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and 88 New York State Reporter.

since such section is unconstitutional.-Bohmer | in other securities held by him for the same v. Haffen (Sup.) 1030. debt.-Sternbach v. Friedman (Sup.) 608.

A company given a right by county supervisors to operate its road in a street occupied by another company held to be given the right


to use such other company's tracks. Staten Of attorney, see “Attorney and Client,” § 1. Island Midland R. Co. v. Staten Island Electric R. Co. (Sup.) 598.

A company accepting a franchise held bound


by a stipulation therein requiring it to permit See "Descent and Distribution."
another company to use its tracks.-Staten
Island Midland R. Co. v. Staten Island Electric
R. Co. (Sup.) 598.

§ 2. Regulation and operation.

Evidence in action for injuries to person on track held to show plaintiff guilty of contributory negligence.-Johnson v. Brooklyn Heights R. Co. (Sup.) 547.

Workmen repairing a street are entitled to more warning of an approaching car than the noise it makes in running.-Lewis v. Binghamton R. Co. (Sup.) 452.

Contributory negligence of plaintiff when struck by defendant's street car held for the jury.-Lewis v. Binghamton R. Co. (Sup.) 452.

In an action for killing a six year old child, a verdict for plaintiff held error, in that it was as reasonable to infer due care on defendant's

See "Action.”


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part, from the evidence, as negligence.-White As ground for new trial, see "New Trial,” § 2. v. Albany Ry. (Sup.) 445.

Facts held not to show negligence of company in not discovering and repairing defective_rail


before injury resulted.-Kelly v. Metropolitan See, also, "Internal Revenue." St. Ry. Co. (Sup.) 173.

Verdict for plaintiff, in an action for personal injuries received in a collision with a car, set aside, as against the weight of evidence.-O'Keefe v. Third Ave. R. Co. (City Ct. N. Y.) 1088.

Where the rear of plaintiff's wagon was struck by an approaching car, held erroneous to instruct that plaintiff had the right to assume that he would be given timely warning of the approach of a car.-Devine v. Brooklyn Heights R. Co. (Sup.) 626.


See "Municipal Corporations," § 5.


A third mortgagee, who had paid off the first mortgage and had had it satisfied in ignorance of the second mortgage, which was induced by the representations of the attorney for the mortgagor and for the second mortgagee, held to have prior rights to the extent of all the rights under the first mortgage prior to its satisfaction.-Lanier v. Milliken (Sup.) 424.

Answer to a suit on a surety's bond held to put in issue the question of the right to subrogation.-Sternbach v. Friedman (Sup.) 608.

A surety paying a debt for his principal is entitled to be subrogated to the creditor's right

1. Nature and extent of power in


Under its taxing power, the legislature has Power to revise and correct its enactments to remedy unforeseen results of former acts.People v. Molloy (Sup.) 1084.

Instead of delegating the details of taxation to officials, the legislature may execute them itself.-In re Curren (Sup.) 917.

Laws 1896, c. 908, § 7, providing for taxation of nonresidents doing business in the state. construed, and right to exemption to amount of indebtedness in state determined.-People v. Barker (Sup.) 848.

§ 2. Liability of persons and property. The assessment and levy of a tax on the full value of realty held not without jurisdiction. though the owner could claim an exemption on account of pension money invested therein.Worden v. Oneida County (Sup.) 952.

Laws 1896, c. 908, § 4, subd. 14, exempting from taxation the deposits in any bank for sav ings which are due depositors, applies to the taxation of such deposits as the property of the depositors.-People v. Dederick (Sup.) 519.

A lot paid for with pension money is not exempt from local assessment for street paring.-Tucker v. City of Utica (Sup.) 855.

1 Rev. St. p. 388, § 4, subd. 9, exempting realty purchased with pension money, held to exempt only the pension money invested.-Worden v. Oneida County (Sup.) 952.

