Imágenes de páginas

plaintiff, was forged by defendant.-Seiferd v. 1

Meyer (Sup.) 636.

18 1. Petition, adjudication, warrant,
§ 2. Compensation and lien of attor-

and custody of property.

In an action by a trustee in bankruptcy to
An attorney, obtaining a favorable settle-

recover the proceeds of an execution sale on
ment of a controversy without suit, is entitled
to recover his fees therefor.-Stoutenburgh v.

defendant's judgment obtained against bank-

| rupt less than four months before the filing of
Fleer (Sup.) 504.

the petition in bankruptcy, held, that adjudica-
Plaintiff held entitled to recover the agreed tion in bankruptcy was conclusive that bank-
compensation for obtaining a reduction of a rupt was insolvent at the time of defendant's
claim against defendant. — Stoutenburgh v. judgment.—DeGraff y. Lang (Sup.) 78.
Fleer (Sup.) 501.

A bankrupt firm cannot convey its property

after the filing of the petition in bankruptcy.

-Muschel v. Austern (Sup.) 235.
Mandamus to compel audit of claims, see

§ 2. Assignment, administration, and
"Mandamus," § 1.

distribution of bankrupt's estate.
Trustee's action under Bankr. Act July 1,

1898, c. 541, $ 60b, 30 Stat. 562 [U. S. Comp.

St. 1901, p. 3145], should be one in equity for

an accounting.-Houghton v. Stiner (Sup.) 10.
Of agent, see “Principal and Agent,” $ 2.

A receiver in bankruptcy cannot transfer ti-

tle to any of the bankrupt's property without

order of the court.-Muschel y. Austern (Sup.)

Maintenance of automobile station as nuisance, Voluntary bankruptcy proceedings on the
see "Nuisance," $ 2.

part of building contractors, prior to lien being

filed for material furnished to them, do not af-

fect the right of materialmen to file and en-

force their lien.-Crane Co. v. Smythe (Sup.)
Pleading matter in avoidance, see "Pleading," 917.
$ 2.

A transfer of certain insurance policies to a

bank after a loss thereunder had been adjusted
held not to constitute a fraudulent preference,

Bankr. Act July 1, 1898, c. 541, 8
Of insurance appraisers, see “Insurance," $ 10.160. subd. (a." 30 Stat. 502'TU. S. Ćomp. St.

1901, p. 3445].-Engel v. Union Square Bank

(Sup.) 1070.
$1. In civil actions.

In order to establish a fraudulent preference
Under Code Civ. Proc. $ 599, a mere offer by by a bankrupt, it must be shown that the pre-
yureties on a bail bond to surrender their prin-

ferred creditor actually received as a result of
:ipal after the time for answering an action the transfer a greater percentage on his debt
on the bond was expired held no defense.-

out of that payable to the other creditors.-
Garofalo v. Prividi (Sup.) 467.

Engel v. Union Square Bank (Sup.) 1070.
That insufficient acts of sureties on a bail 8 3. Rights, remedies, and discharge of
pond in attempting to surrender their principal |

vere performed on the advice of their attorney | Under Code Civ. Proc. § 1268, a discharged
teld no ground for a new trial, after judgment bankrupt held entitled to an order canceling a

gainst them for the amount of the bond.- judginent against him.-Hussey v. Judson (Sup.)
Garofalo v. Prividi (Sup.) 467.

In an action against the sureties on a bail Under Bankr. Act July 1, 1898, § 17, c. 541,
vond, a return of not found by the sheriff is | 30 Stat. 550, 551 [U. S. Comp. St. 1901, p.
onclusive, and cannot be questioned, except 3428), a discharge in bankruptcy held not a re.
s expressly authorized by statute.-Garofalo v. lease from liability for fraud, though such fraud
Prividi (Sup.) 467.

was not perpetrated while acting as an officer

or in any fiduciary capacity.-A. G. Hyde &
In an action on a bail bond for the sum of

Sons v. Lesser (Sup.) 878.
500, a judgment against the sureties for a
um in excess of such penalty was erroneous.-

Order assigning future earnings and agree-
Garofalo v. Prividi (Sup.) 467.

ment to collect hold' to render failure to pay
over a misappropriation or defalcation while

acting in fiduciary capacity, within Bankr. Act

July 1, 1898, c. 541, $ 17, subd. 4, 30 Stat. 551
lee “Carriers,” & 2; "Innkeepers”; “Pledges.”

