Restitution of money received under an insurance policy, before suing
Notice to a municipal corporation, before bringing an action against it.
See NEGLIGENCE.
ADJUDICATION:
See JUDGMENT.
ADMINISTRATOR:
See EXECUTOR AND ADMINISTRATOR.
ADVERSE POSSESSION — Trespass to realty-proof of adverse possession.
See ERKSON v. JOHNSTON
ALBANY - The water commissioners can limit the amount of water to be
use they may charge for extra water and cut off the supply if the bill is not
paid a tenant cannot abandon premises because the supply is cut off-an
injunction will not be granted to restrain the collection of a water tax.
A claim against the city, resulting from an injury to the person
department has three months within which to consider the claim before suit can
be brought the general act, chapter 572 of 1886, does not apply.
See MORIARTY 2. CITY OF ALBANY.
AMENDMENT — Other than of pleadings, citation, or on a trial.
ANIMAL- Game Law — trespassing upon a private park used to propagate
fish, birds and game-statute, strictly construed — tenor of the signs to be put up
by the owner-user for propagation must be clearly shown.
APPEAL-When the decision of the County Court upon a report of commis-
sioners laying out a highway is final.] 1. The decision of a County Court con-
firming the report of commissioners appointed to lay out a highway under
the provisions of chapter 568 of the Laws of 1890 is final and cannot be
reviewed by a writ of certiorari.
This is so whether such highway be created in one or in two or more
towns in the same county.
If it be held that, in the latter case, the statute of 1890 is inapplicable, the
writ of certiorari would still be improper, as in that event the remedy would
be by appeal. MATTER OF TAYLOR & ALLEN...
2. Nonsuit-presumption on appeal.] Upon an appeal from a judgment
of nonsuit the appellant is entitled to that construction of the evidence which
is most favorable to him, and to have the benefit of all the inferences deducible
therefrom. ERKSON . JOHNSTON..
3. Costs of an appeal against one who sues as a poor person.] One who
sues as a poor person has a right to appeal from a judgment, but he is not
relieved from paying the costs of an unsuccessful appeal.
A judgment roll and a bill of exceptions bring up for review only the
exceptions. Where the appeal papers consist merely of the judgment roll
and a bill of exceptions annexed, the court can review only the exceptions
taken upon the trial. Cox . DAVIS......
Condemnation Law - the order confirming the report of commissioners
is a final order— the applicant cannot on appeal retain both the property and the
award-form of bond to be given by the owner in order to secure payment of the
award, if reduced.
See MANHATTAN R. Co. v. O'SULLIVAN
Executors and administrators — commissions awarded to an executor
subsequently removed — the remedy is by appeal, not by motion ·
it is not an
error in fact not arising upon the trial."
See MATTER OF HUMFREVILLE....
Board of supervisors — rejection of a legal claim because the board believes
it to be illegal technical objections to the form of the claim cannot be raised for
the first time upon an appeal — mandamus.
See MATTER OF RAMSDALE v. SUPERVISORS....
Bastards-the liability of the father to support them is purely statutory
-the mother cannot prosecute the father, nor appeal from an order made in a
proceeding against him.
See PEOPLE EX REL. BOARD OF POLICE . SHULMAN.
Torts- the plaintiff cannot bring in a new party defendant-appeal by
the original defendant from an order authorizing it.
See HEFFERN v. HUNT...
Complaint — an allegation that the plaintiff is an administrator, not
contested nor proved on the trial, may be proved by the record upon appeal.
See HEWETT . CHADWICK..
Costs—a copy of stenographer's minutes, used to prepare amendments to a
case on appeal, is taxable in the first department.
See RIDABOCK e. METROPOLITAN ELEVATED R. Co................
Costs the charging of the costs of an appeal upon contestants personally
does not affect the costs in the Surrogate's Court.
See MATTER OF SEAGRIST....
Under Collateral Inheritance Law-time of appointment of
-proof as to debts and assets.
ASSESSMENT - For the purposes of taxation.
See TAX.
ASSIGNMENT-Chattel mortgage- invalid as to creditors, where the mort-
gagor retains possession of and deals with the property as his own- — assignment
for benefit of creditors—fraud must be affirmatively shown — surrender of prop-
erty by an assignee under a mistake of law - the assignee should retake the
property.
