What constitutes Evidence Counterclaim Arbitration
Appeal.Where plaintiff's cause of action and defendant's counter-
claim were both predicated upon an account stated, and defendant,
in support of its contention that the receipt by plaintiff without
objection of a statement prepared by an audit company, plus the
implied approval thereof evidenced by plaintiff as treasurer of
defendant signing the check given to the audit company in payment
for services in preparing the account, and its deposit by him or its
continued presence in defendant's safe, constituted an account
stated between plaintiff and defendant, in addition to testimony
brought out on plaintiff's cross-examination as to the circumstances
under which the account had been prepared, and the conversations
between him and the only real stockholder of defendant, its presi-
dent and manager, showed that plaintiff had not objected to the
account, and substantially all the evidence on defendant's affirma-
tive case was that elicited from plaintiff, because between the time
of the preparation of the account and the commencement of the
instant action defendant's president and treasurer had died; and
not only is there nothing in the testimony to warrant the con-
clusion that plaintiff and defendant's president and manager agreed
to accept as final, either by way of an account states or as an arbi-
tration, the report of the auditor, but all the circumstances plainly
indicate that what was sought from the accountant was either a
corroboration or a correction of the statement prepared by defend-
ant's bookkeeper from the books of defendant, the denial of a
motion to dismiss the counterclaim was reversible error and a judg-
ment in favor of defendant thereon, entered upon a verdict, will
be reversed and a new trial granted. Johnstone v. Butler, Inc., 52.


1. Equity Pleading Actions Release Corporations -
Erecutors and administrators What operates as a discharge and
satisfaction of claim against defendant as surviving joint tort fesor.
-Where in an action, one of a series against various directors of
the plaintiff, for an accounting in equity for misconduct while each
of the several defendants had been such directors, it appeared that
during the pendency of a similar action against a non-resident
director he died, and, upon a holding of this court that his admin-
istrators could be brought before it unless they were duly served
with a supplemental complaint, plaintiff in that action compro-
mised its claim against the administrators in consideration of a
certain sum and executed a general release of all claims against
the decedent's estate. Held, that the circumstances under which
the release was executed clearly indicated that there was no inten-
tion to release the defendant in the present action and that a
defense pleaded in his supplemental answer to the effect that the
release given to the non-resident director's administrators operated

ACCOUNTING — Continued.

as a discharge and satisfaction of plaintiffs claim against defendant
herein as a surviving joint tort feasor was demurrable. German
American Coffee Co. v. O'Neil, 165.

2. By administratrix Objections to account Actions Con-
tracts Executors and administrators BetainerAttorneys
Services.— Upon the settlement of the accounts of an administra-
trix, it appeared that the only asset of the estate was the sum of
$17,194.36, the total amount of recovery in an action for damages
resulting in decedent's death. The accountant showed a payment
to the attorney retained by her of $8,597.18, fifty per cent of the
amount recovered by her, and the special guardian objected to the
payment thus made upon the ground that it was excessive and
unreasonable in amount and not a proper credit to the extent
claimed. It was contended that the contract of employment was
of no effect and that the only question before the court was whether
the amount the administratrix paid her attorney was a fair and
reasonable compensation for the services shown to have been ren-
dered. In dismissing the objections, it was Held, (1) that as the
right to bring an action is given by the Code to the administratrix,
and as it was necessary for her to have the services of an attorney
to do this, she must be deemed empowered to engage such services,
and, as an incident thereto, to agree upon the compensation that
should be given therefor with the qualification that the amount
so agreed upon is fair and reasonable; that the surrogtae may not
upon the final accounting of the personal representative entirely
disregard a contingent contract for legal services and proceed to
fix the value of the services upon the theory of quantum meruit
and surcharge the account if it appears that the compensation paid
exceeded the value of the actual services rendered. (2) That the
contract must govern unless it is unconscionable or unreasonable
and that, while retainers of fifty per cent have been held uncon-
scionable in specific instances and are generally regarded with dis-
favor, such retainer as a matter of law is not excessive and does
not render the contract unconscionable; (3) That each case must
be decided upon its own facts, and that whenever such an agree-
ment comes before the court on objection it will be carefully scru-
tinized and the personal representative will be required to show
that the payment Is reasonable and conscionable before it will be
allowed. Matter of Weber, 635.