ITU. S. Comp. St. 1901, p. 3428).-J. L. Mott

Iron Works v. Toumey (Sup.) 1020.
A bailee for hire of a horse held to have the Under Bankr. Act July 1, 1898, c. 541, 88 1,
urden of proof that its death from injury re- 7, 17, 58, 30 Stat. 544, 548, 550, 561 U. s.
eived while he had it was not the result of Comp. St. 1901, pp. 3418, 3424, 3428, 3444),
is negligence.-Snell v. Cornwell (Sup.) 1. Tand Code Civ. Proc. § 1268, held, that a motion


and 121 New York State Reporter
for the cancellation of a judgment against one

discharged in bankruptcy should have been al-
lowed.-Lent v. Farnsworth (Sup.) 1112. Operation and effect of usury laws, see "['su-

ry," $ 1.

$. Requisites and validity.

Liability on a note cannot be defeated on the
Attachment of deposits, see “Attachment,” 8 1. ground that the services constituting the 100-
Deposits in trust, see “Trusts," § 1.

sideration therefor were rendered without any
Joint ownership of deposit, see "Joint Ten express request or promise to pay therefor,

where it appears that the maker received and
Payment by check, see "Payment," $ 1.

accepted the services, which were for his bene

fit.-Yarwood v. Trusts & Guarantee Co. (Sup..
$ 1. Banking corporations and associa-

A demurrer to a complaint in an action by the Note given for services rendered held to be
receiver of a bank against its cashier and his supported by sufficient consideration.-Yar-
bondsmen held not frivolous.-Rankin v. Bush wood v. Trusts & Guarantee Co. (Sup.) 947.
(Sup.) 539.

§ 2. Construction and operation.
§ 2. Functions and dealings.

Where a note is payable in the city of New
By the certification of a check the bank loses York, it was governed as to interest by the
power to withhold payment from the holder / laws of New York, though no rate was fixed.-
on demand.-Herrmann Furniture & Plumbers' Simpson v. Hefter (City Ct. X. Y.) 243.
Cabinet Works v. German Exch. Bank (Sup.) 8 3. Rights and liabilities on indorse-

ment or transfer.
§ 3. Savings banks.

Defenses, available as between original par
Where a savings bank deposit is in joint ties to negotiate instrument, held not available
names, and the intent appears to create a joint as against bona fide holder after maturity. u-
tenancy, the survivor takes title to the entire der Negotiable Instruments Law, Laws 1897,
fund, irrespective of whether he ever had any | p. 732, c. 612, § 97.-Jennings v. Carlucci (Sup.)
possession of the pass book.-Farrelly v. Emi-

grant Industrial Sav. Bank (Sup.) 54.

Holder of a check, indorsed to him in due

course, and without actual knowledge of any

defenses thereto, as required by Negotiable

Instruments Law, Laws 1897, p. 732, c. 612, $
Of action by former adjudication, see "Judg:

95, held entitled to recover the amount paid
ment," $ 4.

for the check from the drawer.-Goetting T.

Day (Sup.) 510.

A judgment against a second accommodation

indorser held not to estop the representatires of
$ 1. Illegitimacy in general.

the first accommodation indorser, in a suit by
A child of a common-law marriage is, under

the second, to claim nonliability by reason of
Lawe 180 3130 131 entitled to dis the diversion of the note.-Corn v. Lery (Sop)
tributive share of his mother's estate, equally

with the children of the first marriage.-In re | & 4. Actions.
Schmidt (Sur.) 428.

In an action on a check, facts held to establish

prima facie a valid indorsement.-Goetting F.

Day (Sup.) 510.

A defense to an action by a second accommo-
See "Assault and Battery."

dation indorser against the first that the Date

had been diverted, and was not indorsed to give

credit to a maker with the payee, held not de

murrable for failure to allege when the second
See "Wills."

indorser acquired knowledge of such diversion.

--Corn v. Lery (Sup.) 768.

Under Code Cir. Proc. $ 522, a hypothetical
See "Gaming."

cla use preceding a defense alleged in an answer
to a suit on a note held surplusage, and not to
render such defense subject to demurrer.-Cora

v. Levy (Sup.) 768.
Of witness, see "Witnesses,” $ 3.

In an action on notes, evidence held suffi-
cient to sustain à finding that indorsements
were not genuine.-Doty v. Dellinger (Sup.)

See "Pleading," $ 5.

Failure to serve as ground for reversal, see
"Appeal," $ 3.

See “Esecution,” s 2.



BONA FIDE PURCHASERS. show that she induced the purchaser to buy the

| property.-Scherer v. Colwell (Sup.) 490.
Of bill of exchange, see "Bills and Notes,” $ 3.

