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A deed of trust provided that in case there should be no issue of
the beneficiary living at the time of the disposition of the principal
of the trust the principal should be paid over to the next of kin of
the beneficiary. Held, that the adopted daughter of a deceased
brother of the beneficiary was one of the next of kin of the bene-
ficiary under the deed of trust and entitled to her share in the
distribution of the fund The words next of kindo not include
a widow Domestic Relations Law, 114. United States Trust
Co. of New York v. Hoyt, 663.

See Vendor and Purchaser.

Summary proceedings Order not appealable under Municipal
Court Code, 154.- Under section 154 of the Municipal Court
Code an order denying a landlord's motion for an order directing
the clerk of the court to deliver the warrant in a summary proceed-
ing, is not appealable. Tauszig v. Kantor, 366.

1. Unincorporated -- Actions against Pleading Injunctions
- When motion for judgment on the pleadings granted - Code Civ.
Pro. V 1919.- In an action brought under section 1919 of the Code
of Civil Procedure against the president of an unincorporated asso-
ciation on any cause of action upon which plaintiff may maintain
such an action against all the associates, the court must find upon
allegations and proof that all the members of the association are
liable. Where in such an action brought against one individually
and as president of the “Amalgamated Clothing Workers of
America ” and against others individually and as officers, agents or
employees of the organization, the complaint alleges " that all of
the defendants herein have combined and conspired and agreed to
carry out all of the aforementioned purposes * * * by their
acts and conduct," and that they “are wrongfully and unlawfully
* * • instigating plaintiff's employees to cease work and * * *
have caused a general strike against manufacturers of clothing in
the city of New York and * • * are instigating persons to
picket plaintiff's factories and coercing * . * and intimidating
plaintiff's employees," and a particular allegation of the pleading
gives irrefutable evidence that the pleader intended the term
“ defendants” to apply to the persons actually named as such in
the caption, in contra-distinction to the term “all members of the
association " and that when the pleader intended to designate the
latter class he so expressly denominated them, but there is no
allegation that all the members of the defendant association par-
ticipated in alleged overt acts or purposes of the association,
authorized or ratified the same or are chargeable with knowledge
thereof, the complaint, considering the allegations thereof as though

they were all to be considered as bearing solely upon the right to
an injunction, fails to state a cause of action and defendant's motion
for judgment on the pleadings will be granted, with leave to plaintiff
to plead over, if so advised. Friedman & Co., Inc., v. Amal. Cloth.
Workers, 44.

2. Unincorporated Ticker service – When no action lies against
an association for damages occasioned by its incorrect report of
decision of United States Supreme Court on taxable status of stock
dividends Libel. While everyone is under moral obligation to
say nothing that is not true, the law does not attempt to impose lia-
bility for a violation of that duty, unless it constitutes a breach of
contract or trust or amounts to a deceit, libel or slander. The rela-
tion of an unincorporated association engaged in the business of
supplying its subscribers with current news by a ticker service to
the public, is the same as that of a publisher of a newspaper, and
its duties and obligations are to be measured by the same standard.
No action lies against such an association for damages occasioned
by its incorrect report of the decision of the United States Supreme
Court on the taxable status of stock dividends, by one who, seeing
such report in his broker's office, sold stocks at a loss, and his
complaint must be dismissed. Jaillet v. Cashman, 383.


1. Cable transfer" - Contracts Plaintiff entitled to judgment
for amount paid for cable transfer. The term “cable transfer”
precludes the idea that an actual transfer of money is "contemplated
or intended by the parties thereto. The seller of a “ cable transfer "
is in the position of having sold at an agreed price a credit for a
sum of money payable at the place indicated in the written memo-
randum and the buyer has purchased a credit for such sum avail-
able at the place and for the payee named. While money paid for
a “cable transfer" becomes the money of the seller, it is still
under obligation to the buyer to pay to the payee named in the
“cable transfer," the agreed equivalent in foreign exchange of the
amount received for such transfer. Where in an action to recover
the amount paid to defendant for a “cable transfer" of 7,000
marks to a relative of plaintiff, in Poland, who at all times since
the transaction has continued to reside at the address originally
furnished to defendant, it appeared that the marks were never
delivered although nearly a year and a half had elapsed from the
time of the purchase of the “cable transfer” and saving clauses
in the agreement on which defendant seeks to escape or limit its
liabilities have not the effect claimed for them, plaintiff is entitled
to judgment for the full amount demanded. Safian v. Irving
National Bank, 387.

