Title of use of the word "as" before the names of parties suing or sued
in a representative capacity.
See PLEADING.
Demand before suit.
See PRACTICE.
Severance of an action in Justice's Court by the County Court on appeal.
See REPLEVIN.
ANCILLARY LETTERS OF ADMINISTRATION - Issue of.
See EXECUTOR AND ADMINISTRATOR.
APP. DIV.-VOL. XCVI.
APPEAL-Questions presented on an appeal from a judgment only — where
nominal damages will defeat a counterclaim a judgment dismissing the com-
plaint will be reversed.
See ROLLINS v. BOWMAN CYCLE CO.
Bill of sale - when construed in connection with a lease and right of
purchase to be a chattel mortgage—when the question may be first presented on
appeal.
See DICKINSON v. OLIVER.
Notice of trial—it should not be inserted in a judgment roll — proper
procedure to have it inserted in a case on appeal.
A judgment dismissing a complaint not reversed, where nominal damages
only are recoverable.
See HOPEDALE EL. Co. v. ELECTRIC STORAGE Co...
On a new trial in a County Court the issues are the same as in the Jus-
See O'GORMAN v. N. Y. & QUEENS COUNTY R. Co....
APPRAISAL - For the purposes of taxation.
ARCHITECT — Duty of, and liability for negligence in the superintendence of
work.
ARREST- Service of summons · - under what conditions the delivery to one
under arrest is not good service.
See ANDERSON v. ABEEL..............
ASSAULT AND BATTERY — Complaint that a conductor on the defend-
ant's street car “wrongfully and unlawfully beat and assaulted" the plaintiff -
it will not sustain a cause of action for the unlawful removal of the plaintiff
from the car.
See RAY v. UNITED TRACTION Co......
Admissibility of dying declarations to prove the crime of assault.
See EVIDENCE.
ASSESSMENT - For the purposes of taxation.
ASSIGNMENT - Of a mortgage taken by an executor of the mortgagor
required by the will to pay it—it constitutes a satisfaction thereof.
See HETZEL v. EASTERLY. (No. 1).....
Evidence of debt for the absolute payment of money"
a certificate of stock of a building and savings association, with a guaranty of
payment of the principal thereof, which must be reformed as to its date, is not.
See TAUTPHOEUS v. HARBOR & SUBURBAN ASSN.
For mutual aid.
See INSURANCE.
For insurance.
See INSURANCE.
ATTORNEY AND CLIENT — Action to recover damages for a failure by
an attorney to record a mortgage as he had agreed to the six years' Stat-
ute of Limitations begins to run from the date of the breach of the agree-
ment, not from the date of the discovery thereof demand, not necessary.
CROWLEY V. JOHNSTON..
See LIMITATION OF ACTION.
ATTORNEY AND CLIENT — Continued.
Communication by a client, since deceased, to his attorney - its dis-
closure by the attorney is only prohibited when it is confidential where it
related to property interests, disposed of by the client's will, it was held not
to be confidential. MATTER OF KING v. Ashley.......
AWARD-In a street opening proceeding.
See MUNICIPAL CORPORATION.
AWNING-When a violation of a restrictive covenant as to the front line of a
dwelling.
See VENDOR AND PURCHASER.
BANKING —Surety on a bank cashier's bond - what proof in regard to the
entries in the bank books, in which the cashier has made false entries, makes
them competent in determining his indebtedness to the bank.
STATE BANK OF PIKE v. BROWN....
BANKRUPTCY - When a mortgage given on the surrender of the note of the
mortgagor, who is subsequently adjudged bankrupt, is valid as against his trus-
tee.] 1. In January, 1903, one Eisenberg borrowed from one Kahn $1,400
and on the 15th day of April, 1903, $600 additional, making a total of $2,000,
for which sum Kahn was given a note. On the maturity of the note,
Eisenberg offered to pay the same, or, if Kahn would advance an additional
sum of $500, less interest on the note, he would give her a mortgage of $2,500.
Kahn accepted the latter proposition, paying Eisenberg $441.77 in cash and
surrendering the $2,000 note. The bond and mortgage were executed August
6, 1903.
