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COURT.

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

court.

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.

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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

Constitution.

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

sources.

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. Íron 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, 5.

Power to make certificate as to identity of issues.

See COSTS, 2.

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Street opening, city of New York - power of court to alter report of
commissioners.

See EMINENT DOMAIN, 1.

Power to open street-legislative restriction.

See EMINENT DOMAIN, 2.

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

publication.

See HUSBAND AND WIFE, 5.

Inherent jurisdiction over incompetent.

See INCOMPETENT PERSON, 2.

Discretionary power of Special Term― review.

See INJUNCTION, 1.

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

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

Lease covenant to give possession.

See LANDLORD AND TENANT, 4.

Lease hiring to competitor.

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See LANDLORD AND TENANT, 5.

Restrictive covenant-erection of apartment house.

CRIME.

See REAL PROPERTY, 3.

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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.

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2. Evidence- larceny―return of stolen property — admissions 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
defendant.

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. Otis, 426.

4. Appeal in criminal actions-failure 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.

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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 defendant 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.

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See GUARANTY AND SURETYSHIP.

Unauthorized posting of advertisements.

See MALICIOUS PROSECUTION, 1.

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

DAMAGES.

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.

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2. Contract 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.

See CONTRACT, 3.

Agreement to support parent - breach.
See CONTRACT, 7.

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Failure of landlord to give possession to tenant.
See LANDLORD AND TENANT, 4.

Libel against labor union - damages must be shown.
See LIBEL, 2.

Injury to arm— excessive verdict.

See MASTER AND SERVANT, 3.

Stockbroker-margin account — unauthorized sale.
See PRINCIPAL AND AGENT, 6.

Death.

See RAILROAD, 6.

Contract to manufacture goods — breach.

See SALE, 3.

DEBTOR AND CREDITOR.

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.

See CONVERSION, 1.

Creditor's action against stockholder of corporation

See CORPORATION, 1.

facts justifying recovery.

Retaking of automobile given as security after parting with possession.

See FALSE IMPRISONMENT, 2.

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

See SURROGATE.

See BANKING.

DECEDENT'S ESTATE.

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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, his
inability to produce competent proof does not authorize a judgment upon
insufficient proof. Corless v. Carlisle, 611.

DECEDENT'S ESTATE—Continued.

Transactions with decedent - waiver of protection of section 829 of the

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Investment of trust funds in mortgage — liability of trustees for loss.

See WILL, 6.

See TRUST.

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Witnesses to be examined must be named - deposition of attorneys — privilege —
denial of application for open commission. The moving papers upon an applica-
tion for a commission to take testimony upon interrogatories must name the wit-
nesses to be examined; they cannot merely be described as proprietors, man-
agers, etc., of a certain hotel.

A commission to take testimony upon interrogatories will not be denied because
the witnesses sought to be examined are attorneys at law and communications
to them may be privileged. The privilege can only be determined upon the
hearing, and, moreover, it may be waived by the client.

The denial of an application for an open commission does not bar a motion for
a commission to take depositions upon written interrogatories. Harden v. Hoops,
299.

Examination of party before trial.

See DISCOVERY.

DISBARMENT.

See ATTORNEY and Client, 2-4, 7.

DISCOVERY.

1. Examination of party before trial. Although there is a growing tendency to
favor the examination of a party before trial, facts must be presented from which
the court can see that the application is made in good faith and that the facts
sought will be admissible.

An order for the examination of the plaintiff before trial will not be granted on
mere allegations that his testimony is material and necessary for the prosecution
of the action by the defendant, where it is apparent that the only purpose is to
discover whether the plaintiff has a cause of action. Rogers v. Adler, 197.

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