ADVERSE POSSESSION - Vendor and purchaser — title originating in a
tax lease, after the expiration of which the tenant has continued in possession ·
a title by adverse possession must rest on unassailable proof thereof.
See RUESS . EWEN
ADVERTISING --To be paid for by certain deductions from the price of arti-
cles to be purchased-such provision is not applicable where the purchase is
agreed to be for cash.
AFFIDAVIT - Injunction depending on the nature of the action-it cannot
be granted on an affidavit.
See INJUNCTION.
See MOTION AND ORDER.
APPEAL - Undertaking on appeal given to stay proceedings on a portion
only of the judgment appealed from — objection that it was ineffectual, and,
therefore, without consideration, when untenable.] 1. A judgment entered in
an action directed the payment of the costs of the action to the plaintiff and,
also, the payment of a sum of money to a trust company, a party defend-
ant, for the equal pro rata benefit of the plaintiff and all other holders of
certain mortgage bonds for whom the trust company was the trustee. On
appeal therefrom an undertaking was given to the plaintiff by which the
sureties, in case of the affirmance of the judgment or the dismissal of the
appeal, agreed to pay all costs and disbursements that might be awarded
against the appellants and also the amount directed by the judgment to be
paid to the plaintiff, but such undertaking contained no agreement to pay
the amount of money adjudged to be paid to the trust company. In pro-
ceedings subsequently instituted by an order to show cause why the trust
company should not be restrained from issuing execution under such judg-
ment, an undertaking was given to secure the payment of such amount
directed to be paid to the trust company, upon the giving of which all pro-
ceedings of the trust company in enforcement of the judgment were stayed
until the hearing and determination of the appeal.
In an action upon the undertaking given to the plaintiff,
Held, that that undertaking operated, so far as the plaintiff was concerned,
to stay proceedings upon that portion of the judgment which awarded the
costs to him; that the sureties thereon could not resist the enforcement
thereof upon the ground that it was not effectual to stay proceedings upon
the judgment, and that there was, therefore, no consideration for it.
2. Reargument - a failure to discuss in the prevailing opinion a ques
tion discussed in the dissenting opinion — who cannot take advantage of it.]
The fact that a prevailing opinion of the Appellate Division, delivered on
the determination of an appeal from a judgment sustaining a demurrer inter-
posed by one of the defendants in an action, fails to discuss a question
relating to the status of another non-demurring defendant, which question
was considered in the dissenting opinion of that court, does not show that the
question was overlooked; and if it were, the point would not be available
to the demurring defendant upon a motion by her for a reargument, or for
leave to appeal to the Court of Appeals. CHATTERTON . CHATTERTON.... 245
3. A notice of appeal, when improper.] Where exceptions are ordered
to be heard at the Appellate Division in the first instance upon the dismissal
of the complaint by the court at the trial, and judgment is suspended until
the hearing and decision thereon, the service of a notice of appeal is both
unnecessary and improper. BATTERSBY. COLLIER...
4. Appeal where a motion to withdraw a juror is denied.] The Appel-
late Division will rarely reverse the action of the trial court in denying a
motion to withdraw a juror. It will not do so where counsel was aware of the
relief necessary two months before the trial, and failed to make the proper
motion at Special Term. ZIMMER v. CHEW..
Costs an order not allowing costs, reversed with costs
and serving a case and for stenographer's minutes, not proper.
See MATTER OF BOARD OF STREET OPENING.
Fiduciary relation
transfer of land alleged to have been induced by –
absence of a finding to that effect in the record on appeal.
Sce BULLENKAMP v. BULLENKAMP.
New trial on the ground of newly-discovered evidence — it may be granted
after appeal taken and judgment affirmed-laches.
See KEISTER . RANKIN..
A defense not set up in the answer nor suggested upon the trial cannot be
successfully urged on appeal.
See WORTH 2. CITY OF BROOKLYN..
Police officer--proceedings for his removal-effect of a failure of the
record to show that witnesses were sworn.
See PEOPLE EX REL. BALLARD 7. Moss....
ARREST False imprisonment - -a railroad company is not bound by an
unauthorized arrest, made in its station, of one not a passenger — what acts of
a railroad" detective," towards a person already arrested, are not within the
scope of his employment.
See PENNY 0. N. Y. CENTRAL & H. R. R. R. Co.....