3. Levy and assessment.
Voluntary payment of an invalid tax does
not estop the taxpayer from questioning the
validity of subsequent similarly invalid tax.-
In re Wood (Sup.) 30.

An invalid tax is not validated by the fact
that a similarly invalid tax had been levied
and paid without protest for a number of years
prior thereto.-In re Wood (Sup.) 30.

Assessment valid under the act in force when
made held not invalidated by tax commission-
ers incorrectly describing in notice the statute
which they had assumed to act.-People v.
Barker (Sup.) 848.

Assessors held to have jurisdiction to assess
a general tax against a lot partly paid for
with pension money.-Tucker v. City of Utica
(Sup.) 855.

Laws 1896, p. 908. § 225, providing that,
when a transfer tax has been erroneously paid,
the comptroller may refund the amount, does
not obligate an executor to appeal from the or-
der fixing the tax.-In re Sherar's Estate (Sur.)


See "Landlord and Tenant."

See "Wills," § 2


Restrictions on power to devise or bequeath, see
"Wills," § 1.


A taxpayer held to have lost by his delay his
right, under Consolidation Act, § 822 (Laws See "Logs and Logging."

1882, c. 410), to correct his assessment.-Peo-
ple v. Feitner (Sup.) 902.

§ 4. Payment and refunding or recov-
ery of tax paid.

An action to set an assessment aside and to
recover taxes paid thereunder because the prop-
erty was partially exempt held not maintainable,
where the exemption was not claimed on griev-
ance day. Worden v. Oneida County (Sup.)


One purchasing land for taxes after the state
had acquired title is entitled to reimbursement.
-People v. Campbell (Sup.) 725.

On reversal of an order canceling a sale to
the state for taxes on payment of taxes by de-
fendant, held, that he must execute a deed to
the state as a condition of receiving reimburse-
ment.-People v. Campbell (Sup.) 725.

On reversal of an order canceling a sale to
the state for taxes on payment of taxes by
defendant, held, that he was not entitled to pay
for improvements made by him on the land aft-
er such cancellation.-People v. Campbell (Sup.)


§ 5. Legacy, inheritance, and transfer


Transfer of stocks held to take effect at once,
and not taxable as gift, to take effect on death
of donor, under Laws 1892, c. 399.-In re
Edgerton's Estate (Sup.) 700.


For performance of contract, see "Contracts,"
§ 2.


See "Covenants," § 1; "Eminent Domain."
Removal of cloud, see "Quieting Title.”
Sufficiency of title of vendor of land, see "Ven-
dor and Purchaser," § 3.

Particular matters affecting title.

See "Adverse Possession."

Titles of particular acts or proceedings.
Statutes, see "Statutes," § 2.


See "Municipal Corporations," § 6.
By particular classes of parties.
Employés, see "Master and Servant," § 4.

Particular torts.

See "Assault and Battery"; "Fraud"; "Libel
and Slander"; "Malicious Prosecution"; "Neg-
ligence"; "Trespass": "Trover and Conver-

Complaint alleging that a tenant in common.
others of them not to sign deed, does not show
who had agreed to sell the property, persuaded
that she prevented consummation of contract.

Transfer of stocks in consideration of pay-
ment of certain annuities, reserving no power
of revocation, is not a gift causa mortis, with-
in Laws 1892, c. 399, taxing gifts made in con--Daly v. Cornwell (Sup.) 107.
templation of death.-In re Edgerton's Estate
(Sup.) 700.

Transfer of stock for erection of monument
to donor held provision for funeral expenses, not
taxable as gift, to take effect on death of
donor, under Laws 1892, c. 399.-In re Edger-
ton's Estate (Sup.) 700.

Code Civ. Proc. § 1290, providing that mo-
tions to set aside judgments for errors in fact
not arising on the trial must be made within
two years, does not apply to an application for
refunding of transfer tax.-In re Sherar's
Estate (Sur.) 930,

Tenant in common, who, with the others,
has contracted to sell the common property.
held not liable to purchaser for inducing the
others not to consummate contract.-Daly v.
Cornwell (Sup.) 107.


