I. REQUISITES AND VALIDITY. (A) Nature and Essentials in General. § 10. Contract for advertising held not void for lack of mutuality.-Humphryes Mfg. Co. v. David Williams Co. (Sup.) 680. (B) Parties, Proposals, and Acceptance. § 28. Evidence held insufficient to show a contract for materials and labor, or that they were furnished in conformity to, or performance of. certain contracts.-Zeman v. S. Fox Const. Co. (Sup.) 660. (F) Legality of Object and of Consideration. § 105. Defendant held not bound by an agreement which, if executed, would violate the Building Code.-Hart v. City Theaters Co. (Sup.) 678. § 105. The fact that, at the time a contract in contravention of the law is made, the parties know the law, is without effect as to the validity of the contract.-Hart v. City Theaters Co. (Sup.) 678. § 125. Agreement of branch principal in public schools not to claim increased compensation, to which she was entitled by law, is not an agreement against public policy.-Brown v. Board of Education of City of New York (Sup.) 16. § 129. Under Pen. Law, § 810 et seq., a contract held contrary to public policy as inducing perjury. In re Schapiro (Sup.) 852. § 129. Agreement by a realty company to represent a lessee in condemnation proceedings held against public interest and unenforceable. -In re Certain Lands for Bridge Purposes, in City of New York (Sup.) 999. § 129. Agreement held illegal and void as being an agreement to furnish expert witnesses for a percentage of the award in condemnation proceedings. In re Certain Lands for Bridge Purposes, in City of New York (Sup.) 999. II. CONSTRUCTION AND OPERA TION. (B) Parties. (C) Subject-Matter. $ 199. Contract to furnish counterweights for movable span of bascule bridge held to require contractor to supply enough for the purpose, whether above or below the estimate furnished.--Howard Iron Works v. Pittsburg Steel Const. Co. (Sup.) 89. (E) Conditions. § 221. A contract to maintain a private hack stand in front of plaintiff's premises held not conditioned on renewal of plaintiff's license for an "all night" restaurant.-The Abbaye v. United States Motor Cab Co. (Sup.) 697. (F) Compensation. § 232. On change of plan of erection of bridge, contractor, furnishing counterweights for movable span, held entitled only to allowance for net increase of counterweights required by the changes.-Howard Iron Works v. Pittsburg Steel Const. Co. (Sup.) 89. V. PERFORMANCE OR BREACH. 303. Performance of a contract is excused, where the execution thereof becomes illegal. Gesualdi v. Personeni (Sup.) 683. 309. A contract to maintain a private hack stand in front of plaintiff's premises held not terminated by the city's refusal to renew plaintiff's license for an "all night" restaurant. -The Abbaye v. United States Motor Cab Co. (Sup.) 697. § 319. Plaintiff cannot recover upon a contract not completely performed, the completion of performance of which was prevented by himself.-M. Wineburgh Advertising Co. v. Sol Bloom (Sup.) 562. § 319. One for whom plaintiff contracted to erect signs held to have acquiesced in the failure to erect a sign, so that he could not claim a disaffirmance on that ground.-M. Wineburgh Advertising Co. v. Sol Bloom (Sup.) 562. doctrine of substantial performance of a con§ 322. A party claiming the benefit of the tract has the burden of showing the value of the work or part omitted.-St. George Contracting Co. v. City of New York (Sup.) 393. $322. In an action for compensation under a building contract, evidence held insufficient to show the satisfaction of the municipal author$179. The quoted words in a contract sign-ities required by the contract.-Zack v. Gans ed, "J. S. B., Treasurer, C. &C. M. C. M. C." (Sup.) 737. will be considered descriptio personæ, in absence of a showing that B. signed the contract in other than his individual capacity.-United Electric Light & Power Co. v. Blackton (Sup.) 92. 8 187. The provision in a railroad company's franchise requiring it to pay all damages for injuries to property held available to a contractor with the city for the installation of a water main injured by defendant's subcontractor.