In criminal prosecutions, see "Indictment and Bill of particulars in action for, see "Pleading," Information." $ 4. CONSTABLES. See "Sheriffs and Constables." CONSTITUTIONAL LAW. Restraining action under unconstitutional law, see "Injunction," § 2. Provisions relating to particular subjects. See "Attorney and Client," § 1; "Brokers," § 1; "Counties," § 1; "Criminal Law," § 3; "Eminent Domain," § 1; "Intoxicating Liq uors," $2; "Jury," § 1; "Schools and School Districts," § 1. Enactment and validity of statutes, see "Statutes," § 1. Subjects and titles of statutes, see "Statutes," § 2. § 1. Construction, operation, and enforcement of constitutional provisions. The validity of statutes must be determined solely with reference to constitutional restrictions, and not by natural equity or justice.Viemeister v. White (Sup.) 712. Taking property for public use, see "Eminent § 2. Distribution of governmental powDomain." CONDITIONS. In insurance policies, see "Insurance," § 4. Precedent to action for breach of contract, see "Vendor and Purchaser," § 2. Precedent to action for replevin, see "Replevin," § 3. CONFIDENTIAL RELATIONS. Disclosure of communications, see "Witnesses," § 2. CONFLICT OF LAWS. See "Descent and Distribution," § 1. CONNECTING CARRIERS. See "Carriers," § 1. ers and functions. The legislative determination as to what is a proper exercise of the police power held subject to the supervision of the courts.-Tenement House Department of City of New York v. Moeschen (Sup.) 577. of legislative discretion, so long as it does not The courts cannot interfere with the exercise transcend constitutional limitations.-Viemeister v. White (Sup.) 712. 3. Obligation of contracts. ter, which prevents the powers thereby conThe contractual dignity of a corporate charferred from being impaired by subsequent legislation, does not require additional powers conferred by a subsequent charter to be interpreted in accordance therewith.-Phoenix v. Trustees of Columbia College (Sup.) 897. § 4. Privileges or immunities, and class legislation. Laws 1893, p. 1556, c. 661, § 200, relative to vaccination of school children, held not to de and 118 New York State Reporter prive a person of rights without law of the | Limitation of liability for negligence in transland.-Viemeister v. White (Sup.) 712. § 5. Equal protection of laws. Laws 1893, p. 1556, c. 661, § 200, relative to vaccination of school children, held not to deprive any person of equal protection of law within Const. U. S. Amend. 14.-Viemeister v. White (Sup.) 712. CONTEMPT. In supplementary proceedings, see "Execution," § 2. Violation of injunction, see "Injunction," § 5. 1. Power to punish and proceedings therefor. Objection should be made below, in contempt proceeding for disposal of property by a debtor after service of order on him for his examination, that the allegations as to the service were not sufficiently specific.-Oshinsky v. Gottlieb (Sup.) 871. CONTINUANCE. Review of discretion of court, see "Appeal," § 10. Where several continuances had been granted, and the case had been peremptorily set for a particular day, refusal of a further continuance on the same ground held not an abuse of discretion.-O'Brien v. Kuntz (Sup.) 535. CONTRACTS. see Agreements within statute of frauds, "Frauds, Statute of." Assignment, see "Assignments." Harmless error in admission of evidence in action on contract, see "Appeal," § 12. Impairing obligation, see "Constitutional Law," § 3. Parol or extrinsic evidence, see "Evidence," § 8. Reformation, see "Reformation of Instruments.' Self-serving declaration as evidence in action on, see "Evidence," § 5. Specific performance, see "Specific Perform ance. Contracts of particular classes of parties. See "Attorney and Client." § 4; "Brokers," 2; "Carriers." § 1; "Husband and Wife," § 2; "Infants." § 1; "Master and Servant"; "Municipal Corporations," § 2; "Warehousemen." Corporate officer, see "Corporations," § 4. Married women, see "Husband and Wife," § 3. Telegraph company, see "Telegraphs and Telephones," § 1. Contracts relating to particular subjects. See "Interest." Compensation of attorney, see "Attorney and Client," § 4. Limitation of carrier's liability, see "Carriers," § 1. mission of telegram, see "Telegraphs and Telephones," § 1. Particular classes of express contracts. See "Bailment"; "Bills and Notes"; "Cove nants"; "Insurance"; "Joint Adventures' "Partnership"; "Principal and Agent"; "Prin cipal and Surety"; "Sales." Charter parties, see "Shipping," § 1. Sale of realty, see "Vendor and Purchaser." Particular classes of implied contracts. See "Work and Labor." Particular modes of discharging contracts. See "Accord and Satisfaction"; "Compromise and Settlement"; "Payment"; "Release." § 1. Requisites and validity. An extension of time within which vendor might procure release of land affected by an encroachment held no ground for recovery of deposit made by vendor as security in case he failed to secure the release.-Bronner v. Hirsch (Sup.) 139. Contract for resumption of marriage relation, and vesting of dower interest on its breach by husband, held not against public policy.