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ACCOUNTING Continued.

during the minority of the infant; that the principal of the fund
must remain in the hands of the executors until under the terms of
the will payment of the principal could be made, and that in the
meantime the person denominated guardian was entitled to receive
the income. Matter of Berndt, 646.

See Decedent Estate Law; Jurisdiction; Trustees.

ACTIONS.

1. When maintainable Damages. In view of the provisions of
sections 655 and 677 of the Code of Civil Precedure and section 773
of the Judiciary Law an action is maintainable to recover damages
for the alleged loss or injury occasioned by the payment of the last
two notes. Houk v. Van Horn, 263.

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2. Against superintendent of poor of county Indemnity bonds
Contracts Corporations Pleading Evidence Poor.-A
superintendent of the poor of a county being indebted from time
to time to two corporations, of which he was the agent within his
county, would draw an order directing the treasurer of the county
to pay to the order of a fictitious person, to whom neither the
county nor he was indebted for any service, a certain sum of money
out of the poor funds of the county, purporting to be in payment
for supplies for the county alms house and would sign the said
order, adding the title of the office of superintendent of the poor
of the county, and would then indorse the order on the back thereof
with the name of the fictitious payee and would forward said order
thus indorsed to the said corporations and obtain credit therefor
upon his indebtness, and the said corporations after receiving said
order would give the superintendent of poor credit for the same
and then indorse said order and present the same to the treasurer
of the county, who paid the same. The said superintendent of the
poor pursuant to statute had given a bond to the county conditioned
that he should perform all the duties incumbent upon him as county
superintendent of the poor and honestly account for money coming
into his hands as such official according to law. In a separate action
brought by the county upon said surety bond to recover the amount
of each of one hundred fictitious orders amounting in the aggregate
to an amount in excess of the penalty of said bond, held, that the
liability of the defendant indemnity company arose from the execu-
tion of the bond and the fact that the breach of the contract was
the tortious and criminal acts of the superintendent of the poor did
not change the liability of said indemnity company. That as all
the causes of action were essentially the same, involving the same
parties, arose out of the same transactions, based upon the same
contract and to a large extent to be proved by the same evidence,
defendant's motion to consolidate said actions will be granted, but
without costs, all the pleadings in said actions to stand as the
pleading in the consolidated action permitting the entry of one judg-
ment; each of the separate items with interest being stated therein
with one bill of costs. The indemnity company having permitted
a default in the action first brought, such action is not included
in the consolidation order. County of Sullivan v. Downie, 348.

ACTIONS - Continued.

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3. Deeds

- Fee damages Evidence

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Injuncitons-Easements
Pleading. The owner of a plot of land which she had laid out
with streets and building lots and filed the map thereof in the proper
county clerk's office after making a deed of conveyance to plaintiff
of one of the lots, bounding it on one side by a street indicated
on said map but never accepted as a public street or worked by
any one, conveyed said street and all the lots abutting thereon
without any reservation in favor of plaintiff or his lot. By an
agreement made by plaintiff, before he had begun the present
action to restrain interference with his easements of light, air and
access, for a sale of his lot to the grantee of the remainder of the
original plot, which agreement was not signed or delivered until
after the commencement of said action, he lost the right to an in-
junction and to the fee or permanent damages. The original owner
of the whole plot upon being permitted to intervene refused to
consent that in case plaintiff was entitled to recover the court might
fix the fee damages, as had agreeed between plaintiff and defend-
ant, and asked for a jury trial, claiming that it was purely an action
at law. Her request was denied, the agreement as to the sale of
plaintiff's lot not then being in evidence. Held, that no evidence
being offered as to fee damage the court could not retain the action
in equity merely to fix nominal damages; that the complaint should
be dismissed and plaintiff left to his remedy at law, if any.
Lee v.
Pruyn Lumber & Supply Co., 455.

See Boards of Health; Bonds; Deeds; Mechanics' Liens; Negli-
gence; Partition; Trial; Workmen's Compensation Law.

