« ForrigeFortsett »
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.
2. When motion to vacate denied — Nonresidents — Motiomi 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.
See Accounting; Appeal; Trial.
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.
See Condemnation Proceedings; Workmen's Compensation Law.
See Guaranty; Set-off.
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.
BILLS, NOTES AND CHECKS.
See Negotiable Instruments.
BOARDS OF HEALTH.
Actions — Who may sue and be sued - Mandamus — Certificate
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,
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
BONDS - Continued.
held it for four years antil his death and his trustees for twelve
years thereafter, the legal inference may be drawn that the trustees
sold the bond at auction only for the purpose of winding up the
estate. The fact that during these many years not one dollar was
ever demanded of defendant in repayment of an issue of bonds in
excess of $1,000,000, is convincing evidence of the practical con-
struction of the agreement by the parties themselves, and any doubt
as to the meaning of the contract will be resolved in favor of defend-
ant which refused to accede to a demand for the payment of the
bond, with interest, and the complaint will be dismissed on the
merits. Schachne v. Corporation of Chamber of Commerce, 197.
When commissions cannot be recovered – Lease - City of New
York — Laws of 1916, chap. 497.— A block in the city of New York
containing an abandoned church building having been restricted
to residential use by a resolution of the board of estimate and
apportionment pursuant to chapter 497 of the laws of 1916, a
broker who procured a lessee who was ready, able and willing to .
hire said building for use as a garage cannot recover commissions
from the owner who refused to make such a lease on the ground
that so to do would be an illegal act. Markowitz v. Arrow Con-
struction Co., Inc., 532.
1. Duties of — Notice to shippers — Tardy delivery — Negligence
- Actions — Damages — Pleading — Demurrer to complaint when
sustained. - Where a common carrier has knowledge of traffic
conditions reasonably likely to delay delivery it is bound to at least
notify the shipper of possible delay before accepting goods for
carriage. Where in a shipper's action against a common carrier
for damages for an alleged tardy delivery of goods the defendant
which without comment accepted the goods for transportation,
pleads as a separate defense that any delay was not due to its
negligence but solely to congestion of freight and traffic and that
although it had all necessary facilities on hand for ordinary traffic
it was physically impossible to care for the enormous and unusual
volume of freight tendered to it at all the times mentioned in the
complaint, but there is no allegation of notice to the shipper of
possible delay in delivery, a demurrer to said defense on the ground
that it is insufficient in law will be sustained. Burns Grain Co. v.
Erie R. R. Co., 28.
2. Notification to — Bills of lading - Dismissal of complaint -
Interstate Commerce Commission - Personal Property Lau, $ 219.
-A common carrier's obligation under a straight bill of lading is
completed upon delivery of the goods to the consignee therein
named and it need not require the surrender of the bill of lading
itself. In such case the carrier having delivered the goods to the
consignee without the bill of lading which bore upon its face the
words “Draft against B/L” is in nowise concerned as to whether
the goods have been paid for, and a judgment in favor of the
CARRIERS — Continued.
consignor upon a claim that because of the notice delivery should
not have been made without the production of the bill of lading
will be reversed and the complaint dismissed. Dusal Chemical Co. v.
Southern Pacific Co., 222.
3. Bills of lading - Damages – Contracts — Judgments —
Appeal.—Where plaintiff, aware of an impending strike of the
employees of all the railroads of the United States immediately
after Labor Day, September 4, 1917, delivered a car-load of potatoes
to defendant on the afternoon of September first for shipment
under a bill of lading which provided that the carrier was not
bound to transport the property otherwise “ than with reasonable
dispatch," and it appears that though in normal times and under
normal conditions the car should have reached its destination in
about twenty hours, yet because of a congestion of freight due to
the threatened strike and the over-taxing of the classification yard
said car, with others, shipped from the same point reached its
destination on September third and was placed for delivery at six-
fifteen A. M. on that same morning, a judgment in favor of plaintiff
for damages alleged to have been caused by failure to deliver the
potatoes in contract time will be reversed and the complaint dis-
miesed upon the merits. Carr v. Long Island R. R. Co., 672.
See Personal Property Law; Express Companies.
See Liquor Tax Law.
CHAMBERS OF COMMERCE.
CITY OF BUFFALO.
See Public Service Commissions Law,
CITY OF NEW YORK.
See Brokers; Mandamus.
CITY OF ROCHESTER.
Statutes – Annexation of certain territory – Public Service
Commission.-It cannot be assumed that by the special statute
(Laws of 1915, chap. 359), by virtue of which certain terri-
tory was annexed to the city of Rochester, the legislature intended
to repeal the general law which reserves to it and to the public
service commission the right to regulate fares. Matter of Quinby
v. Public Service Commission, 357.
CITY COURT OF NEW YORK.
See Contempt; Motions and Orders.
CODE OF CIVIL PROCEDURE.
$$ 655, 677. Houk v. Van Horn, 263.
$ 771. Lester v. Lester, 630.
$ 872. Behl v. Greenbaum, 623.
SS 1214, 1215, 1216. Charlton v. Ward, 238.
$ 1391. Morris Plan Co. v. Miller, 470.
$ 2441. Matter of King v. Burnett, 161.
§ 2629. Matter of Eaton, 370.
§ 3297. Palmatier v. Catskill Mountain R. Co., 571.
§ 3307 (7), Palmatier v. Catskill Mountain R. Co., 571.
1. An award is “ personal property” not "land" — When state
may not claim award on ground of escheat.-An award made to the
owner of property condemned is in effect a judgment for money
which is personalty, and he has an equitable lien on the land
condemned as security for the payment of the award. In an action
brought by such an owner against the railroad company which
instituted the condemnation proceedings, and its receivers, the judg-
ment therein entered declared such equitable lien and directed the
same to be enforced by a sale of the property to satisfy it. Held,
that assuming that the plaintiff in said action died intestate as to
the real property condemned there was no escheat to the state, as
the award made was to be deemed personal property and not land.
New York Central & Hudson River R. R. Co. v. Cottle, 30.
2. Lands acquired by commissioners of Palisades Interstate Park
by purchase cannot be thereafter acquired by — Rights of peti-
tioner – Dismissal of proceeding.–Lands acquired by the com-
missioners of the Palisades Interstate Park by purchase or other-
wise cannot thereafter be acquired in a condemnation proceeding
instituted by a water power and service company. With respect
to such of the lands described in the petition and sought to be
acquired by said company as were not acquired by said commis-
sioners the petitioner has a prior right over them by virtue of the
present proceeding commenced ten months prior to that of said
commissioners. Where it clearly appears that the bulk or greater
part of the land and sources of water supply upon which the
water power and service company relies for the execution of its
plans were purchased by the commissioners of the Palisades Park
before the commencement of the present proceeding and such right
of purchase has been confirmed by a decision of the Appellate
Division, the present proceeding will be dismissed. Ramapo
Mountains Water Power & Service Co., Inc. v. Seidler, 272.
See Negotiable Instruments; Promise.
See Election Law; Jurisdiction; Liquor Tax Law.