for such periods of time as might be shown by the certificate issued in connection with the policy. There were delivered with the policy two certificates or binding slips, duly countersigned, stating the same rate, premium and amount and duration of insurance, one to run from August 30, 1913, to September 30, 1913, the other from September 30, 1913, to October 30, 1913. The only question litigated upon the trial of an action based upon the second certificate was whether the automobile was stolen, though defendant made a motion to dismiss the complaint on the ground that it did not state a cause of action. This motion was denied and, upon an appeal from the judgment entered in favor of plaintiff on a verdict, the real ground of the motion to dismiss the complaint was stated. The Court of Appeals reversed the unanimous affirmance of the judgment on the ground that the alleged theft did not take place during the life of the certificate as alleged in the complaint and granted a new trial with leave to amend the complaint. The Special Term allowed the amendment upon the theory that as it alleged a cause of action upon the same policy of insurance, based upon the first certificate continuing the insurance in force at the time of the alleged theft, it did not bring in a new cause of action. Held, that the error, if any, in allowing the amendment on that theory might be corrected only on appeal from the order granting the amendment and not on the hearing of a demurrer to separate defenses pleaded in the amended answer. That the amended complaint stated a good cause of action. The allegations of facts set forth in the separate defenses considered, and held, that for the purpose of the demurrer they were not insufficient in law and the demurrer should be over- ruled. Troy Automobile Exchange v. Home Ins. Co., 331.
5. Allegations of complaint · - Con- tracts - Actions · Personal Property Law. Nothing in the Per- sonal Property Law forbids a notice of a sale of property retaken by a conditional vendor being given prior to the expiration of the thirty days for redemption provided the time of sale is fixed subsequently thereto. Where a complaint alleges that defendant sold to plaintiff an automobile upon a conditional contract of sale under which the title was to remain in the vendor until full payment of the purchase price; that on the 7th day of September, 1917, plaintiff was in default in his payments under said contract and that the defendant in the exercise of his rights seized the machine and on the eleventh day of September served notice and advertised the car for sale on the 11th day of October, 1917, to satisfy the unpaid balance due on the purchase price, with interest, insurance charges and storage, a demurrer to the complaint for legal insufficiency of the allegations to constitute a cause of action will be sustained, and plaintiff's motion for judgment on the plead- ings will be denied, and the complaint dismissed, with costs of the motion. Freeman v. Engel, 472.
See Accounting; Actions; Carriers; Contracts; Counterclaims; Insurance (Fire); Lease; Promise; Set-off; Statute of Frauds.
Service of, upon foreign corporation Corporations service upon secretary of state set aside Motions and orders.- Where the designated agent for the service of process upon a foreign corporation authorized to do business in this state dies, and the corporation designates no other person in his place, the service of the summons upon the secretary of state in an action against said corporation upon a liability arising without this state is futile, where the defendant is not shown to have property in this state, and on motion will be set aside. Eastern Products Corporation v. Tennessee Coal, Iron & R. R. Co., 557.
Application for writ of, when denied Contracts Public Service Commission Statutes City of Rochester.-Upon the hearing of an application by the city of Rochester for a writ of prohibition to prevent the defendant railway company from apply- ing to the public service commission for permission to increase its rate of fare and to prevent the commission from hearing the appli- cation, it appeared that the city, by a contract with one of defendant's predecessors more than twenty years before, had agreed never to charge more than a five cent fare for one continuous ride on its road. Held, that as said contract had been judically deter- mined invalid in the "North Shore" case (175 App. Div. 869) a contention that the public service commission was without juris- diction on the ground that said contract was valid and binding was untenable and the application for the writ will be denied. The provision of section 173 of the Railroad Law that: "Nothing herein contained shall be construed as modifying or
affecting the terms of " the contract in question is nothing more than a legislative declaration that said contract was not interfered with and cannot be construed as a ratification thereof, particularly as by section 181 of the Railroad Law the legislature reserved to itself and to the public service commission the right to change the rate of fare on any railroad including that of defendant. Matter of Quinby v. Public Service Commission, 357.
1. What is an unconditional, personal promise to pay_note Negotiable instruments. A corporation of which defendant was treasurer was indebted to plaintiff on a demand note dated June 28, 1909, and in response to urgent appeals for payment, though no suit was threatened, defendant on January 12, 1910, wrote a letter in his own name to plaintiff which contained the following: "I will agree to pay One hundred (100) Dollars per month until the bill is settled or until I can make arrangements to settle the full amount which I am in hopes of doing soon." Held, that the letter was defendant's personal promise to pay the note. Where im- mediately upon the receipt of said letter plaintiff desisted from further appeals until February 28, 1910, and then merely wrote to remind defendant of the delayed though promised payment of the second $100 installment, the first having been paid, the letter
of January 12, 1910, construed in the light of the circumstances, clearly imported that the consideration for defendant's promise to pay $100 a month was to be plaintiff's forbearance to proceed against the maker of the note; such consideration was fairly infer- able from the language of said letter, was sufficient to support defendant's promise and the letter was a memorandum sufficient to meet the requirements of the Statute of Frauds. Quaker Oats Co. v. North, 108.
2. Exchange of Consideration Pleading Contracts.- Where the complaint alleged that on or about a certain date plain- tiff and defendant "entered into an agreement wherein and whereby defendant employed plaintiff as a milliner for one year at a stated weekly salary commencing on a certain date and termi- nating on another, the dismissal of the complaint on the ground of the absence of an allegation of a promise by plaintiff to enter and continue in defendant's employ, that there was a lack of mutuality and, therefore, of consideration for defendant's alleged promise, is reversible error, the complaint in effect alleging that the plaintiff and the defendant "entered into an exchange of promises (agreement)," and mutual promises being alleged there was no lack of consideration. Davis v. Frank, 683.
