1, 5, 6. 8, 11, 21, 25, 31, 32; EXECUTORS, 4, 5, 7, 8, 14 35; GUARDIANS, 3; JUDGMENT, 6; LIMITATION, 6; MANDAMUS, 7; MORTGAGE, 1; PHYSICIANS; PLEADING, 3; SUBMISSION OF CONTROVERSY; SURROGATES, 3, 5; TRUSTEES, 4; WILLS, 21. CODE CRIMINAL PROCEDURE. See CRIMINAL LAW, 12. COLLATERAL INHERITANCE. See TAXES, 12. COMPOSITION. * 1. The firm of K. & K being in failing circumstances procured the signature of their creditors to a composition agreement in the following form: "We who have hereunto subscribed our names and affixed our seals, creditors of the firm of K. & K., * * agree to receive fifty cents on a dollar in full discharge of the several debts owing by K. & K. to us. Held, That it was not necessary that all the creditors of K. & K. should sign said agreement in order to render it binding upon those who had executed it, and that the fact that certain of the creditors of K. & K. who had assigned said agreement had received a greater amount of their claims than the fifty per cent. agreed upon would not entitle another creditor who had also signed said agreement to maintain an action to collect more than fifty per cent. of his claim.The Continental Nat. Bk. v. Koehler, 494. CONSTABLES. 1. Where a constable had given a bond according to the R. S, and had not included in it the further provision required by Chap. 788, Laws of 1872, but before trial, and before any proceedings taken to oust him or to fill the vacancy, filed a new bond in proper form, Held, That his title to his office was perfect; that it was error to dismiss an action brought by him in an official capacity upon the ground that he was only a de facto officer.—Adams v. Tator, 534. CONSTITUTIONAL LAW. 1. Section 22 of Art. 6 of the Constitution embraces only courts of record established in cities in Dec.. 1869, and has no application to the Marine, or City Court of New York.-Greiner v. Hamburger, 303. 2. Chapter 70, Laws of 1859, § 2, amended by Chap: 263, Laws of 1870, so far as it authorizes the election of a justice of the peace for the village of Canton, is unconstitutional. Such officers can only be elected in towns and cities.-The People ex rel Sinkler v. Terry, 307. 3. Chapter 418, Laws of 1886, being unconstitutional so far as it dispenses with an appeal from the City Court to the Common Pleas, which was the main object of the act, cannot be sustained so as to obviate the necessity of an order allowing an appeal to the Court of Appeals. Jones v. Jones, 327. See INDICTMENT, 5; JUSTICE OF THE PEACE, 2; OLEOMARGARINE, 2; TAXES, 12. CONTEMPT. 1. Defendant's attorney was allowed by the court below the costs of opposing a motion for a new trial and such costs were paid to him. Upon appeal it was held, by a modification of the order, that such costs should not have been allowed, and defendant's attorney was ordered to make restitution thereof. He failed to do so after due service of said order upon him. Held, That plaintiff's remedy was not by application to punish defendant's attorney for contempt, but by issuing execution against his personal property.Forstman v. Schulting, 293. 2. An order adjudging defendant in an action for a divorce to be in contempt for the non-payment of alimony directed to be paid by the final decree entered in said action and directing his commitment to prison until such payment shall be made must adjudge that the failure of defendant to pay such alimony has defeated, impaired, impeded, or prejudiced the rights or remedies of plaintiff.—Mendel v. Mendel, 314. 3. The court cannot punish a judgment debtor for contempt in failing to obey an order in supplementary proceedings requiring him to appear and submit to an examination by fining him the full amount of the judgment as indemnity to the judgment creditor, unless it is made to appear that said creditor has sustained loss or injury in that amount by the failure of the debtor to obey said order.— The Fall Brook Coal Co. v. Hecksher, 351. 4. When it does not appear that the judgment creditor has sustained such loss or injury from said cause all that the court has power to do is to fine the debtor by way of punishment in a sum not exceeding $250 in addition to costs and expenses, and direct his imprisonment until he shall appear and submit to an examination concerning his property and pay the fine and costs.- Id. 5. When, under such circumstances, the court has erroneously fined the judgment debtor the full amount of the judgment as indemnity to the creditor, such fine cannot be reduced upon appeal to the proper fine for punishment, but the order imposing it must be wholly reversed and the matter remitted to the court below for proper action.—Id. See SUPPLEMENTARY PROCEEDINGS, 3. CONTRACT. 