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and 118 New York State Reporter FELLOW SERVANTS.
FORMS OF ACTION. See “Master and Servant," $ 2.
See "Ejectment”; “Replevin"; "Trespass," $
2; "Trover and Conversion."
See "Fraudulent Conveyances."
Against corporation, see "Corporations," $ 4. FINDINGS.
As affecting liability to arrest, see “Arrest," S
1. On reference, see "Reference," $ 3.
8 1. Deception constituting fraud, and Review on appeal, see "Appeal," § 11
One who obtains money on a promise, made FIRE DEPARTMENT.
with fraudulent intent, to deliver certain goods
belonging to his stock, and then sells his enSee “Municipal Corporations,” $ 1.
tire stock to another, is liable for the fraud.
-Bernstein v. Lester (Sup.) 496. FIRES.
$ 2. Actions.
A purchaser at foreclosure of a second mortCaused by operation of railroad, see "Rail- | gage held not entitled to recover of the holder roads," $ 3.
of the first mortgage for fraudulent representa
tions as to the amount due thereon; the facts FISH.
estopping such holder to claim more on fore
closure than was represented as due.-Inderlied Ejectment proceedings by fish commission, see
v. Honeywell (Sup.) 333. "Ejectment," $ 2.
A complaint merely alleging false representaFLOWAGE.
tions held an insufficient pleading of fraud.
Inderlied v. Honeywell (Sup.) 333. See "Waters and Water Courses," $ 1.
Judgment for plaintiff cannot be sustained,
though the evidence shows fraud of defendant; FORCIBLE DEFILEMENT. the facts alleged by the complaint not consti
tuting fraud. -Inderlied v. Honeywell (Sup.) See "Rape.”
FRAUDS, STATUTE OF.
8 1. Promises to answer for debt, deOf lien, see "Mechanics' Liens," $ 2.
fault, or miscarriage of another.
An agreement between mortgagor and mortFOREIGN CORPORATIONS. gagee that the mortgagee should pay the sur
plus arising from a sale to an attaching creditor See "Corporations," $ 6.
held not void as an agreement to answer for Sufficiency of application for order for service the debt of another.-Scherzer v. Muirhead of process on, by publication, see “Process,"
(Sup.) 159. 1.
An agreement by tenants to save from loss
of rent a third person who releases their landFOREIGN JUDGMENTS.
lord from a lease, made in consideration of
their landlord's releasing them, is not within See "Judgment," $ 6.
the statute of frauds. - Smith v. Schneider
(Sup.) 238. FOREIGN WILLS.
An oral promise by a third person to com
plete the payment for goods purchased on the Probate or record, see “Wills,” $ 3.
installment plan, in consideration of the goods being transferred to him, held not within the statute of frauds.-Berg v. Spitz (Sup.) 532.
An oral promise to pay the debt for which For overcharges by carriers, see "Carriers," $ 2. a judgment debtor is imprisoned, in consideraOf bail, see “Bail," $ 1.
tion of his release, that he may return to the service of the promisor, is not within the stat. ute of frauds.-Berg v. Spitz (Sup.) 532.
A parol promise to pay the debt of another, See "Judgment,” 8 5.
I in consideration of the cancellation thereof so
far as the original debtor is concerned, is not
GAMING. within the statute of frauds.-Berg v. Spitz (Sup.) 532.
8 1. Penalties and forfeitures. $ 2. Agreements not to be performed able a loser in a wager with another on the re
Laws 1895, p. 377, c. 570, § 17, held to enwithin one year.
sult of a race at a race course to recover the An oral agreement of employment held contrary to the statute of frauds, as not to be per- Moulton" v. Westchester Racing Ass'n (Sup.)
money wagered and delivered to the latter.formed within one year.-Fanger v. Caspary
871. (Sup.) 410. § 3. Real property and estates and in
GARNISHMENT. terests therein. That an agreement to devise land is oral does See “Attachment"; "Execution." not necessarily render it void, but it may be valid from the nature of the contract or on ac
GIFTS. court of part performance.-Conlon v. Mission of the Immaculate Virgin (Sup.) 49.
Reference to determine question of alleged gift, $ 4. Requisites and sufficiency of writ see "Reference," $ 1. ing.
Transfer taxes, see "Taxation," $ 5. Under Laws 1863, p. 802, c. 464, the written guaranty to be responsible for goods there 8 1. Inter vivos. after sold by plaintiff to a third person need
Evidence held sufficient to show a gift of cernot express the cousideration.-Finkelstein v. tain shares of stock to a daughter.-Crouse v. Kessler (Sup.) 266.
