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and 121 New York State Reporter

CHECKS.

COLOR OF TITLE.

See "Banks and Banking," § 2; "Bills and To sustain adverse possession, see "Adverse
Notes."
Possession."

Payment by check, see "Payment," § 1.

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Notice to delinquent club member that he See "Carriers." would be dropped held to justify him in relying thereon, and to exonerate him from further dues.-Westchester Golf Club Co. v. Pinkney (Sup.) 153.

COLLATERAL AGREEMENT.

Parol evidence, see "Evidence," § 5.

COMMON COUNTS.

See "Assumpsit, Action of."

COMMON LAW.

Common-law marriages, see "Marriage."

COLLATERAL INHERITANCE TAXES. Common-law nuisance, see "Nuisance," § 2

See "Taxation," § 4.

COLLATERAL SECURITY.

See "Pledges."

COLLECTION.

COMPENSATION.

For property taken for public use, see "Ennent Domain," § 2.

For publication of notices in newspaper, see
"Newspapers.'

For services, see "Master and Servant." § 2
Of agent, see "Principal and Agent." § 1.
Of attorney, see "Attorney and Client," § 2.

Of estate of decedent, see "Executors and Ad- Of broker. see "Brokers," § 2.
ministrators," § 4.

COLLEGES AND UNIVERSITIES. Taxation, see "Taxation," § 1.

Of city officer or employé, see "Municipal Cor porations," § 1.

Of executor or administrator, see "Executors and Administrators," § 9.

Of sheriff or constable, see "Sheriffs and Constables," § 1.

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Arrest of judgment, see "Criminal Law,” § 5.
Combinations to monopolize trade, see "Mo-
Demurrer to indictment, see "Indictment and
nopolies," § 1.
Information," § 1.

Former jeopardy, see "Criminal Law," § 2.
Necessity of objection to indictment for purpose
of review, see "Criminal Law," § 6.

1. Criminal responsibility.

An indictment for conspiracy held not de-
fective, on the theory that it showed that the
conspiracy had been merged in the crime of ob-
taining money by false pretenses.-People v.
Weichers (Sup.) 1897.

CONSTITUTIONAL LAW.

Provisions relating to particular subjects.
See "Coroners"; "Jury," § 1; "Municipal Cor-
porations," § 2.

§ 1. Obligation of contracts.

Laws N. C. 1899, p. 175, c. 54, § 62, held not
to impair the obligation of contracts by chan-
ging the person on whom process shall be serv-
ed in actions against foreign insurance compa
nies.-Johnston v. Mutual Reserve Fund Life
Ins. Co. (City Ct. N. Y.) 438.

CONSTRUCTIVE TRUSTS.

Pleading by way of confession and avoidance, See "Trusts," § 1.
see "Pleading," § 2.

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Assignment, see "Assignments."

Construction of note, see "Bills and Notes," § 2. Impairing obligation, see "Constitutional Law,"

CONNECTING CARRIERS.

See "Carriers," § 2.

CONSIDERATION.

§ 1.

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Of bill of exchange or promissory note, see Parol or extrinsic evidence, see "Evidence," § 5.
"Bills and Notes," § 1.

Of contract, see "Contracts," § 1.

Specific performance, see "Specific Perform-

ance.

and 121 New York State Reporter

Contracts of particular classes of parties.

Contract held not so unreasonable as to be See "Corporations," § 3; "Infants," § 1; "Mas- nonenforceable.-Ceballos v. Munson S. S. Line ter and Servant"; "Municipal Corporations," (Sup.) 811. § 3: "Partnership,' § 2; "Principal and Agent," § 2.

Contracts relating to particular subjects.
See "Patents," § 1; "Waters and Water Cours-
es," § 1.

Ground for mechanics' liens, see "Mechanics'
Liens," § 1.

Limitation of liability of carrier, see "Carriers,"
§ 2.

Making bequest or devise, see "Wills," § 1. Pool of corporate interests, see "Corporations," § 5.

Purchase of city bonds, see "Municipal Corpo-
rations," & 8.

Particular classes of express contracts.
See "Bailment"; "Bills and Notes"; "Chattel
Mortgages"; "Covenants"; "Deeds"; "Insur-
ance"; "Joint Adventures"; "Partnership";

"Sales."

Agency, see "Principal and Agent."
Employment, see "Master and Servant."
Leases, see "Landlord and Tenant."
Sale of realty, see "Vendor and Purchaser."

