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Where, by the terms of a contract, a duty, though not by express covenant, is imposed on one of the parties to perform, and the other party has an interest in its performance, the law will imply a promise by the party to perform, and will sustain an action by the injured party to obtain compensation for a breach of it. Booth v. The Cleveland Rolling Mill Co. 180

Where a contract provides for two ways of ascertaining the value of certain property, one of them must be resorted to before an action for the value can be maintained. Ib.

A construction given to a contract claimed to restrict the right to build to the street line. Clark v. The N. Y. Life Ins. & Trust Co. et al. 269

Upon the sale of a business and its good will accompanied by an agreement not to carry on a similar business within certain limits, the ven dor is bound not only not to solicit but to decline all business from customers within the prescribed limits. Sander et al. v. Homan et al. 270

A contract to sell and deliver potatoes and ship them on the cars, where the parties have had other dealings, is not satisfied by a delivery at the depot, and party cannot rescind because no one is at depot to pay for them. Kester v Reynolds. 289

To justify the reformation of an instrument, except in cases of fraud, it must be established beyond doubt, by the proof, that the parties agreed to something different from what is expressed. Meade et al. v. Westchester Fire Ins. Co. 323

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The doctrine applied to simple contracts, executed by an agent for an unknown principal, that the principal is liable thereon, cannot be extended to contracts under seal. Briggs et al. v. Partridge et al.

on an executory contract, the consideration of which is immoral; when the contract has been executed, the law will not restore the parties to their former condition. Fasig v. Levan et ux. 472

An agreement whereby, in consideration of an assignment by a debtor of all his estate to two of his creditors as trustees for the benefit of all the creditors, they agree, upon realization of the estate, to pay the debtor £50, made without the consent of the other creditors, is illegal as a fraud on their rights. Blacklock v. Dobie et al. 536

Under an agreement by a party, in consideration of the use and proceeds of a farm and title to same on decease of owner, to take care of owner and his family, &c., the death of such party terminates agreement, and his representatives cannot recover for his time and labor as improvements, but they can for what he originally brought on to the farm and its increase. Fox et al., admr. v. Fox.

551

As to the impairment of the obligations of a contract by statute or constitution, see CONSTI

TUTIONAL LAW.

As to supplying defects in contract by parol, see EVIDENCE.

As to power of a board of public officers to alter the terms of a contract, without reopening the bidding, see MUNICIPAL CORPORATIONS. CONVERSION.

See ACTION.

CORPORATIONS.

A corporation having declared a dividend, "payable at such time as the board may direct," and credited it to the stockholders on the books, will be compelled, by a Court of Equity, at the suit of a stockholder, to pay within a reasonable time. Beers et al. v. Bridgeport Spring Co. 8

In so far as the dividends are concerned, the right of an individual stockholder is adverse 371 to the corporation and to every other stock holdWhere, by the terms of a co tract a day is er: they become his several and distinct propnamed for its performance, and the parties sub-erty, which cannot be disposed of or dealt with sequently, and before the maturity of the con- by the corporation without his authority or contract, agree upon a particular hour of the day named and a place for its performance, the latter agreement becomes a part of the original contract, and of the same effect as if therein contained. Levy et al. v. Burgess.

403

A coniract between several parties to engage in the business of furnishing recruits under an anticipated call for volunteers for the army, and which fixes a minimum price at which they are to be furnished, is not against public policy. Marsh et al. v. Russell et al. 462

An agreement that in case buildings burn, one will pay the amount of the liens thereon, is not an agreement for the sale of lands. Beach et al., trustees, v. Allen.

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Their application to the enhancement of the corporate business and property is unauthorized and constitutes no reason for the corporation's refusing to pay.

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The directors of a corporation unreasonably refusing, may be compelled to declare a divi. dend by a Court of Equity, whish may also protect the rights of the minority of the stockAlthough an action cannot be maintained up-holders, where they are disregarded. 1b,

463

It is no defence to an action to recover an unpaid subscription, that there was a defect in the organization of the company, where there is a de facto corporation from which defendant may receive his stock. The Cayuga Lake R. R. Co. v. Kyle. 119

A member of a corporation may not bring an action individually for the distribution of funds belonging to the corporation but in the possession of a third party, without first showing the corporation's refusal to do so, or collusion. O'Brien v. O'Connell et al. 299

Members of a corporation having no proprietary interest in its capital, may be expelled therefrom for a violation of its by-laws. Te People ex rel. Pinckney et al. v. N. Y. Board of Fire Underwriters. 321

A by-law of a corporation which compels members to submit all their business controversies to arbitration, and requires them to comply with the awards of the arbitrators, on pain of suspension or expulsion, is unreasonable, and hence void. Ssate ex rel. Kennedy v. Union Merchant's Exchange.