1. An oral contract for the sale of real estate was made between defendants and plaintiff, and defendants signed a receipt for the cash payment to apply on the purchase of the farm" this day bargained to be sold to B. for $11,000 and agreeing to execute a deed therefor. Held, That the receipt constituted a valid contract for the sale.-Bostwich v. Beach et al., 98. 2. The widow, who was one of the executors, joined in the contract without any reservation of her dower right. Held, That she thereby consented to look to the purchase money for her dower as a substitute for the land.-Id. 3 The purchaser tendered the purchase money, and on its refusal deposited it in bank to be delivered on the execution and delivery of a deed. Held, That he was not liable for interest.-Id. 4. The judgment for specific performance in such case should direct payment of the mortgage from the purchase price; that the widow release her dower, and that the rental value of the premises deducted by reason of the widow's dower should be paid to the purchaser out of such dower to be ascertained as of the date fixed for the performance.-ld. 5. Defendant, being owner in fee of certain real estate, made an executory contract for sale of it to plaintiff. Plaintiff performed on her part until defendant sold the premises to a third party. Held, That plaintiff might recover back the payments made by her on the contract without first offering to perform the contract on her part, or requiring performance by defendant.-Smith v. Rogers, 116. 6 When the vendee goes into possession of land the contract will be supported in equity although not executed by the vendor.-Biden et al. v. James, 141. 7. Tender of a deed at the trial is sufficient, although not pleaded.-Id. 8. Defendant, in consideration of 300 shares of stock, contracted with the P. Co. to manufacture and put up in breweries, etc., all apparatuses that he could license in one year, and to guarantee the licensees for one year against all costs they might incur growing out of any suit which might be brought against them for using the apparatuses during the year. Subsequently, he agreed to transfer to plaintiff a portion of said shares upon payment of his note for the price, and upon defendant's being discharged from the guarantees given to said licensees pursuant to said contract, and also to pay plaintiff a portion of the royalties accruing to him thereunder. Afterward, the first mentioned contract was rescinded by another one, under which licenses were issued and guaranteed by defendant, but neither the licenses or the guarantees were limited as to time, as provided by the original contract. Held, That defendant could not refuse to transfer said stock until he was released from liability upon such guarantees.-Kelsey v. Sargent, 199. 9. A contract to withdraw from the market large quantities of a certain commodity owned by the parties to such contract for the purpose of raising the price of such commodity is unlawful and will not be enforced by the courts between the parties thereto.- Keene v. Kent et al, 235. 10. In an action upon a contract alleged in the complaint to have been made and entered into between the parties, if the contract is not denied in the answer it must be deemed admitted on the pleadings; and the admission must also be deemed an admission that the contract was one binding on the parties to it.—Wiltsie v. The Village of Greenbush, 254. 11 Such an admission precludes defendant from insisting, in the absence of a formal plea to that effect, that the contract as made is an illegal one. And it only remains for plaintiff to prove performance of the work contracted to be done by him under the agreement, and the amount of it in value, estimated according to its terms, to entitle him to a recovery-Id. 12. Plaintiff and defendant entered into an agreement whereby defendant agreed to pay plaintiff $2.50 on each and every 5,000 bushels of grain purchased and sold, or sold and purchased in the course of defendant's business to any customer or customers who should be introduced to him by plaintiff or by either of the persons so introduced. Held, That the introduction of customers to defendant by plaintiff was a legal consideration for the agreement to pay plaintiff a commission on the goods purchased by such customers, but that the introduction of customers to defendant by persons whom plaintiff had introduced to him formed no consideration for the agreement to pay plaintiff a commission upon goods purchased by such customers and no commissions could be collected thereon.— Hamlin v. Wheelock, 285. 13. Where an advertisement for bids reserves the right to reject any and all bids, one who makes a bid thereunder cannot complain of the exercise of the right to reject which he so concedes.The People ex rel Carlin v Suprs. Kings Co., 289. 