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CORPORATION - Continued.
Electric light company - issue of stock and bonds.

Religious corporation - expulsion of church from denomination.

Review of franchise tax - purpose of return,

See Tax, 1.


1. Action in Supreme Court, county of Nero York, which could have been tried in
City Court section 3228, Code of Civil Procedure, construed change of venue to
other county for convenience of witnesses. Subdivision 5 of section 3228 of the Code
of Civil Procedure, denying costs to a plaintiff unless he recover over $500 in
an action brought in the Supreme Court, county of New York, against a defend.
ant served in said county, if the action could have been brought, except for
the amount claimed, in the City Court of said city, was designed to relieve
the congested calendars of the Supreme Court in said county, and should be
construed in the light of its purpose.

The words “triable in the county of New York," as used in said section, refer
not to conditions as they exist when the action is brought, but to the condi-
tions existing when the issues are tried.

Thus, where the venue of an action in the Supreme Court against a person
served in the county of New York was originally laid in Westchester county,
but after being changed to New York county at the defendant's instance was
again changed to Westchester county for the convenience of witnesses and
there tried, the plaintiff is entitled to costs, although he recovered less than
$500, even though the action could have been brought in the City Court.
This, because the object of the section was accomplished, as the Supreme Court
in New York county was not burdened with the trial. Seymour v. Wheeler, 52.

2. Action on breach of contract - complaint uniting causes of action - recorery
by plaintiff upon one cause and by defendant upon another certificate as to identity
of issules. Where & plaintiff recovers on some of several causes of action set forth
in a complaint, and the defendant upon the other causes, the court cannot make
a certificate that the substantial cause of action is the same upon each issue, so
as to deprive the defendant of costs, if the nature of the causes be such that a
recovery upon one would not bar a recovery upon the other.

Thus, where a municipal contractor recovered against the city on a first cause
of action for a sum deducted by the city as a penalty for delay, but the city
recovered on the second cause of action set forth, which was for damages
alleged to have been caused by a breach of contract by the city, it is error for
the court to grant a certificate that the causes of action are the same so as to
deprive the city of costs. Gearty v. Mayor, etc., of Nero York, 216.

3. Additional allowance partition appeal reviero of discretionary order -
case. Parties wishing to review the discretion of the court in making an additional
allowance should see to it that the record on appeal properly presents the

Under section 3253 of the Code of Civil Procedure providing for additional
allowances in certain actions including partition, the total additional allowances
in such action made to all parties cannot exceed five per cent of the sum recov.
ered or claimed or the value of the subject-matter involved. Van Meter v.
Kelly, 455.

4. Reference - death of referee. A referee's right to fees does not accrue until
he has completed the reference and filed or delivered his report.

Where a referee died before completing the reference, and defendant was
then allowed to amend upon payment of costs, a fee for the deceased referee is
not a proper item. Hebard v. City of New York, 752.
Appeal from order denying new trial - appeal from judgment.

See APPEAL, 2.
Action against members of school board - official capacity.

See LIEN, 2.
Partnership — accounting.



1. Removal of testamentary trustee respective jurisdictions of surrogate and
Supreme Court. The Surrogate's Court has power to remove a testamentary trus.
tee for the reasons set forth in section 2817 of the Code of Civil Procedure and the
Supreme Court will not act where complete relief may be obtained in the other

While the complaint in an action asking a decree removing a testamentary trus.
tee must show that adequate relief cannot be obtained before the surrogate, it
seems that the adequacy of such relief cannot be tested by demurrer.

The Supreme Court may remove a testamentary trustee not only for the
reasons which would justify such action by the surrogate, but also "for any
other cause.” Pyle v. Pyle, 568.

2. Municipal Court - no equitable jurisdiction - summary proceedings -
defense asking specific performance -- remedy of tenant. The Municipal Court of
the city of New York has no equitable jurisdiction, and hence where a defendant
in summary proceedings to recover the possession of demised premises defends
upon the ground that under the lease he is entitled to the specific performance of
an agreement to renew, that court cannot determine that he is entitled to such
renewal and to retain possession until specific performance be decreed.

Section 2224 of the Code of Civil Procedure governing the answer in summary
proceedings if construed to empower that court to determine questions of
fact and law upon which the right to specific performance depends, would
be unconstitutional and obnoxious to article 6 of section 18 of the State

It seems, that a defendant in summary proceedings who claims a right to renewal
should sue for equitable relief and procure a stay of the summary proceedings
until the determination of the action, Simon v. Schmitt, 625.