337

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Where by section 306 of the Code, the Court A by-law will not be set aside as unreasonable, has discretion as to costs, it may exercise that if there is any equipoise of opinion in the mat- discretion at every stage of the action. Chipter; its unreasonableness must be demonstra-man et al. v. Montgomery. bly shown.

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107 The rule governing costs of cross appeals, applied to a particular case. lb

Under a stipulation to allow judgment in accordance with the determination of another suit, with costs, the same as if a trial had been had, it is proper to allow such costs as were appropriate up to the time of the stipulation and trial for issue of fact. Audenreid et. al. v. Wilson et al.

108

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If defendant counterclaims without serving offer to allow judgment for the excess of claim over counter-claim, plaintiff is not bound to enter judgment for such excess in order to avoid costs, but may test the counter claim, and if he Phelan et recover $50 is entitled to full costs. 252 al. v. Collender.

Where plaintiff's attorney taxed unlawful items in his bill of costs, a subsequent judgment creditor of the same debtor may apply by peti tion to have the costs readjusted, and the excess applied to his judgment. Goodman et al. v. Guthman et al. 338

The motion papers are properly served upon the first plaintiff's attorney.

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In an action to recover damages for the conversion of chattels, where plaintiff claimed $500 and recovered $35, defendant is entitled to costs. Plaintiff cannot by an excessive claim oust a justice of the peace of jurisdiction and thereby entitle himself to costs. The verdict is conclusive as to the amount in controversy, and in determining whether a justice of the peace would have jurisdiction.Powers et al. v. Gross. 561 As to allowances, see APPEAL; PRACTICE.

As to costs on motion to amend pleadings, see PRACTICE.

As to costs on foreclosure, see MORTGAGE.

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Rents paid into court on application of plain tiffs and by consent of defendant, are subject to its control and discretion, and the court has power, in the exercise of its discretion, to award that they be paid over to the party to whom the judgment gave a right to them, subject to the rights of the other party. Platt et al., ex'rs, v. Platt.

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On an indictment charging a felony, the jury may acquit of the felony, and convict of the constituent misnemeanor. Hunter et al. v. The Commonwealth. 207

The Court of Oyer and Terminer will not ordinarily consider on motion to have recog nizance declared forfeited, facts which go to the question merely as to whether the recognizance could be enforced, or whether c rtain facts constitute a valid defense in favor of the bail. The People ex rel. Devlin v. Court of Oyer and Terminer. 226 These are questions of fact for trial before a proper tribunal. 1b. The office of the writ of error is to remove a criminal record from an inferior to a higher criminal jurisdiction. The county clerk should make return the eto. The People v. Woodin. 291 The writ of error should always contain the judgment record in form required §4 of article 1, chap. 2 revised statutes.

As to waiver of trial by jury, see WAIVER.

DAMAGES.

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Under a lease providing that repairing shall be doue by the lessor, the lessee, where the premises become untenantable by reason of lessor's neglect, may recover damages for the As to court officers' salary, see SUPERVISORS. whole time they are untenable; he is not lim

COVENANTS.
See DEEDS.

CREDITOR'S BILLS.

583

To set aside a conveyance for fraud, absolute, positive evidence of fraud is not necessary; the fraud may be inferred from all the facts. Ford V. Johnston.

498

ited to the time within which such repairs might have been made, inasmuch as he was not bound, although he had the right, to make thom.

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The measure of damages in trover for conversion by an involuntary trespasser, is the marA conveyance made pending an action for tort ket value of the property at the point where it

is sold by the trespasser, less the expense of getting it there. Winchester v. Craig et al.

As to exemplary damages for acts of agent, see PRINCIPAL AND AGENT.

As to damages for breach of warranty, see

78 Where it is not sold, or the market value does! not cover the expense, the measure is its value! WARRANTY when first taken, together with any profits that might be derived from its value in the ordinary market, with interest. Ib.

Under chapter 382 of the laws of 1870. the action of the Board of Audit was judicial in its nature, but the ordinary rule, that no action can be maintained against one acting in a judicial capacity, is not applicable when the defendant coruptly agreed to make bills in which he was interested; proceedings before a party acting in such capacity, who is directly interested, are coram non judice, and the party is not a judge. The People v. Tweed et al. 131

The damages in such an action are measured by the difference between the amount fraudulently drawn or paid and the amount which could honestly have been drawn or paid. Ib.

A party to a fraudulent combination to procure money is individually liable to the full extent of the moneys wrongfully abstrected, although they may have been partially received by others acting with him. Ib.

In an action against town supervisors for failure to piace certain judgments upon the tax list as required by law, the damages in the absence of proof of actual, are limited to nomi nal damages; the supervisors do not become debtors for the full amount of the judgments. Dow v. Humbert et al.