See "Counties"; "Municipal Corporations."

8 1. Fiscal management, public debt,
securities, and taxation.

A town assessor is not legally authorized to
defend at the expense of the town, without au-

and 88 New York State Reporter.

thority therefrom, an assessment attacked by
certiorari.-People v. Vanderpool (Sup.) 436.
§ 2. Claims against towns.

A claim against a town held to have been properly audited.-People v. Vanderpool (Sup.)


A town held not liable, under Laws 1890, c. 569, § 180, subd. 7, for money expended for an attorney by an assessor in defending a certiorari to review an assessment, where he was not required by law or otherwise to do so.-People v. Vanderpool (Sup.) 436.

contract from the grantee to sue a wrongdoer for wrongful entry. Young v. Shulenberg (Sup.) 419.

An entering into possession of a lot, followed by the continued control of the property by an agent, is prima facie proof of plaintiff's right of possession in an action to compel a trespasser (Sup.) 400. to remove earth placed thereon.-Eno v. Christ

The measure of damages for a continued trespass on real property is the rental value of the property during the period of the trespass.

The town board of audit held not required to-Eno v. Christ (Sup.) 400.

pass on each item of a bill of legal services in a single suit presented as a claim against the town.-People v. Vanderpool (Sup.) 436.

Where no evidence of a claim against a town is offered, held the town board may determine their allowance from their own knowledge of its validity, without calling witnesses.-People v. Vanderpool (Sup.) 436.


§ 1. Title, conveyances, and contracts.

A purchase of a farm by a married woman, under an executory contract, where she and her husband entered into possession, raises the preNostrand v. Hubbard (Sup.) 739. sumption that she was in possession.-Van


See "Ejectment."



Evidence that the words "Old Crow" have See, also, "New Trial"; "Reference"; "Witbeen used for many years by plaintiff and by his predecessors in business as the mark of their brand of whisky held prima facie suffi-8 1. Notice of trial and preliminary cient to show plaintiff's right of trade-mark in the words "Old Crow."-W. A. Gaines & Co. v. Leslie (Sup.) 421.

§ 2. Infringement and unfair competi


The use of the word "Crow" on a label of a whisky called "White Crow" is an infringe; ment on the existing trade-mark of "Old Crow," as used on plaintiff's brand of whisky.—W. Á. Gaines & Co. v. Leslie (Sup.) 421.

In an action for infringement of a trademark, plaintiff's failure to prove the registration of his trade-mark, as alleged in the complaint, held not fatal, where the complaint was broad enough to admit proof of the trade-mark as existing through exclusive use. - - W. A. Gaines & Co. v. Leslie (Sup.) 421.


that notice of trial did not apply to issues made
Defendant held to have waived any objection
by pleadings served after the notice.-Knowles
v. Lichtenstein (Sup.) 49.

proceed with a
Where an application to compel plaintiff to
foreclosure action rests on
agreement, held all the parties to the agreement
are entitled to notice.-Wandell v. Romeyn
(Sup.) 1065.

§ 2. Dockets, lists, and calendars.
be stricken from the calendar because one de-
Under Code Civ. Proc. § 456, a cause cannot
fendant tort feasor has not been served.-Rap-
paport v. Werner (Sup.) 481.

§ 3. Course and conduct of trial in gen-

In an action for an injunction based on the A remark of a court to counsel in ruling on a theory of unfair competition, fraud must be question raised, that "I mean to throw this acaffirmatively shown, where the labels used are tion out of court, the first opportunity," is retotally dissimilar in lettering and general ap-versible error.-Swan v. Keough (Sup.) 474. pearance.-W. A. Gaines & Co. v. Leslie (Sup.)



See "Taxation," § 5.


See "Logs and Logging."


To the person, see "Assault and Battery."

