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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!

| An action against a corporation on a con

An action mora against a member had been appointed to hear

| tract signed by the secretary hold not mainand determine the controversy de novo, and not

tainable without proof of his authority.-Greene merely to report on evidence already consider

v. Iroquois Hotel & Apartment Co. (Sup.) 591. ed, held warranted.-People v. East Buffalo Live Stock Ass'n (Sup.) 795.

Circumstances attending the giring 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 rotes 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

is 5. Insolvency and receivers. (Sup.) 795.

A creditor of a corporation in process of dis.

solution, who has not appeared before the ref. In 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 filins of p. 1841, § 5+, in determining whether a proper the referee's report.-People v. American Loan valuation has been placed on property receive

& 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 corpumade.-Flour City Nat. Bank v. Shire (Sup.) ration who except to the report of the referee 810.

in proceedings for its dissolution, allowing in

terest to preferred creditors, are entitled to Under Stock Corporation Law, Laws 1892, p.

2. P. I participate in the funds which by rulings on 1841, $ 54, held, that certain stock had been

ces the exceptions are turned from the preferred

the “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, § 3. Officers and agents.

by a creditor held sufficient.-People v. Ameri. Directors, to whom it was proposed a corpo- can Loan & Trust Co. (Sup.) 114; In re Siinration should sell certain of its stock, which it mons, ld. 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 res -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 fani, ber of members necessary to constitute a

held a determination of the rights of the cred.

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 Amer- $ 6. Foreign corporations. ica (Sup.) 866.

Evidence held insufficient to show foreign er In the absence of authority in the certificate poration doing business in the state.-Commerof 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 Foreign corporation held entitled to recorer for attending meetings of the committee.- for goods sold on order taken before authorit Marshall v. Industrial Federation of America to do business in state was obtained.-Ler's (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 wibin 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

authorized to solicit and contract for advertis

ing, held not a managing agent of the corpora. the court to appoint a temporary receiver of ti

I tion on whom service might be made, under defendant corporation, on the allegations of the Code Civ. Proc. $ 432.-Fontana y Post Printcomplaint, before the expiration of the time to

ing & Publishing Co. (Sup.) 308. 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, | 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.

CORRECTION.

COSTS.

| 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 consta

ble before him to give him jurisdiction.-Moore Under Municipal Court Act, Laws 1902, p. v. Taylor (Sup.) 518. 1561 580 8218, on discontinuance before

Under Code Civ. Proc. g 3251, subd. 4, as final' judgment, the justice must render judg

| amended by Laws 1902, p. 1233, where an orment of dismissal with costs, leaving the question 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,“ $ 313.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 collec

tion. authority and was not threatening to act, personally with costs. --Corscadden v. Haswell

Where a new suit for the same cause of ac(Sup.) 597.

tion is instituted after dismissal of a former

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 com

Uuder Code Civ. Proc. $ 779, a defendant missioners were properly chargeable with costs. -Corscadden v. Haswell (Sup.) 597.

cannot have an order vacating an order of ref

erence, when in default in the payment of costs $ 3. 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. $8 548–551, 553, 1488, relating proper.-Perlmutter v. Stern (Sup.) 58.

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 inconsisten

It is in the discretion of the trial court to set cy with an application for appointment as guardian ad litem.-Cohen v. Hautcharow

aside an order requiring plaintiff to give secu

rity for costs, made after defendants had an(Sup.) 573.

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. $8 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."

COURTS.

YORK

118 New York State Reporter COUNTIES.

1 Under Municipal Court Act, Laws 1902, p.

1497. c. 580, $ 25, subd. 4, demand for transf 1. Property, contracts, and liabilities.

fer, where action is brought in the wrong dis

trict, must specify the district to which transCode Or. Proc. $ 308, authorizing the pay- I fer is required-Fischer Brooklyn ment of a reasonable compensation to an attor- 1 R. Co. (Süp.) 254. ney appointed to defend an indigent criminal in a capital case, held not in violation of Const.