A broker held not entitled to recover commis-

sions for procuring customers for the sale of real

estate, in the absence of proof of written au-

thority to offer the property for sale.-Borgio v.
Corporate bonds, see "Corporations,” 88 3, 5. Gange (Sup.) 538.
Municipal bonds, see "Municipal Corporations,” | An indorsement on a contract, signed by the
$ 8.

parties, held proof that there was no previous
of liquor dealers, see “Intoxicating Liquors,"
$ 2.

biuding agreement as to the amount due plain-
Taxation of federal bonds, see "Taxation," 4.

tiff on the contract.-Hart v. L. D. Garrett Co.

(Sup.) 574.
Town bonds, see "Towns," § 1.

Under defendants' contract to pay plaintiff a
Bonds in legal proceedings.

share of any profits they should realize from a
See "Attachment,” 8 4; "Bail" ; "Injunction," sale, as soon as received, held, that plaintiff
$ 4; “Replevin," Š 2.

could not recover till defendants' receipt there-
of was no longer contingent.-Hart v. L. D.

Garrett Co. (Sup.) 574.

A broker, employed to procure a loan, does
Coroners as borough officers, see "Coroners."

not earn his commission by securing a person
who offers to make the loan, but afterwards re-

fuses to consummate the transaction. -Ashfield

v. Oase (Sup.) 649.

· A real estate broker, having found a person
Of condition, see "Insurance," 88 5, 6.

ready and willing to make an exchange accord-
Of contract, see "Contracts," 8 5; "Sales," 88
1, 2; “Vendor and Purchaser," 8' 3.

ing to the terms of the broker's employment,

earned his commissions, though his principal re-
Of covenant, see "Covenants," $ 2; "Insur-

fused to complete the exchange.-Suydam v.
ance," $ 6.
of warranty, see "Insurance,” $8 5, 6; "Sales,"

Healy (Sup.) 669.
88 3, 5.

In an action by broker to recover commis.
sions for selling defendants' real estate, evi-

dence held not to show any liability on the part
BREACH OF MARRIAGE PROMISE. of defendants.-Sampson v. Ottinger (Sup.) 796.
Abatement of cause of action on death of party,

A broker held entitled to commissions, where
see "Abatement and Revival," 1.

he produced a purchaser ready, willing, etc.,
but the sale was not consummated by reason

of a defect in title.-Cusack v. Aikman (Sup.)

§ 1. Regulation and use for travel.

$ 3. Rights, powers, and liabilities as to
Railway company held not guilty of negli-

third persons.
gence, resulting in the death of a boy from A broker, in good faith selling railway bonds,
walking off an open draw in a bridge.-Desure transferred on a forged authority, heid liable
v. New York Cent. & H. R. R. Co. (Sup.) 988. over to the railway company on its being com-
A boy, who walked off an open draw in a

pelled to replace the bonds.-Jennie Clarkson
bridge, held guilty of contributory negligence.

lIome for Children v. Chesapeake & O. Ry. Co.
-Desure v. New York Cent. & 8. R. R. Co.

(Sup.) 348.
(Sup.) 988.

A broker, in good faith selling registered bonds

belonging to a corporation, transferred under a

forged authority, held liable to the corporation

for the value of the bonds.-Jennie Clarkson
See "Factors.”

Home for Children v. Chesapeake & 0. Ry, Co.
Insurance brokers, see “Insurance," $ 2.

(Sup.) 348.
f 1. Duties and liabilities to principal. BUILDING REGULATIONS.

Failure of stockbrokers' client to reply to let-
ter held not direction to sell stock on certain See "Health " 8 1.
day, so as to charge brokers with the highest
price then obtainable.-Lynch v. Simmonds
(Sup.) 420.

$ 2. Compensation and lien.

Injuries to servants employed on, see “Master
Real estate brokers held entitled to recover and Servant," $ 4.
for services in preparing for auction, although Restrictions in deeds, sée "Covenants," $ 2.
owner himself sold property on day before auc-
tion.-Donald v. Lawson (Šup.) 485.

A real estate broker held not entitled to re-
cover commissions, where the evidence failed to | Burglary insurance, see "Insurance," $ 9.

and 121 New York State Reporter
CANCELLATION OF INSTRUMENTS. I for transportation.-Strough v. New York Cent.

& H. R. R. Co. (Sup.) 30.
Cancellation of judgment against discharged Whether a carrier unreasonably neglected to
bankrupt, see "Bankruptcy," $ 3.

provide a sufficient number of cars to forward

of notice of lis pendens, see "Lis plaintiff's freight was a question for the jury.