See ZIMMER v. HAYS
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ASSOCIATION — Fraternal societies — expulsion therefrom, involving the
loss of property rights.] 1. Where the expulsion of a member from a fra-
ternal society is attended not only with the loss of social privileges, but also
with that of property rights, strict proof will be required that he was regu-
larly expelled. He is entitled to a fair trial after due notice before an impar-
tial tribunal, and if the method of procedure is not regulated by the by-laws
of the society, such procedure should be analogous to that ordinarily
observed in judicial proceedings, at least so far as to promote substantial
justice. PEOPLE EX REL. MEADS v. MCDONOUGH....
2. The trial should be by the whole body, on notice to all of the purpose
of the meeting.] Where the by-laws of the society do not authorize the trial
of a member by a committee thereof, he must be tried by the body of the
society.
Where, under the by-laws, the members of the society can only recom-
mend expulsion, while the power to expel is in the officers, a member cannot
be expelled by a vote of the members of the society, acting upon the report
of a committee which has taken the evidence and decided the facts, and with-
out reporting the evidence has recommended expulsion.
Where a meeting is held, designed to consider charges made against a
member of such a society, or to vote upon his expulsion, the notice of the
meeting should indicate specifically its purpose, and should be sent to all the
persons constituting the body in which the power of expulsion is vested. Id.
3. - Slander of the society justifies expulsion.] Semble, that a charge
that a person has slandered a society of which he is a member, will, if proved,
justify his expulsion, but the fact that a member has said sharp and unjust
things against his associates, and that his conduct in other respects has been
annoying and offensive, will not justify his expulsion where the loss of
property rights is involved in it. Id.
4. — A brother of a complainant cannot try the charges.] A trial of a
member is not fair where a brother of one of the prosecutors making charges
against such member is a member of the committee appointed to try the
charges. Id.
ATTACHMENT - Statements when presumed to be made upon personal
knowledge.] 1. Statements in affidavits, upon which an attachment has been
granted, will be presumed to have been made upon personal knowledge,
except when they are stated to have been made upon information and
belief, or where it appears affirmatively, or by fair inference, upon the face
of the affidavit itself, that the statements could not have been made, and
were not made, upon personal knowledge. HANSON . MARCUS..
318
2.- A statement that an amount is due over and above all counterclaims
may be made by an agent.] An affidavit made by an agent, that the amount
claimed in the complaint is due above all counterclaims known to the agent
or to the plaintiff, is sufficient; the law does not require that the statement
in question shall be made by the plaintiff himself.
Upon such an application the facts must be proved to the satisfaction
of the judge; not necessarily by presenting to him the best evidence, but
by presenting such evidence as is competent in its nature, and sufficient to
prove the facts. Id.
Contempt attachment against a corporation it has priority over
the title of a receiver subsequently appointed.] Where a creditor of a corporation
APP. DIV.- VOL. VIII.
procures an attachment and its levy, before the appointment of a receiver of
the corporation, the property passes to the receiver subject to the lien of the
attachment, and the possession is in the sheriff and not in the receiver.
Where the order appointing the receiver does not restrain the judgment
creditor from prosecuting his action against the corporation, his issue of an
execution in such an action and a levy under it are proper acts and cannot be
construed to be a contempt of court.
BENNETT. ELECTRIC CONSTRUCTION Co.....
4. Notwithstanding the withdrawal of an attachment, the defendant is
entitled to an order vacating it.] Notwithstanding the fact that an attachment
has fallen by operation of law, and has been formally withdrawn, the defend-
ant is entitled to move to vacate the attachment and to enter a formal order
of vacation. CORN EXCHANGE BANK . Bossio....
ATTORNEY AND CLIENT A town may sue for the destruction of a
highway bridge-authority to bring the action. no inference from the verifica-
tion of the complaint the question must be raised by motion.
See TOWN OF FT. COVINGTON v. U. S. & C. R. R. Co....
an account with a husband or wife,
BANKING- A savings bank pass book-
or the survivor, goes to the surviving wife.] 1. An entry in a savings bank pass
book, representing moneys deposited by a husband, reading Albany Sav-
ings Bank, in account with Mrs. Alida P. Bell, or James C. Bell, her husband,
or the survivor of them," constitutes the parties joint owners of the sum
deposited, and entitles the wife, if she survives her husband, to take the
deposit. MCELROY . ALBANY SAVINGS BANK
A delivery of the book to her is unnecessary.] It is not necessary to
the validity of the gift that the pass book should be delivered to, or remain
in the possession of, the wife during her lifetime. Id.