November 3, 1903. Eisenberg was adjudged a bankrupt. At the time of
the execution and delivery of the $2,500 bond and mortgage, Kahn had no
knowledge or information or reasonable cause to believe that Eisenberg was
insolvent, nor did it appear, as a matter of fact, that Eisenberg was then insol-
Held, that as against the trustee in bankruptcy the mortgage was a valid
lien for the full amount thereof, and not simply for the $441.77 paid to
Eisenberg in cash. PHILLIPS v. KAHN.............
2. Action by a plaintiff on a claim accruing before, which is sued
upon after, the plaintiff's discharge in bankruptcy—the suit is not maintainable
if the claim is not disclosed in the bankruptcy proceeding.] In an action
brought to recover for services rendered by the plaintiff to the defendant,
it appeared that, after the plaintiff's alleged cause of action accrued, he pre-
sented a voluntary petition in bankruptcy, and that prior to the com-
mencement of the action he obtained a discharge in bankruptcy. In the
bankruptcy proceedings, the plaintiff did not disclose the existence of the
claim in suit or any other asset, and consequently no trustee was appointed.
The plaintiff testified that the claim was not fraudulently concealed, but
that it was omitted in good faith by advice of counsel.
Held, that the plaintiff could not maintain the action, and that his complaint
was properly dismissed. RAND v. IOWA CENTRAL RAILWAY Co....
A discharge is not conclusive as to the bankrupt's having accounted
for all his property.] Semble, that a discharge in bankruptcy is not con-
clusive evidence that the bankrupt has accounted for all his property. Id.
4. A trustee will be appointed where assets are subsequently discovered —
title to the claim until the trustee is appointed.] Semble, that if no trustee
in bankruptcy is appointed because no assets are shown, a trustee may and
should be appointed if assets are subsequently discovered; that even if the
legal title to the claim in suit remained in plaintiff, he held it as trustee, and
that the equitable title passed to the creditors, and that the custody and
control passed to the court to be administered for their benefit through a
trustee to whom the legal title to the chose in action would pass upon his
appointment. Id.
Chattel mortgage- illegal as against a trustee in bankruptcy of the
mortgagor because of a failure to file it promptly as to what creditors it is
the mortgagee cannot, in such a case, enforce an equitable lien.
GOVE v. MORTON TRUST Co.....
See MORTGAGE.
Proof necessary to sustain an order of filiation.] 1. A bas-
tardy proceeding is a quasi criminal one, and an order of filiation should not
be rendered against the defendant therein except upon testimony which is
entirely satisfactory.
PEOPLE EX REL. MENDELOVICH v. ABRAHAMS.
2. A physician may testify to a statement by the mother as to the
person responsible for her condition.] Where the mother of the child claims
that the illicit act took place August 15, 1902, a practicing physician
whom the mother consulted in September or October, 1902, is not pre-
cluded, by section 834 of the Code of Civil Procedure, from answering the
following question: "In that conversation did she make any charge against
any person as being the cause of her condition at that time?" as the infor-
mation sought to be elicited by the question was not information acquired
by the doctor which was necessary to enable him to act as such. Id.
BILL OF PARTICULARS :
BILL OF SALE – When construed in connection with a lease and right of
purchase to be a chattel mortgage — when the question may be first presented on
appeal.
BILLS AND NOTES · An indorser of a forged check is not liable for the costs
of an action, of which he had notice, brought by the owner of the check against
the bank which paid it under the forged indorsement.] Öne Westcott, who
had a deposit with the banking firm of Muller Brothers, drew three checks
upon such deposit payable to the Dunn Salmon Company. One Seybold
forged the payee's name upon the checks, and after such checks had been
indorsed by the National Bank of Cortland they were presented to and paid
by Muller Brothers, who charged them to Westcott's account. The Dunn
Salmon Company gave Westcott credit for the amount of the checks and then
sued Muller Brothers in conversion for the payment of their checks upon a
forged signature. Muller Brothers requested the National Bank of Cortland
to defend the action, but it declined to do so. Muller Brothers defended the
action and were successful as to one of the checks but unsuccessful as to the
other two checks. They then brought an action against the National Bank
of Cortland to recover the amount of the judgment rendered against them,
which included costs, and also the amount expended for counsel fees in the
defense of the action.
