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of policemen, see "Municipal Corporations,”
CONSIDERATION. $1. of referee, see "Reference," $ 2.
For contract of sale, see “Sales," $ 1. Of school teacher, see "Schools and School Dis- of bill of exchange or promissory note, see tricts," $ 1.
"Bills and Notes," $ 1. Of sheriff or constable, see "Sheriffs and Con- Of contract, see "Contracts," $ 1. stables," $ 1.
Requirements of statute of frauds as to state
ment of, see "Frauds, Statute of," $ 4.
CONSTABLES. COMPOSITIONS WITH CREDITORS.
See "Sheriffs and Constables." See "Compromise and Settlement.”
Creditor's omission to specify amount of his CONSTITUTIONAL LAW. claim in composition agreement held not to permit suit on note of debtor, which he had dis- Restraining action under unconstitutional law, counted at bank.-Metcalf v. Morse Iron Works see “Injunction," $ 2. & Dry Dock Co. (Sup.) 582.
Provisions relating to particular subjects.
See "Attorney and Client," $ 1; "Brokers," s COMPROMISE AND SETTLEMENT.
1; "Counties," $ 1;. "Criminal Law," $ 3;
"Eminent Domain," $ 1; "Intoxicating Liq. See "Accord and Satisfaction"; "Compositions uors," $ 2; "Jury," § 1; "Schools and School with Creditors"; "Payment"; "Release." Districts," $ 1.
Plaintiff has no cause of action to recover on Enactment and validity of statutes, see "Statan obligation, when he has failed to perform utes," $ 1. a condition precedent.-Zucca v. Kuhne (Sup.) Subjects and titles of statutes, see "Statutes," 181.
$ 2. The burden of showing by clear proof a ma- $ 1. Construction, operation, and enterial mistake of fact vitiating a compromise
forcement of constitutional prorests upon the party who asserts it.-Reimer
visions. v. Green Room Club (Sup.) 561.
The validity of statutes must be determined
solely with reference to constitutional restricCONDEMNATION.
tions, and not by natural equity or justice.
Viemeister v. White (Sup.) 712. Taking property for public use, see "Eminent 8 2. Distribution of governmental powDomain."
ers and functions.
The legislative determination as to what is CONDITIONS.
a proper exercise of the police power held sub
ject to the supervision of the courts.-TeneIn insurance policies, see “Insurance," $ 4. ment House Department of City of New York Precedent to action for breach of contract, see v. Moeschen (Sup.) 577. “Vendor and Purchaser," $ 2.
The courts cannot interfere with the exercise Precedent to action for replevin, see "Replev- of legislative discretion, so long as it does not in," $ 3.
transcend constitutional limitations.--Viemeister
V. White (Sup.) 712. CONFIDENTIAL RELATIONS.
$ 3. Obligation of contracts. Disclosure of communications, see "Witness
The contractual dignity of a corporate chares," $ 2.
ter, which prevents the powers thereby conferred from being impaired by subsequent leg
islation, does not require additional powers conCONFLICT OF LAWS.
ferred by a subsequent charter to be interpreted
in accordance therewith.-Phonix v. Trustees See "Descent and Distribution," $ 1.
of Columbia College (Sup.) 897.
$ 4. Privileges or immunities, and class CONNECTING CARRIERS.
Laws 1893, p. 1556, c. 661, $ 200, relative to See "Carriers," $ 1.
vaccination of school children, held not to deand 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.
mission of telegram, see “Telegraphs and Tel
ephones,” $ 1. § 5. Equal protection of laws.
Laws 1893, p. 1556, c. 661, $ 200, relative to Particular classes of express contracts. vaccination of school children, held not to de- See “Bailment"; "Bills and Notes”; “Cove prive any person of equal protection of law nants”; “Insurance"; "Joint Adventures": within Const. U. S. Amend. 14.- Viemeister v. "Partnership"; "Principal and Agent"; "Prins White (Sup.) 712.
cipal and Surety"; "Sales."
Charter parties, see “Shipping," § 1.
Employment, see "Master and Servant."
Sale of realty, see "Vendor and Purchaser." In supplementary proceedings, see "Execution,” Stipulations in actions, see “Stipulations."
$ 2. Violation of injunction, see "Injunction," $ 5. Particular classes of implied contracts.
See “Work and Labor." § 1. Power to punish and proceedings therefor.