-Continental Asphalt Paving Co. V. Hudson & M. R. Co. (Sup.) 226. $322. Payment of part of compensation under building contract held not conclusive on the owner of competition and acceptance.-Zack v. Gans (Sup.) 737. CONTRIBUTORY NEGLIGENCE. See Appeal, § 1031; Carriers, §§ 280, 328; Highways, §§ 184, 213; Master and Servant, §§ 233, 281; Municipal Corporations, §§ 805, 817. 819, 821; Negligence, §§ 92, 136; Street Railroads, §§ 95-99, 117. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER CONVERSION. § 121. Certain evidence held admissible in an action by a party to a contract for the destock. Choate v. Beebe (Sup.) 78. Wrongful conversion, see Trover and Conver- fendant's failure to deliver certain corporate sion. CONVEYANCES. See Bridges, § 15; Insane Persons, § 61. CONVICTS. See Criminal Law, § 100. COPYRIGHTS. See Literary Property, § 5. CORONERS. See Dead Bodies. CORPORATIONS. See Banks and Banking; Bridges, § 15; Carriers; Discovery, §§ 55, 58, 59; Electricity; Executors and Administrators, § 227; Insur ance; Libel and Slander, § 150; Limitation of Actions, §§ 65, 66: Municipal Corporations; Process, § 155; Railroads; Street Railroads; Taxation, §§ 537, 876. I. INCORPORATION AND ORGAN IZATION. § 14. A corporation cannot practice law either directly or indirectly by the employment of lawyers to practice for it.-In re Certain Lands for Bridge Purposes in the City of New York (Sup.) 999. § 17. Application for incorporation under General Corporation Law, § 4, held insufficient. -In re Wendover Athletic Ass'n (Sup.) 561. § 30. A mortgage representing undisclosed profits of promoters of a corporation in a purchase by it held fraudulent against it.-Midwood Park Co. v. Baker (Sup.) 954. § 30. Obtaining by promoters of a corporation of an undisclosed profit in a purchase by it held a fraud, though it gets full value.Midwood Park Co. v. Baker (Sup.) 954. IV. CAPITAL, STOCK, AND DIVI- (D) Transfer of Shares. $ 120. Where plaintiff had a contract with defendants, whereby they agreed to repurchase stock from him upon certain notice, that each of them held his promissory note secured by the stock did not dispense with notice der his agreement or amount to a waiver thereof.-Baird v. Hagen (Sup.) 217. un (E) Interest, Dividends, and New Stock. $158. Where a corporation expressly refus ed to issue new stock, not because plaintiff was not willing and ready to pay therefor, but because it denied her right thereto, a tender by her was unnecessary.-Sommer v. Armor Gas & Oil Co. (Sup.) 382. § 158. In an action for increased shares of stock, held, that plaintiff was entitled to the shares, where the corporation had not disposed of them, although she did not apply for them within the time limited by resolution.-Sommer v. Armor Gas & Oil Co. (Sup.) 382. V. MEMBERS AND STOCKHOLDERS. (D) Liability for Corporate Debts and § 232. A trustee in bankruptcy of a foreign corporation can sue to recover a balance due of a stock subscriber who took the stock under an agreement to pay less than the par value irrespective of any right of action under Stock Corporation Law, § 56.-Southworth v. Morgan (Sup.) 196. § 232. An agreement by which individual subscribers purchase stock for less than its par value held valid as between the corporation and the purchasers, but invalid as tors.-Southworth v. Morgan (Sup.) 196. to credi § 262. False representations in the sale of corporate stock held no defense to the stockholder's liability for the balance remaining unpaid in a suit by the corporation's trustee in bankruptcy to recover the same.-Southworth v. Morgan (Sup.) 598. § 268. In a suit by the trustee in bankruptcy of a New Jersey corporation to recover unpaid subscriptions against resident stockholders, the complaint was not defective for failure to set out Laws N. J. 1896, p. 284, § 21.