Particular classes of implied contracts.
See "Assumpsit, Action of": "Use and Occupa-
tion"; "Work and Labor."

Particular modes of discharging contracts. See "Accord and Satisfaction"; "Payment";

"Release."

§ 1. Requisites and validity.

An agreement held supported by a valuable consideration.-Smith v. Kissel (Sup.) 176.

Representations, inducing plaintiff to enter into a contract, held of fact, and, being false, sufficient to avoid the contract.-Spier v. Hyde (Sup.) 285.

Contract for payment of debt of another held founded on sufficient consideration.-Flagg v. Fisk (Sup.) 530.

A person stating a material fact, without knowledge whether it is true or false, held guilty of fraud, though he had no actual knowledge that it was untrue.-Prahar v. Tousey (Sup.) 845.

Proposition and acceptance held sufficient to constitute a valid agreement without the execution of a formal contract.-Boysen v. Van Dorn Iron Works (Sup.) 995.

In view of conduct of parties, proposition and acceptance held not to constitute a contract, in the absence of writing.-Boysen v. Van Dorn Iron Works (Sup.) 995.

§ 2. Construction and operation.

Plaintiff held not entitled to an accounting for shares of stock in which he was not interested under his contract with defendants.-Spier v. Hyde (Sup.) 285.

Sufficient privity held to exist between cred. itor and debtor to support creditor's action on debtor's contract with third person to pay debtedness.-Flagg v. Fisk (Sup.) 530.

3. Modification and merger.

A party to a written contract, claiming modification by a subsequent oral agreement, has the burden of proof.-Manning v. Seaboard Paint Co. (Sup.) 232.

A subsequent contract, superseding a prior one, determines the enforceable rights of the parties in the transaction governed by the contracts. Spier v. Hyde (Sup.) 285.

§ 4. Rescission and abandonment.

A person who has been defrauded owes no and taking prompt steps to rescind the contract duty to exercise vigilance in discovering fraud induced thereby.-Slayback v. Raymond (Sup.) 931.

§ 5. Performance or breach.

A strike, occasioning delay in a subcontractor's work, held not "through no default" of his. so that the contractor could finish the work at the subcontractor's expense.-Miller v. Norcross (Sup.) 56.

Furnishing of architect's certificate of satis factory completion of a contract held a compliance with the provisions of a subcontract. requiring the architect's approval.—Graves Elevator Co. v. John H. Parker Co. (Sup.) 156.

Subcontractor held not entitled to recover as extra work for work required as a part of the contract by the architect and contractor, though rendered necessary by imperfections in the work of the contractor.-Graves Elevator Co. v. John H. Parker Co. (Sup.) 156.

Where defendant refused to fulfill his contract to advertise in plaintiff's periodical, held. that plaintiff could thereafter recover only dam ages.-Food Trade Pub. Co. v. Harnishfeger (Sup.) 421.

§ 6. Actions for breach.

Building contractor held not entitled to avoid payment under subcontract on the ground that the work had not been done in accordance with the contract.--Graves Elevator Co. v. John H. Parker Co. (Sup.) 156.

In an action on a contract for labor and materials, amendment of the complaint held properly allowed by a referee.-Graves Elevator Co. v. John H. Parker Co. (Sup.) 156.

Allegation of existence of condition precedert held unnecessary, where promisor had whey repudiated contract.-Flagg v. Fisk (Sup.) 591 In an action for materials furnished and laber performed in constructing wells, question, asked defendant, as to whether he had used water from the wells, held properly excluded as previously answered.-Dubois v. Williamson (Sup.) 643.

In an action for materials furnished and labor performed in constructing wells, defendant's conclusions held inadmissible to disprove his expression of satisfaction therewith.-Dubois v. Williamson (Sup.) 645.

In action for materials furnished and labor in-performed in constructing wells, defendant's tes timony held inadmissible to contradict plaintiff's

evidence as to how the wells worked.-Dubois v. | borough, and not county, officers.-People v.
Williamson (Sup.) 645.
Scholer (Sup.) 1122.

Evidence held insufficient to sustain finding
that contract was to continue as long as either
party should carry cattle to Cuba.-Ceballos
v. Munson S. S. Line (Sup.) 811.

In an action on a contract for services, evi-
dence held to make a prima facie case for plain-
tiff.-Norton v. Farley (Sup.) 830.

