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ken them from the plaintiff, although the latter

held them under a claim of ownership. Voltz v. Where a policy of accidental insurance con- Blackmar.

322 tains a provision that “no claim shall be made * * where the death or injury may have hap

A wife may maintain an action for loss ef pened while the insured was, or in consequence support resulting from the death of her bus. of his having been, under the influence of in band against a person who sold him liquor, &c. toxicating drinks,” and the insured, while in Smith v. Reynolds.

576 that state, was shot, Held, that the limitation

Where it was alleged that the intoxication related to his condition, not to the cause which was caused in whole by the defendant, and the might produce his death, Shader, admr., v. proof was that the intoxication was caused only Railway Pass. Ass. Co.


in part by the defendant, Held, that a recovery It is not essential to work a forfeiture that might be had. Roth v. Eppy.

596 the injury or death should occur in consequence As to right of action on contract, see Con. of the use of intoxicating liquors.


As ta when actions will lie against assessors,

see Assessors, See NEGOTIABLE PAPER.

As to right of action for obstructions to light ACCOUNT STATED.

and air, see EASEMENTS. It is not sufficient proof of the correctness of As to actions by and against receivers, see an account when presented, that no objection is RECEIVER. made; enough must be shown to justify such an inference. Quincey v. White.


See also, EQUITABLE ACTIONS. In an action against several defendants for a

ADVANCEMENTS. balance upon an alleged account stated, it must be proved that there was a joint undertaking on and afterwards receives them, under an agree

One who advances money on growing crops, the part of all the defendants to pay the amount of such balan Vanderlip v. Keiser et al. 62 ment that he shall consign them for sale, is

entitled to the proceeds as against the consignWhere an account stated is plead in defense ees, notwithstanding the consignees claimed to an action, and plaintiff avers that it was under an older title from the original vendor, made at defendant's request to influence the of which he had no notice. Brown v. Combes action of another, but without effect, and that et al.

56 the accounts were in fact still open, it should go to the jury as to whether the account was in from the consignor, under a notice that they

The consignees having received the crops fact still open. Baker, admr., v. Ilot'

, trustte, were to be sold for his account, are estopped &c.


from setting up that they were to be made upon ACTIONS any other account.

16. An action for conversion will lie against one

AFFIDAVITS. who has unlawfully parted with the possession of another's property. In such case he is re As to admissibility of affidavit of a party on garded, to all intents and purposes, as still in motion to set aside a decree of divorce, see possession, sufficiently so to render him liable PRACTICE. in replevin or trover. Corsan v. Oliver, 183

AGENCY. Trover does not lie to recover chattels from the owner who has violently and forcibly reta Where commercial paper is sent to a bank for


collection, the bank becomes, not an agent for In an action at law embracing a number of the sender, but an independent contractor, and items or claims, an appellate court has no power may employ another bank to make the collec- to affirm a judgment allowing one item or claim tion ; but the latter is accountable only to the , and send it back for a new trial as to another. first bank, not to the owner of the paper. Hyde Wolsterholme et. al. v. The Wolsterholmé File v. The First National Bank of Lacon. 342 Mfg.Co.

128 As to authority of agents of insurance com

Under Chap. 322 of Laws, 1874, limiting appanies, see FIRE INSURANCE, LIFE INSURANCE. peals, whether or not the subject matter in conWAIVER.

troversy exceeds $500, must be determined by

the complaint and testimony, and not by the AGREEMENTS.

judgment alone, Lyon v. Wilcox et. al. 151 See CONTRACTS.

The facts found by a referee may be reviewed

by the Appellate Court. Crawford v. Everson AMENDMENTS, et al.

168 As to amendment of pleadings, see PLEAD

The Court of Appeals will not examine the testimony with a view of ascertaining the merits, where the case was disposed of below

upon an erroneous idea of the law. Grades v. APPEAL. Waterman, admr. et. al.

186 An order denying a motion to refer for want

Order directing payment of an extra allowof power is appealable. Harden v. Corbett. 21 ance, since it affects a substantial right, is ap

pealable. Duncan v. Dewitt.

199 The refusal of a judge to allow a witness to be sworn after the case has been closed, is not

The libellant claiming $25,000, recovered a reviewable on appeal. Saloman v. Van Praag decree in the District Court for $500, and the

28 claimant having appealed to the Circuit, where

the decree was reversed, no appeal lies to the An order denying a motion to amend a plead. Supreme Court of the United States. Barney ing is appealable. Rocky Mountain National v. The Stmbt D. R. Martin et. al. 232

Where evidence was received, “ subject to obA refusal to grant an injunction is appea!eble. jection,” and the objecting party having taken Campbell et. al. v. Seaman.