-Sommer v. Sommer (Sup.) 444. Withdrawal of wife's action for separation held sufficient consideration for contract for resumption of marriage relation.-Sommer v. Sommer (Sup.) 444. In an action on a contract under which plaintiff had procured lands for defendant on a representation that he had an option thereon, the evidence failing to establish the option, he could not recover.-McLaurin v. Cuba Co. (Sup.) 526. Husband cannot be held liable for debts of wife on bald promise to pay, made without consideration.-McBride v. Adams (Sup.) 1060. § 2. Construction and operation. Contract for supplying iron for a certain work in the course of construction construed, and held, that plaintiff could only recover for iron used, and not for all iron delivered.Weber v. Farrell (Sup.) 272. Iron used in a temporary scaffolding, etc., and necessary to the construction of a permanent work, held within the terms of the contract by which plaintiff agreed to furnish iron for such work.-Weber v. Farrell (Sup.) 272. Where a written contract was free from amtion as to the nature of the contract to the biguity, it was improper to submit the ques jury.-Russell & Co. v. McSwegan (Sup.) 614. A contract of sale signed B. & Co., sales agents, and N. Co., by T., and partly performed by the N. Co., held to have been made by the N. Co.-A. B. Farquhar Co. v. New River Mineral Co. (Sup.) 802. Bill of sale of partnership effects and cove nant not to engage in similar business held to be independent transactions, so that breach of latter did not affect recovery on former.-Kinney v. D. H. McBride & Co. (Sup.) 958. The practical construction put upon a contract by the parties cannot control the express unambiguous provisions of the instrument itself.Kinney v. D. H. McBride & Co. (Sup.) 958. § 3. Modification and merger. An agreement by defendant, after the execution of a written contract whereby plaintiff agreed to furnish certain appliances free of cost, that he would pay for them a specified sum, was without consideration. - Rooney v. Thomson (Sup.) 263. A contract signed subsequent to the making of the one under which plaintiff entered defendant's employment held without considera- | tion.-Fanger v. Caspary (Sup.) 410. In an action on a contract, question of whether plaintiff had waived his rights thereunder held for the jury.-Grant v. Pratt & Lambert (Sup.) 983. § 4. Performance or breach. A counterclaim for breach of contract to manufacture for plaintiffs certain cards, for defects therein, held waived by an acceptance of the goods after reasonable opportunity for inspection. Miller v. Isaac H. Blanchard Co. (Sup.) 585. Defects in cards contracted for, which necessarily resulted from the use of the die furnished by defendant for cntting them, held not chargeable to plaintiff.-Miller v. Isaac H. Blanchard Co. (Sup.) 585. § 5. Actions for breach. In an action on a contract by which plaintiff agreed to furnish iron used in a certain construction, held, that the burden was on him to show delivery and progress of the work to a point where payments became due.-Weber v. Farrell (Sup.) 272. Bill of particulars in action for conspiracy of corporate officers, see "Pleading," § 4. Laws impairing obligation of charter, see "Constitutional Law," § 3. Sufficiency of application for service of process on by publication, see "Process," § 1. Taxation of corporations and corporate property, see "Taxation," § 1. Particular classes of corporations. See "Building and Loan Associations"; "Colleges and Universities"; "Municipal Corporations." § 1. Capital, stock, and dividends. A corporate resolution for the sale of certain stock held to authorize a sale of the stock ex dividend.-Hartley v. Pioneer Iron Works (Sup.) 79. § 2. Members and stockholders. Stock Corporation Law, Laws 1892, p. 1841, In an action on a contract under which plain-C. 688, § 55, requiring previous action against tiff had procured lands for defendant, on which he had represented that he had an option, held, plaintiff could not recover on failing to prove the option, though defendant had not pleaded fraud.-McLaurin v. Cuba Co. (Sup.) 526. corporation before suit against stockholders to recover corporate debts, held to apply to business corporations, and a condition precedent to the liability of their stockholders for debts under Business Corporation Law, Laws 1892, p. 2044, c. 691, § 6.-Adams v. Slingerland (Sup.) 323. held to have waived objections to trial by any Expelled member of incorporated association member of the board of officers.-People v. Old Guard of City of New York (Sup.) 766. Expulsion of member of association, although originally invalid, held subsequently cured, previous to trial, on mandamus, and writ for reinstatement should have been denied.--People v. Old Guard of City of New York (Sup.) 766. der Laws 1875, p. 264, c. 267, appointed comWhere directors of corporation organized unmittee to investigate charges against a member, the fact that the accused member admitted his indebtedness to the complainant in a certain amount held not to warrant his expulsion by the committee without a hearing.