man informed the servant that the liability was limited to one
hundred dollars was disputed but he inserted that valuation in the
receipt. The trunk weighed 220 pounds and defendant was paid
two dollars and fifty cents, the minimum charge, and under the
filed tariffs the plaintiff was entitled to only the lowest liability,
and a judgment in his favor should be modified by reducing the
same to $110. Kolb v. Taylor, 220.

FALSE REPRESENTATION.

See Marriage.

FEES.

See Foreclosure.

FINES.

See Contempt.

FORECLOSURE.

Actions Counterclaim Evidence

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-Usury

1. Of mortgages
Trial Dismissal of complaint.-The defendant in a foreclosure
action pleaded, as a counterclaim, that the mortgage was usurious
in its inception and that plaintiff was a party to and profited by
the transaction. On notice by plaintiff, who served no reply to
the counterclaim, the case came to trial and a motion to dismiss
the complaint on the ground that no cause of action had been
proved, made after plaintiff had rested, having been denied, defend-
ants introduced testimony which showed that there was no merit
in their defense but offered no proof to sustain the counterclaim,
and coupled a motion for judgment thereon with a statement that
whether it was granted or denied they would offer no further proof.
Held, that defendants had waived their right to insist that allegations
of the counterclaim should be deemed admitted for failure to serve
the reply and that it should be dismissed and plaintiff given judg-
ment. Charlton v. Ward, 238.

2. Of mortgages
Referee's fee on sale Real property-Costs
Surplus Code Civ. Pro. §§ 3297, 3307 (7).-Under section
3297 of the Code of Civil Procedure the referee on a sale in fore-
closure is entitled to the same fees and disbursement as are allowed
to a sheriff on a sale of real property under a judgment, and
where the property is sold for $10,000, or more, the limit of fifty
dollars does not apply and the referee may receive such additional
compensation as to the court may seem proper. Where premises
sold in foreclosure are located in a county where the sheriff under
section 3307 (7) of the Code of Civil Procedure is entitled to three
per cent upon the proceeds of a sale of real property under a
judgment not exceeding $250, and two per cent upon the residue
of such proceeds, the referee to sell in the foreclosure action is
entitled to the same amount to be computed only upon the cash
received by him. Where the purchaser at a sale in foreclosure
refuses to complete his purchase and there is a resale of the
premises by order of the court he is liable for the costs and expenses
of the resale, less the amount of the surplus arising thereon over
that bid on the first sale. Palmatier v. Catskill Mountain R. Co., 571.
See Mechanics' Liens; Receivers.

FRAUDULENT CONVEYANCE.
See Deeds.

GARNISHEE.

See Motions and Orders.

GENERAL RULES OF PRACTICE.

See Depositions; Motions and Orders.

GRAND JURY.

See Indictment.

GREATER NEW YORK CHARTER.

See Boards of Health.

GUARANTY.

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When plaintiff not entitled to recover upon Negotiable instru-
ments Bankruptcy Waiver Appeal.-Upon the trial of
an action to recover $300 upon a written guaranty to secure pay-
ment for merchandise sold to defendant's brother, it appeared
that after defendant had become liable to the extent of the
guaranty he gave his brother a note for $324.81 upon the agree-
ment that it would replace the guaranty but that plaintiff had no
knowledge of this understanding; that when the note became due
the defendant demanded, before paying said note, that the plaintiff
surrender and cancel not only the note but the guaranty, as he
refused to pay both liabilities and threatened to go into bank-
ruptcy; that the plaintiff thereupon consented to the defendant's
proposition and accepted payment, for the note and delivered to
the defendant the note and surrendered the guaranty, both of which
the defendant received and destroyed. Held, that defendant's
waiver of his right to take benefit of the Bankruptcy Law was
a good and valid consideration for the new agreement and full per-
formance thereof was a bar to the present action; that plaintiff
was entitled to recover upon the guaranty in suit which it sur-
rendered at the time the note was paid and a judgment in its favor
will be reversed and the complaint dismissed on the merits. Knit
Goods Exchange, Inc., v. Kresoff, 156.

GUARDIANS.

See Accounting.

HUSBAND AND WIFE.