Held, that the National Bank of Cortland was only liable for the amount
of the two checks upon which a recovery had been had against Muller
Brothers, and that it was not liable for the costs awarded in the action
brought against Muller Brothers or for the counsel fees expended by Muller
Brothers in the defense of that action.
MULLER V. NATIONAL BANK OF CORTLAND.....
An action on a note is not inconsistent, having been discontinued,
with an action alleging that its discount was procured by false representa-
tions the second action is on contract.
CITIZENS' NATIONAL BANK v. WETZEL...
See ELECTION.
BOND- Injunction undertaking — damages are only recoverable where it is
adjudged that the party was not entitled thereto - when a discontinuance of the
action and a vacation of the injunction is not such an adjudication.] 1. The
plaintiffs in an action obtained an injunction pendente lite by giving an
undertaking providing, "Plaintiffs will pay to the defendants so enjoined
such damages, not exceeding the before-mentioned sum, as he may sustain
by reason of the injunction if the court finally decides that the plaintiffs were
not entitled thereto."
The action was discontinued and the injunction vacated with the consent
of the parties, under a stipulation reciting, "It being understood that there
is no adjudication on the question of the plaintiffs' right to the injunction,
nor of any of the questions involved herein as to what is personal property
or what formed part of the realty or the ownership thereto, and that this
discontinuance is without prejudice to the rights of either party and without
prejudice to defendant's right to bring an action against the plaintiffs and on
the undertaking given herein to continue the injunction to establish his
rights to any damages claimed by him by reason of the injunction granted
and continued herein."
After the entry of the order upon such stipulation the defendant made a
motion for the appointment of a referee to assess the damages which he
claimed to have sustained by reason of the granting of the injunction.
Held, that the discontinuance of the action and the vacation of the injunc-
tion pursuant to the stipulation did not constitute an adjudication that the
plaintiffs were not entitled to the injunction, and that in the absence of such
an adjudication, the defendant acquired no right to enforce the undertaking.
FREIFELD v. SIRE
2. Construed in the light of its recitals and object.] The obligation
assumed in a bond is to be construed in connection with, and to be controlled
by, the recitals of the purpose and object for which it was given.
CITY OF NEW YORK v. SEXTON..
3. To indemnify a defendant against a recovery on the merits, given in
consideration of the withdrawal of the defense of the Stitute of Limitations — it
is not enforcible, where the suit is compromised ] The city of New York having
set up the Statute of Limitations as a defense in an action brought against it,
the plaintiff in said action brought an action against her attorney, one Clark,
for malpractice in failing to bring the action within the statutory period.
Clark, desiring to be relieved of the charge of malpractice, induced the
corporation counsel of the city of New York to withdraw the defense of the
Statute of Limitations by giving a bond reciting the bringing of the action
"WHEREAS, in said action the defendant interposed
and further providing,
as a defense that the action was not brought within one year from the date
of the alleged cause of action; and
'WHEREAS, it is desired that the defendant in the said action withdraw
said defense so that the case may be tried upon the merits;
"Now, therefore, the condition of the above obligation is such that if the
above bounden, William H. Clark and John B. Sexton, shall well and truly
hold harmless and indemnify the City of New York as the successor of said
Mayor, Aldermen and Commonalty of the City of New York of and from
any judgment that may be recovered in said action in favor of the said plain-
tiff therein, in respect to the damages awarded to the plaintiff and the costs
and allowances thereinafter it shall have been finally determined in said
action that the plaintiff was entitled to recover therein-then this obligation
shall be null and void, otherwise to be and remain in full force and effect."
Held, that the bond contemplated that the liability of the city should be
determined after a trial before a court and a jury on the merits, and that
the city having settled the action without a trial, it could not recover upon
the bond the amount paid upon such settlement unless the principal and
surety upon the bond consented to the settlement. Id.
Surety on a bank cashier's bond - what proof in regard to the entries
in the bank books, in which the cashier has made false entries, makes them
competent in determining his indebtedness to the bank.
STATE BANK OF PIKE v. BROWN...
See EVIDENCE.
BOOK OF ACCOUNT:
See EVIDENCE.
BRIDGE- Destruction of, by the collapse of a city reservoir dam.
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