that thereby "a loss of fifty thousand dollars was occasioned to the defend-
ant," which he claims to be set-off and counterclaim against any recovery"
by the plaintiff.

Held, that as it was not charged that the payee undertook to sell the col-
lateral or assumed any duty to that effect, and as the allegation that the
payee in the note was authorized to sell the stock, did not necessarily require
it to do so, nor charge it with any liability for failing to do so, the matter
alleged in the answer did not constitute a counterclaim, in that the facts
alleged did not constitute a cause of action against the payee;

That in view of the fact that by the terms of the note the payce was only
authorized to sell the collateral upon default in payment, evidence of a
custom in Wall street with regard to the sale of pledged securities, for the
purpose of realizing upon them, was properly excluded:

That for the same reason evidence tending to show that the payee was
guilty of negligence in not selling the securities before default, was also
properly excluded. HOWELL v. DIMOCK.

2.

Payment

-

moneys of a husband fraudulently deposited in a bank in
the wife's name — liability of the bank to a judgment creditor of the husband,
for paying them, after notice, on the wife's check.] A bank which, after hav-
ing received notice, by the service of a summons and complaint, that a
judgment creditor of a husband makes claim to a deposit standing on its
books in the name of the debtor's wife, pays the deposit to a sheriff upon
the wife's check upon a judgment recovered against the wife (after an ex
parte order directing it to make this payment has been vacated), is liable to
the judgment creditor of the husband, upon proof that the moneys, although
standing in the name of his wife, were in fact the property of the husband.

ALBRO CO. . FOUNTAIN..

3. A debtor may pay one bona fide creditor to the exclusion of others.] A
creditor has a right to transfer to any particular debtor property sufficient to
pay his debt, although he thereby puts it out of his power to pay his other
creditors, and as long as his object is simply to pay a bona fide debt and that
is the only result accomplished, the transaction is not fraudulent as to other
creditors. HOFFMAN v. SUSEMIHL

-

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 cred-
itors, how avoided.
See WELLING v. IVOROYD MANUFACTURING Co.....
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 v. YOUNG..

-

Receiver of a firm — permission to levy on property in his hands — granted
only when the firm is solvent or when the receiver is appointed to delay creditors.
See MYERS v. MYERS...

-

it is a defense to

Contract to reduce an indebtedness because of services·
a claim subsequently accrued in favor of a receiver of the original creditor.
See JAFFRAY . HUNTER.

102

351

405

116

109

448

615

APP. DIV.-VOL. XV. 82

PAGE.

DEBTOR AND CREDITOR - · Continued.

-

General assignment · construction of a preference of “such portion of
said promissory notes as the holders shall fail to collect from makers thereof.”
See PEARSON v. EGGERT.

125

Corporate notes, issued in contemplation of insolvency, how avoided -
evidence of authority to make a corporate note.

See BANGS v. NATIONAL MACARONI CO....

522

Corporations -de facto directors — a general creditor may enforce a lia-

bility for a failure to file an annual report.

See DONNELLY v. PANCOAST.....

-

Payment by a debtor to his creditor of money belonging to another
when the creditor may retain it.

323

See HEIDENHEIMER v. BOYD .........
Receiver-leave to sue an uncontested claim-payment thereof, where
ordered lien on a fund waived.

580

......

See MATTER OF MACHWIRTH.

65

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

386

-

Attachment cacated as to all but one of several partners, it ceases to be

161

77

-

who is not one.

478

. 521

a lien on the firm assets.

See SOULS v. CORNELL.

A contract, originally usurious, may be purged of usury.
See MCCONKEY . PETTERSON..

Equity-conflicting claimants to a common fund ·
See NATIONAL UNION BANK . KLEINWORT...
Application of payments — notes are not payments.
See DONOVAN v. FRAZIER..

DECREE:

See JUDGMENT.

DEED Building restrictions in a covenant contained in a deed-effect of,
upon other grantees of the common grantor holding title under a like deed·
modification of the original covenant.] 1. One Brown, the owner of a block
of ground in New York city, conveyed several parcels thereof by deeds, each
of which contained a covenant which was to run with the land, by which the
grantee, his heirs and assigns, agreed with the grantor, his heirs, executors,
administrators and assigns, not to erect, or permit to be erected, any tenement
house upon the premises.

Subsequently, by agreement with the executors of Brown, the covenant
was modified as follows: "Nor any tenement house, not meaning, however,
what is known as a flat or apartment house, provided they be equal in class
to No. 336 West Forty-seventh street, or to No. 346 West Forty-seventh
street."

In an action based upon an alleged violation of the above covenant, in
which both the plaintiff and defendant held title, under a deed, from Brown,
the common grantor, it was

Held, that, as the instrument containing the modification specifically stated
that it was understood and agreed by the parties that the covenant should
run with the land, the modification did not create a merely personal covenant
with the executors of Brown, or one for the benefit of the grantor, but bore
the same relation to the block as did the original covenant before it was
changed;

That while the covenant as it originally stood was a covenant against use
and not against construction, the modification changed the covenant into one
against construction and not against use; and that the question to be deter-
mined was whether the defendant's houses corresponded with either or both
of the houses in West Forty seventh street. LONGWORTH v. DEANE.....
2.

-A particular description controls a general one.] The general rule
relative to conveyances is that, if there is a particular description and a
general one, the particular one must prevail.

PEOPLE EX REL. UNDERHILL . SAXTON

461

263

DEED-Continued.

Contract to sell real estate — when the deed must be executed by the vendor
and not by another.

DELIVERY - Of a waiver of notice under a contract.

See CONTRACT.

Of contracts.

See CONTRACT.

Of books and papers of office.

See OFFICER.

DEMAND - Before suing a municipality.

See MUNICIPAL CORPORATION.

DENIAL:

See PLEADING.

DEPOSIT-In banks.

See BANKING.

DEPOSITION- Examination of a party before trial · not granted to enable
a party to find out to what the opponent's witnesses will testify, and to procure
other evidence.] In order to entitle a party in an action to an examination of
his adversary before trial, the affidavit on which the application is made
must show that the testimony of the person sought to be examined is
material and necessary as evidence for use upon the trial by the party mak-
ing the application, and that must appear from facts and circumstances
alleged, and not from a mere conclusion of the affiant.

The motion will not be granted merely to enable a party to find out what
his opponent's witnesses will swear to, or to enable the party to procure
other evidence to be produced upon the trial.

PAGE.

An allegation that the testimony is necessary for the reasons that the
agreement alleged in the complaint, upon which the action is founded,
was made between the plaintiff and one of the defendants, who did not
appear in the action; that these defendants making the application have no
knowledge of the time and place at which the agreement was made, or the
amount that was loaned and advanced to the plaintiff by such non-appearing
defendant; as to what persons, if any, were present at the time of the mak
ing of the said agreement, or as to the terms and conditions thereof; and,
further, that the tender alleged in the complaint, having been made by the
plaintiff upon the non-appearing defendant, these defendants have no knowl-
edge as to the time and place of the tender and demand, or as to who were
present at the time of such tender; that the defendants have no knowledge
of these facts, and that a discovery of the same is necessary to enable the
defendants to prepare for the trial of the action, and for the defense thereof
upon the trial and otherwise, as may be necessary - is insufficient.

LEARY . RICE..

DEVISE In trust.

See TRUST.

DIRECTOR - Of a corporation.

See CORPORATION.

DISSOLUTION - Of corporations.
See CORPORATION.

DIVERSION - Of watercourses.
See WATERCOURSE.

DOCTOR :

See PHYSICIAN.