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ACCORD AND SATISFACTION.
Acceptance of part payment — honest dispute - moral obligation.
See CONTRACT, 8.
Trust estate – parties.
Brown v. Robinson, 939.
Trust agreement — rights of trustee in bankruptcy.
See BANKRUPTCY, 2.
Increase in premiums of insurance policy — rights of insured.
See INSURANCE, 3.
Suit by assignee of legatee of deceased partner.
See PARTNERSHIP, 1.
Agreement to give legacy to adopted children.
See CONTRACT, 4.
Contempt - imprisonment of husband - discharge - rearrest.
See HUSBAND AND WIFE, 4.
Receiver - examination of husband.
See HUSBAND AND WIFE, 7.
Trespass -- lease of farm and stock on shares — liability of landlord. The liabil.
ity for the trespass of animals is imposed not because of ownership, but because
of possession and the duty to care for them.
Where lands stocked by the owner are rented, the tenant and not the landlord
is liable for trespasses committed by the cattle which the landlord has furnished
for the tenant's use.
Where the owners rented a farm on shares under a lease providing that they
were to stock it with twenty-one cows and a bull, which they were not to
remove unless they put others in their places, and the tenant agreed to furnish
eight cows of his own and to keep the fences in repair, and the exclusive con-
trol of the stock and farm was left to the tenant, the landlords are not liable for
damage done by the cows which escaped from a pasture and injured the crops
of a neighbor.
If any liability of the landlords were established, it should only be for the
amount of damage committed by their own cattle and not for that done by the
tenant's cows. Harrison v. McClellan, 508.
When lien on land - bequest to son's widow.
See WILL, 5.
Annulment of marriage — former husband as party.
See HUSBAND AND WIFE, 1.
Annulment of marriage-infant.
See HUSBAND AND WIFE, 3.
1. Not vested right — appeal from Municipal Court - new trial in County
Court - effect of chapter 754 of the Laws of 1907. The right of appeal is not a
vested right within the protection of the Constitution.
Chapter 754 of the Laws of 1907 took away the right to a new trial in a County
Court on an appeal from a Municipal Court, and where an appeal was not
taken until the act of 1907 went into effect the right to a new trial in the
APPEAL - Continued.
County Court is not preserved by the Statutory Construction Law which saves
a right of action notwithstanding the repeal of a statute and permits an action
pending prior to the taking effect of a repeal to be prosecuted. Leake y.
2. From judgment only — costs — appeal from order denying new trial on ground
of newly-discovered evidence. Where a defendant in a negligence action appeals
from the judgment only, the weight of the evidence as to the negligence of both
parties and the assumption of risk cannot be considered. The sole question is as
to whether there is any evidence for the jury upon those questions, or whether
there was such a failure of evidence as to authorize a nonsuit.
The Appellate Division will affirm an order deuying a new trial upon the
ground of newly-discovered evidence where four trials have resulted in a verdict
for the plaintiff and there is no likelihood that the defendant will succeed as long
as the issues are submitted to a jury.
As a motion for a new trial on the ground of newly-discovered evidence is
necessarily made upon a case and exceptions, settled and filed, the prevailing
party is entitled to full costs of appeal, although he is also entitled to full costs
on a simultaneous appeal from the judgment. This, because the case on an
appeal from the decision of a motion for a new trial on the ground of newly.
discovered evidence embodies matters other than those taking place at trial and
embodied in the case on appeal from the judgment. Peuse v. Pennsylvania
Railroad Co., 458.
3. Practice - appeal to Court of Appeals after affirmance of demurrer by Appel.
late Division. Where the Appellate Division has affirmed a judgment sustain.
ing a demurrer to a complaint upon the ground that it does not state facts con-
stituting a cause of action, the plaintiff may appeal directly to the Court of
Appeals from the final judgment of the Special Term entered on the affirm-
ance by the Appellate Division. Upon such appeal the decision of the Appel.
late Division may be reviewed, providing notice of an intention to do so be given
in the notice of appeal.
It seems, that it is only where the Appellate Division reverses such interlocu-
tory judgment that the respondent must, after entry of judgment in the court
below, appeal to the Appellate Division, take an affirmance and then appeal to
the Court of Appeals. Geneva-Seneca El. Co. v. Economic Power & Constr. Co.,
4. Judgment by court without jury. On appeal from a judgment entered upon
a decision of the court sitting without a jury, questions of law or fact may be
reviewed, although no exceptions to the decision have been filed, provided the
case contains a certificate that it contains all the evidence. Wilmarth v. Heine,
5. Court of Appeals — certificate that question of law is involved. The Appellate
Division on an application for leave to appeal to the Court of Appeals under
subdivision 2 of section 191 of the Code of Civil Procedure, cannot determine
whether the case is appealable without a certificate that a question of law is
involved which ought to be reviewed, that question being for the Court of
Appeals. Springs v. James, 669.