Action to recover cash deposited under a art. 8, 10, as an appropriation of county funds

| contract for sale of defendant's real estate, to the aid of an individual.-People v. Grout

possession of which could not be given, hdd not (Sup.) 97.

to involve title to real estate, within Muricipal Court Act, Laws 1902, p. 1545, C. 580, $ 184.- Elinsky v. Berger (Sup.) 483.

General practice rule 9 of Supreme Court Contempt of court, see "Contempt."

held not to authorize continuous applications Judges, see "Judges."

for continuance of cause pending in the MuniciJudicial power, see "Constitutional Law," § 2. pal Court on the ground that counsel is othJustices' courts, see "Justices of the Peace.” erwise engaged in the trial of causes.-O'Brien Power to disbar attorney, see "Attorney and v. Kuntz (Sup.) 535.

Client,” $ 1.
Review of decisions, see "Appeal."

§ 3. Courts of appellate jurisdiction. Right to trial by jury, see “Jury," $ 1.

Jurisdiction of the Appellate Term over ap

peals from orders exists solely by force of stat. Trial by court without jury, see "Trial," $ 8.

ute.-Cohen v. Ridgewood Shirt Co. (Sup.) 188. Jurisdiction of particular actions, proceedings,

or subjects. Against personal representatives, see "Execu

COVENANTS. tors and Administrators," $ 8.

Against subletting leasehold, see "Landlord and Disputed claims against decedent's estate, see | Tenant usz

"Executors and Administrators," 8 5. For breach of contract, see “Contracts,” $ 5.

For quiet enjoyment, see "Landlord and Ten

ant," § 4. For probate of will, see "Wills,” $ 3.

For renewal of lease, see "Landlord and Ten§ 1. Establishment, organization, and ant," $ 3. procedure in general.

& 1. Construction and operation. Where the Appellate Division of one Depart- Covenant restricting grantee's right of buildment of the Supreme Court has decided a lawing on property adjoining grantor's residence constitutional, that decision will be followed held not to be continued, after removal of buildby the Appellate Term of that Department, ing, as covenant for light and air.-Deeves 7. though the Appelllate Division of another De- Constable (Sup.) 592. partment may have decided the law unconstitutional.-Charles v. Arthur (Sup.) 284. .

Covenant restricting grantee's right of build

ing on adjoining property for protection of $ 2. Courts of limited or inferior juris-grantor's residence held abrogated by removal of diction.

dwelling, erection of other building, and An amendment of pleadings in the municipal changed conditions of neighborhood.-Deeves court is demandable of right, though the amend-v. Constable (Sup.) 592. ment set up a new cause of action or defense. --Morton v. Lederer (Sup.) 132.

| $ 2. Performance or breach.

A purchaser of property cannot recover as for Under Laws 1902, p. 1542, c. 580, the Mu- | breach of warranty as to the amount doe on a nicipal Court of New York City has power to mortgage thereon; foreclosure not having been permit, at the beginning of a trial, the amend- I attempted, and he not having been disturbed in ment of a complaint on an account stated to an his possession.-Inderlied v. Honeywell (Sup.) action on the indorsement of a check.-Blake v. 333. Malliet (Sup.) 161. Municipal Court Act, Laws 1902, p. 1542, c.

COVERTURE. 580, $ 166, held to require the Municipal Court to allow an amendment to the answer by set

"Husband ting up the defense of usury.-Steinhardt v. Eisen (Sup.) 232.

CREDIBILITY, Municipal Court Act, Laws 1902, p. 1563, c. 580, $ 254, held not to empower the court to Of witness, see "Witnesses," $ 4. vacate a judgment in favor of one party and give a judgment in favor of the other party.Insky v. Chatkoff (Sup.) 253.

CREDITORS. Under Municipal Court Act, Laws 1902, p. 1497. c. 580. $ 25. subd. 4. a demand for a See "Bankruptcy"; "Compositions with Credtransfer, where action is brought in the wrong

itors"; "Creditors' Suit"; "Fraudulent Condistrict, held necessary on or before joinder of veyances." issue.-Fischer V. Brooklyn Heights R. Co. Rights and remedies of surety, see "Principal (Sup.) 254.

Land Surety," 8 2.

CREDITORS' SUIT.

| Const. U. S. Amend. art 6, relating to rights

of defendants in criminal prosecutions, does
Remedies in cases of fraudulent conveyances,

ances. not apply to prosecutions in state courts.--
see "Fraudulent Conveyances," $ 3.