In an action on contract, fraud is an affirma-
tive defense, and must be proved.-Prahar v.
Tousey (Sup.) 845.

Defendant's answer held indefinite for fail-
ing to admit or deny the written contract as
pleaded by plaintiff.-Borsuk v. Blauner (Sup.)
851.

CONTRADICTION.

Of witness, see "Witnesses," § 3.

CONTRIBUTORY NEGLIGENCE.

See "Negligence," § 3.

Of passenger, see "Carriers." § 3.

Of person injured by electricity, see "Electric-
ity."

Of person injured by operation of street rail-
road. see "Street Railroads," § 1.

Of person killed by fall from bridge, see "Bridg-
es," § 1.

Of person killed by operation of railroad, see
"Railroads," § 2.

CONVERSION.

Of partnership property, see "Partnership,"
$ 1.

Wrongful conversion of personal property, see
"Trover and Conversion."

CONVEYANCES.

In trust, see "Trusts," § 1.

Conveyances by or to particular classes of

parties.

New York City Charter, Laws 1897, p. 541,
c. 378, § 1543, providing for the removal of
clerks in departments of the municipality, has
no application to clerks appointed by the coro-
ner, under section 1571, p. 547, but applies only
to those in departments provided for in sec-
tions 96, 118, pp. 30, 35, et seq.-People v.
Scholer (Sup.) 1122.

CORPORATIONS.

Arrangement for pool and sale of stock, see
"Joint Adventures."

Joinder of causes under statute and at com-
mon law for misrepresentation of officers, see
"Action," § 1.

Motions relating to pleadings in action against
corporate officers, see "Pleading," § 6.
Taxation of corporations and corporate prop-
erty, see "Taxation," § 1.

Vacation of attachment against foreign corpo-
ration because of attachment of property of
domestic corporation of same name, see "At-
tachment," § 3.

Particular classes of corporations.
See "Clubs"; "Municipal Corporations."
Banks, see "Banks and Banking," § 1.
Insurance companies, see "Insurance."

§ 1. Capital, stock, and dividends.
Rescission of sale, made on false representa-
tions of committee of directors, authorized,
though the majority of the committee did not
know of the falsity of the representations.-L.
D. Garrett Co. v. Clark (Sup.) 579; Same v.
Appleton, Id.

Purchaser of stock of corporation from com-
mittee of directors on false representations held
entitled to recover from the stockholder to whom
money realized by the sale had been paid.-L. D.
Garrett Co. v. Clark (Sup.) 579; Same v. Ap-
pleton, Id.

§ 2. Members and stockholders.
Stockholders of corporation held not entitled
to maintain action for accounting in the inter-

See "Executors and Administrators," § 4; "Mu-est of the corporation against promoters for
nicipal Corporations," § 2.
Bankrupt, see "Bankruptcy," § 1.

Conveyances of particular species of property.
See "Easements," § 1.

Water rights, see "Waters and Water Cours-
es," § 1.

Particular classes of conveyances.
See "Assignments"; "Deeds"; "Mortgages."

CORONERS.

Under Const. 1846, art. 10, § 1, as amended
by Const. 1894, and New York City Charter,
Laws 1897, pp. 547, 555, c. 378, §§ 1570, 1608,
which superseded Consolidation Act, Laws 1882,
p. 429, c. 410, § 1766, held, that coroners elected
in the city and county of New York are now

appropriation of stock, predicated on the con-
tract with promoters of which plaintiffs were
not signers.-Hutchinson v. Simpson (Sup.) 369.

Plaintiff held entitled to injunction restraining
defendant from voting stock in corporation
pending litigation of their claims thereto.-Har-
per v. Smith (Sup.) 516.

3. Corporate powers and liabilities.
A railroad company, transferring registered
bonds under a forged authority, held liable to
the holder thereof.-Jennie Clarkson Home for
Children v. Chesapeake & O. Ry. Co. (Sup.)
348.

A treasurer of a corporation held not author-
ized to change the registration and sell certain
of its bonds without special authority.-Jennie
Clarkson Home for Children v. Chesapeake &
O. Ry. Co. (Sup.) 348.

and 121 New York State Reporter

A corporation, recognizing the validity of a seding an old one, did not fully disclose facts. lease executed by its principal officer in his own-Spier v. Hyde (Sup.) 285. name under seal, by collecting the rent from the tenant, ratified the lease made by its officer. -Anderson v. Connor (Sup.) 449.