3. Funds paid into court - plenary power of Appellate Division to reimburse
suitors who have lost through unfortunate investment of trust fund - only unclaimed
portion of fund available for that purpose. Persons who have suffered losses
through unfortunate investments made by the chamberlain of the city of New
York on mortgages are not entitled to reimbursement out of such portions of
the general fund of the Supreme Court, Appellate Division, First Department,
as are traceable to their sources so that they can be returned pro rata to such

Where there is no known or ascertainable cestui que trust who can make a claim
upon a fund, it cannot properly be called a trust fund.

The English Court of Chancery had, and the Supreme Court of this State, as
successor of the State Court of Chancery, has plenary power to order payments
out of funds paid into court to reimburse suitors whose money paid into court
has been lost through unfortunate investments. This power used to be exer-
cised by the General Term and is now possessed by the Appellate Division.

But the court will only order such payments to be made out of such portion
of the fund as is a dead trust by reason of the fact that the sources thereof are
untraceable so that they will forever continue to accumulate.

Chapter 651 of the Laws of 1892 requiring funds paid into court to be turned
over to the State Treasurer after twenty years applies only where there are or
may be known or ascertainable claimants. It does not apply to funds the
sources of which cannot be traced. Matter of Stevenson, 789.

4. Municipal Court - vacating judgment - amendment to section 253 of Munic.
ipal Court Act is retroactive. Chapter 304 of the Laws of 1907, amending sec-
tion 253 of the Municipal Court Act so as to authorize, a justice of that court
to vacate a judgment taken by default and without service of summons, is
retroactive, as it affects the remedy only.

Hence, a judgment entered by default and without service of process prior
to said amendment may be vacated on a motion made after the amendment took
effect. Blackman v. Iron Clad Manufacturing Co., 832.
Municipal Court - new trial in County Court on appeals.

See APPEAL, 1.
Appeal to Court of Appeals — power of Appellate Division,

See APPEAL, 6.
Power to make certificate as to identity of issues,

See Costs, 2.

COURT - Continued.
Afirmance without opinion – value of precedent.

Street opening, city of New York — power of court to alter report of

Power to open street - legislative restriction.

Jurisdiction — separation — motion to set aside service of summons by

Inherent jurisdiction over incompetent.

Discretionary power of Special Term - review.

Appeal from Justice's Court — new trial in County Court - power of Appellate

Power of Appellate Division to reinstate verdict.

Jurisdiction - non-residence.

Respective jurisdictions of State and Federal courts.

Severance of action before decision of demurrer.

Removal of trustee – jurisdiction of Supreme Court.

See TRUST, 2.
Condition precedent - divisibility of contract - construction.

Lease covenant to give possession.

Lease – hiring to competitor.

Restrictive covenant- erection of apartment house.


1. Larceny - receiving stolen goods - principal. Mere proof that one consort-
ing with a prostitute received from her part of the proceeds of a larceny which
she committed is insufficient to make him a principal in the crime under section
2 of the Penal Law. People v. Gerst, 272.

2. Evidence- larceny - return of stolen property adinissions as to former con.
viction when error not cured. In a prosecution for grand larceny it is error to
admit evidence that the stolen property was returned to the complaining wit.
ness by an unidentified woman not shown to be connected in any way with the

So, too, it is error to allow the police officer who arrested the defendant to
testify that he admitted that he had been formerly convicted if the defendant
gave no evidence of his good character.

The error is not cured because the court at a later stage of the trial struck
out the evidence, and especially so where counsel for the People in summing up
alluded to the failure of the defendant to testify in his own behalf. People v.
Springer, 304.

3. Disfigurement of cemetery monument by joint owner. One who is joint owner
of a cemetery lot and removes an inscription from a tombstone against the pro-
test of the other owners, is not guilty of a crime under subdivision 2 of sec.

CRIME- Continued..
tion 1427 of the Penal Law which makes it a misdemeanor for one not an owner
to deface a monument without lawful authority.

Such act by a joint owner may be illegal so as to create a civil liability, but it
is not a crime under the statute. People v. Olis, 426.

4. Appeal in criminal actionsfailure to serve notice on clerk - defect cannot be
cured. Appeals in criminal cases are regulated by the Code of Criminal Pro.
cedure; not by the Code of Civil Procedure.

Where the appellant in a criminal case has neglected to perfect his appeal
by serving notice thereof upon the clerk with whom the judgment roll is filed, as
required by section 522 of the Code of Criminal Procedure, the court has no
power to allow the omission to be supplied as there is no statutory authority for
such leave. Section 1303 of the Code of Civil Procedure allowing such omission
to be supplied in a civil action has no application. People v. Green, 763.

5. Extradition - indictment for obtaining money on false pretenses. It seems
that where a warrant of extradition is based upon an indictment found in another
State rather than upon an information on affidavits, the deferdant will not be
released on habeas corpus.