ADOPTION.

See Specific Performance.

ADVERSE POSSESSION.

See Ejectment.

AFFIDAVITS.

See Appeal.

ALIEN ENEMIES.

See Contracts.

ALIMONY.

See Divorce.

ANCILLARY LETTERS.
See Wills.

ANNULLMENT.

See Marriage.

ANTE-NUPTIAL AGREEMENT.
See Transfer Tax.

APPEAL.

1. From judgment dismissing complaint at opening of trial
Contracts Damages. Upon an appeal from a judgment dis-
missing the complaint at the opening of the trial in an action

APPEAL- Continued.

to recover damages for an alleged breach of an oral contract of
employment, the complaint must be liberally construed in plaintiff's
favor. Davis v. Frank, 683.

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2. Notice of, not served in time Affidavits Agreement
Attorneys. Where, upon a motion to compel plaintiff's attorney
to receive a notice of appeal not served in time, the statements in
the moving affidavits, relied on as showing that an oral agreement
was made over the telephone with plaintiff's attorney to extend
defendant's time to serve the notice of appeal, are flatly, positively
and with much minuteness of detail contradicted by the opposing
affidavits, the motion will be denied. Fort Masonry Co., Inc. v.
Hudson View Const. Co., Inc., 717.

See Judgments; Negligence; Transfer Tax.
ARBITRATION AND AWARD.

Rules governing arbitration proceedings - Judgments — Appeal
- Municipal Court Code, § 6(6).— Where an award of an arbitrator
appointed pursuant to section 6(6) of the Municipal Court Code is
based upon an issue not submitted to him by the arbitration agree-
ment, the judgment entered upon the award must be reversed.
Under rule 5 of the rules governing arbitration proceedings the
clerk of the court, unless a request in writing not to enter judgment
upon an award is filed by both parties, must do so within two
days after the filing of the award. Fullman v. Ellis Plumbing &
Engineering Co., Inc., 62.

ASSIGNMENTS.

Negotiable instruments

Equity

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Mortgages

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Banks

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Legacy
Jurisdiction Evidence Testamentary trustees
counting. The notes dated July 1, 1912, were payable on demand
after date and the maker and the plaintiff were father and son, both
of whom were lawyers. On December 23, 1913, no payment having
been made on the notes, the bank requested additional security of
the maker and the indorser, and plaintiff, instead of taking the
position that there had been unreasonable delay in demanding
payment, and, therefore, he was discharged, acceded to such
request and assigned the legacy to the bank as collateral and
continuing security" for the payment of the notes with interest.
Held, that by the assignment, which is held valid, plaintiff recog-
nized his then existing liability as indorser and it was fair to
assume that the circumstances were such that the parties believed
that the notes were to run for some time and that the security was
to continue so long as the notes remained unpaid. That the de-
fendant trustee upon the evidence was entitled to the relief sought
against plaintiff for the cancellation of the interest in the mortgage
inadvertently assigned to plaintiff. Van Buren v. Wensley, 248.
See Workmen's Compensation Law.

ATTACHMENT.

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1. Warrant of Motions and orders Contempt Default
Sheriffs Code Civ. Pro. §§ 655, 677 Judiciary Law, § 773.—
Where certain bonds held by a trust company as collateral security
for two notes owned by it and made by defendant were levied

ATTACHMENT - Continued.
upon under a warrant of attachment issued against him, and the
trust company out of the proceeds of a sale of the bonds not
only paid itself the amount of said notes but also took the same
course with regard to two other notes payable to defendant and
owned by the trust company, a motion to compel it to pay over to
the sheriff the amount of the last two notes or, in default thereof,
to be punished for a contempt of court, will be denied. Houk v.
Van Horn, 263.