Particular modes of discharging contracts. Objection should be made below, in contempt See “Accord and Satisfaction"; "Compromise proceeding for disposal of property by a debtor and Settlement”; “Payment"; "Release." after service of order on him for his examination, that the allegations as to the service were $ 1. Requisites and validity. not sufficiently specific.-Oshinsky V. Gottlieb An extension of time within which vendor (Sup.) 871.
might procure release of land affected by an
encroachment held no ground for recovery of CONTINUANCE.
deposit made by vendor as security in case he
failed to secure the release.-Bronner v. Hirsch Review of discretion of court, see "Appeal," & (Sup.) 139. 10.
Contract for resumption of marriage relation, Where several continuances had been granted, and vesting, of dower interest on its breach by and the case had been peremptorily set for å husband, held not against public policy. Somparticular day, refusal of a further continuance mer v. Sommer (Sup.) 444. on the same ground held not an abuse of dis- Withdrawal of wife's action for separation cretion.-O'Brien v. Kuntz (Sup.) 535.
held sufficient consideration for contract for re-
Sommer (Sup.) 444. *
In an action on a contract under which plainAgreements within statute of frauds,
tiff had procured lands for defendant on a rep"Frauds, Statute of."
resentation that he had an option thereon, the Assignment, see "Assignments."
evidence failing to establish the option, he Harmless error in admission of evidence in ac- could not recover.-McLaurin v. Cuba Co. (Šup.)
526. tion on contract, see "Appeal," $ 12. Impairing obligation, see "Constitutional Law," Husband cannot be held liable for debts of $ 3.
wife on bald promise to pay, made without Parol or extrinsic evidence, see "Evidence," $ 8. consideration.-McBride v. Adams (Sup.) 1060. Reformation, "Reformation of Instruments."
8 2. Construction and operation. Self-serving declaration as evidence in action Contract for 'supplying iron for a certain on, see "Evidence," $ 5.
work in the course of construction construed, Specific performance, see “Specific Perform- and held, that plaintiff could only recover for ance.
iron used, and not for all iron delivered.
Weber v. Farrell (Sup.) 272. Contracts of particular classes of parties.
Iron used in a temporary scaffolding, etc., See "Attorney and Client,". $ 4; "Brokers," 2; "Carriers," $ 1; "Husband and Wife,'
and necessary to the construction of a per 2; "Infants.” Š 1; “Master and Servant"; tract by which plaintiff agreed to furnish iron
manent work, held within the terms of the con"Municipal Corporations," § 2; "Warehouse for such work.-Weber v. Farrell (Sup.) 272. men." Corporate officer, see "Corporations," $ 4.
Where a written contract was free from am. Married women, 'see “Hushand and Wife," $ 3. tion as to the nature of the contract to the
biguity, it was improper to submit the ques Telegraph company, see “Telegraphs and Tele-jury.-Russell & Co. v. McSwegan (Sup.) 614. phones," $ 1.
A contract of sale signed B. & Co., sales Contracts relating to particular subjects. agents, and N. Co., by T., and partly performed See "Interest."
by the N. Co., held to have been made by the Compensation of attorney, see "Attorney and N. Co:-A. B. Farquhar Co. v. New River MinClient," § 4.
eral Co. (Sup.) 802. Limitation of carrier's liability, see “Carriers," Bill of sale of partnership effects and cove$ 1.
nant not to engage in similar business held to member of the board of oflicers.-People v. Old In an action for breach of contract, in which Guard of City of New York (Sup.) 766. the answer admitted the breach, evidence to show that the breach had not been committed originally invalid, held subsequently cured, pre
be independent transactions, so that breach of CONTRIBUTORY NEGLIGENCE. latter did not affect recovery on former.-Kinney v. D. H. McBride & Co. (Sup.) 958. See "Negligence," g 2.
The practical construction put upon a contract by the parties cannot control the express unambiguous provisions of the instrument itself.
CONVERSION. Kinney v. D. H. McBride & Co. (Sup.) 958.
Wrongful conversion of personal property, see $ 3. Modification and merger.
"Trover and Conversion." An agreement by defendant, after the execution of a written contract whereby plaintiff agreed to furnish certain appliances free of
CONVEYANCES. cost, that he would pay for them a specified sum, was without consideration. – Rooney v. In fraud of creditors, see “Fraudulent ConveyThomson (Sup.) 263.