· Failure to record an assignment for creditors, executed
Saturday afternoon, until after a creditors' meeting held the following Monday at
two P. M.- it does not establish fraud.] 1. The fact that a general assignment
for the benefit of creditors, executed Saturday afternoon, when the county
clerk's office is closed, is not recorded until after a meeting of the creditors is
held at two o'clock on the following Monday, does not establish fraud in the
assignment, nor, where it appears that the creditors at the meeting requested
the assignee not to record it, and that he only did so because an attachment
was obtained by one of them on the ground that the assignment was fraudu-
lent, is the neglect of the assignce to record the assignment even a subject
of criticism. IRVING NAT. BANK . WILSON BROS. Co..
2.- Cash sales made by an assignee before filing his bond.] The fact that
the assignee has sold small articles of property for cash before he has filed his
bond, the sales having been made with the consent of the creditors attend-
ing a meeting at which the party subsequently objecting thereto was present,
does not afford a just ground of complaint. Id.
3. Neglect of an assignee to perform his statutory duties.] Semble, that
the neglect of an assignee to record an assignment, or to do any other act
required by the statute, simply furnishes a ground for his removal, and does
not impair the title to the property assigned or affect the validity of the
instrument in any way. Id.
4. Assignee-compromise agreement made by the debtor with his cred-
itors appointment of the debtor as receiver of the assigned property to con-
duct business therein prior to the settlement of the assignee's claim for commis-
sions.] Where a debtor, after making an assignment for the benefit of
his creditors, effects a compromise with all of them, leaving no claim out-
standing against the assigned property, except that of the assignee for
his commissions, the court, although it may not, prior to a settlement
of such claim, direct a retransfer of the assigned property to the assignor,
may, where the non-user of such property, consisting of a summer hotel,
is likely to result in serious loss, and the assignee makes no attempt to
carry on the hotel business therein, properly appoint the assignor a receiver
of the property, which is thus retained within the custody and under the
control of the court, in order that he may conduct the hotel business
therein for the ensuing season, he being, by reason of his previous experience
as proprietor of the hotel, a competent person to do so. DICKINSON v. EARLE. 559
Receiver appointed in supplementary proceedings — his rights as against
an assignee of the debtor-his substitution in a pending litigation — rights of
the attorney in such suit.
See FITZPATRICK . MOSES....
ASSOCIATION - Taxation — medical society organized under chapter 94 of
the Lars of 1813—it is not exempt from taxation under chapter 498 of the Laws
of 1893.
See PEOPLE EX REL. MEDICAL SOCIETY . NEFF...
ATTORNEY AND CLIENT Transfer by a client to her attorney -
court refusing to allow further evidence upon the question of consideration should
not submit the question of consideration to the jury.
Receiver appointed in supplementary proceedings- his rights as against
an assignee of the debtor- his substitution in a pending litigation — rights of
the attorney in such suit.
AUCTION - Sales (other than judicial sales) of real property at.
See VENDOR AND PURCHASER.
AUDIT Of county accounts.
BAILMENT — Loss of goods by fire — false representations as to the fireproof
character of warehouse buildings.
BANKING. · Bank directors their liability for declaring dividends
question whether renewal notes were improperly credited as assets, how deter-
mined.] An action was brought by a receiver of a bank to recover from
the directors thereof dividends declared by them, on the ground that at the
time the dividends were declared the bank had no surplus profits, and that,
although there was an apparent surplus, it was created by certain notes
improperly credited as assets, which, while by their terms they were not in
default with interest unpaid for over a year, were renewals of previous
obligations extending back for a long period of time, during which no inter-
est or principal had been paid, except so far as the interest was included in
the amount of the renewal notes or in separate obligations.
Held, that it was proper to submit to the jury the question whether the
notes, taken in renewal of previous obligations, with the addition of the
interest thereon, were taken in the due course of business and whether the
amount of accrued interest included in the new notes represented loans of
money such as would have been made apart from any prior relation of the
debtors to the bank, or whether they were taken merely to cover defaulted
debts, described in section 26 of chapter 689 of the Laws of 1892.
The title of a bank to a check deposited. it is not subject to equities
between the drawer and the depositor — when a check becomes due-effect of
charging a protested check back to the account of the depositor.
See RIVERSIDE BANK . WOODHAVEN JUNC, L. Co..
Trust the effect of depositing money with a trust company in the name
of the depositor as trustee for another. - when it does not create an irrevocable
BILLS AND NOTES - An order which was not an accepted bill of exchange-
defenses between maker and acceptor available to the acceptor against the payee —
proof that the acceptor had set up, in another action by the maker, the accept-
ance of the order, does not establish an estoppel.] 1. An instrument in the
following form:
"105 West 95th St., City:
'DEAR SIR.- Please pay to the American Boiler Company, No. 94 Center
street, city, the sum of One hundred eighty-seven and 15/100 ($187.15)
dollars, and charge the same to my account on heating contract at 64 West
99th street, and oblige,
"Yours respectfully,
"H. J. APGAR.