People v. Welsh (Sup.) 703.
In a creditors' action to obtain the applica-164. Appeal and error, and certiorari.
tion of a certain sum held by a bank to the Under Code Civ. Proc. 88 527, 530, 556,
payment of plaintiff's judgment, evidence held where a defendant, sentenced to fine and im-
insufficient to support a finding that the name prisonment, gave a bond on appeal to pay the
of a payee to a check was added after the sig fine and perform the imprisonment, a perform-
nature.-Barranco v. Law (Sup.) 421.

ance of the latter after affirmance did not re-
lieve his sureties from liability for the fine.-

People v. Connolly (Sup.) 617.
CRIMINAL LAW.

Sureties on a defendant's appeal bond held

only liable for the amount of his fine and inter-
Bail, see "Bail," $ 1.

est from the day it was demanded, where, aft-
Costs in criminal prosecutions, see "Costs," § 8. er the affirmance of the judgment, defendant
Indictment, information, or complaint, see "In-

laint see In- | performed the imprisonment adjudged.-People
dictment and Information."

v. Connolly (Sup.) 617.
Payment by county of fees of attorney appoint On appeal in a criminal case, ruling of re-
ed to defend indigent person, see "Counties,”

corder as to the number of questions he asked
$ 1.

of a certain witness held conclusive.--People
Prohibition to restrain criminal prosecution, see v. Childs (Sup.) 853.
"Prohibition," $ 1.

The claim of appellant in a criminal case
Offenses by particular classes of parties. that the record should contain the testimony
Municipal officers, see "Municipal Corpora-

by questions and answers, on the ground that

he was prejudiced by the examination of cer-
tions," $ 1.

tain witnesses by the recorder, cannot be con-
Particular offenscs.

sidered, unless such facts are made to appear
See “Bribery"; "Contempt"; "Homicide"; | by aflidavit.-People v. Childs (Sup.) 853.
"Rape"; "Threats."

Where exceptions to the charge in a criminal
Violation of injunction as criminal contempt, case were inserted in the record, and thereafter
see "Injunction," $ 5.

appellant's attorney restated them in another
Violation of ordinances, see “Municipal Corpora portion of the record, it was proper for the
tions," $ 3.

recorder to strike the repetition from the rec-

ord.-People v. Childs (Sup.) 853.
$1. Preliminary complaint, affidavit,

| On appeal in a criminal case, remarks made
warrant, examination, commit-

by the recorder in imposing sentence form no
ment, and summary trial.

part of the record.-People v. Childs (Sup.)
A magistrate has jurisdiction to inquire into
a violation of Pen. Code, $ 72, imposing a pen-
alty on any public officer receiving a bribe, and Where, on appeal from a conviction for as-
to hold a person to answer for the crime. sault, the return fails to show that any evi-
People v. Van De Carr (Sup.) 461.

dence was given tending to prove defendant

committed the alleged offense, the conyiction
& 2. Arraignment and pleas, and nolle must be set aside.-People v. Halwig (Co. Ct.)
prosequi or discontinuance.

221.
Where counsel states that accused "is here
by counsel and declines to plead," it is not

CROSS-EXAMINATION.
necessary to state that counsel is present with
special authority to enter a refusal to plead. - See "Witnesses," 88 3. 4.
People v. Welsh (Sup.) 703.
One accused of a misdemeanor may appear

CROSSINGS.
by counsel and refuse to plead, though he
could not in that way, under the express pro-

Accidents at street railroad crossings, see
visions of Code Cr. Proc. $ 335, plead guilty.-

"Street Railroads," $ 1.
People v. Welsh (Sup.) 703.

Establishment of railroad crossings, see "Rail-
| 3. Trial.

roads," $ 1.
Code Cr. Proc. $ 308, held not to limit the
authority of the court to appoint counsel for an

DAMAGES.
indigent person, indicted for crime, to appoint-
ment on arraignment, but authorizes such ap Damages for particular injuries.
pointment at any time before or during the See “Nuisance." $ 1.
trial.- People v. Grout (Sup.) 97.