-Southworth v. Morgan (Sup.) 598. VII. CORPORATE POWERS AND LIABILITIES. # (A) Extent and Exercise of Powers in General. § 391. A statute so regulating the affairs of corporations as to increase their expenses or to diminish their revenues does not for that reason alone violate the state or federal Constitutions. § 120. Where two defendants agreed to re--People v. Public Service Commission (Sup.) purchase 60 shares of stock from plaintiff on certain notice, and the plaintiff served notice on each of them to repurchase 30 shares, held not a compliance with the contract so as to authorize a recovery.-Baird v. Hagen (Sup.) 217. 384. (B) Representation of Corporation by Officers and Agents. § 409. The general manager of a transportation company held unauthorized to sublease a pier used by the company-Lord v. United | condition precedent to a suit by the trustee in States Transp. Co. (Sup.) 451. § 426. A corporation held not to have ratified the unauthorized act of its general manager in employing a broker to lease property.-Lord v. United States Transp. Co. (Sup.) 451. § 431. Under the facts, held, that a party to a contract could not hold the manager of a corporation thereunder as a principal, on the ground of his failure to disclose his agency.Donohue v. Watson (Sup.) 1089. § 432. Where there was no evidence that a corporation authorized or ratified an instrument for the payment of money, held, that a judgment against it thereon was Leu v. Osterweis Bros. (Sup.) 8. erroneous. § 432. Evidence held insufficient to show that a transportation corporation clothed its general manager with apparent authority to sublease a dock used by the corporation.-Lord v. United States Transp. Co. (Sup.) 451. (D) Contracts and Indebtedness. $449. Agreement under which a realty company was to represent a lessee in condemnation proceedings for a percentage of the award held in contravention of the law and void.-In re Certain Lands for Bridge Purposes, in City of New York (Sup.) 999. (F) Civil Actions. § 507. Summons, in an action against a corporation, held not sufficiently served.--Silverstein v. Emblem Realty Co. (Sup.) 655. X. CONSOLIDATION. $590. Transfer of all the property, including the franchise, of a corporation to another corporation, held presumed to have been for full value imposing no obligation on the purchaser to pay debts of the seller.-Irvine v. New York Edison Co. (Sup.) 297. $590. Proviso in Stock Corporation Law. $ 58, held simply to preserve right of action of creditors against merged corporation and right to follow assets transferred if full value were not paid therefor.-Irvine v. New York Edison Co. (Sup.) 297. bankruptcy of a foreign corporation to collect unpaid stock subscriptions.-Southworth Morgan (Sup.) 196. V. § 642. Under General Corporation Law, § 15, held, that the plaintiff and its contract were within the statute, so that plaintiff was illegally doing business in this state without a certificate, and could not maintain the action. -American Case & Register Co. v. Griswold (Sup.) 206. § 642. Sale of the stock of a foreign corporation to a resident held not doing "business within state" by the corporation within General Corporation Law, § 15.-Southworth v. Morgan (Sup.) 598. § 657. One who had contracted with a foreign corporation to buy land held not entitled to recover a portion of the price because of defendant's failure to comply with General Corporation Law, § 15.-Mahar v. Harrington Park Villa Sites (Sup.) 620. § 665. Under Code Civ. Proc. § 1780, a nonresident purchaser of real estate outside of the state held entitled to sue a foreign corporation for the excess of the price paid by mistake because of a deficiency in the acreage.-Armour V. Sound Shore Front Improvement Co. (Sup.) 331. COSTS. See Courts, § 190; Eminent Domain, § 265; I. NATURE, GROUNDS, AND EXTENT § 48. Costs held to be awarded to defendant, on discontinuance by plaintiff after partial proof, under Municipal Court Act, § 332, subd. 6, rather than subdivision 2.-Goldstein v. Perlman (Sup.) 21. VII. ON APPEAL OR ERROR, AND § 238. An executor held to have properly appealed from an interlocutory judgment in partition, though no relief was awarded against him.