Review of discretionary order — case.
See Costs, 3.
Criminal action — failure to serve notice on clerk.
See CRIME, 4.
Appointment of commission for incompetent — party.
See INCOMPETENT PERSON, 1.
Review oi discretionary power.
See INJUNCTION, 1.
Judgment of Justice's Court — failure of County Court to order new trial.
See LANDLORD AND TENANT, 3.
Modification of judgment on appeal.
See LIEN, 2.
Power of Appellate Division to reinstate verdict.
See MALICIOUS PROSECUTION, 3.
Mandamus - mandamus directed to borough president - right of city to
See New YORK CITY, 2.
Review of discretionary order.
See PRACTICE, 1.
See PRACTICE, 5.
Mandamus – title to office.
See PUBLIC OFFICER.
Testamentary capacity - reversal — jury trial.
See WILL, 2.
Erroneous conclusions of law — modifying judgment.
See WILL, 5.
Arrest without warrant.
See MalicioUS PROSECUTION, 1.
Examination of plaintiff before trial.
See DISCOVERY, 2, 3.
General assignment for benefit of creditors — effect on supplementary
See DEBTOR AND CREDITOR, 2.
Assignment of sum due partnership for individual debt — void as to lienor.
See LIEN, 1.
Assignment of wages.
Bank deposit by treasurer — right of action on certificates of deposit.
See BANKING, 2.
Benevolent association – validity of by-law.
See INSURANCE, 4.
Upincorporated labor association — libel — damages must be shown.
See LIBEL, 2.
Benevolent association - expulsion of member.
See MANDAMUS, 1.
Foreign corporation — when moving papers insufficient. An attachment against
a foreign corporation cannot issue under sections 635 and 636 of the Code of Civil
Procedure in an action to recover for goods sold where the moving papers, though
making a positive allegation that the defendant is a foreign corporation, do not
give the sources of the affiant's knowledge or state facts indicating that the
averment is made upon personal knowledge. Dain's Sons Co. v. VcNally Co., 857.
ATTORNEY AND CLIENT.
1. Commonl-au lien – effect of refusal to prosecute cause — withdrawal from
one cause because of dispute in regard to another - attorney's liens — retaining
lien and statutory lien — reference. An attorney at law may for a just cause
terminate his relation with his client, but, if he do so without justification, he
forfeits his common-law lien on the pleadings and papers in the action. In the
latter case, where the client moves for the substitution of attorneys, the former
attorney should be required to turn over the pleadings and papers in the action
without imposing conditions.
Where an attorney, after having been retained by a client in two actions, refused
to proceed in one of them because of a dispute between himself and the client
respecting sumg due the attorney in the other action, which the client settled,
he discharged himself as attorney without just cause and lost any common-
law lien upon the papers in the pending action.
ATTORNEY AND CLIENT — Continued.
Where an attorney is retained to prosecute or defend a cause there is, so far
as his obligation to his client is concerned, an entire undertaking to carry it
through, and he cannot withdraw from the case without just cause.
An attorney at law has two liens; a common-law or retaining lien on papers
and money which have come into his possession during the progress of the action,
and a limited statutory lien on the cause of action or a counterclaim known as
a charging lien.
There is no difference between the two liens as regards a forfeiture of the right
Evidence examined, and held, that the client, by negotiating with his attor-
ney after a notice by the latter that he refused to go on with the case, did not
waive his right to act upon the refusal and substitute other attorneys.
A determination as to whether or no an attorney has a lien should be made
without a reference in order that the parties should not be put to the expense
thereof. Matter of Rieser, 177.
2. Disbarment - court — commission to take testimony. A proceeding to disbar
an attorney at law is a special proceeding, civil in character, the sole inquiry
being as to whether he is a person qualified and fit to hold the office.
As it is a special proceeding, the Appellate Division has power under section
888 of the Code of Civil Procedure to issue a coinmission, on the application
of parties moving for a disbarment, to take testimony upon written interrogatories.
Matter of Spencer, 330.
3. Attorney disbarred. Attorney disbarred for expending on his own account
moneys collected for his client and concealing from the latter the fact that the
same had been collected. Matter of Gifuni, 351.
4. Attorney disbarred. Attorney disbarred for obtaining money upon the
false representation that he had been retained in an action and for converting
the sum so obtained to his personal use. Matter of Andrews, 353.