Accepted, and I agree to pay the sum specified herein within sixty days
from date.
"CHARLES F. FONTHAM,
is a mere order on a fund and is not an accepted bill of exchange, and in an
action brought thereon by the payee against the acceptor, the latter has
the right to show that there was nothing due under the heating contract to
the drawer of the order.
The fact that, in an action upon the heating contract, brought by the
drawer of the order against Fontham, for moneys alleged to be due there-
under, Fontham set up the acceptance of this order as a payment is not suffi-
cient to establish a right on the part of the American Boiler Company to
recover upon such instrument, unless it is made to appear that in that action
this sum had actually been charged as a payment on account of a sum
which had been found due to the drawer of the order under the heating con-
AMERICAN BOILER Co. v. FONTHAM
BILLS AND NOTES-Continued.
2. Note - indorsement in blank-evidence as to monership — its surren-
der to the holder by his pledgee.] The indorsement of a note in blank by
the payee and its production by the plaintiff in an action thereon are prima
facie evidence of the latter's ownership of it, and the existence of subse-
quent indorsements does not affect this presumption, especially where they
are canceled.
The fact that, three days before the note was made, the payee gave to the
plaintiff in the action a power of attorney to collect and receive all moneys
payable to him, and that the plaintiff received the note for the payee and
acknowledged payment of a part of it, does not necessarily rebut the legal
presumption of ownership in the plaintiff or establish that he was a mere
collecting agent.
The surrender of the note by a pledgee and creditor of the plaintiff implies
either that the debt has been paid or that, though not paid, the pled gee
intended to relinquish his lien upon the note, and justifies the parties liable
upon the note in paying it to the plaintiff. ZIMMER . CHEW.....
3. Intent of a firm indorsement, how shown.] A written agreement by a
corporation to indorse a series of notes to facilitate their discount by cer-
tain firms. is competent evidence that a note of such series, subsequently exe-
cuted, was indorsed by said corporation with the intention of giving the
makers, one of the firms specified in the agreement, credit with the payee.
A firm which, on the seventh of August, agreed to become liable as a
joint maker on a note given for the purchase of land in which it was to
have an interest, will not be presumed, on the ninth of the same month,
to have indorsed such note with the intent that it should involve no liability
whatever on its part to the seller of the land; and the fact that it was
agreed that a certain company should become a second indorser, and that
the firm should indemnify it against all loss by reason of its indorsement,
the company thus becoming a surety with a right of recourse against the
firm, is cogent evidence that the firm was also liable on its indorsement
directly to the payee of the note.
In an action upon such a note, one of the makers may testify as to what was
said to him by a member of the firm indorsing the note in regard to the giv-
ing of the note; and may also testify as to what the member of the firm said
in reference to the responsibility of the indorsers, and may state the nature of
the transaction under which the note was given to the plaintiff, and the plain-
tiff may also properly be asked whether he accepted the note on the faith of
the indorsements. Id.
4. —— Banking—the title of a bank to a check deposited — it is not subject
to equities between the drawer and the depositor.] Where a customer of a bank
deposits in his general deposit account a check drawn to his order and
indorsed by him, and immediately thereafter draws a check upon such
account and withdraws therefrom the amount of such deposit, the bank
becomes vested with a title to the check so deposited, which is not subject
to equities existing in favor of the drawer of the check as against the custo-
mer, such, for example, as that the check was given without consideration
or for a consideration which failed, namely, in exchange for another check
transferred by the customer to the drawer upon a representation made by
the customer that it was good, the check being, in fact, worthless.
RIVERSIDE BANK . WOODHAVEN JUNC. L. Co....
5. When a check becomes due.] The check so deposited is taken by the
bank before maturity, as a check is not, strictly speaking, due until pay-
ment thereof is demanded within a reasonable time. Id.
6. Effect of charging a protested check back to the account of the depositor.]
The bank's right to recover the amount of the check from the drawer is
not affected by the fact that, by a bookkeeper's entry, made subsequent
to the protest of the check, the bank charged the amount of the check back
to the account of the depositor. Id.
Payment - - delivery by a vendee to his vendor of checks stated to be in full
payment — retention of the checks by the vendor, who states that he will accept
them upon account.
|