14. Where a contract is required to be let to the lowest bidder and but one bid is made, there is no lowest bidder, and a mandamus will not be granted to compel the letting of the contract to the one making such bid.-Id. 15. While the ordinary significance of the phrase "legal representatives" is "executors or administrators "it seems that it may be construed to mean "next of kin" when used in an instrument the object and design of which, as understood by both parties, is such as to change the ordinary significance of said phrase, but, in order that said phrase should be so construed, it must clearly appear, either from the instrument itself or some proof which may be given aliunde, that such is the object and design of the instrument. -Greenwood v. Holbrook et al., 303. 16. Where terms and language of a contract are ascertained, in the absence of technical phrases the meaning of which is obscure, or latent ambiguities exist rendering the subject matter uncertain and doubtful, the office of interpreting its meaning belongs to the court alone, and it is error to submit such question to the jury.—Brady et al. v. Cassidy et al., 318. 17. To create an ambiguity that opens a contract to parol explanation it must be established by proof of circumstances known to all the parties to the agreement and available to all in selecting the language to be employed to express their meaning.-Id. 18. An agreement to work a farm on shares creates the relation of master and servant or principal and agent between the parties thereto, and not that of landlord and tenant-Van Fleet v. Ketcham, 338. 19. Under the circumstances of this case the payment made by the original contractors to laborers and material men, who have filed claims against the railroad company for construction, in pursuance of Chap. 664, Laws of 1871, which had been paid by such original contractors, should be allowed in abatement of the sum due for such construction to their sub-contractor, notwithstanding said contractor took assignments of such claims, and such claims were ostensibly against the sub-contractors of the sub-contractor of the original contractor, to avoid circuity of action.Moore v. Taylor et al., 364. 20. A party making a contract for work and labor for which he is to be paid in installments has a legal right to abandon the further prosecution of such work under contract upon a refusal of the employer to pay the installment due as provided by the contract, and may recover for the work done.-Id. 21. On such a contract the employee is not permitted to recover as damages for such breach of the contract prospective profits as of the completion of the work. It is only when the right of the employee to complete the work to be done under the contract is denied or prevented that he may receive such damages.-Id. 22. A mere refusal to pay an installment due is not such a breach of the contract as denies the right of, or prevents, the employee to complete the work under the contract.-Id. 23. Any other rule of damages must be provided for by the terms of the contract. -Id. 24. Both parties hereto supposing plaintiff had title by a missing deed to land, defendant agreed to pay plaintiff $500 if he produced this deed. Afterwards both became satisfied that the deed had never been given and that the title was in one S. It was then further agreed that defendant would pay plaintiff $500 if he got this title from S. Plaintiff became ill and defendant went to S. and took the title to himself direct. In an action on the promise, Held, That it was void for want of consideration.-Signor v. Newcomb, 436. 25, A false statement as to the value of property, inducing a contract for the purchase thereof, is not of itself a defence to an obligation arising out of the contract, in a controversy between parties bearing no other relation to each other than such as arose from the contract.-Bernhard v. McMasters et al., 442. 26. Plaintiff contracted with defendants to remove the surface earth from their quarry, he to be paid when the work was completed. Defendants gave testimony tending to show that plaintiff intentionally abandoned the work before it was completed. Held, Error to refuse to charge the jury that plaintiff could not recover payment under the contract unless they found he had performed it as it was made.-Moll v. Foery et al., 514. 