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INDEX.

ABANDONMENT.

Conveyance of property by husband in contemplation of abandonment
of wife-setting deed aside.

See HUSBAND AND WIFE, 1.

ABATEMENT.

Survival of action for negligence.

See APPEAL, 4.

Action against non-resident -- attachment - death of defendant -
vival of action.

See ATTACHMENT.

Damages to pecuniary interests - death of defendant.

See FRAUD, 2.

ACCOUNT STATED.

Essential elements.

See CONTRACT, 2.

Requisites.

See PRINCIPAL AND AGENT, 7.

ACCOUNTING.

Suit against trustee.

See LIMITATION OF ACTION, 2.

sur-

Continuance of business after death of partner — rights of heirs and next
of kin - profits — interest.

See PARTNERSHIP.

Action against factor-complaint.

See PLEADING. 6.

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Nuisance allowing tenant's dog to remain in hallway of apartment
house.

See LIMITATION OF ACTION, 1.

APPEAL.

A

1. Surrogate - order fixing transfer tax-filing notice in court.
court or judge cannot extend the time within which an appeal must be
taken.

An admission by the attorney for the State Comptroller of service of a
notice of appeal from an order of a Surrogate's Court fixing a transfer tax
is not a waiver of a default in appealing, nor does it excuse a failure to
file the notice in the office of the surrogate within the time prescribed by
section 232 of the Tax Law. Matter of Seymour, 151.

2. Modification of judgment— entering judgment in accordance with
order-extra allowance. Where the Appellate Division on modifying a
judgment awarding plaintiff the value of certain stock, his costs and
extra allowance, orders that the judgment be modified "so as to give the
plaintiff relief as follows, and not otherwise; and so that all provisions of
the said judgment inconsistent therewith, or giving the plaintiff any
further relief be stricken therefrom," and follows this with a provision
that the defendant deliver the stock to plaintiff and account for the divi-

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APPEAL- Continued.

dends and finally affirms the judgment as so modified, without costs to
either party in the appellate court, the plaintiff has no right to insert in
the modified judgment the provisions of the original judgment awarding
him costs and an extra allowance.

As the modified judgment dealt only with the stock in specie and
affixed no value to it there was no basis for an extra allowance. Wasey
v. Holbrook, 507.

3. Record - omitting portions of judgment roll — consolidation of
appeals. In the absence of consent by a respondent the court has no
authority to allow an appeal to be heard without a complete copy of the
judgment roll.

But parties may consent that portions of the judgment roll not per-
tinent to the appeal may be eliminated from the record.

It seems, that where there are several appeals from a judgment taken
by different defendants, they should all be consolidated and heard upon
one record, so that the questions may be disposed of at one time. Muller
v. City of Philadelphia, 592.

4. Reversal for failure to grant motion to dismiss — survival of action
for negligence. The reversal of a judgment for the plaintiff in an action
for negligence granted on the defendant's exception to the denial of his
motion to dismiss is granted upon a question of law only.

Hence, where the defendant in an action for negligence died pending
his appeal, and the plaintiff's judgment is reversed because of the denial
of the defendant's motion to dismiss, plaintiff is entitled to substitute the
executors of the defendant and to continue the action against them, for
the reversal is upon a question of law only. Falk v. Havemeyer, 688.
Larceny - correction of erroneous judgment.

See CRIME, 5.

Larceny variance between proof and indictment - failure to raise
question.

See CRIME, 6.

Erroneous charge on trial - failure to except.

See LANDLORD AND TENANT, 5.

Alternative writ of mandamus- lack of jurisdiction.

See MANDAMUS, 2.

Court of Appeals - terms.

See MORTGAGE, 4.

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Acquiring land for water supply — order refusing confirmation of report.
See NEW YORK CITY, 2.

Continuance of business after death of partner-rights of heirs and next
of kin of decedent - marshaling of assets-modification of decree.
See PARTNERSHIP.

Undertaking action against surety — insufficient defense.

See PLEADING, 7.

Failure to except - election as to theory of action — work and materials.
See PLEADING, 11.

Broker's action for commissions-defenses - double commissions.
See PRINCIPAL AND AGENT 4.

When Appellate Division will not direct judgment.
See TRUST, 1.

ASSAULT.