-People v. East Buffalo Live Stock Ass'n (Sup.) 795. and 118 New York State Reporter A finding that a committee appointed by the directors of corporation organized under Laws 1875, p. 264, c. 267, to investigate charges against a member had been appointed to hear and determine the controversy de novo, and not merely to report on evidence already considered, held warranted.-People v. East Buffalo Live Stock Ass'n (Sup.) 795. Where a committee is appointed by directors of corporation organized under Laws 1875, p. 264, c. 267, to hear and determine charges preferred against a member, held, that it was its duty to give the accused member proper notice of proceedings, in order that he might be heard. -People v. East Buffalo Live Stock Ass'n (Sup.) 795. In an action to enforce stockholder's liability under Stock Corporation Law, Laws 1892, p. 1841, § 54, in determining whether a proper valuation has been placed on property received for stock, held, that allowance will be made for errors or mistakes of judgment honestly made.-Flour City Nat. Bank v. Shire (Sup.) 810. Under Stock Corporation Law, Laws 1892, P. 1841, § 54, held, that certain stock had been "issued" by a corporation and was "held" by certain parties, although no certificate or scrip representing the same had been issued.-Flour City Nat. Bank v. Shire (Sup.) 810. 3. Officers and agents. company.-Coney Island Automobile Race Co. v. Boyton (Sup.) 347. An action against a corporation on a contract signed by the secretary held not maintainable without proof of his authority.-Greene v. Iroquois Hotel & Apartment Co. (Sup.) 591. Circumstances attending the giving of a note by a corporation to a bank held such that there were no elements of apparent fraud which could constitute notice to the bank of wrongdoing on the part of one whose notes were retired by the corporate notes.-Flour City Nat. Bank v. Shire (Sup.) 810. § 5. Insolvency and receivers. A creditor of a corporation in process of dissolution, who has not appeared before the referee appointed to state the account of the receiver, is not entitled to notice of the filing of the referee's report.-People v. American Loan & Trust Co. (Sup.) 114; In re Simmons, Id. Only those unpreferred creditors of a corporation who except to the report of the referee, in proceedings for its dissolution, allowing interest to preferred creditors, are entitled to participate in the funds which by rulings on the exceptions are turned from the preferred claims.-People v. American Loan & Trust Co. (Sup.) 114; In re Simmons, Id. The exceptions to the report of a referee in proceedings for the dissolution of a corporation, by a creditor held sufficient.-People v. American Loan & Trust Co. (Sup.) 114; In re Simmons, Id. Directors, to whom it was proposed a corporation should sell certain of its stock, which it had acquired, held incompetent to vote on the The decision of the court on appeal from an resolution without consent by parties interested. order of confirmation of the report of the ref-Hartley v. Pioneer Iron Works (Sup.) 79. eree in proceedings for the dissolution of a In the absence of evidence as to the num-corporation, which disposed of the whole fund, ber of members necessary held a determination of the rights of the credto constitute a itors.-People v. American Loan & Trust Co. quorum of the executive committee of a corporation, a majority is to be deemed sufficient. (Sup.) 114; In re Simmons, Id. -Marshall v. Industrial Federation of America (Sup.) 866. In the absence of authority in the certificate of incorporation or by-laws, the members of the executive committee of a corporation have no authority to vote themselves compensation for attending meetings of the committee.Marshall v. Industrial Federation of America (Sup.) 866. § 4. Corporate powers and liabilities. In an action against a corporation, an agreement bearing the corporate seal and signed by the treasurer held not admissible in evidence, in the absence of any showing of special authority in the treasurer.-Backer v. United States Gas Fixture Co. (Sup.) 149. Code Civ. Proc. § 1788, held not to authorize the court to appoint a temporary receiver of defendant corporation, on the allegations of the complaint, before the expiration of the time to answer. Kieley v. Barron & Cooke Heating & Power Co. (Sup.) 306. A writing purporting to be signed by the treasurer of a corporation is not binding on it, in the absence of proof that the person so claiming to act for it was authorized to bind the § 6. Foreign corporations. Evidence held insufficient to show foreign corporation doing business in the state.-Commercial Wood & Cement Co. v. Northampton Portland Cement Co. (Sup.) 38. Foreign corporation held entitled to recover for goods sold on order taken before authority to do business in state was obtained.-Lewis Pub. Co. v. Palmer (Sup.) 141. Under Code Civ. Proc. § 432, subd. 3, service of process on a foreign corporation having no property within the state could not be made by delivery to an alleged managing agent within the state.