Judson (Sup.) 755. $ 5. Pleading, evidence, trial, and re-6 2. Causa mortis. view.
A gift of funds
mortis held valid, Where the contract alleged was not within though the owner held them subject only to his the statute of frauds, but the contract proved check, when countersigned by a surety ou his on trial violated the statute, the objection might bond as administrator. Dickinson v. Hoes be raised without pleading it.-Fanger v. Cas- (Sup.) 152. pary (Sup.) 410.
A gift causa mortis of money ou deposit was perfected by delivery by the donor to the donee
of a receipt for the money executed by the deFRAUDULENT CONVEYANCES.
positary.--Dickinson v. Hoes (Sup.) 152. § 1. Transfers and transactions invalid. A gift causa mortis of the residue of certain
Bills of sale of personal property executed by funds left after the donee should pay for the a debtor held tainted with fraud.-Cafe Union burial of the donor was valid.-Dickinson v. V. Reordan (Sup.) 994.
Hoes (Sup.) 152. $ 2. Rights and liabilities of parties and purchasers.
Of bill or note, see "Bills and Notes," $ 4.
"Frauds, Statute of,” $ 1. FUNERAL EXPENSES.
GUARDIAN AND WARD. Allowance of claim for, see "Executors and Administrators,” $ 5.
Guardianship of insane persons, see "Insane
Persons," $ 1.
Suit by guardian ad litem in forma pauperis,
see "Costs," $ 3. Ejectment proceedings by game commission, see "Ejectment,” $ 2.
1. Appointment, qualification, and
tenure of guardian. Evidence in qui tam action for penalty pro Widow will be appointed guardian of her vided by Laws 1900, p. 22, c. 20, for the illegal minor children where no sufficient reasons to possession of quail, held insufficient to show the contrary are shown.--In re Burdick (Sur.) possession.-People v. Duuston (Sup.) 257. 932.
and 118 New York State Reporter § 2. Actions.
HUSBAND AND WIFE An infant held not liable for necessaries furnished her under contract with her guardian
guardian See "Divorce." and on the guardian's credit.-Murphy v. Holmes (Sup.) 806.
Admissions as evidence, see "Evidence," $ 4.
Contract for resumption of marriage relatien Evidence held to make it a question for the as affected by public policy, see "Contracts ** jury whether a contract for necessaries for an $ 1. infant was made with her guardian and on his Husband as agent for wife in exchange of propcredit.-Murphy v. Holmes (Sup.) 806.
erty, see "Brokers," $ 2.
Liability of husband on promise without conHABEAS CORPUS.
sideration to pay debts of wife, see “Con
tracts," § 1. § 1. Jurisdiction, proceedings, and re. Rights of survivor, see "Executors and Adminlief.
istrators," 4. On appeal from order dismissing writ of ha- | Sufficiency of consideration for agreement to re beas corpus, relator having been held on a sume marriage relation, see “Contracts," $ 1 charge of violating Pen. Code, $ 72, appellate
§ 1. Mutual rights, duties, and liabili, court held limited to inquiry as to whether
ties. there was any evidence to show guilt-People V. Van De Carr (Sup.) 461.
A husband, living separate from his wife, he lia ble for medical services furnished the wi. -Button v. Weaver (Sup.) 388.
In the absence of express authority to wife
to use his credit, a husband can only be held In civil actions, see “Appeal,” | 12.
liable for debts incurred by her for jewelry, upon implication of agency arising from his duty to furnish necessaries.-McBride v. Adams
(Sup.) 1060. In civil actions, see "Evidence," $ 6.
Where a married couple take boarders into
their home, and the wife takes charge of the HEIRS.
house, the profits derived from such business
belong to the husband.-Briggs v. Devoe (Sup.) See “Descent and Distribution."
§ 2. Conveyances, contracts, and other
transactions between husband See “Bridges"; "Municipal Corporations," $
c 4, 5.
Contract for resumption of marriage relation,
I and vesting of dower interest on its breach be Accidents at railroad crossings, see "Railroads," husband, held not to contravene Domestic Rela$ 3.
tion Laws, Laws 1896, p. 220, c. 272, & 21.§ 1. Regulation and use for travel.