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into a contract for pool and sale of stock, to be Where plaintiff and defendants had entered carried out by defendants, held, that they were bound to disclose material facts to plaintiff, on entering into a new contract with him readjusting his compensation.-Spier v. Hyde (Sup.) 285.

Personal dealings between third person and Contract for pool of interests in corporation agent held not to affect principal's liability to and formation of new company, and providing such third person for funds deposited with it for basis of plaintiff's compensation, construed. for investment through the agent.-Ring v. Long-Spier v. Hyde (Sup.) 285. Island Real Estate Exch. & Inv. Co. (Sup.) 682. Facts held insufficient to show that investor dealt with secretary of investment company personally, and not in his official capacity as secretary.-Ring v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 682.

Investment company held estopped to deny reception of money given to its secretary and general manager for investment.-Ring v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 682.

Investment company, which received money from an investor, could not discharge itself of its obligation to invest or return the same by showing that investor was given by company's officer a forged mortgage.-Ring v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 682.

A statement by secretary of investment company to investor held an assurance that the company was about to take a mortgage on certain premises, and instead transferred it to plaintiff, so that it was liable, where the mortgage turned out to be a forgery.-Ring v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 682. Where an investment company received money, it could not contend, as against the investor, that the investment contemplated was ultra vires.-Ring v. Long Island Real Estate Exch, & Inv. Co. (Sup.) 682.

Under Stock Corporation Law, Laws 1892, p. 1825, c. 688, § 2, requiring the giving of a mortgage to be with the consent of the stockholders owning two-thirds of the stock, stock absorbed by the corporation at the time of the granting of the consent is not included in making the calculation.-Swan v. Stiles (Sup.) 1089. The receiver of an insolvent corporation cannot regain the property of the corporation from a purchaser at foreclosure sale, unless he restores to the purchaser what he paid for the property, where the purchase was for value and from a holder in good faith.-Swan v. Stiles (Sup.) 1089.

$ 4. Insolvency and receivers.

Proof of execution of mortgage by insolvent corporation with intent of giving a preference held insufficient, in action by receiver to require purchaser at foreclosure to account under Stock Corporation Law, Laws 1892, p. 1838, c. 688, § 48.-Swan v. Stiles (Sup.) 1089.

§ 5. Reincorporation and reorganiza

tion.

Contract between holders of bonds of insolvent railway company held not to contain inplied agreement that plan of reorganization should be filed before sale of the company's property under a mortgage securing the bonds, -Industrial & General Trust v. Tod (Sup.) 687.

Under contract, bondholder held to have giv en approval to plan of reorganization of company issuing the bonds, by failure to withdraw the bonds.-Industrial & General Trust v. Tod (Sup.) 687.

Bondholder held not damaged by the breach of contract, if any, of a committee in not Eling plan of reorganization of insolvent railway company before foreclosure sale under mortgage securing the bonds.-Industrial & General Trust v. Tod (Sup.) 687.

§ 6. Dissolution and forfeiture of franchise.

Attorney, who showed on appeal that corporation appellant, which he represented, was dis solved, held to be without authority to repre sent corporation.-Austen v. Columbia Lubri cants Co. (Sup.) 497.

580, $ 311, providing that appellant's attorney's Municipal Court Act, Laws 1902, p. 1578, c. authority cannot be questioned in certain cases, held inapplicable to a case where attorney shows v. Columbia Lubricants Co. (Sup.) 497. that he represents defunct corporation.-Austen

Attack of default judgment against defunct corporation must be by one having interest in matter, and cannot be by corporation.-Austea v. Columbia Lubricants Co. (Sup.) 497. § 7. Foreign corporations.

Under Code Civ. Proc. § 1780, courts held to have no jurisdiction over action by nonresident against foreign corporation for injunction against voting certain stock.-Harper v. Smith (Sup.) 516.

Foreign corporation held not doing business in state, within Laws 1892, p. 1805, c. 687, 28 amended by Laws 1901, p. 1326, c. 538 pre scribing the conditions on which foreign_cor porations may do business in the state.-Pena Collieries Co. v. McKeever (Sup.) 869.

CORRECTION.

Of assessment of taxes, see "Taxation," 2

CORROBORATION.

Evidence held to show that defendants, on en-
tering into a new contract with plaintiff, super- Of accomplices, see "Criminal Law," § 3.

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