2. Failure to establish credit in foreign country - Ecchange -
Evidence - Plaintiff entitled to return of money paid for foreign
credit with interest.- Where the defendant bank, upon payment to
it by plaintiff's agent of the sum of $750 at the city of New York
on May 10, 1916, for remittance to plaintiff at Dresden, Germany,
where she then resided, undertook to establish a credit for plaintiff
with a bank at Berlin, Germany, within a reasonable time, to the
extent of the equivalent in German exchange of that sum when
it was paid to defendant, to wit, 3,902.40 German marks, the
plaintiff, notwithstanding defendant's failure to perform its under-
taking by reason of war conditions, is entitled to a return of the
money with interest. On July 22, 1920, the defendant, in the course
of a letter to plaintiff's agent, stated that it would be pleased to
complete the transaction or to refund the value in dollars at the then
rate of exchange, to wit, ninety-one dollars and seventy cents.
Held, that a judgment for that amount granted in an action brought
while plaintiff was a resident of New York city will be modified
by increasing the recovery to the full amount claimed, with interest
from the date of its receipt by defendant. Pfotenhauer v. Equitable
Trust Co., 396.

3. Money paid for transmission to foreign country Court with-
out power to grant stay until recognition of a government in Russia
Depositions -- Municipal Court of city of New York Laches.-
A sum of money paid to the defendant bank by plaintiff in 1917,
for transmission to his wife in Russia, was never paid to her,
and soon after her arrival in this country in 1920, plaintiff demanded
a return of the money, which was refused. In a Municipal Court
action for money had and received, held, that the court was without
power to grant a motion for a stay “until three months after the
recognition of a government in Russia by the United States of
America, and the appointment of and the installation of Ambas-
sadors, Ministers and Consuls, so that a commission may issue to
take testimony." Such a stay is too indefinite and uncertain and
in effect amounts to a final disposition of the action, and an order
granting the motion therefor is appealable and will be reversed
and the case set down for trial on a day certain. The action having
been begun on December 10, 1920, the defendant in failing to apply
for the issuance of a commission to take testimony, until February
3, 1921, the day the case was set for trial, was guilty of laches.
Kirsner v. State Bank, 404.

4. When trust company liable for the misappropriation of funds
by an executor, one of its depositors Executors and administrators.

- Where a trust company, without investigation, permits checks
payable to one of the two executors of an estate to be deposited
to what was virtually his personal special account, each and every
item of which was the property of the estate, the trust company
is guilty of such negligence as amounts to practically a participa-
tion in the diversion or misappropriation of the funds of said estate,
and in an action by the surviving executor, though he was negligent
in confining the entire charge of the estate to his coexecutor, the
trust company is liable not only for the balance of the account with
interest but to account for the entire fund deposited and to have
judgment rendered against it for any moneys disbursed and for
which it might be liable by reason of its having participated in
their diversion. Where a part of the fund so deposited with the
trust company was transferred by plaintiff's co-executor to the credit
of another estate of which he was trustee by a check drawn by
him and deposited in the account of said estate with the same trust

company, an amount paid therefrom by him for lawyers' and
brokers' fees on the sale of a bond and mortgage belonging to said
trust estate, the trust estate is not chargeable therewith in the
absence of proof that the estate of the co-executor was released,
and the trust company remains liable to plaintiff therefor, with
interest. But for the amount of two checks drawn by the co-
executor out of the special account and payable to the trust estate
that estate is liable. Whiting v. Hudson Trust Co., 425.


1. When will be ordered to be furnished to proponent of a will
- Surrogate's Court Code Civ. Pro. V 531.- Objection to the
factum of the will and allegations of lack of testamentary capacity
being practically a general denial of what proponent must prove
to establish the will, such denial is not a “ claim" under section 531
of the Code of Civil Procedure, and does not warrant an order
that contestants furnish a bill of particulars. But where allegations
of fraud and undue influence are sufficient to require contestants
to furnish the name or names of those charged with exercising fraud
or undue influence upon the testator or to state lack of knowledge
in that respect, a bill of particulars will be ordered to be furnished
to proponent, particularly where he swears that he has endeavored
to obtain such information, and the will does not indicate with
certainty who would be likely to exercise any fraud or undue
influence. Matter of Francis H. Ross, 41.