Sommer v. Sommer (Sup.) 444. • A chauffeur held not bound to chain an auto- Wife's failure to faithfully discharge marital mobile to a post before leaving it in the street obligations held defense to her suit to enforce while delivering goods therefrom.--Berman v. contract for resumption thereof, and vesting of Schultz (Sup.) 292.
dower interest in case of breach by husband.Willful act of boys in starting an automo
Sommer v. Sommer (Sup.) 444. bile left in a street, and not the negligence of Executrix of wife held entitled to recover onethe chauffeur, held the proximate cause of an third of rental value of premises, accruing be injury to plaintiff's wagon by collision with the tween wife's death and previous breach by hus. automobile.-Berman v. Schultz (Sup.) 292. band of contract for resumption of marriage re
In an action for injuries in a collision with lations and vesting of dower interest in case an automobile, a finding that if the chauffeur
of breach.-Sommer v. Sommer (Sup.) 444. had thrown off the current and applied the Contract for resumption of marriage relation, brake, as he testified, the damage could not and vesting of dower interest in case of breach have been inflicted, held unsupported by the evi- by husband, held not to give right of action to dence.-Berman v. Schultz (Sup.) 292.
wife against husband's co-tenant.--Sommer 1.
Sommer (Sup.) 444.
§ 3. Disabilities and privileges of cor& 1. Evidence.
erture. Evidence examined, and held to sustain a con
Married woman held not personally liable for viction of manslaughter in the second degree.
medical services rendered at her request, in abPeople v. Sharkey (Sup.) 780.
sence of special contract making her so, notwithstanding Laws 1896, p. 220, c. 272.-Rich
ards v. Young (Sup.) 265. HOTELS.
$ 4. Actions. License to sell liquors, see "Intoxicating Liq-1° The affirmative on the question of the wife's uors," $ 2.
I agency to bind the busband by a purchase of
jewelry is on him who seeks to hold the hus
INCOMPETENT PERSONS. band.-McBride v. Adams (Sup.) 1060.
Where a married couple take a boarder into | See "Insane Persons." their home, under an agreement between the wife and her husband that she alone shall re
INCUMBRANCES. ceive the compensation therefor, the wife may recover therefor in her own name.-Briggs v. On property of intestate, see “Descent and Leroe (Sup.) 1063.
Distribution," § 2. In an action by a wife to recover from a boarder in her home, statements of her husband
INDEMNITY. as to agreement between him and his wife that she should receive the compensation held ad- See "Principal and Surety." missible.-Briggs v. Devoe (Sup.) 1063. 8. 5. Separation and separate mainte INDICTMENT AND INFORMATION.
Allowance of counsel fees to plaintiff in an For offenses by municipal officers, see "Municisation for separation, for purpose of further pal Corporations," § 1. "osecution of the action, after a disagreement For rape, see "Rape," 1.
the jury on the trial of an issue whether ere was a marriage, held proper.-Herrmann 8 1. Motion to quash or dismiss, and v. Herrmann (Sup.) 736.
demurrer. Defendant to an action for separation should dence before the magistrate was sufficient to
The decision, on habeas corpus, that the evinot be required to pay plaintiff the expense of warrant holding the accused, held to render unthe stenographer's minutes of a mistrial.-Herr- availing the claim that the same evidence was mann v. Herrmann (Sup.) 736.
insufficient on which to found an indictment.
People v. Martin (Sup.) 823.
Averments in an affidavit held insufficient to
overcome the presumption that an indictment See "Names."
was founded on sufficient evidence.-People v.
Martin (Sup.) 823.
“Bills and Notes," $ 4. TRACT.
Of draft, see “Bills and Notes," $ 3.
See "Guardian and Ward."
Suits by infants in forma pauperis, see "Costs," Of record, see "Appeal," 5.
$ 3. Of witness, see "Witnesses," $ 4.
$ 1. Contracts.
Infant, suing on contract of employment, held IMPLICATION.
not entitled to repudiate provision for payment Creation of easement by, see "Easements," § 1. (Sup.) 581.
of his prior indebtedness.-Pecararo v. Pecararo
Admission in the answer of an infant of a conIMPLIED CONTRACTS.
tract is not binding on her.-Murphy v. Holmes
(Sup.) 806. See "Work and Labor."
See "Courts," $ 2.
IN FORMA PAUPERIS.
INHERITANCE. Public improvements, see "Municipal Corporations," $ 2.
See “Descent and Distribution."
IMPUTED NEGLIGENCE. See “Negligence," $ 2.
and 118 New York State Reporter INJUNCTION.
| raised by answer.-Corscadden v. Haswell
(Sup.) 597. See "Prohibition," 1.
