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.
Action against non-resident -- attachment - death of defendant - vival of action.
Damages to pecuniary interests - death of defendant.
See FRAUD, 2.
ACCOUNT STATED.
Essential elements.
See CONTRACT, 2.
See PRINCIPAL AND AGENT, 7.
ACCOUNTING.
Suit against trustee.
See LIMITATION OF ACTION, 2.
Continuance of business after death of partner — rights of heirs and next of kin - profits — interest.
See PARTNERSHIP.
Action against factor-complaint.
Nuisance allowing tenant's dog to remain in hallway of apartment house.
See LIMITATION OF ACTION, 1.
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-
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.
Larceny variance between proof and indictment - failure to raise question.
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.
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.
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.
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
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.
Recording tax on trust mortgage property partly without the State. See TAX, 8.
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.
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
- when foreclosure bars subsequent action to recover portion of debt assigned.
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.
Fraternal benefit insurance power of association to increase
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
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.
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.
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.
Failure of carrier to deliver trunk.
Closing out short transaction in stocks. See PRINCIPAL AND AGENT, 6.
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.
Trust mortgage- implied covenant by trustee to extinguish prior mort- gages-breach-liability of trustee.
Savings bank deposit in name of husband and wife - presumption of equal ownership.
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.
Action on notes given by decedent - right of executor to copies and statement of consideration.
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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