-Fontana v. Post Printing & Publishing Co. (Sup.) 308. An agent of a foreign newspaper corporation, authorized to solicit and contract for advertising, held not a managing agent of the corpora tion on whom service might be made, under Code Civ. Proc. § 432.-Fontana v. Post Printing & Publishing Co. (Sup.) 308. CORRECTION. Of assessment of taxes, see "Taxation," § 1. COSTS. Presentation of grounds of review in record on Rights as between principal and surety, see § 1. Nature, grounds, and extent of Under Municipal Court Act, Laws 1902, pp. 1561, 1589, c. 580, §§ 248, 332, defendant held entitled to costs, where plaintiff voluntarily discontinues before submission.-A. Blum, Jr., Sons v. O'Connor (Sup.) 207. withdrawal of a motion for a resettlement of an order of the court.-Allen v. Becket (Sup.) 1009. § 5. Taxation. plaintiff being entitled to § 6. On appeal or error, and on new The error requiring reversal of a judgment of a justice held one of law, so as to entitle defendant, under Code Civ. Proc. § 3066, to costs of course, where the justice adjourned the case without having the return of the constav. Taylor (Sup.) 518. ble before him to give him jurisdiction.-Moore Under Code Civ. Proc. § 3251, subd. 4, as Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, on discontinuance before final judgment, the justice must render judg- amended by Laws 1902, p. 1233, where an orment of dismissal with costs, leaving the ques-der of the New York City Court was reversed tion of taxation to be determined under sections 341, 342 (page 1589).-Probst v. Leggett (Sup.) 211. § 2. Persons, property, and funds liable. In proceedings to enjoin the Albany penitentiary commission from removing the superintendent of the penitentiary and placing it in the custody of the sheriff, as it is unconstitutionally authorized to do by Laws 1902, p. 387, c. 127, held error to charge sheriff, who had no authority and was not threatening to act, personally with costs. Corscadden v. Haswell (Sup.) 597. In injunction proceedings to restrain penitentiary commissioners from unconstitutionally acting under Laws 1902, p. 387, c. 127, such commissioners were properly chargeable with costs. -Corscadden v. Haswell (Sup.) 597. § 3. Security for payment. on appeal, "with costs," the appellant was not entitled to tax disbursements in addition.Wilson v. Lange (Sup.) 519. of judgment held not to affect appellant's right Respondent's offer below to allow a reversal to costs on reversal, under Municipal Court Act, Laws 1902, p. 1590, c. 580, § 345.Faruolo v. Rafanelli (Sup.) 549. § 7. Payment and remedies for collection. Where a new suit for the same cause of action is instituted after dismissal of a former tion are paid will be granted.-Fransioli v. action, a stay until the costs in the former acBoorman (Sup.) 128. Under Code Civ. Proc. § 779, a defendant cannot have an order vacating an order of reference, when in default in the payment of costs he has been directed to pay by previous orders. Where the financial condition of an infant's-Albany Brass & Iron Co. v. Alton (Sup.) 180. father had changed since his appointment as the infant's guardian ad litem, so that he was not able to give security for costs, an order permitting the infant to sue as a poor person held proper.-Perlmutter v. Stern (Sup.) 58. Under Code Civ. Proc. § 3271, held not an abuse of discretion to refuse to require administrators to give security for costs in an action to recover possession of property.-Kelly v. Madigan (Sup.) 331. Petition for leave to sue as poor person held insufficient, because of unexplained inconsisteney with an application for appointment as guardian ad litem.-Cohen v. Hautcharow (Sup.) 573. Under Code Civ. Proc. §§ 458, 459, a petition for leave to sue as a poor person held insufficient.-Cohen v. Hautcharow (Sup.) 573. 4. Amount, rate, and items. defendant (a woman), plaintiff held not subject In action for conversion, resulting in favor of Code Civ. Proc. §§ 548-551, 553, 1488, relating to execution against the person for costs, under to arrests in civil actions.-Allen v. Becket (Sup.) 1009. motion by defendant held not stayed by plainAppeal by plaintiff from an order granting a tiff's failure to pay costs imposed by a former order.-Allen v. Becket (Sup.) 1011. § 8. In criminal prosecutions. aside an order requiring plaintiff to give secuIt is in the discretion of the trial court to set rity for costs, made after defendants had anman v. Same, Id.; Dinorcia v. Same, Id. swered.-De Stefano v. Brown (Sup.) 165; Ro The trial court held not to have abused its discretion in refusing to set aside an order requiring security for costs made after answer. Under Code Civ. Proc. §§ 3228, 3229, a plain--De Stefano v. Brown (Sup.) 165; Roman v. tiff held not entitled to taxation of two trial Same, Id.; Dinorcia v. Same, Id. fees.-Engberman v. North German Lloyd S. S. Co. (Sup.) 199. It is within the discretion of the court to COUNTERCLAIM. impose $10 costs upon the plaintiff upon his See "Set-Off and Counterclaim." |