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2. When motion to vacate denied Nonresidents Motions and
orders. Where, upon a motion to vacate a warrant of attach-
ment, the court finds that the defendant is in fact a nonresident
and had only been in this state for a period of about three weeks
prior to the issuance of the warrant of attachment, before which
time he and his wife had clearly made their permanent residence
in Spain for over a year, and it is a fair inference from the facts
that he is merely a sojourner in this country, the motion will be
denied. Equitable Trust Co. v. Sala, 429.

ATTORNEYS.

See Accounting; Appeal; Trial.

AUTOMOBILES.

Violation of motor speed ordinance of city of New York
When conviction for violation reversed. Where the owner of an
automobile, at a time when it was being operated by his chauffeur
at a rate of speed in excess of that prescribed by the motor speed
ordinance of the city of New York, was in the rear seat of the
car with his wife engaged in conversation and unaware of any
violation of law on the part of his chauffeur, the circumstances
created a reasonable doubt as to his guilt of a violation of said
ordinance and his conviction therefor will be reversed. People v.
Harrison, 151.

See Negligence.

AWARDS.

See Condemnation Proceedings; Workmen's Compensation Law.
BANKRUPTCY.

See Guaranty; Set-off.

BANKS.

Payment of check where indorsement of payee's name was a
forgery Maker not liable to bank in action for money had and
received. The assistant superintendent of defendant, an industrial
insurance company, by means of forged proofs of death of certain
of its policy holders, received from it for delivery to the payees
therein named checks payable to the respective claimants. He
forged an indorsement of the payee's name on each of the checks
and upon his indorsement of them as assistant superintendent the
amount of the checks was credited by the plaintiff bank to his
personal account and he used the money for his own purposes. In
an action by the bank to recover from the insurance company the
amount of said checks, as for money had and received by it from

BANKS-Continued.

plaintiff, it did not appear that defendant ever received any of
the proceeds of said checks from the assistant superintendent.
Held, that plaintiff was chargeable with reasonable diligence to
see that the signatures were not forgeries. That there was no duty
resting upon defendant to look for forged indorsements of the
names of the payees of the checks or to compare the indorsements
thereon with the genuine signatures on file in its office. That de-
fendant was entitled to judgment dismissing the complaint. Manu-
facturers' Bank v. Prudential Insurance Co., 339.

See Assignments; Negotiable Instruments.

BILLS OF LADING.

See Carriers.

BILLS, NOTES AND CHECKS.

See Negotiable Instruments.

BOARDS OF HEALTH.

Actions

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Mandamus

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Certificate

Who may sue and be sued
of death
Taxpayers Greater New York Chapter, § 1175, 1192,
1545.-Under section 1192 of the Greater New York Charter the
board of health must sue and be sued in and by the proper name
of the department of health of the city of New York and not in
or by the name of the members of said board or any of them, and
an application under section 1545 of said charter, which so far as
the board of health is concerned is limited and modified by section
1175 of said charter, for a peremptory writ of mandamus com-
manding the commissioner of health of said city to furnish and
deliver to relator, a taxpayer, true and certified transcripts or
copies of the certificates of death in certain fatal cases of tetanus
occurring in the city in the year 1915, will be denied. People ex rel.
Higgins v. Emerson, 183.

BONA FIDE HOLDERS.

See Negotiable Instruments.

BONDS.

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Provisions of Perpetual loan "The Corporation of the
Chamber of Commerce of the State of New York" Actions
Contracts.- Where a building fund subscription non-cumulative
income bond issued by "The Corporation of the Chamber of
Commerce of the State of New York," upon the express condition
and understanding that the corporation might call in, pay off
and cancel the bond by returning to the person who may then be
the owner thereof the amount of said subscription, does not fix a
particular date for repayment, a provision that interest shall be
paid "until the full amount of said subscription shall be returned
and this bond redeemed as herein provided " determines the rights
and obligations of the parties in regard to the repayment of the
loan; the bond therefore provides for a perpetual loan. Where in
an action to recover the face value of such a bond, with interest, it
appears that seventeen years have elapsed since the issue of the
series of bonds and not one subscriber has demanded repayment
of his subscription and that the original owner of the bond in suit

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