-Skidmore v. Gueutal (Sup.) 402. $ 590. Possessor corporation held not, by merger alone, to assume liabilities of merged § 238. Where appellant's brief contained imcorporation, irrespective of assets acquired.-proper strictures against the justice, from Irvine v. New York Edison Co. (Sup.) 297. whose decision the appeal was taken, costs of the appeal will be denied, though the order was reversed.-Mann v. Hefter (Sup.) 663. $590. Under Business Corporation Law, § 12. consolidated corporation held not liable for debts of corporation merged in one of the constituent corporations.-Irvine v. New York Edison Co. (Sup.) 297. one XII. FOREIGN CORPORATIONS. § 634. A corporation incorporated in state may be made a corporation of another state by legislative enactment. In re Lyon's Estate (Sup.) 1004. § 642. The payment of a license fee by a foreign corporation and the issuance of a certificate by the Secretary of State held not a of "costs to appellant in all courts," construed. § 244. The award by the Court of Appeals -Jones v. Gould (Sup.) 280. § 254. Cost of copy of stenographer's minutes, ordered by defendant on an appeal, held properly taxed against plaintiff, under rule 32. -Pringle v. Dean (Sup.) 1051. § 256. If respondents obtain an independent copy of stenographer's notes to be used on appeal, after the appellant had offered the use of his copy, appellant is not liable for the costs thereof.-Pringle v. Dean (Sup.) 1051 For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER VIII. PAYMENT AND REMEDIES § 276. Costs awarded on an appeal from an order made at Special Term are within the terms of Code Civ. Proc. § 779, relating to stay of proceedings for nonpayment of costs.-Brangaccio v. Weber Piano Co. (Sup.) 467. § 276. Motion for leave to sue as a poor person after further proceedings have been stayed by failure to pay costs, as required by Code Civ. Proc. § 779, held properly denied.-Brangaccio v. Weber Piano Co. (Sup.) 467. § 277. A motion to stay proceedings until payment of costs of a prior action will generally be granted.-Gertler v. Brooklyn, Q. C. & S. R. Co. (Sup.) 618. § 277. Delay of more than one year after issue joined in moving to stay proceedings until payment of costs of a prior action held fatal.-Gertler v. Brooklyn, Q. C. & S. R. Co. (Sup.) 618. COUNTERCLAIM. See Set-Off and Counterclaim. COUNTIES. See Grand Jury, § 38; Highways; Physicians and Surgeons, § 9; Taxation, § 699; Venue. II. GOVERNMENT AND OFFICERS. (D) Officers and Agents. $62. Under Laws 1909, c. 513, §§ 2, 6, 11, relating to the county clerk of Richmond county, held, in view of Const. art. 5, § 9, that the board of estimate and apportionment, after making its appropriations under Greater New York Charter, § 226, was not required to fix a salary of an incumbent in the clerk's office, who had not been appointed under chapter 513.-People v. City of New York (Sup.) 776; Same v. Gaynor (Sup.) 779. $ 64. Under Laws 1909, c. 513, § 11, relating to appointments to office in the office of the Richmond county clerk, held, that an employé who had not passed a civil service examination before January 1, 1910, but who passed in February, was not qualified for appointment.-People v. City of New York (Sup.) 776; Same v. Gaynor (Sup.) 779. III. PROPERTY, CONTRACTS, AND LIABILITIES. (B) Contracts. § 124. In an action by contractors to recover balance for building hospital, held, that the board of supervisors had ratified the action of their committee in making the contract for the building, so that the county was liable.-People v. Board of Sup'rs of Oneida County (Sup.) 638. COURT OF CLAIMS. See States, § 184. COURTS. See Criminal Law, § 100; Death, § 35; Divorce, § 62; Exchanges; Execution, § 41: Executors and Administrators, § 20; Marri age, § 3; Municipal Corporations, § 643; States, 184; Wills, § 698. I. NATURE, EXTENT, AND EXERCISE OF JURISDICTION IN GENERAL. $ 36. Proof of jurisdictional facts prescribed by Code Civ. Proc. § 2476, held essential to the administration. In re Jones' Estate (Sur.) 477. validity of surrogate's decree granting letters of $36. Persons claiming under decree of Sarrogate's Court, held required to show authority and jurisdiction to make it.