-Strough v. New York Cent. & H. R. R. Co.
Rescission of contract, see "Contracts," $ 4;

(Sup.) 30.
"Vendor and Purchaser," 8 2.

In an action against connecting carriers for

damage to goods, evidence held sufficient to jus-

tify a finding of negligence on the part of the

final carrier. -Thyll v. New York & L. B. R.
$ 1. Control and regulation of common

Co. (Sup.) 345.

In an action against connecting carrier for
Recovery of the penalty provided by Laws damage to goods, evidence, with complaint, held
1890, p. 1114, c. 565, $ 104, for refusal to give to absolve initial carrier from liability.-Thyli F.
a transfer “to any passenger desiring to make New York & L. B. R. Co. (Sup.) 345.
a continuous trip," may be had by one riding
for the purpose of recovering penalties.-Mc-

Contract of carriage, limiting liability in cer-
Lean v. Interurban St. Ry. Co. (Sup.) 135.

tain cases, held not to relieve carrier from liabil-

ity for negligence, but to impose on owner of
A railroad company, adopting the plan of

goods the burden of proof.-Thyll v. New York
sending its cars over a switch existing solely & L. B. R. Co. (Sup.) 345.
for the purpose of delivering freight to cars
from shippers located on the switch, held re-

Where a carrier, though having the COD-
quired to serve all shippers alike.-Kellogg v.

signee's goods in its possession at the point of
Sowerby (Sup.) 412.

delivery, refuses to deliver on demand, it red-

ders itself liable for any damage which the
The right of owners of a grain elevator to

'goods might thereafter sustain.-Thyll y. Ver
recover money paid to an elevator association | York & LB

York & L. B. R. Co. (Sup.) 345.
held not to prevent the owners from recovering
damages against the association and railroad That freight was destroyed by fire while in
companies, because of the companies discrim the freight house of a railroad company does
inating in favor of the association.-Kellogg v. not of itself justify an inference of negligence
Sowerby (Sup.) 412.

on the part of the company.-Van Akin v. Erie
Owners of a grain elevator held entitled to R. Co. (Sup.) 871.
recover damages against railroad companies Exemption in bill of lading from lia bility for
and an elevator association, because of the loss by fire held to prevent recovery for destruc
companies discriminating in favor of the asso tion in freight house of railroad.- Van Akin
ciation.- Iellogg v. Sowerby (Sup.) 412. v. Erie R. Co. (Sup.) 871.
8 2. Carriage of goods.

63. Carriage of passengers.
Shipper cannot recover increase of freight |

1 Street car passenger, refusing to pay fare,

rates voluntarily paid, though carrier failed to held to have no cause of

ailed to held to have no cause of action against company
give notice of increase required by Interstate for forcible ejection.-Hoellies . Interurban
('onimerce Act Feb. 4, 1887, c. 104, $ 6, 24 Stat.

at: St. Ry. Co. (Sup.) 133.
380 (U. S. Comp. St. 1901, p. 3157).-Strough
v. New York Cent. & H, R. R. Co. (Sup.) 30. An elevated railroad company held liable for
In an action by a shipper to recover freight

injury to a passenger by the overcrowding of a
charges from a carrier, the court properly refus-

car.-Viemeister V. Brooklyn Heights R. Co.
ed to submit to jury the issue of reasonableness

(Sup.) 162.
of increased rates.--Strough v. New York Cent. A conductor, who has no notice that a pas-
& H. R. R. Co. (Sup.) 30.

senger intends to leave the car, cannot properly
The fact that one has large quantity of goods

be charged with negligence in starting the car.
for transportation, or has been unable to ob-

---Brown v. Interurban St. Ry. Co. (Sup.) 461.
tain cars before increased freight rate went in A street car conductor held bound to take Do-
to effect, held not to relieve him from such in- | tice of the distance between the car and pillars
crease.- Strough v. New York Cent. & H. R. in the street, and the size of a passenger stand-
R. Co. (Sup.) 30.

ing on the car's running board.-Canavan v. In-
A discrimination excepting a shipper from a terurbau St. Ry. Co. (Sup.) 491.
general increase of freight tariff is against pub-
lic policy.-Strough v. New York Cent, & H. R.