2. When motion for, granted -- Negligence Workmen's Com-
pensation Act -- Employers' Liability Act. While plaintiff, an
employee of defendant, was engaged in work, maritime in its nature,
he sustained injuries to his person for which he claimed and received
compensation under the Workmen's Compensation Act. In an action
subsequently brought in a state court for the same injuries plaintiff
claimed to be entitled to recover both by an action at common law
and under the Employers' Liability Act. Held, that in the circum-
stances plaintiff's motion for a bill of particulars of his alleged con.
tributory negligence pleaded as a defense, will be granted. Maeurer
v. Morse Dry Dock & Repair Co., 70.


Statutes Right of city of New York to operate railroad over
Williamsburg bridge - Municipal corporations -- Railroads - Con
stitutional law Greater New York Charter, as amended in 1901,
Ø 595(5)- Public Service Commissions Law, 53 - Railroad Law,
Ø 22 --- Laws of 1916, chap. 528 - Laws of 1897, chap. 663. The
provision of section 595 (5) of the Greater New York Charter, as
amended in 1901, by which the commissioner of bridges, who still
had the management and maintenance of the New York and Brooklyn
bridge and control of the operation of the railroad thereon, was
given in general terms the management of all other bridges, was
followed by an express provision abolishing the Williamsburg bridge
commission, and all its powers and duties, one of which was to
operate and authorize to be operated a railroad over said bridge,
were duly transferred to the commissioner of bridges of the city
BRIDGES - Continued.
of New York and by a later statute (Laws of 1916, chap. 528)
to the commissioner of plants and structures of said city. The
legislative act (Laws of 1897, chap. 663) which provided that the
trustees of the Brooklyn bridge might continue to maintain and
operate the then present railroad thereon did not limit the power
already delegated the Williamsburg bridge commission, which in turn
is devolved upon the present commissioner of plant and structures,
and the city of New York through that official has an existing right
to operate a railroad on the Williamsburg bridge. Dilluvio v. City
of New York, 73 Misc. Rep. 122, distinguished. The legislature
having granted to the city of New York the right to operate a
railroad on said bridge and there being no place thereon for the
storage of cars it must be held that as a necessary implication to
such grant the city may erect a barn underneath the structure of
the bridge and by necessary trackage connect the existing bridge
tracks with the barn, and if in the course of making such connection
it is necessary to cross the tracks of the defendant railroad company
now operating over the bridge as licensee only and free to abandon
the bridge service at any time, the law allows such crossing over.
An application by the city of New York under section 22 of the
Railroad Law for the appointment of commissioners to determine
the compensation, if any, to be awarded defendant as a condition
of constructing a cross over on its tracks, etc., will be granted and
the obtaining of a certificate under section 53 of the Public Service
Commissions Law is not a necessary prerequisite. The legislature
has constitutional power to grant to a municipal corporation the
right to operate a railroad on the Williamsburg bridge, which,
besides being an aerial highway, has been declared by statute to
be a public highway. City of New York v. Brooklyn City R. R.
Co., 94.


Real estate -- Valid contract for commissions When broker not
employed in a confidential capacity by two opposing interests.-
Where there is nothing in an agreement between a real estate broker
and an intending purchaser, as pleaded or testified to, whereby the
broker bound himself not to disclose to the seller the fact that he
was to receive a commission from the other party, the contract is
valid on its face. Defendant agreed to purchase certain real estate
at the price asked, only through plaintiff as broker, and that if
he did not so purchase or if plaintiff did not receive a commission
from the seller, defendant would pay plaintiff such commission.
The plaintiff having received no commission from the seller upon
a sale made within the purview of the terms of the contract brought
an action in which he testified that defendant said to him: “If you
bring me some property I like, I will buy it quick through you
and you get the commission. Even if I buy the property through
other brokers and you don't get the commission from the owner,
the other side, I will pay from my own pocket the commission."
Held, that the contract could not properly be construed as sub-
jecting plaintiff to employment in a confidential capacity by two
opposing interests, and a judgment entered upon a dismissal of the
complaint at the close of plaintiff's case will be reversed and a new
trial granted. Levine v. Susser, 609.

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