-In re Jones' Estate (Sur.) 477. § 57. In the absence of statute. a stenogra pher, taking and transcribing testimony in a judicial proceeding, held entitled to reasonable compensation.-In re Murtaugh (Sup.) 850. (D) Rules of Decision, Adjudications, Opinions, and Records. § 91. A special term of the Supreme Court is bound by a decision of the Appellate Divisiu of the same department until it is reversed or a contrary doctrine declared.-Johannessen v. Johannessen (Sup.) 892. § 95. The construction of the statutes of a state must be governed by the decisions of its courts.-Zeikus v. Florida East Coast Ry. Co. (Sup.) 933. § 99. Order denying a motion for judgment on the pleadings held to bind the court on a subsequent hearing of demurrer to the same complaint.-Aldrich v. Newburgh News Printing & Publishing Co. (Sup.) 51. IV. COURTS OF LIMITED OR INFERIOR JURISDICTION. § 188. An action under an assignment of a part of the wages of an employé held not with in the jurisdiction of the Municipal Court.Thompson v. Gimbel Bros. (Sup.) 210. § 188. Under Municipal Court Act, § 1. sub-l. 17, the Municipal Court held to have juris lie tion to try actions under Code Civ. Proc. § 16 (derived from 2 Rev. St. [1st Ed.] pt. 3, c. à tit. 6, § 1). allowing treble damages for forcible detainer.-Bierman v. Werstein entry and (Sup.) 1091. $ 189. Affidavit presented by defendant and undertaking given pursuant to Municipal Court Act (Laws 1902, c. 580) § 194, held to require adjournment, and vacation of default judgment. -Iadone v. Fusco (Sup.) 84. § 189. On the calling of a case in the Municipal Court, on defendant's attorney present ing an affidavit of his engagement in the $ 190. Under the Municipal Court Act of the city of Syracuse, held that, on an appeal from the Municipal Court to the County Court after jury trial, the County Court could not grant a new trial on the ground that the verdict was against the weight of the evidence.-Skurnick v. Kaletsky (Sup.) 71. $ 190. Under Laws 1909, c. 570, § 55, providing for appeals from the City Court of Buffalo to the Special Term of the Supreme Court, held not to have the power to dismiss a complaint.-General Fireproof Const. Co. v. Butterfield (Sup.) 407. § 190. An order as to items of costs, entered in the Municipal Court of the City of New York, held not appealable, under Municipal Court Act, 88 253, 254, 255, 256, 257.-Lyons v. Mulvihill (Sup.) 653. V. COURTS OF PROBATE JURISDIC- $200. Surrogate's Court held to have jurisdiction to determine ownership of certain mortgaged personalty on judicial settlement of the administrator's account under Code Civ. Proc. 2731.-In re Munson (Sur.) 1106. $202. Where an appellant's notice of appeal stated that he intended to bring up the facts for review, under Code Civ. Proc. § 2586, and respondent omitted some important exceptions and objections, held, a reargument was proper, on payment of costs and disbursements.-In re Van Alstyne (Sup.) 486. VIII. CONCURRENT AND CONFLICT- (B) State Courts and United States Courts. CREDIT. See Principal and Agent, § 133. CRIMINAL LAW. CROSSINGS. See Assault and Battery; Burglary; Extra- IV. JURISDICTION. 100. Where a federal court obtained jurisdiction of one accused of conspiracy, it did not lose jurisdiction because a state court tried and sentenced him for another offense while out on bail during the pendency of an appeal from the first judgment.-People v. Benham (Sup.) 610. CROSS-MOTIONS. See Pleading, § 350. DAMAGES. See Death, § 99; Ejectment; False Imprisonment, § 36; Master and Servant, § 40; Municipal Corporations, § 1021; Trial, §§ 108, 162; Nuisance, § 49; Sales, §§ 371-387, 418, 442; Street Railroads, § 114. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 128 N.Y.S.-74 |