See Transfer Tax.

INDICTMENT.

Trial

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1. Verdict
Evidence Criminal law Jury.-
The only fact necessarily determined in the defendant's favor by
a verdict of not guilty is that the evidence before the jury was
insufficient to prove beyond a reasonable doubt his guilt of the
crime charged by the indictment; it is not an acquittal of the crime.
A verdict of not guilty rendered upon the trial of an indictment
charging the defendant with robbery in the first degree by taking
certain personal property from "Alexander Gebler" in the night-
time of a certain day is not res adjudicata upon the trial of an
indictment charging him with an attempt to commit robbery in the
first degree from "Samuel Gebler" at the same time and place.
People v. Rogers, 437.

2. For violation of Donnelly Anti-Trust Law Grand jury
When motion to dismiss granted. Where an indictment charging
defendants with a violation of the Donnelly Anti-Trust Law alleges
that there were more than forty persons, firms and corporations
separately engaged in competition with one another in the busi-
ness of manufacturing "and selling what are commonly known as
photo-engravings which are used for the purpose of printing illustra-
tions and pictures, and which are articles and commodities in
common use," and that these persons and corporations constituted
a majority of all engaged in that business in New York county,
where the indictment was found, and did collectively more than
ninety per cent of said business in said county, the minutes of the
grand jury disclose that there is not an item of evidence to sustain
the allegations of the indictment that photo-engraving is an article
or commodity in common use," a motion to dismiss the indictment
will be granted. People v. Epstean, 476.

See Criminal Law.

INFANTS.

See Guardians.

INJUNCTIONS.

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66

1. When denied Action to restrain pollution of stream attrib-
uted to sewage discharge Water and watercourses Villages.-
Where, in an action brought by various owners and occupants of
farm lands along a stream below the point of sewer discharge
from a village disposal plant to restrain the pollution of the
stream attributed to the sewage effluent discharged from the dis-
posal plant and consisting of about one-half domestic sewage and
one-half tannery effluent received by the sewage of the village from
the defendant mill, all of the waste therefrom consisting of scrapings
of flesh, hair, lime and tan bark liquor being screened before
entering the village sewers and chlorinated on its journey to the
sewage disposal plant, it appears from the expert testimony that
the stream is not presently polluted and the testimony of laymen
as to its condition is in conflict, and the consequences of an injunc-
tion would amount to a public calamity, the same will be denied.
Driscoll v. American Hide & Leather Co., 612.

2. Elevated railways Sufficiency of consents of property owners
Consent of municipality Railroad Law, § 171. Baker v.
New York Municipal R. Corporation, 719.

See Contracts.

INSURANCE (BURGLARY).

Against loss by burglary, theft, etc. Fire in apartment below
contributing to loss Defendant not liable. Where by a rider
attached to a policy of insurance against burglary, theft or lar-
ceny it was agreed that the insurer should not be liable for any
loss from or contributed to by fire, water, etc., and in an action on
the policy to recover for the loss of certain jewelry and silver-
ware, a part of which was in a box in a locked dresser drawer
in plaintiff's apartment, it was found as a fact that a fire which

INSURANCE (BURGLARY)—Continued.

broke out and was confined to the floor below plaintiff's apartment
contributed to the loss, there can be no recovery and defendant is
entitled to judgment. Sloan v. Massachusetts Bonding & Ins.
Co., 412.

INSURANCE (FIRE).

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1. Action to recover on policy of Evidence Proofs of loss
Trial Pleading. In an action begun in November, 1917, to
recover on a fire insurance policy, a complaint alleging that in
July, 1917, after the occurrence of a fire in January, 1917, which
totally destroyed the insured property, the plaintiff "fully complied
with the terms and provisions of the said policy, and did furnish
to the defendant satisfactory proofs of the said loss, and the
defendant accepted of the said proofs, and retained the same
without objection as and for a full and complete compliance with
the terms and provisions of the said policy, and that more than
sixty days have elapsed since plaintiff furnished the said proofs
of loss, etc.," is a sufficient statement of facts to enable plaintiff
to offer proof at the trial as to whether defendant by retaining,
without objection, the proofs of loss furnished waived the terms of
the policy on the question of the sufficiency of the proofs of loss
and the time of service thereof. Whether there was such a waiver
is a question for the jury and should not be disposed of on the
hearing of a demurrer to the complaint. Judgment in favor of
plaintiff, overruling the demurrer, with leave to answer within
twenty days on payment of costs. Miglier v. Phoenix Insurance
Co., 461.