PUBLIC HEALTH LAW.
See Contracts; Physicians.
PUBLIC SERVICE COMMISSIONS LAW.
§ 65 Right of public service commission to make regulations for supply of natural gas to consumers in the city of Buffalo Mandamus. The duty of a company engaged in the business of distributing natural gas to serve all equally within its power and to make connections, in the absence of any restraining order, rests upon the common-law duty arising out of its franchise and the statutory duty imposed by section 65 of the Public Service Com- mission Law; the law does not require the impossible and if gas cannot be obtained the company is excused from supplying it. While the public service commission has the right to make regu- lations for the supply of gas, a restriction or classification which is unreasonable or arbitrary is invalid and may be attacked collater- ally. The franchise under which respondent is distributing natural gas to consumers in the city of Buffalo contains the following: "The company will furnish natural gas to all consumers on the line of the streets, avenues, alleys, lanes and public squares in which the pipes are laid as long as said pipes shall be in use for the purpose of supplying natural gas." Houses on either side of a house built by relator with the necessary appliances for the use of natural gas are being served therewith by means of the main in the street and relator when about to start to construct its house applied to respondent for connection which was not made before the granting of an order by the public service commission and since the same was made and because thereof respondent has refused to make the connection or furnish natural gas to relator. The public service commission in a proceeding before it in relation to
PUBLIC SERVICE COMMISSIONS LAW - Continued.
the natural gas supply of the city made an order that the respondent herein should not "connect or allow its mains to be connected with any building or structure with which connection is not now had" and should not furnish gas to any one who was not at the time of the receipt of said order by the respondent a customer or user of gas furnished by it. Upon granting a peremptory writ of mandamus to make the connection asked for by relator with respondent's gas mains, held, that as there was no manufactured gas on the street on which relator's house was located and consider- ing the deficiency of coal and the short duration of periods of insufficient gas supply, the order of the public service commission so far as it concerns relator's house was unreasonable and abso- lutely void. Matter of Park Abbott Realty Co. v. Iroquois Natural Gas Co., 266.
RAILROAD LAW.
See Injunctions.
Foreclosure-When not bound to make return to treasury depart- ment of United States government.-A receiver of the rents and profits in foreclosure is not liable for any federal income tax upon moneys received and paid out during the course of his receivership, and, therefore, he is not in duty bound to make any return to the treasury department of the United States government. Lathers v. Hamlin, 563.
Motion to confirm report of - Condemnation proceedings- Award. That a motion to confirm the report of a referee appointed, in a condemnation proceeding instituted against the executors of the former owner of the property who had purchased it for themselves and not for the estate, to take the proof in regard to the right, title and claim of various defendants to the award, in favor of the state, upon the theory that the former owner of the property condemned, from which the fund arose, died intestate as to the property, without heirs capable of taking by descent, and for that reason the property escheated to the state and that the award should go to it will be denied. New York Central & H. R. R. R. Co. v. Cottle, 30.
RESIDENCE.
See Naturalization.
See Arbitration and Award.
Who required to give Costs.-Where by a decree judicially settling the accounts of the executor of decedent the comptroller of another state, who had filed certain objections to the account, was directed to pay certain costs and disbursements, but did not, an application by the administratrix de bonis non that said comp- troller give security for any costs that may be awarded against
SECURITY FOR COSTS - Continued.
him in a proceeding to determine the validity of the same claim presented by the objections which he again filed will be granted. Matter of Kopp, 506.
By mail of notice of trial Jurisdiction · Municipal Court of city of New York.- Service by mail of a notice of trial in the Municipal Court of the city of New York must be made eight days before the date fixed for the trial, and the court has not jurisdiction to enter a default judgment against the defendant where the notice of trial was so served in less time. Rethy v. Orszag, 540.
Stipulated price for Contracts - Evidence - Damages. Where plaintiff employed by defendant to audit and supervise its books was permitted so to do until the expiration of the contract of employment his claim for the agreed compensation cannot be defeated, even though he performs the work unskillfully, except by allegation and proof of damages equal to the stipulated price for his services. Weill v. Goodman, Shirt Waists, 524.
See Accounting; Contracts; Physicians.
Upon valid claim Pleading - Contracts-Damages-Evidence Bankruptcy.- In an action to recover damages for breach of a contract to deliver certain goods the answer pleaded a set-off for the balance due for goods delivered under the contract to plaintiff's assignor, and a reply thereto alleged, as an affirmative defense, that, prior to the assignment of the contract to plaintiff in bank- ruptcy proceedings against plaintiff's assignor, the claim referred to in defendant's set-off had been proved and allowed for the full amount and paid in part. Held, that, as at the time of the assign- ment of the contract to plaintiff the subject-matter of defendant's set-off was a valid claim against the estate in bankruptcy of plain- tiff's assignor, the reply pleaded no legal defense, and a demurrer thereto should have been sustained, it affirmatively appearing that the bankrupt had not received his discharge in bankruptcy at the time the reply was served. Wolins v. Wilmerding, 667. See Contracts.
SHIPS AND SHIPPING.
See Negligence.
SOLDIERS AND SAILORS.
See Election Law.
When action to compel, will not lie - Contracts · Adoption Marriage. An action to compel the specific performance of an agreement to adopt children born of a marriage between the parties while defendant had a wife living will not lie. Erlanger v. Erlan- ger, 236.
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