185

DEBTOR AND CREDITOR.

If a creditor has a lawful and bona fide debt, it is lawful for the debtor to turn over to the creditor any of his personal property as security for said debt, if the creditor takes immediate possession and continues such possession. Archer v. O'Brien, sheriff. 299

If the creditor make any arrangement to protect the debtor by holding the property for some purpose other than the payment of his demand, he loses all advantage by the unlawful combination. Ib.

Where a third person purchases from certain creditors of a failing debtor his debts at a stipu lated per centum, and takes an assignment to himself, and such third person acts, not as agent for the debtor, but purely in his own be half, the debts are not compromised in such manner that one creditor can enforce any balance of the indebtedness by proving simply that some other creditors received more than himself upon the sale of his claim. Goldenberg et al v. Hoffman et al.

372

Where the appointment of a receiver has prevented a levy by a creditor, his rights will be protected, and he will be permitted to show, without actual levy, that another creditor's security is void. Stewart v. Beale et al. 513

As to rights of secured creditor of bankrupt,

DEEDS.

Where a mill-owner has a right to the use of a reservoir and dam, the fee belonging to a third person, and is charged with the duty of main-see BANKRUPTCY. taining the dam, and a riparian proprietor below erects a cam which sets the water back upon the reservoir dam, he can recover only for the A covenant against incumbrances, in a deed, injury to his easement. Robertson v. Wood is a covenant in presenti, and there can be no 200 breach unless an action thereon would lie at once. Barlow v. the St. Nicholas National Bank of N. Y.

worth.

A diminished benefit from the use of the 28 reservoir, or an increase of the cost and trouble in keeping the dam in repair, or an obstruction The entry ot the land in the assessment roll of the plaintiff in his right of repairing, would is not an imposition of a charge upon the land. constitute such an injury.

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In the absence of fraud or mistake the amount agreed upon between parties to a con tract as to deductions for defects must stand, and the fact that they were unreasonable makes no difference. Steele et al. v. Lord. 225

In an action under the Civil Damage Act to support a finding of exemplary damages, there must be a finding of actual damage, and without this, exemplary damages cannot be awarded. Roth v. Eppy. 596

As to measure of damages in actions for fraud in sales, see FRAUDS.

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A mistake in a deed can be corrected as between the parties to the conveyance, but not as against a bona fide purchaser without notice. Caster v. Sitts et al.

DELIVERY.

As to what will constitute a good delivery, see CONTRACT.

DEPOSITIONS.

See PRACTICE.

DISCONTINUANCE.

See PRACTICE.

DISORDERLY HOUSES.

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92 A house of prostitntion wherein there is fight. ing and drinking is within the statutory provisWhere the vendor agrees to sell land and exe-ion for disorderly house. Jacobowski v. The Peocute a deed, which he knows does not, and which he knows the vendee believes does convey the whole of the land, the vendor will be decreed to convey the residue. Beardsley v. Duntley.

490 The fact that demands, in consideration of which a certain conveyance was made were stale, does not render the conveyance fraudulent and void as to creditors; the demands being bona fide. Hale, rec'r. v. Stewart et al.

505

Where the debts which are the consideration of alleged fraudulent conveyances are bona fide, very strong evidence will be required to show that the conveyances themselves are fraudulent. Niles v. Fish et al. 150

As to effect of covenant against incumbrances where assessment has been levied, see ASSESS

MENT.

As to fraudulent deeds, see CREDITOR'S BILL

DEFENCE.

ple.

DIVORCE.

Obstinate silence, laziness, or wilful neglect of household duties on the part of a wife, do not constitute cruel and barbarous treatment as a ground for divorce within the meaning of the 120 Act of May 8, 1854. Harris v. Harris

Where a husband writes a letter to an absent wife, who is residing with her parents, that he will not receive her, and she does not return and try to obtain admission, it is not such a turning out of doors as will entitle her to a divorce, 548 Sowers v. Sowers.

As to admissibility of affidavit of party on motion to set acide decree of, see PRACTICE. As to evidence in actions for, see EVIDENCE.

DOWER.

A right of dower is not divested by the mere finding of the referee that the wife has been guilty of adultery; it can only be done by a judgment of divorce granted upon such finding. Schiffer v. Pruden.

11

In an action brought under Chapter 49 of the Laws of 1875, it is no defence that some of the warrants issued by the county authorities upon the bank where the public money was deposited, were not endorsed by the payees, if the defendAn agreement releasing a married woan's ant procured the money thereon; it makes no difference that the plaintiffs have a remedy right of dower made after marriage, will be deagainst the bank also. The People v. Tweed et al.clared void in equity, where it appears to be a fraud upon her rights, unequal and unjust, and executed under suspicious circumstances. Campbell et al. v. Hammett.

131

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