Attempt to collect bill from tenant-resistance of forcible entry-land.
lord and tenant· right of ingress. A plaintiff who, while attempting
to collect a bill from a tenant in an apartment house and, having been
told by the janitor that he must send the bill up from the basement by
a dumbwaiter pursuant to a rule made by the landlord, attempted
nevertheless forcibly to enter, cannot recover against the landlord for an
alleged assault and battery by the janitor, if there be no evidence that
he used more force than was necessary to prevent entry by the plaintiff.
The plaintiff had no right to enter and collect the bill when forbidden

ASSAULT-Continued.

by the landlord, and even if he had a right of entry he may not accomplish
it by force.

A tenant's easements of ingress and egress are personal to him, and do
not extend to third parties except upon invitation express or implied
from the landlord or the tenant. Brendlin v. Beers, 403.

Self-defense-charge.
See CRIME, 3.

ASSESSMENT.

Correction of assessment rolls in New York city.

See TAX, 5.

Recording tax on trust mortgage property partly without the State.
See TAX, 8.

ASSIGNMENT.

Trade name - when name passes under assignment of good will-
injunction — unfair competition. Where partners engaged in manufac-
turing and selling pianos known as the " Ludwig" pianos assigned the
business including “good-will, of every nature and kind” to a corporation
organized under the style of Ludwig & Co., reserving, however, all patents
and rights relating to automatic piano players in the development of
which they were experimenting, the trade name of "Ludwig" passes as
part of the good will. Hence, where one of such partners, having subse-
quently perfected a mechanism which could be installed in a piano as
part of it so as to play the instrument automatically, he, and a corpora-
tion of which he is president and chief stockholder, will be enjoined from
using the word "Ludwig" on pianos containing said mechanism. This
is so not only because of the assignment, but because under the circum-
stances he is guilty of unfair competition.

The injunction, however, should not extend to advertising or other
printed matter announcing the fact that the automatic mechanism made
by said defendant is contained in the particular piano, nor to a designa-
tion of such mechanism as the "Ludwig player," provided the word "Lud-
wig" does not appear upon any visible part of the piano containing the
device. Ludwig & Co. v. Claviola Co., 388.

When assignee for creditors not liable for fraud of assignor.

See CORPORATION, 6.

Benefit of creditors - rent accruing after assignment-duty of assignee
to pay.

-

See DEBTOR AND CREDITOR, 1.

Lease-evidence - presumption.

See LANDLORD AND TENANT, 4.

Assignment of part of debt by mortgagee — judgment

-

res adjudicata

- when foreclosure bars subsequent action to recover portion of debt
assigned.

See MORTGAGE, 5.

Counterclaims existing against assignor as defenses to suit by assignee.
See PLEADING, 5.

Assignment of liquor tax certificate to secure loan defense of
payment.
See REPLEVIN.

ASSOCIATION.

Fraternal benefit insurance power of association to increase

assessments.

See INSURANCE, 2.

ATTACHMENT.

-

Action against non-resident — court — jurisdiction on granting attach-
ment - death of non-resident defendant ― survival of action— substitu
tion of administrator as defendant-service by publication. Upon the
granting of an attachment upon property in this State owned by a non-
resident the court acquires jurisdiction and control of all subsequent pro-
ceedings, although service by publication is not yet perfected. While the
action in form is in personam, it becomes in substance an action in rem

ATTACHMENT - Continued.

against the personal property attached, that property alone being sub-
ject to the satisfaction of any subsequent judgment.

Although the non-resident defendant dies before he is served by publi-
cation, the lien acquired by the attachment is not extinguished, nor does
the court lose jurisdiction. Hence where he has no administrator in this
State, the action may be continued against his administrator appointed
in the foreign jurisdiction, and service upon him may be had by publi-
cation if such service be begun within thirty days after the granting of
the attachment. Logan v. Greenwich Trust Co., 372.

ATTORNEY AND CLIENT.

1. Attorney disbarred ―improper contract with witness. Attorney-at-
law disbarred for making an agreement with a prospective witness to
pay him a material proportion of the recovery if he would testify in a
negligence action. Matter of Schapiro, 1.

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2. Contract retaining corporation to prosecute legal proceedings —
eminent domain — summary motion_to_compel Comptroller to issue
warrant. A corporation cannot practice law either directly or indirectly
by employing lawyers to practice for it.

An agreement by a landowner employing a corporation to appear in con
demnation proceedings and "to furnish such legal and other expert
services as it may deem necessary," in consideration of a promise to pay
the corporation one-third of the sum allowed on condemnation is illegal,
void and unenforcible by the corporation, not only because the corpora-
tion is retained to render legal services, but also because it gives to the
corporation a portion of the recovery for furnishing expert witnesses.