27. Where the terms of the contract are not such as preclude the presumption that the parties intend to continue the business initiated thereunder after the expiration of the term limited by the contract, and the parties in fact continue such business after the term limited, the presumption is that they continued under the terms expressed in the contract until something appears to the contrary.Dutton v. The Gale Mfg. Co., 561. See ASSIGNMENT, 1; BANKS, 13; EVIDENCE, 28; FRAUD, 10; HUSBAND AND WIFE, 6; LIMITATION, 7; NEGLIGENCE, 25; SERVICES, 4, 8; SPECIFIC PERFORMANCE; VILLAGES. CONVERSION. 1. A demand for personal property made at a place distant from where the property is, by a person having a right to the prop erty, and an express refusal of the person of whom the demand is made to allow the person demanding to take possession of the property, is sufficient evidence to justify a jury in a finding of conversion.-Mather v. Freelove et al., 343. 2. The complaint alleged that in Oct., 1885, plaintiff was tenant in common with defendant of forty or fifty tons of hay and was in possession thereof; that subsequent thereto defendant used up some portion of the hay; that in March, 1886, plaintiff demanded one-half of the hay remaining, which was refused; that defendant claimed to own it all and otherwise converted it to his own use. On demurrer, Held, That the complaint stated facts sufficient for a cause of action. --Thayer v. Gile, 377. See BANKS, 1. CORPORATIONS. 1. While it is the general rule that before a stockholder can institute an action which the corporation itself is capable of beginning, but fails to begin, a demand must be made upon the corporation or its officers to institute the action and such demand must be refused; yet, when it appears that the corporation is under the control of the persons against whom the suit must be brought to secure the proper relief, a demand that such action be instituted is not required.-Anderton v. Wolf et al., 11. 2. A cause of action in favor of a creditor against a trustee of a corporation for a penalty for making a false report dies with the creditor.-Brackett v. Griswold, 41. 2. Plaintiff's testator was president of defendant. In 1881 defendant procured the Standard Co, of Great Britain to re-insure its risks and substantially transfer its whole business to the latter company, and thereafter did nothing further than to settle and close out its former business. Contemporaneously the Standard en gaged plaintiff's testator as its general manager in the U. S. at a larger salary than that which he had been receiving as president of defendant. From the time of the transfer of defendant's business to the Standard plaintiff's testator ceased to draw monthly checks for his salary as had previously been his custom, and, upon his re-election as president in 1882, stated to the board of directors that he was serving without salary. Plaintiff's testator continued to act in the capacity of president of defendant and manager of the Standard Co. until his death. Held, That the inference was that both plaintiff's testator and defendant contemplated and understood that the former's salary was to cease when the latter went out of active business, and that the amount of such salary could not be recovered by his personal representatives.-Simonson v. The N. Y. City Ins. Co., 90. 4. Where a receiver of a corporation has been appointed in a creditor's action under § 1784 of the Code, the corporation is not thereby dissolved, but is a necessary party to an action brought by the receiver to set aside a judgment had by its consent.-Hubbell v. The Merchants' Nat. Bk., 161. 5. The contract for salary between the corporation and one of its officers is not deemed to be canceled by a consolidation of such company with another, and the appointment of such officer as an officer of the new company at an increased salary, with his consent, where there are duties performed for the old company by the officer, in virtue of his office, no matter how few or slight, provided they are substantial and not merely nominal or trifling.- Rodney v. The Southern R. Assn., 201. 6. A receiver may maintain an action to set aside illegal transfers or incumbrances created by the officers of the corporation. -Hubbell v. Everson et al., 222. 7. Where the validity of a mortgage given by the corporation is disputed, the receiver thereof appointed in a creditor's action may maintain an action to determine such validity and its extent, and in such an action the holders of bonds claimed to be secured by such mortgage are proper and necessary parties.-Id. 8. A stockholder of a mining corporation, who is also a creditor thereof, cannot maintain an action to recover such debt from a fellow stockholder upon the latter's individual liability for the debts of the company arising from the fact that the entire capital stock has not been paid in. The remedy in such a case is by a suit for an accounting to fix the pro rata liability of the stockholders.