3. Executors and administratorsWills Trusts Guardians
Who entitled to receive income.—-Upon the judicial settlement
of the account of an executor it became necessary to construe a
provision of the will set out in full in the opinion in which the
testator attempted to appoint a guardian of an infant who was then
surviving. Held, that the only question necessary to be determined
upon the accounting was to whom the legacy mentioned in the
said provision was to be distributed; that, as the infant's father
was living, the attempted appointment of a guardian was ineffectual,
yet the person nominated had a power in trust over the property
which the infant received under the terms of the will with the same
right as to its care, custody and control that a guardian would have


able, fic

ACCOUNTING — Continued.
during the minority of the infant; that the principal of the fund
must remain in the hands of the executors until under the terms of
the will payment of the principal could be made, and that in the
meantime the person denominated guardian was entitled to receive
the income. Matter of Berndt, 646.

See Decedent Estate Law; Jurisdiction; Trustees.

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1. When maintainable Damages. In view of the provisions of
sections 655 and 677 of the Code of Civil Precedure and section 773
of the Judiciary Law an action is maintainable to recover damages
for the alleged loss or injury occasioned by the payment of the last
two notes. Houk v. Van Horn, 263.

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2. Against superintendent of poor of county Indemnity bonds
- Contracts -- Corporations Pleading Evidence Poor.--A
superintendent of the poor of a county being indebted from time
to time to two corporations, of which he was the agent within his
county, would draw an order directing the treasurer of the county
to pay to the order of a fictitious person, to whom neither the
county nor he was indebted for any service, a certain sum of money
out of the poor funds of the county, purporting to be in payment
for supplies for the county alms house and would sign the said
order, adding the title of the office of superintendent of the poor
of the county, and would then indorse the order on the back thereof
with the name of the fictitious payee and would forward said order
thus indorsed to the said corporations and obtain credit therefor
upon his indebtness, and the said corporations after receiving said
order would give the superintendent of poor credit for the same
and then indorse said order and present the same to the treasurer
of the county, who paid the same. The said superintendent of the
poor pursuant to statute had given a bond to the county conditioned
that he should perform all the duties incumbent upon him as county
superintendent of the poor and honestly account for money coming
into his hands as such official according to law. In a separate action
brought by the county upon said surety bond to recover the amount
of each of one hundred fictitious orders amounting in the aggregate
to an amount in excess of the penalty of said bond, held, that the
liability of the defendant indemnity company arose from the execu-
tion of the bond and the fact that the breach of the contract was
the tortious and criminal acts of the superintendent of the poor did
not change the liability of said indemnity company. That as all
the causes of action were essentially the same, involving the same
parties, arose out of the same transactions, based upon the same
contract and to a large extent to be proved by the same evidence,
defendant's motion to consolidate said actions will be granted, but
without costs, all the pleadings in said actions to stand as the
pleading in the consolidated action permitting the entry of one judg-
ment; each of the separate items with interest being stated therein
with one bill of costs. The indemnity company having permitted
a default in the action first brought, such action is not included
in the consolidation order. County of Sullivan v. Downie, 348.

cate 3

ACTIONS – Continued.