A street railroad company held not bound to

anticipate that a passenger, standing on the
R. Co. (Sup.) 30.

running board of an open car, will swing bark.
Carrier owes duty to use reasonable diligence so as to come in contact with a pillar in the
to furnish sufficient cars, but not to discrim- street.-Canavan v. Iuterurban St. Ry. Co.
inate in favor of any shipper, when demands (Sup.) 491.
are unusual.-Strough v. New York Cent. & H.

Contributory negligence of passenger and nego
R. R. Co. (Sup.) 30.

ligence of defendant, in action against street
Hay not being perishable merchandise, a car-railroad for personal injuries, held, under the
rier is not called upon to put forth unusual ef-evidence, to be questions for the jury.-Michel-
forts to remove the same, when delivered to it sou v. Metropolitan St. Ry, Co. (Sup.) 501.




Instruction, in action by street car passenger

for personal injuries, directing verdict for plain-
tiff if certain facts were found, held error.-
Goodkind v. Metropolitan St. Ry. Co. (Sup.)

In See “Banks and Banking,” 8 2.

Evidence in an action for injuries to passen-
ger alighting at a station held to justify a ver-
dict for plaintiff.-Barnes v. New York Cent. &

ů Vork" Cent & Review of dismissal from police force, see "Mu-
H. R. R. Co. (Sup.) 608.

nicipal Corporations," $ 1.

Review of tax assessment, see "Taxation," $ 2.
In an action against a street railway for in-
juries to a passenger from the sudden starting
of the car while he was alighting. evidence held

sufficient to sustain a verdict for defendant on see "Equity.”
the issue as to whether the car was started as
claimed. — Fox v. Metropolitan St. Ry. Co.
(Sup.) 754.

Under doctrine of res ipsa loquitur, street Of civil action, see “Venue,” & 1.
car company held bound to explain why street
car left track, injuring plaintiff.-Klinger V.
United Traction Co. (Sup.) 864.

In action against street railway company to jury in civil actions. see "Trial." 8 6.
operating car and another street railway com- To jury in criminal prosecutions, see "Criminal
pany on whose tracks the car was running

Law," 8 4.
to recover for injury to passenger, evidence
held to justify verdict against both defend-
ants.-Klinger v. United Traction Co. (Sup.)


Taxation of charitable corporation, see "Taxa-
Motorman, using switch in other than the tion," 1.
usual manner. held bound, in the exercise of
reasonable care, to proceed slowly and keep 8 1. Creation, existence, and validity.
the car under control.-Klinger v. United Trace Charitable bequest held void for indefiniteness
tion Co. (Sup.) 864.

as to legatee.-Bowman v. Domestic & Foreign

Missionary Soc. of Protestant Episcopal Church
Street car company, whose car collided with

(Sup.) 621
one on another road in which plaintiff was a
passenger, held bound to use toward him only
reasonable and ordinary care. – Klinger v.

United Traction Co. (Sup.) 864.

See “Pledges."
A street railway company is bound to use
the utmost skill in operating and keeping in 8 1. Foreclosure.
repair its trains and switches to save a pas An agreement held not to authorize a first mort-
senger from harm.-Klinger v. United Traction gagee to recover more than his interest in the
Co. (Sup.) 864.

property sold at foreclosure of a second mort-
The maintenance of a stepping box, instead

gage.-Blumberg v. Marks (Sup.) 512.
of removable stools, at a railroad station, to In an action against an auctioneer, on an

assengers to board and alight from agreement giving plaintiff, by virtue of his
trains, over which plaintiff's intestate stumbled mortgage, an interest in the proceeds of a sale
and fell under the wheels of a train, while law- of personalty under a foreclosure of a second'
fully at the station, held not negligence on the mortgage, the defense that plaintiff's mortgage
part of the railroad company.-Pitkin V. New was not recorded held not available to defend-
York Cent. & H. R. R. Co. (Sup.) 906.

ant.-Blumberg v. Marks (Sup.) 514.

In an action on an agreemeut giving plaintiff

the right to the proceeds of a sale under a

mortgage foreclosure, on the issue as to the
See “Animals.”

amount of the proceeds realized by the auc-

tioneer on the sale, evidence held to show that

$391 was realized, and not a sum over $712.40,

as claimed by plaintiff.-Blumberg v. Marks.
See "Gifts,” $ 2.

(Sup.) 514.

On the issue as to the amount of plaintiff's

interest in the proceeds of a sale of personalty

by virtue of his mortgage on the property sold,
See "Action."

evidence held to fail to show that his interest
amounted to the sum claimed by him.--Blum-

berg v. Marks (Sup.) 514.
Of architect as to completion of contract, see

“Contracts," $ 5.

See “Fraud."


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