Set-off-right to offset a deposit in a bank against a note of the depositor
held by the bank · not affected by the fact that the bank has pledged the note as
collateral to its own obligation to another party.
Gift-deposit in a savings bank by a husband to the credit of his wife or
himself or the survivor- —on the husband's death the wife is entitled to it
delivery of the pass book is unnecessary.
See MCELROY v. NATIONAL SAVINGS BANK..
BANKRUPTCY - Injunction restraining a multiplicity of creditors' suits,
brought against the stockholders of an insolvent corporation the liability of the
stockholders is a legal liability.
See BAGLEY & SEWALL Co. v. EHRLICHER.
BASTARD The liability of the father to support his illegitimate child is
purely statutory — the mother cannot prosecute the father nor appeal from an
order made in a proceeding against him.
See PEOPLE EX REL. BOARD OF POLICE v. SHULMAN..
Application to inquire into the facts may be made by one of two overseers
See PEOPLE EX REL. GARRETT v. OGDEN.
BENEVOLENT SOCIETY:
See ASSOCIATION.
BILL OF EXCHANGE:
See BILLS AND NOTES.
BILL OF SALE:
See CONTRACT.
BILLS AND NOTES- When the payment by mistake of a renewal note is
a payment of the original- the law merchant applies only to parties to the
instrument estoppel.] In an action brought to recover upon a promissory
note, it appeared that the firm of Toklas, Singerman & Co. being indebted
to Holland & Co. for goods sold and delivered, gave to Holland & Co. their
note for the indebtedness, under an agreement that they might renew the
note for three months.
On July 15, 1891, Toklas, Singerman & Co. transferred all their firm
property to the defendant, which assumed and agreed to pay all the debts
and liabilities of the assignors, due or to become due. This transfer occur-
red about eight days before the maturity of the note first given to Holland
& Co.
The day before the above-mentioned transfer was made to the defendant,
Toklas, Singerman & Co. sent a renewal note to Holland & Co., and a day
or two after the transfer Holland & Co. wrongfully diverted this note by
transferring it to the plaintiff (which already held the first-mentioned note
which it was intended to renew) as a collateral to secure the payment of the
sum of $400, which the plaintiff advanced upon the faith of the note and
also as collateral security for a past-due indebtedness of Holland & Co. to
the plaintiff. Both notes were for the same amount, $1,970.30. When the
renewal note became due, the plaintiff called upon the defendant to pay it,
which the defendant did. Subsequently the present action was brought
upon the original note, in which the plaintiff claimed that it had no knowl-
edge of the fact that the defendant had assumed to pay the debts of the
firm of Toklas, Singerman & Co. until after the second note became due.
Held, that, assuming that the promise of the defendant to pay the debts of
Toklas, Singerman & Co. was one made for the benefit of the plaintiff,
and that the renewal note, which was negotiated to the bank after the agree-
ment was made by the defendant, was not, and that the original note was
an existing debt or liability against that firm, the plaintiff was not entitled
to recover;
That, in so far as the defendant was concerned, both notes represented but
a single debt of Toklas, Singerman & Co.; that when the defendant, under a
mistake of fact, paid to the plaintiff the renewal note, it placed in the
hands of the plaintiff a sum of money applicable to the payment of the
original liability, and that, as the plaintiff still retained that fund, the
court would direct its application and hold it to constitute a payment of
the original note;
That the fact that the plaintiff had acted in good faith, as it claimed,
was not material, for the reason that the defendant was not a party to
either of the notes, nor to any of the transactions connected with them;
and the plaintiff, having been ignorant of the defendant's agreement to pay
the debt of Toklas, Singerman & Co., could not have parted with any money
upon the faith of the defendant's promise.
COMMERCIAL BANK v. MACDOUGALL CO.....
Receiver in supplementary proceedings -
-a bona fide transferee of past-
due notes from a judgment debtor pending such proceedings against him, can
hold them as against a receiver of his property appointed after the transfer -
rule in case of a creditor's bill.
Set-off-right to offset a deposit in a bank against a note of the depositor
held by the bank, not affected by the fact that the bank has pledged the note as
collateral to its own obligation to another party.
A denial of knowledge whether a co-defendant indorsed and transferred
a note for value or otherwise, etc., is not a denial of the indorsement and
transfer.
See QUEEN CITY BANK v. HUDSON..
Corporation - one loaning money to a corporation, evidenced by a note
illegally taken by the corporation for a subscription to its stock, may recover for
money loaned.
See FIRST NAT. BANK v. CORNELL.
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