Indictment found in the State of New Jersey for obtaining money on false
pretenses contrary to the statute of that State examined, and held, sufficient to
justify a warrant of extradition. People ex rel. Himmelstein v. Baker, 824.
Bail bond - when surety released by death.

Unauthorized posting of advertisements.

[For tables containing all sections of the Penal and Criminal Codes cited and
construed in this volume, see ante, pp. lxxi and lxxii.]

1. Negligence - verdict not excessive pleading - amendment of complaint at
trial. A verdict of $2,500 is not excessive where the plaintiff received a Colles
fracture of the forearm, disfiguring her hand and wrist, and to some extent per-
manently impairing their usefulness.

The trial court has power to allow an amendment to the complaint increasing
the damages demanded if the plaintiff excuses the failure to apply for the
amendment before trial.

But a judgment entered on a moderate verdict will not be reversed because
of an amendment at trial increasing the damages demanded where the defendant
also availed itself of permission to amend the answer. Schreiber v. Village of
Depew, 433.

2. Çontract to manufacture goods profits as element of damage. The object of
all the rules of damage for breach of contract is to make whole the party injured,
and such rule must be deemed to have been contemplated by the parties when
they entered into their contract.

Losses sustained and gains prevented are proper elements of damage, and some-
times the only method of ascertaining what has been lost by a breach of contract.

Where defendants, a firm of drug merchants, ordered various kinds of per.
fumes, etc., from a manufacturing chemist, the articles to be put up in specified
packages labeled with defendants' name, all of which the plaintiff was to fur.
nish packed ready for retail, and certain articles were to be made of a special quality,
especially for defendants, while the perfumes and the other articles were to be
placed in receptacles for the retail trade from ordinary stock productions, the
contract is one of manufacture, and plaintiff may recover the difference between
the cost of producing the goods and the price defendants agreed to pay. He is
not restricted to the difference between the contract price and the market price
of the articles.

The plaintiff having purchased bottles, boxes and labels with which to fill
the order, may also recover the amount so paid, less the value of such containers
as can be used for other customers. Meyer Brothers Drug Co. v. McKinney, 541.
Breach of contract - contract price.

Agreement to support parent - breach,


DAMAGES — Continued.
Injunction --- counsel fees — reference.

Failure of landlord to give possession to tenant.

Libel against labor union - damages must be shown.

See LIBEL, 2.
Injury to arm - excessive verdict.

Stockbroker — margin account - unauthorized sale.


Contract to manufacture goods — breach.

See SALE, 3.

1. Creditor's suit action to enforce lien on lands in foreign State - remedy
under foreign law. A judgment creditor, on discovering that the only property
owned by his debtor is real estate situated in another State, cannot maintain a
suit in equity in this State for the appointment of a receiver and a decree
directing the debtor to convey to the receiver so that he may apply the proceeds
in satisfaction of the judgment, unless he shows facts calling for the interpo-
sition of equity. The creditor must pursue the legal remedy afforded by the
laws of the other State.

Even if the lands of a debtor are situated in this state the judgment creditor
cannot sue in equity to subject the same to the lien of his judgment, but must
proceed by execution. Heyl v. Taylor, 641.

2. General assignment - effect on supplementary proceedings. A general assign-
ment for the benefit of creditors neither stays nor suspends the remedies of the
assignor's creditors.

Although a judgment debtor makes a general assignment for the benefit of
creditors, the judgment creditor is still at liberty to examine him in supple-
mentary proceedings as to any property he may have and to discover the circum-
stances under which he transferred it, including the general assignment. Matter
of Rutaced Co., 716.
Delivery of pledged article to debtor by third person.

Creditor's action against stockholder of corporation - facts justifying recovery.

Retaking of automobile given as security after parting with possession.

Decedent's estate - disallowance of claims on final accounting.



Failure to establish claim against decedent - evidence-books kept by plaintiff -
admissions of testator - section 829, Code of Civil Procedure. Action against an
executor under section 2718 of the Code of Civil Procedure to recover moneys
alleged to be due from the testator at the time of his death. Evidence examined,
and held, insufficient to show that payments of money by the plaintiff to the tes.
tator established any indebtedness of the latter.

In such action books kept by the plaintiff in which at certain times he had been
seen to enter payments made by him to the testator are not admissible in evidence
for any purpose.

Mere proof that the testator shortly before his death said that he owed money
to the plaintiff, without identifying the debt, does not establish the claim.

Although a claimant against an estate cannot testify to personal transactions
with the decedent contrary to section 829 of the Code of Civil Procedure, bis
inability to produce competent proof does not authorize a judgment upon
insuflicient proof. Corless v. Carlisle, 611.

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