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Actions

2. Reformation of policy of
Condemnation pro-
ceedings Title Statutes Stipulation Muncipal corpora-
tions.--Where by the mistake of the insurer's agent, though he was
told the names of all the persons interested in the property and
what their respective interests were, the name of the life tenant, as
owner, was written in a policy of insurance covering a building on
the property devised, and the remaindermen and their attorney,
all of whom were consulted as to the insurance before the policy
was issued, failed to see to it that it was properly written, there
can be no reformation of the policy on the ground of mutual
mistake. In an action to recover on the policy for damage by fire
to the building it appeared that the title to the devised property
was just the same as it was when the policy was issued, because,
though before the fire the property had been taken by the city
for a public use and a certified copy of the order of confirmation
of the award made to the owners had been recorded in the proper
county clerk's office as required by the statute applicable in the
condemnation proceedings, it was not until sometime after such
recording that the fire occurred and subsequently thereto a trustee
appointed for the purpose of receiving the proceeds of the award
for the benefit of those interested therein. Held, that as the title
to the property had not passed to the city and it had not before the
fire entered upon the property as owner and was not entitled so to do
under the statute, a contention that there had been a forfeiture of
the policy because of a change in the title, interest or possession

of the insured building resulting in the order of confirmation of the
award made in the condemnation proceeding, was untentable. Fort
v. Globe & Rutgers Fire Ins. Co., 584.

JUDGMENTS.

1. When reversed-Foreign corporations-Contracts-Appeal.—
A judgment in favor of a foreign corporation, not authorized
to do business in this state, for the purchase price of goods sold
under a contract in this state, must be reversed and the complaint
dismissed. Pittsburgh Electric Specialties Co. v. Rosenbaum, 520.

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2. When reversed Usury Negotiable instruments Appeal.
-Where upon a trial of an action on defendant's demand note
given for a loan, the defense being usury, it clearly appeared
that plaintiff's agents, with full authority to act and as a part of
the same transaction, demanded and received from defendant usuri-
ous interest and that the making of a third party payee of the note
was a mere subterfuge, a judgment in plaintiff's favor will be
reversed and the judgment directed in favor of defendant. Schultz
v. Schaffer, 546.

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Cable com-

3. Stipulation Appeal Trial Evidence
panies.-Where, on the trial of an action to recover $370.81 charges
for transmitting twenty-one cable messages between the city of New
York and the island of Java, Japan, Egypt, England and towns
on the continent of Europe, it was conceded that defendant was
liable for six of said charges amounting in all to $112.05, and an
operator for plaintiff testifies that he sent a message addressed to
a certain person in Batavia over the wire to another employee of
plaintiff at a certain place in Ireland from whence it had been
delivered to another company and forwarded to its destination, and
it is stipulated that similar testimony will be given as to the other
messages, that plaintiff had no cable lines direct to the points of
destination and that it was understood by defendant that plaintiff
had to forward the messages over connecting lines, and no attempt
was made to show that any of the messages except said six had
ever been delivered, a judgment in plaintiff's favor for the full
amount claimed will be reversed unless plaintiff stipulates to reduce
the judgment to $112.05, in which event the judgment as reduced
by stipulation will be affirmed. Commercial Cable Co. v. Bauer Co.,
699.

See Default; Negligence; Negotiable Instruments; Physicians.

JUDICIARY LAW.

§ 770. Matter of Gumpel v. Gurvitch, 536.
§ 773. Houk v. Van Horn, 263.

JURISDICTION.

"

66

1. Meaning of any equity jurisdiction” Depositions
Constitutional law. The term any equity jurisdiction" as used
in section 18 of article VI of the Constitution of 1894 must be
construed to mean jurisdiction of proceedings and remedies which
were recognized at the time of the adoption of said Constitution