FALSE IMPRISONMENT - Unverified pleading - Code of Civil Pro- cedure, sections 523, 837 - allegations tending to accuse the pleader of a crime or misdemeanor.
FALSE REPRESENTATIONS - Lien, under a mortgage, upon land in another State to secure future indorsements - burden of proof on the plaintiff.] 1. Where the plaintiff, in an action brought to recover money alleged to have been paid to the defendant under the inducement of false representations, seeks to recover upon the theory that the defendant falsely represented that he had a lien upon land in another State, purchased by the plaintiff, by force of a mortgage to secure future indorsements, given by a former owner of the land, stating that certain promissory notes claimed to be covered by the mortgage were made before the plaintiff's purchase of the land, whereas they were in fact made after such purchase, the burden is upon the plaintiff to prove that under the law of the State in which the land is situated no lien could exist, under such a mortgage, by reason of notes made after the mort- gagor ceased to own the land. WILLOUGHBY v. FREDONIA NAT. BANK..... 275
2. Notice to prevent further indorsements, necessary.] It is the law of the State of New York that a mortgage to secure future advances or indorse- ments is valid; is within the Recording Act; is notice to subsequent pur- chasers and puts them upon inquiry as to the amount of advances or indorsements already made; and it is only by notice to the mortgagee, or other holder of the mortgage, that still further advances or indorsements which shall be equally a lien on the mortgaged premises can be prevented. Id.
FAMILY - Services rendered to a relative, in the family-compensation, after the death of the person to whom the services were rendered.
FRAUD - Sections 380, 382, sub. 5, 1871 and 1872 of the Code of Civil Pro- cedure must be construed together in applying the Statute of Limitations to a judgment creditor's action based on the ground of fraud.
See WEAVER 2. HAVILAND...
Conveyance, by the equitable owner, of an interest in a decedent's
estate - when valid, although made to a trustee holding the legal title. See MATTER OF LEDRICH
Assignment for the benefit of creditors - action to set aside the assignment for fraud, brought after a judgment for an accounting by the assignee -fraudu- lent intent in making the assignment.
See TURNEY D. VAN GELDER...
Attachment - conversion of personal property - secreting property with intent to defraud creditors.
See ZIEGLER 2. ZIEGLER... See FALSE REPRESENTATIONS.
FRAUDULENT CONVEYANCE – Retention of the subject-matter thereof as security to the grantee for the consideration paid by him.] When a convey- ance made by a judgment debtor is set aside as in fraud of creditors, in an action in the nature of a creditors' bill, it should be retained as security to the grantee (although said grantee is affected with knowledge of the fraudulent intent with which it was executed), for so much of the con-
sideration therefor as is represented by land conveyed to the grantor in exchange therefor, which by reason of such conveyance to the judgment debtor is made subject to, and the proceeds of which are applicable in satisfaction of, plaintiff's judgment. BALDWIN 2. JUNE
2. To what consideration not extended.] Such security, however, is not to be extended to an antecedent indebtedness of the grantor to the grantee, included in the consideration for the conveyance. Id.
3. - Interest, when not allowed.] When the grantee in such a case has had the use and profits of the premises covered by the conveyance, he is not entitled to interest on the amount of the consideration for which the convey- ance is retained as security. Id.
By a debtor.
See ASSIGNMENTS.
FREIGHT – Lien and liability of common carriers for,
GUARDIAN AND WARD - Surrogate's decree directing payment by an administrator to a general guardian — the general guardian may maintain an action therefor on the administrator's bond — appointment of a general guardian - citation.
See PRENTISS V. WEATHERLY..
A general guardian has no power to submit a cause of action either on behalf of or against an infant. See COUGHLIN D. FAY...
Savings bank account — in the name of a father as guardian of his See O'BRIEN D. WEILER...... HANDWRITING - Evidence as to.
HIGHWAY - Defective ditch on a highway - work done by a highway com- missioner under a contract with a landowner - damages.
HOMICIDE - Indictment for murder - conviction of manslaughter - scope of cross-examination of the defendant - objection to a photograph as evidence - intent - technical errors not regarded on appeal - Code of Criminal Procedure, § 542.
HORSE RAILROADS: See RAILROAD.
HUSBAND AND WIFE - Agreement of separation - covenant wife's support - parties to an action to enforce it.] 1. When an agreement of separation, made by a husband and wife and a trustee, contains a covenant on the part of the husband to pay a certain annual sum to the trustee for the wife's support, but contains no express covenant to pay any sum to the wife, and the trustee agrees to indemnify the husband for the wife's debts, the wife cannot (at all events without a refusal by the trustee to enforce the covenant and his joinder as a defendant) maintain an action at law against her husband to enforce his covenant to pay money to the trustee; but the trustee, as the trustee of an express trust within section 449 of the Code of Civil Procedure, is entitled to maintain such action. LORD v. LORD
Separation from bed and board - alimony.] The alimony allowed in a judgment of separation from bed and board, for the support of the wife and three daughters awarded to her custody, fixed at $200 a month, where the wife had no means for supporting herself and daughters except as derived from her husband, and the husband had an income of about $9,500 a year. EMERSON 2. EMERSON..
action by, for a personal injury, without joinder of
See WELD v. N. Y., L. E. & W. R. R. Co...... Former adjudication - a party who has procured a judgment cannot See VAN KOUGHNET v. DENNIE..
Alimony - waiver of a jury trial, as a condition of granting. See LOWENTHAL D. LOWENTHAL..