In trust, see “Trusts," $ 1. A contract signed subsequent to the making of the one under which plaintiff entered de- Particular classes of conveyances. fendant's employment held without considera- See "Assignments”; “Chattel Mortgages”; tion.-Fanger v. Caspary (Sup.) 410.
"Mortgages." In an action on a contract, question of whether plaintiff had waived his rights thereunder held for the jury.-Grant v. Pratt & Lambert
CORPORATIONS. (Sup.) 983.
Bill of particulars in action for conspiracy of § 4. Performance or breach.
corporate officers, see "Pleading,” $ 4. A counterclaim for breach of contract to man- Laws impairing obligation of charter, see "Conufacture for plaintiffs certain cards, for defects stitutional Law," $ 3. therein, held waived by an acceptance of the Sufficiency of application for service of process goods after reasonable opportunity for inspec- on by publication, see "Process," $ 1. tion.-Miller v. Isaac H. Blanchard Co. (Sup.) Taxation of corporations and corporate proper585.
ty, see "Taxation," $ 1. Defects in cards contracted for, which neces- Particular classes of corporations. sarily resulted from the use of the die furnished See “Building and Loan Associations"; "Colby defendant for cutting them, held not charge
leges and Universities" ; "Municipal Corporaable to plaintiff.-Miller v. Isaac H. Blanchard
tions." Co. (Sup.) 585. & 5. Actions for breach.
§ 1. Capital, stock, and dividends.
A corporate resolution for the sale of certain In an action on a contract by which plaintiff stock held to authorize a sale of the stock ex agreed to furnish iron used in a certain con- dividend.-Hartley v. Pioneer Iron Works (Sup.) struction, held, that the burden was on him to 79. show delivery and progress of the work to a point where payments became due.-Weber v. / $ 2. Members and stockholders. Farrell (Sup.) 272.
Stock Corporation Law, Laws 1892, p. 1841, In an action on a contract under which plain- c. 688, 1, 55, requiring previous action against tiff had procured lands for defendant, on which corporation before suit against stockholders to he had represented that he had an option, held, ness corporations, and a condition precedent to
recover corporate debts, held to apply to busiplaintiff could not recover on failing to prove the liability of their stockholders for debts unthe option, though defendant had not pleaded der Business Corporation Law, Laws 1892, p. fraud.—McLaurin v. Cuba Co. (Sup.) 526.
2044, c. 691, $ 6.-Adams v. Slingerland (Sup.) Quasi contract held not an implied contract, 323. within jurisdiction of Municipal Court, under Laws 1902, p. 1487, c. 580, tit. 1, § 1, subd. 1.- held to have waived objections to trial by any
Expelled member of incorporated association Pache v. Oppenheim (Sup.) 926.
Expulsion of member of association, although was inadmissible.-Grant v. Pratt & Lambert vious to trial, on mandamus, and writ for re(Sup.) 983.
instatement should have been denied.-People Under Code Civ. Proc. $ 500, the defense of v. Old Guard of City of New York (Sup.) 766. waiver held not available in an action on a contract, unless pleaded.-Grant v. Pratt & der Laws 1875, p. 264, c. 267, appointed com
Where directors of corporation organized unLambert (Sup.) 983.
mittee to investigate charges against a member,
the fact that the accused member admitted his CONTRADICTION.
indebtedness to the complainant in a certain amount held not to warrant his expulsion by the
committee without a hearing.-People v. East Of record, see "Appeal and Error," $ 5. Buffalo Live Stock Ass'n (Sup.) 795.
and 118 New York State Reporter A finding that a committee appointed by the company.-Coney Island Automobile Race Co. directors of corporation organized under Laws v. Boyton (Sup.) 347. 1875, p. 264, c. 267, to investigate charges against a member had been appointed to hear tract signed by the secretary held not main
An action against a corporation on a conand determine the controversy de novo, and not tainable without proof of his authority.-Greene merely to report on evidence already considered, held warranted. People v. East Buffalo Live v. Iroquois Hotel & Apartment Co. (Sup.) 591. Stock Ass'n (Sup.) 795.
Circumstances attending the giving of a note
by a corporation to a bank held such that Where a committee is appointed by directors there were no elements of apparent fraud of corporation organized under Laws 1875, p. which could constitute notice to the bank of 264, c. 267, to hear and determine charges pre-wrongdoing on the part of one whose notes ferred against a member, held, that it was its were retired by the corporate notes.-Flour duty to give the accused member proper notice City Nat. Bank v. Shire (Sup.) 810. of proceedings, in order that he might be heard. -People v. East Buffalo Live Stock Ass'n | 8 5. Insolvency and receivers. (Sup.) 795.