41 | no exception then, or subsequently, it cannot be

considered on appeal. Clark v. Donaldson. 258 A judgment claimed to be broader and more unlimited than the report of a referee author Order affecting a substantial right, though izes, can only be corrected on motion to correct discretionary, is appealable. Goodman et al. v. or set aside the judgment, it can not be corrected Guthman et al.

338 on appeal.


An appeal must be taken from the denial of a An appeal heard at General Term by three inotion for a new trial on the minutes in order Judges can, after the death of one, be decided to be taken advantage of on an appeal. Phillips by the other two.


v. Pace. Judge's charge must be excepted to in order

An order reviving a special proceeding pend. to bring same up for review. Stewart v. Patrick: ing against a discharged trustee at the time of


his death, against his executors, is not a final A party seeking, under the act of 1874, to re-order affecting a substantial right, and is not strict the general riglit of appeal, has the onus, appealable to the Court of Appeals. Petition of and must bring the case within the act. The Whittlesty.

488 People v. Horton et. al.


Courts of error have nothing to do with the An order ef the Special Term vacating an verdict of a jury, except to ascertain if improper order confirming the report of commissioners evidence was admitted to the jury, or whether appointed to appraise land sought to be taken they were misdirected by the judge. First for public purposes is discretionary. It may be Unitarian S ciety v. Faulkner et. al. 493 reviewed at General Term, but is not appealable to the Court of Appeals. In re application An order denying application for a resale of of N. Y. C. and H. R. R. R. for appointment of mortgaged premises affects a “substantial Commissioners to appraise lands v. Cunningham: right as same as have been construed, and is apet. al. An order granting or refusing an attachment ing the exercise of discretion. Philips et al. v.

547 for contempt is not appealable to the Court of Cudlipp, impld.

99 Appeals. Sutton v. Davis, exr.

An order which, though involving a substanThe Court of Appeals will not disturb allow. tial right, is discretionary, is not appealable.

583 ance made by the court below, when the latter Platt et al., exrs. v. Platt. does not exceed its jurisdiction. Comins et. al. As to practice on appeal, see PRACTICE; v. Board of Supervisors of Jefferson Co. 104 VENUE.





In order to sustain order of arrest in an action

for money obtained in a fiduciary capacity, it Appointment of a collector of a school district must appear that there was an obligation on the by parol not good. Burditt v. Barry. 113

part of the person retaining the money to hand over the identical money received.

Ib. In a list of appointments sent by a Mayor to the Common Council for confirmation were the Where there is an account between the parnames of two members of said common council, ties, and interest is allowed on balances, an ar. Held, That that fact alone does not show that rest cannot be sus ained in an action to recover the Mayor thereby bribed said members to vote the Salance of account.

Ilin favor of confirming the rest of the appoint

When circumstances are so decided as satisThe People ex. rel. Kilbourn v. Allen.

425 factorily to establish the conclusion that an in

tent to defraud existed when a purchase of goods The appointees were coufirmed by a single was made, they will be sufficient to sustain an vote, and in gross. Held, the confirmation was order of arrest, although no oral representations valid.

16. were made at the time of the purchase which

were false. Stewart et. al. v. Strasburger. 435 At the next meeting of the common council the Mayor sent in new appointments, in the

When bail is indemnified, an application to place of the two members of the common coun- the favor of the court for leave to surrender cil, who had in the meanwhile refused the nomi. principal should not be granted. Mills v. Roilenations, and the board thereupon confirmed wald.

579 said new appointments, together with those

To sustain an order of arrest the affidavit upon acted upon at the previous meeting, with the exception of those refusing, by a single vote which it is founded must set forth the facts upon and in gross. Held. That the comcion council which the conclusions are based. Meriden Malhad not exhausted its power by the action taken leable Iron Co. v. bau man.

591 at the previous meeting.


Where money has been paid unuler a mistake Although one member of a firm cannot bind of fact, although the party paying it was guilty liis co partners by submission to arbitration of negligence, be may recover it, ynless the po. without direct authority, any expression of in- sition of the party receiving it has been changed tent to give such authority by the non-signing &c., of New York.

in consequence thereof. Mayer v. :!'he Mayor,

25 partner is sufllcient to bind him. Pierce et. al. v. Morrisson.

2 Local improvements instituted by the corporThe intendments are in favor of the validity collected therefor are held by the city in its own

ation are public improvements, and the moneys of an award.

right, and not as depository.