- Dodge v. Havemeyer, 517. 9. A contract between two railroad companies whereby the first company agrees to deliver to the second company all the traffic which it can lawfully control or influence, and further agrees, for the protection of the second company, to deposit with the latter a majority of its capital stock, upon which the second company agrees to give to some representative of the first company the right to vote upon such stock so long as the management of the first company is satisfactory to the second, and whereby the second company, upon condition that the corporate control of the first should become vested in it as above. agrees to make good any deficiencies in the net earnings of the first to meet the interest upon its bonded indebtedness. is valid.-The Tonawanda Valley & C. R. Co. et al. v. The N. Y., L. E. & W. RR. Co., 536. 10. Where plaintiff in an action against a trustee for a false report died after judgment was rendered in his favor, Held, That the cause of action was merged in the judgment which passed as assets to his representatives, and that the representative could be substituted and the judgment affirmed in his favor. - Blake v. Griswold, 570. See COSTS. 8; EVIDENCE, 3; INDEMNITY, 4; LIMITATION, 1; TAXES, 10, 11; TRUSTEES, 2. COSTS. 1. Subdivision 8 of § 3, Chap. 245, Laws of 1880. preserves the right to disbursements given by the old Code on the reference of a claim against a decedent.-Larkins v. Maxon, 39. 2. In an action for an accounting of a copartnership a notice was attached to the summons that in case of default judgment would be taken for $65,000. The court found that no partnership ever existed and that plaintiff had no interest in certain investments alleged to have been made with partnership funds and gave judgment for defendants and an extra allowance of $2,000. No proof was given by affidavit of the sum claimed or the value of the subject matter involved, Held, That, under the Code, § 3253, there was no basis for an extra allowance.Adams v. Sullivan et al., 67. 3. In an action ex delicto costs cannot be awarded, under Laws of 1859, Chap. 262, § 2, unless the claim has been presented, before action, to the chief fiscal officer of the municipality.-Taylor v. The City of Cohoes. 77. 4. Presentation to the common council is not enough, nor is such presentation excused by the fact that the officer to whom the claim is directed by statute to be presented is not empowered to pay it. -Id. 5. Where certain counts of the complaint are found defective upon the trial and a non-suit granted as to them, but a general verdict is rendered for plaintiff, there is no recovery by defendant on one or more causes of action within § 3234, and he is not entitled to costs.-Crosley v. Cobb, 136. 6. On appeal from a justice's judgment, where no offer is served, the party recovering a verdict, report or decision is entitled to costs, although the appeal was taken before and the verdict rendered after the amendment changing the rule as to costs.—Balcom v. Terwilliger, 187 7. Where plaintiff presented his claim for personal injuries to the common council of a municipal corporation, and not to the treasurer, Held, Not a compliance with 3245, and that he was not entitled to costs.-Fisher v. The Village of Cortland, 253. 8. Pending an action against a corporation for loans made to it a receiver was appointed who answered and defended. Plaintiff recovered, the books in the receiver's hands establishing the claim. Held, That the costs were incurred for the benefit of the fund in the receiver's hands and should be paid therefrom, and that the receiver should be directed to pay them.-Locke v. Covert, 288. 9. The words "with costs" in an order of reversal or affirmance in the Court of Appeals, in a case where the allowance of costs is discretionary, means costs in that court only.-In re Water Comrs. v. Chalmers et al., 393. 10. Costs cannot be taxed by plaintiff in an action to foreclose a mechanic's lien unless awarded by the trial court.-Fargo et al. v. Helmer, 405. 11. The saving clause in § 25 of Chap. 342, Laws of 1885, does not apply to a right to costs under former statutes.-Id. 12. The fees of the stenographer for a copy of his minutes is not a taxable item of disbursements, even for the purpose of enabling a party to propose amendments to a case. The Pfaudler Barm Co. v. Sargent et al., 483. 13. But the appellant having appealed to the Court of Appeals and perfected his appeal, and noticed the cause for argument before service of the motion papers for a retaxation of costs, he thereby waived his right to make such motion Id. See APPEAL, 10; DECEDENTS ESTATE, 2, 4, 5; EXECUTORS, 9, 25-29; SURROGATES, 5–7. |