A creditor of a corporation in process of dis
solution, who has not appeared before the refIn an action to enforce stockholder's liabil. eree appointed to state the account of the reity under Stock Corporation Law, Laws 1892, ceiver, is not entitled to notice of the filing of p. 1841, $ 54, in determining whether a proper the referee's report.-People v. American Loan valuation has been placed on property received & Trust Co. (Sup.) 114; In re Simmons, Id. for stock, held, that allowance will be made for errors or mistakes of judgment honestly
Only those unpreferred creditors of a corpomade.-Flour City Nat. Bank v. Shire (Sup.) ration who except to the report of the referee, 810.
in proceedings for its dissolution, allowing inUnder Stock Corporation Law, Laws 1892, p. participate in the funds which by rulings on
terest to preferred creditors, are entitled to 1841, § 54, held, that certain stock had been the exceptions are turned from the preferred “issued” by a corporation and was held” by claims.- People v. American Loan & Trust Co. certain parties, although no certificate or scrip (Sup.) 114; In re Simmons, Id. representing the same had been issued.-Flour City Nat. Bank v. Shire (Sup.) 810.
The exceptions to the report of a referee in
proceedings for the dissolution of a corporation, 8 3. Officers and agents.
by a creditor held sufficient.-People v. AmeriDirectors, to whom it was proposed a corpo- can Loan & Trust Co. (Sup.) 114; In re Simration should sell certain of its stock, which it mons, Id. 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- held a determination of the rights of the cred
corporation, which disposed of the whole fund, ber of members necessary to constitute a quorum of the executive committee of a cor- itors. - People v. American Loan & Trust Co. poration, a majority is to be deemed sufficient. (Sup.) 114; In re Simmons, Id. -Marshall v. Industrial Federation of Amer- $ 6. Foreign corporations. ica (Sup.) 866.
Evidence held insufficient to show foreign cor In the absence of authority in the certificate poration doing business in the state.-Commer of incorporation or by-laws, the members of cial Wood & Cement Co. v. Northampton Portthe executive committee of a corporation have land Cement Co. (Sup.) 38. no authority to vote themselves compensation for attending meetings of the committee:- for goods sold on order taken before authority
Foreign corporation held entitled to recorer Marshall v. Industrial Federation of America to do business in state was obtained.-Lewis (Sup.) 866.
Pub. Co. v. Palmer (Sup.) 141. § 4. Corporate powers and liabilities. Under Code Civ. Proc. $ 432, subd. 3, service
In an action against a corporation, an agree of process on a foreign corporation having no ment bearing the corporate seal and signed by property within the state could not be made the treasurer held not admissible in evidence. by delivery to an alleged managing agent within the absence of any showing of special author- in the state.-Fontana v. Post Printing & Pubity in the treasurer. -Backer v. United States lishing Co. (Sup.) 308. Gas Fixture Co. (Sup.) 149.
An agent of a foreign newspaper corporation, Code Civ. Proc. $ 1788, held not to authorize ing, held not a managing agent of the corpora
authorized to solicit and contract for advertisthe court to appoint a temporary receiver of tion on whom service might be made, under defendant corporation, on the allegations of the Code Civ. Proc. $ 432.–Fontana v. Post Printcomplaint, before the expiration of the time to ing & Publishing Co. (Sup.) 308. answer.- Kieley v. Barron & Cooke Heating & Power Co. (Sup.) 306.
CORRECTION. A writing purporting to be signed by the treasurer of a corporation is not binding on it, Of assessment of taxes, see "Taxation," $ 1. in the absence of proof that the person so claim- of judgment, see "Judgment." $ 3. ing to act for it was authorized to bind the Of lists of voters, see "Elections," $ 2.
withdrawal of a motion for a resettlement of an order of the court.-Allen v. Becket (Sup.)
1009. Presentacion of grounds of review in record on
appeal from order denying motion for retax- $ 5. Taxation. ation, see "Appeal," $ 5.