3. Deeds -- Fee damages Evidence - InjuncitonsEasements
- Pleading. The owner of a plot of land which she had laid out
with streets and building lots and filed the map thereof in the proper
county clerk's office after making a deed of conveyance to plaintiff
of one of the lots, bounding it on one side by a street indicated
on said map but never accepted as a public street or worked by
any one, conveyed said street and all the lots abutting thereon
without any reservation in favor of plaintiff or his lot. By an
agreement made by plaintiff, before he had begun the present
action to restrain interference with his easements of light, air and
access, for a sale of his lot to the grantee of the remainder of the
original plot, which agreement was not signed or delivered until
after the commencement of said action, he lost the right to an in-
junction and to the fee or permanent damages. The original owner
of the whole plot upon being permitted to intervene refused to
consent that in case plaintiff was entitled to recover the court might
fix the fee damages, as had agreeed between plaintiff and defend-
ant, and asked for a jury trial, claiming that it was purely an action
at law. Her request was denied, the agreement as to the sale of
plaintiff's lot not then being in evidence. Held, that no evidence
being offered as to fee damage the court could not retain the action
in equity merely to fix nominal damages; that the complaint shouid
be dismissed and plaintiff left to his remedy at law, if any. Lee v.
Pruyn Lumber & Supply Co., 455.

See Boards of Health; Bonds; Deeds; Mechanics' Liens; Negli-

gence; Partition; Trial; Workmen's Compensation Law.


See Specific Performance.


See Ejectment.


See Appeal.


See Contracts.


See Divorce.


See Wills.


See Marriage.


See Transfer Tax.


1. From judgment dismissing complaint at opening of trial
Contracts -- Damages.-- Upon an appeal from a judgment dis-
missing the complaint at the opening of the trial in an action

APPEAL - Continued.
to recover damages for an alleged breach of an oral contract of
employment, the complaint must be liberally construed in plaintiff's
favor. Davis v. Frank, 683.

2. Notice of, not served in time Affidavits - Agreement -
Attorneys.- Where, upon a motion to compel plaintiff's attorney
to receive a notice of appeal not served in time, the statements in
the moving affidavits, relied on as showing that an oral agreement
was made over the telephone with plaintiff's attorney to extend
defendant's time to serve the notice of appeal, are flatly, positively
and with much minuteness of detail contradicted by the opposing
affidavits, the motion will be denied. Fort Masonry Co., Inc. v.
Hudson View Const. Co., Inc., 717.

See Judgments; Negligence; Transfer Tax.

Rules governing arbitration proceedings Judgments Appeal
Municipal Court Code, $ 6(6).— Where an award of an arbitrator
appointed pursuant to section 6(6) of the Municipal Court Code is
based upon an issue not submitted to him by the arbitration agree-
ment, the judgment entered upon the award must be reversed.
Under rule 5 of the rules governing arbitration proceedings the
clerk of the court, unless a request in writing not to enter judgment
upon an award is filed by both parties, must do so within two
days after the filing of the award. Fullman v. Ellis Plumbing &
Engineering Co., Inc., 62.

Negotiable instruments - Mortgages Legacy Banks -
Equity Jurisdiction Evidence Testamentary trustees – AC-
counting.- The notes dated July 1, 1912, were payable on demand
after date and the maker and the plaintiff were father and son, both
of whom were lawyers. On December 23, 1913, no payment having
been made on the notes, the bank requested additional security of
the maker and the indorser, and plaintiff, instead of taking the
position that there had been unreasonable delay in demanding
payment, and, therefore, he was discharged, acceded to such
request and assigned the legacy to the bank “as collateral and
continuing security” for the payment of the notes with interest.
Held, that by the assignment, which is held valid, plaintiff recog-
nized his then existing liability as indorser and it was fair to
assume that the circumstances were such that the parties believed
that the notes were to run for some time and that the security was
to continue so long as the notes remained unpaid. That the de-
fendant trustee upon the evidence was entitled to the relief sought
against plaintiff for the cancellation of the interest in the mortgage
inadvertently assigned to plaintiff. Van Buren v. Wensley, 248.

See Workmen's Compensation Law.


1. Warrant of - Motions and orders - Contempt Default
Sheriffs -- Code Civ. Pro. SS 655, 677 - Judiciary Law, $ 773.-
Where certain bonds held by a trust company as collateral security
for two notes owned by it and made by defendant were levied

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