- Ejectment - claim by the defendant in right of his wife. See DANIHEE 2. HYATT
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INFANT - Conversion of promissory notes belonging to an infant - contracts between attorney and client — an infant's liability for legal services - avoidance of an infant's executory contract.] 1. As a condition of the settlement of an action for a breach of promise of marriage, brought by an infant, the defend- ant in that action agreed to give her his promissory notes for a certain amount; in the infant's absence these notes were taken by her attorney, Breen, and were made payable to him, without the infant's knowledge or consent; thereafter a third party, Williams, by arrangement with Breen, indorsed the notes and obtained their discount by and transfer to a bona fide holder before maturity. The proceeds of the notes were received by Breen and Williams, and only a portion thereof turned over to the infant; there- after the infant, by guardian, brought an action against Breen and Williams to recover the value of the notes, on the ground of their conversion.
Held, that as the evidence tended to show that before any of the notes were transferred, both defendants knew that the plaintiff was an infant, and that there was a concert of action on their part to procure the notes without pay- ing the plaintiff an adequate compensation therefor, it was sufficient to require
the submission to the jury of the question of Williams' good faith in pro- curing, indorsing and transferring the notes, and to justify a verdict against him, as well as against Breen.
An attorney who seeks to avail himself of a contract made with his client, must establish affirmatively that it was made by the client with a full knowl- edge of all the material circumstances known to the attorney, and is in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him.
If a liability exists on the part of an infant to pay for services performed by an attorney, when necessary for the infant's protection or that of his estate, such liability is limited to the actual value of the services rendered, and the infant will not be bound by any agreement which he may have made as to the amount.
An infant cannot authorize or consent to the transfer of a promissory note belonging to him, so as to relieve another from liability for a conversion of the note.
Semble, that an executory contract of an infant, relating to his personal property, may be avoided by him during infancy. PETRIE D. WILLIAMS... 589
2. Tender.] The defendants contended that the plaintiff could not recover without tendering to the defendant Breen all she had received from him. It appeared that the defendants were permitted to prove all that had been advanced to the plaintiff, and the jury deducted that amount from the value of the notes other than those which had been delivered to Williams for real estate conveyed to the plaintiff, and also that all the money that had been paid to the plaintiff by Breen had been expended or squandered by her during her infancy.
Held, that under these circumstances, the defendants had no moral or legal right to require the plaintiff to restore the money received by her, as they were allowed the full benefit of the amount thus paid, and the plaintiff could not make such restoration, Id.
3. Testimony given by one defendant in another proceeding, inad- missible as against a co-defendant.] Before the trial and subsequent to the transfer of the notes in question, the defendant Breen had been examined in proceedings supplementary to the execution, at which examination the defendant Williams was not present; a part of the testimony given on this examination which tended to rebut receipts of the plaintiff acknowledging certain payments to her by Breen was admitted in evidence against both defendants, over the objection of the defendant Williams, that it was incompetent and hearsay.
Held, that this testimony was competent as against Breen but not against Williams, and that its admission as against the latter was error which called for a reversal of the judgment as against him. Id.
Right of orphan asylums to bind out children - chapter 438 of the Laws of 1884-record of a conviction, as evidence.] When the mother of a child, placed in an orphan asylum but not committed to its care by any instrument in writing, or by any mayor, county judge, or superintendent or overseer of the poor, has paid for its support while in the asylum, there has not been an absolute surrender of the child to the asylum in such a manner as to give the asylum jurisdiction, under chapter 438 of the Laws of 1884, to bind out the child.
An error, if any, in reading in evidence, under the defendant's objection, in a proceeding by habeas corpus to remove a child from the custody of the person to whom it has been bound out by an orphan asylum, a record of the defendant's conviction of a crime, is cured by the defendant's subsequently going upon the stand as witness in his own behalf. (Code of Civ. Pro. § 832.)
PEOPLE EX REL. STEWART T. PASCHAL...
Power of the Supreme Court over the custody of infants.] The ancient power of the Supreme Court to control the custody of infants by the writ of habeas corpus has not been taken away by the enactment of section 12 of chapter 438 of the Laws of 1884, which provides for an application to the
Surrogate's Court of the county in which the foster parent resides, for a can- cellation of agreements of adoption. If the statute of 1884 is broad enough to afford relief on the ground that the foster parents of an adopted child are immoral or improper persons to have the custody of a child, it but affords a concurrent remedy to that of an application to the Supreme Court by writ of habeas corpus. Id.
6. Submission upon agreed facts -infants.] A general guardian has no power to submit a cause of action either on behalf of or against an infant, so as to give the court jurisdiction to adjudicate upon the rights of the infant.
- Rights and duties of guardians of infants.
INJUNCTION - Trade-mark-size and color of wrappers — similarity of
Agreement to pool corporate stock - not enforcible by injunction. See WILLIAMS V. MONTGOMERY..
INSANE - Application for supersedeas and the discharge of committee, on the ground of recovery of sanity.] On the application by an adjudged lunatic, alleging that he had recovered his sanity and praying for a super- sedeas and for the determination of the question of his sanity at Circuit, it appeared that since the petitioner was adjudged insane, he had been given two opportunities to have the question of his sanity again passed upon by a sheriff's jury, but had willfully neglected to avail himself thereof, and that he had escaped from the custody of his committee, and had left the State of New York, and refused to disclose his whereabouts, so that it was impos- sible to procure an examination, by a disinterested physician, as to his pres- ent mental condition.
Held, that the application was properly denied. MATTER OF BLEWITT.... 127
INSURANCE - Mutual benefit associations — contract of membership and endowment.] A reply by the general active officer of a fraternal and mutual benefit association, to a request of a member for blanks on which to make proof of a disability, that it was useless for the member to submit proofs of disability, as his claim would be rejected, constitutes a waiver on the part of the association of the obligation to present proofs of disability, and of a compliance with the formal procedure required by the association to perfect the member's claim. HUTCHINSON . SUPREME TENT, ETC....
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