Under Code Civ. Proc. $ 3229, held that, Rights as between principal and surety, see plaintiff being entitled to costs of course "Principal and Surety," $ 2.
against one defendant, another defendant was Statutory fees of attorney, see "Attorney and not entitled to costs, unless specifically allowClient," $ 4.
ed them.--Union Bank v. Case (Sup.) 551. § 1. Nature, grounds, and extent of $ 6. On appeal or error, and on new right in general.
trial or motion therefor. Under Municipal Court Act, Laws 1902, pp.
The error requiring reversal of a judgment 1561, 1589, c. 580, 88 248, 332, defendant held of a justice held one of law, so as to entitle entitled to costs, where plaintiff' voluntarily dis- defendant, under Code Civ. 'Proc. $ 3066, to continues before submission.-A. Blum, Jr., costs of course, where the justice adjourned the Sons v. O'Connor (Sup.) 207.
case without having the return of the constaUnder Municipal Court Act, Laws 1902, p. v. Taylor (Sup.) 518.
ble before him to give him jurisdiction.-Moore 1561, c. 580, $ 248, on discontinuance before final judgment, the justice must render judg.
Under Code Civ. Proc. $ 3251, subd. 4, as ment of dismissal with costs, leaving the ques. amended by Laws 1902, p. 1233, where an ortion of taxation to be determined under sec- der of the New York City Court was reversed tions 311, 342 (page 1589).- Probst v. Leggett on appeal, "with costs," the appellant was not (Sup.) 211.
entitled to tax disbursements in addition.
Wilson v. Lange (Sup.) 519, § 2. Persons, property, and funds liable.
Respondent's offer below to allow a reversal In proceedings to enjoin the Albany peniten- of judgment held not to affect appellant's right tiary commission from removing the superin- to costs on reversal, under Municipal Court tendent of the penitentiary and placing it in Act, Laws 1902, p. 1390, c. 580, § 315.the custody of the sheriff, as it is unconstitu- Faruolo v. Rafanelli (Sup.) 519. tionally authorized to do by Laws 1902, p. 387, c. 127, held error to charge sheriff, who had no 87. Payment and remedies for collecauthority and was not threatening to act, per
tion. sonally with costs. – Corscadden v. Haswell tion is instituted after dismissal of a former
Where a new suit for the same cause of ac(Sup.) 597.
action, a stay until the costs in the former acIn injunction proceedings to restrain peniten- tion are paid will be granted.--Fransioli v. tiary commissioners from unconstitutionally act Boorman (Sup.) 128. ing under Laws 1902, p. 387, c. 127, such commissioners were properly chargeable with costs.
Under Code Civ. Proc. $ 779, a defendant -Corscadden v. Haswell (Sup.) 597.
cannot have an order vacating an order of ref
erence, when in default in the payment of costs 83. Security for payment.
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 In action for conversion, resulting in favor of the infant's guardian ad litem, so that he was defendant (a woman), plaintiff held not subject not able to give security for costs, an order per- to execution against the person for costs, under mitting the infant to sue as a poor person held Code Civ. Proc. 88 548–551, 553, 1488, relating proper.-Perlmutter v. Stern (Sup.) 68.
to arrests in civil actions.-Allen v. Becket Under Code Civ. Proc. $ 3271, held not an (Sup.) 1009. abuse of discretion to refuse to require ad- Appeal by plaintiff from an order granting a ministrators to give security for costs in an ac- motion by defendant held not stayed by plaintion to recover possession of property.-Kelly tiff's failure to pay costs imposed by a former v. Madigan (Sup.) 331.
order.-Allen v. Becket (Sup.) 1011. Petition for leave to sue as poor person held $ 8. In criminal prosecutions. insufficient, because of unexplained inconsistency with an application for appointment as
It is in the discretion of the trial court to set guardian ad litem.--Cohen v. Hautcharow aside an order requiring plaintiff to give secu(Sup.) 573.
rity for costs, made after defendants had an
swered.-De Stefano v. Brown (Sup.) 165; RoUnder Code Civ. Proc. $$ 458, 459, a petition man v. Same, Id. ; Dinorcia v. Same, Id. for leave to sue as a poor person held insufficient.--Cohen v. Hautcharow (Sup.) 573.
The trial court held not to have abused its
discretion in refusing to set aside an order re$ 4. Amount, rate, and items.
quiring security for costs made after answer. Under Code Civ. Proc. $$ 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.
COUNTERCLAIM. It is within the discretion of the court to impose $10 costs upon the plaintiff upon his See “Set-Off and Counterclaim."