$ 4. Preliminary and interlocutory inHarmless error in continuing, see “Appeal,"
junction § 12,
Electric company, occupying subway of anIn action under partially invalid statute, see other electric company, for which it has paid "Statutes," $ 1.
and the other accepted rental for several years,
held not entitled to mandatory injunetion, pen§ 1. Nature and grounds in general. dente lite, compelling assignment of additional
Discontinuance of wrongful acts on the part space.-West Side Electric Co. v. Consolidated of a competing publisher held not to preclude | Telegraph & Electrical Subway Co. (Sup.) 1052, complainant from obtaining an injunction to Electric company, occupying subway of anrestrain the continuance thereof.-American
other electric company, for which it has paid Law Book Co. v. Edward Thompson Co. (sup.) and the other accepted rental for several years. 225.
held entitled to temporary iniunction to compel Complainant, injured by a competing pub- the continuance of the occupancy.-West Side lisher inducing complainant's subscribers to Electric Co. v. Consolidated Telegraph & Elecbreak their contracts, held not to have adequate trical Subway Co. (Sup.) 1052. remedy at law, so as to preclude it from ob
Electric company, Occupying subway of antaining an injunction against such acts.-Ameri
other electric company, for which it has paid can Law Book Co. v. Edward Thompson Co.
and defendant has accepted rental for several (Sup.) 225.
years, held entitled to temporary injunction preA village has no adequate remedy at law for venting interference with connecting additional construction of railroad over its street at grade, customers with the system already located.-where one fourth of the expense of subsequent | West Side Electric Co. v. Consolidated Tele. change of route, on its application to the rail- graph & Electrical Subway Co. (Sup.) 1052. road commissioners for such a change, would
1 $ 5. Violation and punishment. fall on it.-Village of Bolivar v. Pittsburg, S.
Evidence held to show defendants guilty of & N. R.- Co. (Sup.) 678.
criminal contempt in the violation of an injune§ 2. Subjects of protection and relief. tion.-Stearus v. Marr (Sup.) 36.
A publisher held entitled to injunction re- An order of reference to take testimony as to straining a competing publisher from inducing an alleged violation of an order of injunction complainant's subscribers to break their con- held proper.-People v. Marr (Sup.) 965. tracts, and agreeing to indemnify them from any loss sustained by such breach or litigation
Persons having knowledge of an order of inarising therefrom.-American Law Book Co.
junction held liable for its violation, though not v. Edward Thompson Co. (Sup.) 225.
parties to the action. People v. Marr (Sup.)
965. In a suit to restrain unlawful competition between publishers, whether complainant's sub
INNKEEPERS. scribers in each instance were actually led to break their contracts by defendant's misrep Proprietor of quick lunch restaurant held not resentation held immaterial. - American Law negligent in respect to care required toward Book Co. v. Edward Thompson Co. (Sup.) 225. patron's overcoat.-Harris v. Childs' Unique
It would not be presumed, in an injunction Dairy Co. (Sup.) 260. proceeding to restrain penitentiary commissioners from acting under Laws 1902, p. 387, c.
INSANE PERSONS. 127, which is unconstitutional in part, that they would exceed their constitutional powers.
18 1. Guardianship. Corscadden v. Haswell (Sup.) 597.
Where, pending proceedings in the Supreme The superintendent of the Albany Peniten- Court to determine the amount which shall be tiary being a statutory officer who can be re
a statutory officer who can be re- paid to the committee of an incompetent for moved only for cause, equity has power to en- | necessary disbursements, costs, and counsel join his removal under an unconstitutional stat- | fees, the incompetent dies, his executor must be ute.--Corscadden v. Haswell (Sup.) 597.
made a party to the proceedings.-In re Ferris Acts designed merely to injure another's busi
(Sup.) 14. ness, and not for the purpose of obtaining an Code Civ. Proc. & 2344, held not to deprive increase of wages, held unlawful.-W. P. Davis the Supreme Court of jurisdiction to determine Mach, Co. v. Robinson (Sup.) 837.
the necessary disbursements of the committee of Injunction to restrain interference with plain
an incompetent and his costs and counsel fees, tiff's business by a union, the members of
as required by section 2336.-In re Ferris (Sup.) which had struck because plaintiff had refused to employ only union men, will not be vacated. W. P. Davis Mach. Co. v. Robinson (Sup.) 837. § 3. Actions for injunctions.
See "Bankruptcy." In a suit for an injunction, where the com- of building association, see "Building and Loan plaint alleges no adequate remedy at law, the Associations." defense that there is such a remedy must be l Of corporation, see "Corporations," $ 5.