As such corporation has no interest in the award by virtue of said con-
tract, it is a stranger to a summary motion made by the landowner to
compel the comptroller to deliver a warrant for the payment of the award
and cannot object to the summary disposition of the matter on motion
where the condemnor makes no objection. Matter of City of New York
(Avenue A, etc.), 107.

3. Services — bill of particulars. Where, on a motion for substitution
of attorneys, the attorney originally retained asserted a lien upon the
papers for services rendered in the action and in other matters, and the
court ordered a reference to determine the amount due, it is improper
before the hearing to require the attorney to furnish a bill of particulars
of his claim. Dacey v. Fogel, 160.

4. Contract of retainer — construction. An attorney should draw a con-
tract of retainer so plainly as not to require construction, and doubtful
clauses will be construed most strongly against him, even though the
client executed the contract upon independent advice.

Action by an attorney at law to recover a balance alleged to be due from
a client under a contract of retainer. Contract construed, and held,
that the plaintiff had already been paid all that he was entitled to
thereunder. Samuels v. Simpson, 466.

BAILMENT.

Failure of carrier to deliver trunk.

See CARRIER.

Closing out short transaction in stocks.
See PRINCIPAL AND AGENT, 6.

BANKING.

Temporary receiver- liability of bank for commissions.

People v. Oriental Bank, 888.

Mortgage to bank in name of cashier-trustee- who may sue on
instrument.

See MORTGAGE, 1.

Trust mortgage- implied covenant by trustee to extinguish prior mort-
gages-breach-liability of trustee.

See MORTGAGE, 6.

Savings bank deposit in name of husband and wife - presumption of
equal ownership.

See TAX, 7.

BANKING — Continued.

Savings bank deposit in trust for another - action by beneficiary
failure to join trustee.

See TRUST, 5.

BANKRUPTCY.

Effect of composition

collateral security right of bankrupt to retake
-practice-judgment on pleadings.
Creditors who enter into a compo-
sition agreement with their debtor thereby release the debt and lose the
right to retain any securities held therefor in the absence of an agreement
to the contrary.

A discharge in bankruptcy does not divest any lawful lien of the creditor
existing at the institution of the proceeding.

The effect of a composition under the Bankruptcy Act is to supersede
the bankruptcy proceedings and reinvest the bankrupt with all his prop-
erty free from the claims of creditors.

A complaint which alleges that plaintiff is the administratrix of her
husband; that he in his lifetime assigned an insurance policy on his life
to the defendant as security for a debt; that later, on the petition of
defendant and other creditors, the husband was adjudged bankrupt;
that he offered a composition under the Bankruptcy Act which was
accepted by defendant and a majority of the other creditors; that the
composition was duly approved; that defendant received the money
due him thereunder, but did not surrender the policy, and that after
the husband's death it collected the proceeds thereof, and has refused to
pay the same to the plaintiff, states a cause of action, and if defendant
demurs plaintiff should be granted judgment on the pleadings under
section 547 of the Code of Civil Procedure.

Where plaintiff's motion for judgment on the pleadings was denied it is
improper practice for her to bring on defendant's demurrer for trial, and
pending the decision of the court to appeal from the order denying her
motion for judgment. Mc Donald v. Taylor & Co., 329.

Bankruptcy proceedings against plaintiff in action for services.
See STAY.

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Action on notes given by decedent - right of executor to copies and
statement of consideration.

See PLEADING, 1.

BILLS AND NOTES.

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Negotiable Instruments Law, section 114 — indorsement before delivery
- burden of proof-evidence -purpose for which note was given — trial
— refusal to entertain further requests—when no coercion of counsel. A
plaintiff, seeking to hold the indorser of a promissory note under section
114 of the Negotiable Instruments Law, which provides that where a per-
son not otherwise a party to the instrument places his signature thereon
in blank before delivery he is liable as an indorser to the payee and to all
subsequent parties, where the instrument is payable to the order of a
third person, must allege and is under the burden of proving that the
instrument was so indorsed before delivery. The burden of proving that
the indorsement was prior to delivery is not upon the defendant.

It seems, however, that where an indorsement before delivery is con-
ceded, and the defendant seeks to qualify the indorsement by proof of a
collateral agreement with the payee that he should not be liable to him,
the burden of proof is upon the indorser.

Where the indorser of a promissory note was the wife of a member of
the corporation which made the note, it is not error to admit evidence
that the notes were given by the maker for the purchase price of the
horses upon which the plaintiff held a chattel mortgage which was subse-
quently foreclosed, for the circumstances and relation of the parties to the

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