Ib. Where a submission to arbitration provided

Where a first contractor fails to complete the that each party should choose one referee, and in case they did not agree the two referees to work, and it is subsequently completed at an in. choose a third one, the third referee is a joint creased expense, the city cannot be restrained arbitrator and not an umpire. Gaffy v. The from collecting the assessment until it has sued

on the contractor's bond, for such increased exHartford Bridge Co.


pense. Eno v. The Mayor, &c., of New York, It is the duty of an umpire to give notice to

362 the parties and hear their evidence unless there

Where a single improvement was properly is an express provision to the contrary in the ordered by the city authorities, and was let unsubmission, or the parties have so agreed, 16

der separate contracts, and distinct asssessments

made to ineet the expense under each contract, ARREST AND BAIL.

which assessments were afterwards annulled,

and a single assessment made to meet the exWhere the money may be received and credi- pense of the whole improvement, the latter asted in an account afterwards paid as a matter of sessment is valid ; that the improvement was general indebtedness, no right of arrest exists done under separate contracts affects no subunder sub. 2, § 179 of the Code. Morange v. stantial right. The People ex rel. Thompson v. Waldron.

37 The Mayor &c. of Syracuse. To render the person liable to arrest under the Where a deed contains a covenant that the above section of the Code, the identical money premises conveyed are free from all taxes, asreceived must be the property of the creditor. sessments, &c., the grantor is bound to pay an

Ib. assessment which has lean levied but not yet The Court will look into the facts and deter- under the statute. Doveyster v. Murphy.

entered so as to become a lien upon the prɔperty mine whether an order of arrest should be vaca

429 ted the same in a case where the ground of ar Where commissioners have made expendirest and the cause of action are identical as tures upon lands to which they have not acwhere they are not. Liddell v. Paton et al. 2065 quired title, the assessinents made for the beno


fits conferred cannot be supported (People v.

ATTORNEY AND CLIENT. Haines, 49 N. Y., 587, followed). Water Commissioners of Poughkeepsie v. Owners of Lands.


The power of the officers of a corporation to

employ counsel is implied, and need not be Proceedings to vacate should be taker, under proved. Such officers have power to engage at. the statute. People ex, rel., Vanderpoel v. The torneys without receiving any express delegaMayor, &c. of New Yorh.

575 tion thereof. Southgate v. Atlantic & Pacific R. R. Co.

111 As to when assessment becomes a charge on the land, see DEEDS.

To prove the value of certain services, the

evidence should show what those particular serASSESSORS.

vices are reasonably worth, not what is the val. ue of services generally.

16. An action will not lie against an assessor for

As to privileged communications, see Levin, a wrongful entry on the rolls of the value of assignee v. Redfield.

198 property. Youmans v. Simmons.


The court will extend its aid to an attorney, ASSIGNMENT FOR BENEFIT OF CREDI- to prevent his being defrauded by any collusive TORS,

action between the parties to a suit out of his

compensation, but he is called upon to seek the See BANKRUPTCY.

aid of the court with diligence; and an unrea.

sonable delay and laches on his part will be as ASSIGNMENTS.

fatal to his claim as it would be to the claim of

any other suitor. Richardson v. The B. & N. An assignment of a judgment of a court of the R. R. Co.

324 State of Pennsylvania between parties resident, for value, is not merely a statutory transfer of Proceedings by an attorney to enforce his it, but a sale, valid everywhere ; and after such claim do not constitute an action within the liteassignment, the assignor has no attachable in- ral operation of the statute of limitations, but terest in it. Noble et al. v. The Thompson Oil in enforcing it the court will be governed by Co. 121 the analogy of the Statute.

16. An assignee of a judgment takes it subject An agreement between an attorney and his only to such equities as exist in favor of the de client, entered into after the services have been feniiant at the time of the assignment. Suijt rendered, and are supposed to have been success7. Prouty.

406 ful, that the attorney shall receive a per centage

of the amount recovered, is not an illegal conIf the defendant has any equities against the tract. Wright v. Tibbit s.

467 assignee they can only be asserted by an action.

1b. A settlement made after suit is commenced,

and without notice to an attorney, is not good, As to right of action in an assignee against a and the attorney may ei:her prosecute the action trustee, see TRUSTEES.

or sue the parties making such fraudulent setAs to consideration for, see EVIDENCE.

tlement. Coughlan v. The N. Y. C. & H. R. R. R. Co.

564 As to power of assignee in bankruptcy, see As to payment to connsel in bankruptcy BANRUPTCY.

cases, see BANKRUPTCY.

As to right of attorney for party to testify in ATTACHMENT,

his behalf, see EVIDENCE.

A sworn copy of complaint setting out the

As to improper conduct of, see PRACTICE. plaintiffs' cause of action in full, annexed to the affidavit, on which an attachment is issued, and See also, PRINCIPAL AND AGENT, referred to therein, is a substantial compliance with sec. 229 of the Code. Crandall et al. v.

AWARD. McKaze.

75 A place of business in N Y. City does not con

No award can properly be made for other stitute one a resident of this State, except for than nominal damages for the taking of land the purpose of an action in the N. Y. City Dis for public use, which has already been dedicated trict Courts. Wallace et al. v, Castle et al. 227 by a former owner to such public use.


of application of the Department of Public The sureties on an undertaking given to dis- Parks.