5. Contract of retainer - agreement must be fair — novation - when ner contract
not supported by consideration. An attorney cannot recover on a contract with
his client giving him as compensation a certain percentage of moneys realized
by the client from a sale of land without showing that the agreement was fair,
that the client acted freely and with understanding, and when making the con-
tract fully understood its purport and had knowledge of all material circum-
stances known to the attorney, and that he was not guilty of fraud and made
no improper use of the contidence imposed in him
Where in an action against the client there is no proof of the above facts, the
jury should not be allowed to say whether the contract was fairly made, as
they cannot speculate upon probabilities or find facts without evidence.
An attorney entitled to a contingent fee in case of success cannot recover on
a subsequent contract by which his client agreed to pay a specific percentage on
the sale of property made at a time when the attorney knew his client would be
defeated if he performed no services under the new contract, for there is no
consideration therefor. Blaikie v. Post, 648.
6. Attorney disciplined. An attorney at law suspended for one year for
obtaining earnest money on a contract for the sale of his wife's lands, knowing
at the time that the lands were bound by a similar contract made with other
parties. Matter of Alexander', 770.
7. Attorney disbarred. Attorney at law disbarred for forging an indorsement
on checks received from his client, for the purpose of settling an action, and for
embezzling the proceeds.Matter of Rosenthal, 772.
Matter of Jacobs, 937.
Matter of Stern, 909.
Commission to take testimony of attorney.
Amount of lien where fec is indefinite.
See HUSBAND AND WIFE, 6.
Judgment against surety on default – default of surety.
See GUARANTY AND SURETYSHIP.
Pledge of stock – lien dependent on possession - pledge of substituted stock subject
to trust. A pledgee of personal property who gives up possession to the pledgor
waives his lien unless he returns the property for some special, limited or tem.
porary purpose of benefit to him so that the pledgor may be deemed to be in
possession as bailee for the pledgee. Thus, where the pledgee of certificates of
stock returned them without qualification to the pledgor, and accepted in return
as security for an old debt substituted certificates standing in the name of a third
party as trustee for the pledgor, he holds the stock subject to the trust. Hickok
v. Coroperthwait, 94.
Liability of railroad for baggage delivered to trainman.
See CARRIER, 2.
Speculation on margiu – sale of pledged securities.
Sce PRINCIPAL AND AGENT, 3, 0.
Locatio operis faciendi.
See SALE, 3.
1. Suspension of payment caused by action of State authorities - depositor not
entitled to interest - acceptance of principal bars claim to interest — principal and
agent - authority of clerk to bind bank. A depositor in a bank having an account
not drawing interest is not entitled to interest during the period when the bank,
though solvent, was compelled to suspend payment while its assets were held by
receivers during an action by the People brought at the instance of the State
Superintendent of Banks.
As the depositor had no contract or statutory right to interest she was entitled
to interest only by way of damages for a wrongful detention of the debt, and as
the bank was compelled to suspend payment by the State authorities, it was
not chargeable with a default.
Interest for the wrongful detention of a debt is but an incident to the principal
debt, and cannot be made the basis of an independent claim. Acceptance of
the principal sum under protest will not save the right to recover interest,
unless there be a special agreement to that effect.
Evidence examined, and held, that a clerk of the defendant bank had no
authority to bind it to pay interest and that the plaintiff's assignor did not rely
upon such promise in accepting the principal,
The extinguishment of a claim to interest by an acceptance of the principal
does not rest upon the doctrine of waiver, so as to involve an element of intent.
Forschirm v. Mechanics & Traders' Bank, 149.
2. Action on certificates of deposit - deposit by plaintiff as treasurer of voluntary
association -- pleading - answer showing title in association. It is a good defense
to an action against a bank to recover on certificates of deposit to allege that
the moneys were deposited by the plaintiff as the treasurer of a voluntary asso.
ciation which had previously been dissolved so that his authority as treasurer
was revoked; that the certificates were issued to him solely as treasurer of the
association, and that he notified the defendant at the time of the deposit that in
case of his death or disability the deposit was payable to the order of certain
specified officers of the association, and that thereafter the defendant paid the
deposit to such officers and other members of the association upon demand.
A bank receiving a deposit from one acting in a representative capacity cannot
justify a payment to him if it knows that the funds are about to be wrong-
fully diverted from the true owner.
While the relation between a bank and a depositor is that of debtor and cred-
itor, and it cannot escrpe liability by alleging title in a third person, the
defense aforesaid shows that the money deposited did not belong to the plain-
tiff, but to third persons, of which the defendant was informed when the
deposit was made and to whom it paid upon demand.
It seems, that under such circumstances, had the defendant paid to the plain-
tiff, it would have still been liable to the association or its members. Parks v.
Knickerbocker Trust Co., 719.