Breach by buyer of contract for sale of goods,
Under Code Cr. Proc. $ 356, trial of a mis- see “Sales," $ 6.
demeanor may be had in the absence of the Breach by seller of contract for sale of goods,
defendant, if he appear by counsel, notwith- see "Sales," 88 3, 7.
standing section 8, relating to rights of de- Breach of contract to give possession of lease-
fendants.-People v. Welsh (Sup.) 703.

hold, see "Landlord and Tenant," 4.

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and 118 New York State Reporter Breach of covenant to repair demised premises, cover him, if living, raises the presumption of see "Landlord and Tenant," $ 4.

death, and that he left no heirs surviving him. Breach by vendor of contract for sale of land, 1-McNulty v. Mitchell (Sup.) 89.

see "Vendor and Purchaser," $ 2.
Conversion of mortgaged chattels, see "Chattel
Mortgages," $ 1.

DEBTOR AND CREDITOR.
Discharge from employment, see "Master and
Servant," $ 1.

See "Bankruptcy"; "Compositions with CredFrom negligence in transmission of telegram, itors"; "Creditors' Suit"; "Fraudulent Consee "Telegraphs and Telephones,” $ 1.

veyances." Injuries caused by public improvements, see "Municipal Corporations," $ 2.

DECEDENTS. Injuries from operation of railroad, see "Railroads," $ 3.

Estates, see “Descent and Distribution"; "ExRecovery in particular actions or proceedings. ecutors and Administrators," See "Specific Performance," $ 2. § 1. Grounds and subjects of compen

DECEIT. satory damages.

See “Fraud.” The sum expended by the owner of a delivery wagon for the hiring of another wagon, while

DECLARATIONS. his own is being repaired, is a proper element of damages for injury done to his wagon by col- As evidence in civil actions, sce “Evidence," $ 5. liding with a street car.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

DEEDS. § 2. Measure of damages.

Covenants in deeds, see "Covenants." In an action for injuries to personal property, evidence as to the value of the damaged

In fraud of creditors, see "Fraudulent Convey

ances." goods to plaintiff held inadmissible.-Marcus y. Stein (Sup.) 970.

In trust, see "Trusts," $ 1.

Reformation, see "Reformation of Instru$ 3. Inadequate and excessive damages.

ments." Verdict of $1,800 in action for personal in- 1 Of trust, see "Mortgages." juries to a child held not excessive.-Travers

Tax deeds, see "Taxation," $ 4.
v. Murray (Sup.) 558.
8 4. Pleading, evidence, and assessment.

DEFAMATION.
Evidence in action for injury to animal held
insufficient to sustain finding as to its value.- See "Libel and Slander."
Lee v. Callahan (Sup.) 167.
In an action for injuries to a passenger, a

DEFAULT.
verdict finding that plaintiff's nervous prostra-
tion was the result of the accident held not
contrary to the weight of the evidence.-Powell

Judgment by, see "Judgment," $ 1. v. Hudson Valley Ry. Co. (Sup.) 337. A motion to vacate an assessment of dam

DEFICIENCY. ages may be based upon the stenographer's minutes, if there is no question as to their on foreclosure, see "Mechanics' Liens," $ 2. correctness; the case and exceptions not being absolutely indispensable.-City Trust, Safe De posit & Surety Co. v. American Brewing Co.

DELAY. (Sup.) 771.

In performance of work under contract with Evidence held insufficient to establish reason city, see "Municipal Corporations," $ 2. ableness of charge for hiring of a delivery wag. on while plaintiff's wagon was being repaired, so as to form a basis for damages for injury to plaintiff's wagon.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

To condemn land for public use, see "Eminent

Domain," § 1.
DEATH.

DELIVERY.
Action for wrongful death of alien, see "Aliens,"
8 1.

Of goods by carrier, see "Carriers," $ 1. of partner, see "Partnership,” $ 4.

Of trust funds, see "Trusts," $ 1. f 1. Evidence of death and of survivorship.

DENIALS. An unexplained absence of a single man for 43 years, with evidence of an attempt to dis- / In pleading, see "Pleading," $ 1.

DELEGATION OF POWER.

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