219 charge an attachment issued from the Marine Court of the City of New York, may justify be

Where commissioners, in ignorance of the fore a county judge of the county in which they fact of a former dedication, award damages to reside. Seed v. Teall.

545 unknown owners, the court especially, where all

the parties are before it, may correct the error. As to restriction against issuing attachment

Ib. against national banks, see NATIONAL BANKS. See ARBITRATION.


The capital stock of an incorporated company

is a fund set apart for the payment of its debts, As to exoneration of bail, see ARREST.

upon which creditors have a lien in equity. As

regards creditors, unpaid stock is as much a BAILMENT.

part of the assets as any other property of the

company, and they have the same rights to inSee COMMON CARRIERS; WAREHOUSEMEN. sist upon its payment as upon the payment of any other debt due the company.

16 BANK CHECKS. A bank having certified a raised check as

Although there was no evidence that defend. good, is bound to pay it to an innocent holder. ant subscribed for the stock or made any express Louisiana National Bank v. Citizens's Nationai contract with the company in regard to it, havBank.

230 ing bought, paid for it (20 per cent.), and re

ceived a dividend on it, she was liable. Ib The ho of a bank check is bound to present it within a reasonable time, but what is a

An assignee in bankruptcy, acquiring title to reasonable time depends upon the particular ands by virtue of the Bankrupt Act, pending a circumstances cf each case, the time, the mode, litigation in a state court concerning them takes and the place of receiving the check, and the re.

subject to the final decree of that court. Eynter lations of the parties. Woodruf v. Plant. 257

v. Gaff.

75 The time for presentment may be extended

A general assignment for the benefit of credby the assent, express or implied, of the drawer. itors without preferences is not fraudulent or

16 void, and where executed six months prior to the

filing of a petition in bankruptcy, against the The holder of a bank check must present and assignor, is not assailable by the assignee in collect it the same day, or he is chargeable with bankruptcy, nor can he recover possession of the laches. Farewell et al. v. Curtis

499 trust property. Mayer et al. v. Hellman. 101 He cannot extend the time for which the drawer is liable.

16 Defendants preclude themselves from object

ing that 20 days? notice was not given as requirBANKRUPTCY.

ed by $S 982 and 5056 of the U. S. R. S., by

retaining property instead of No individual exemption can be allowed out amends, and by going to trial on the merits.

tendering of a partnership estate at the expense of the Crawfo'd v. Ever son et al.

109 joint creditors. In re Stewart und Norton. 3

The assignee of a corporation, by virtue of Payment to counsel for services in preparing bankruptcy, has complete dominion over the asbankrupt's petition and schedules is not prefer. sets transferred to him, and could sue for the reential. "In re Thompson.


covery of an unpaid assignment upon stock. Michener v.

193 Bankrupt is entitled to an allowance in

Payson, assignee.

money from his estate for the support of himself and family, not exceeding, with his furniture and ruptcy record is admissible to prove the assign

An exemplification of a portion of the bank. other articles, five hundred dollars.


ment in bankruptcy and the assessment by the He is not entitled to receive the probable ex

authority of the court. penses of procuring his discharge.


It is incompetent for the defendant to testify An action by an assignee is barred by the two tations of the company's agent, which had not

that he had purchased the stock upon represenyears' limitation, although the assignee may not

been carried out.

16 have discovered the right of action until after its expiration. Norton, assignee, v. De La Ville

Whether there be any evidence at all of a beauce. .


fraudulent preference under the Bankrupt Act The limitation applies as well to those causes is a question for the court; the sufficiency of the

Lewin, asof action which existed prior to the adjudication evidence is a question for the jury.

198 in bankruptcy as to those which arise subse. signee, v. Redfield. quently.


After a resolution of composition in bank. The U. S. District Court, upon adjudicating a ruptcy has been duly adopted and confirmed, the corporation bankrupt, and appointing an as

debtor may have an attachment quashed that ers to pay to the assignee an unpaid balance up: for the debt is thereby extinguished. Miller v. signee, may make an order requiring stockhold. was issued against his property before the com

mencement of the proceedings in bankruptcy, on the stock severally held by them; and such


205 order may be made without notice to the stockholders, and cannot be attacked collaterally.

When a composition in bankruptcy has been Sanger v. Upton, assignes, &c.


effected by giving the notes of a third party, The assignee, upon non-compliance with such and the notes are not met at maturity, the cred order, may sue any stockholder, in an action at itor is remitted to his right to sue upon the law, to enforce his liability, or he may maintain original debt. Edwards et al v. Hancher. a bill in equity against all the delinquent stock: An assignee in bankruptcy, in order to recover holders jointly.

1b property held under state authority, must do so

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