Recital in a deed by heirs that the owner was dead, and that he died intestate, held sufficient proof to entitle one in possession under a land

Exceptions to rulings taken after verdict held unavailing.-Rubenfeld v. Rabiner (Sup.) 68.

Where an answer does not deny any of the allegations of the complaint. but sets up affirmative defenses, defendant has the right to open and close the case.-Lange v. Garfunkel (Sup.) 993.

§ 4. Reception of evidence.

Where, on objections to evidence, defendant disclaims that it was offered for a certain purpose, it cannot thereafter be considered for that purpose.-Sherman v. Pedrick (Sup.) 467.

To exclude plaintiff's evidence of consideration for the matter sued on, on the ground that there was sufficient evidence, and then to submit the question of consideration to the jury, held error.-Lyon v. Brown (Sup.) 315.

Plaintiff must make out a case of conversion,
or he cannot recover, although he may show
that defendant is liable on some other the-

ory.-Beggar Students' Pleasure Soc. v. Eichel
(Sup.) 128.

An objection to evidence relating to a certain | § 2. Actions.
subject, made when it was entered on, will be
regarded as embracing the whole thereof.-
Montignani v. E. V. Crandall Co. (Sup.) 517.
Where an uncalled for answer to a competent
question against one defendant was prejudicial
to another, the injured defendant should move
to strike it out. Objecting to the question is in-
sufficient.-Keegan v. Third Ave. R. Co. (Sup.)

A party does not waive objections to the
admission of evidence by endeavoring to rebut
it. Woods v. Buffalo Ry. Co. (Sup.) 735.

§ 5. Taking case or question from jury.
A controverted issue of fact must be sub-
mitted to the jury.-Miller v. Erie R. Co. (Sup.)


A complaint held to sufficiently allege a right
of possession in plaintiffs.-Yardum v. Wolf
| (Sup.) 192.

Evidence held inadmissible in an action for
conversion of property alleged to have been
unlawfully taken and sold under an execution.
-Montignani v. E. V. Crandall Co. (Sup.) 517.
action for its conversion held error, where there
A judgment for the face of a mortgage in an
partially paid.-Ferrier v. Manning (Sup.) 1019.
was uncontradicted evidence that it had been
Verdict held not to determine issues.-Zeitlin

Where different inferences might be drawn
from testimony, the question must be submit-V. Arkaway (Sup.) 139.
ted to jury.-Auld v. Manhattan Life Ins. Co.
(Sup.) 222.

Court cannot take case from jury on second
trial merely on opinion that witness has amend-
ed his testimony given at former trial.-Brad-
ley v. Second Ave. R. Co. (Sup.) 256.

§ 6. Instructions to jury.

The jury cannot disregard the testimony of
a party because interested, without consider-
ing it in connection with the other evidence.-
Irwin v. Metropolitan St. Ry. Co. (Sup.) 195.
§ 7. Verdict.

Alteration of sealed verdict, on jury coming
in in the morning, in matter of form, held no
ground for objection.-Lyon v. Brown (Sup.)


The court has discretionary power to reduce
a verdict for personal injuries as being excess-
ive.-Kalfur v. Broadway Ferry & M. Ave.
R. Co. (Sup.) 503.
§ 8.

Waiver and correction of irregu-
larities and errors.
Error in permitting a witness to testify, in
showing the value of property, as to how much
was paid for it, is cured, where its value was
afterwards fully shown.-Muller v. Abramson
(Sup.) 1027.


1. Acts constituting conversion, and
liability therefor.

A treasurer of committee of society which
has two factions, who collects money and pays
it to treasurer elected by wrong faction, is not
liable for conversion.-Beggar Students' Pleas-
ure Soc. v Eichel (Sup.) 128.

Where defendant delivered note belonging to
plaintiff to the maker for value, he is liable for
conversion to the amount of the note.-Pease
Piano Co. v. Waterloo Organ Co. (Sup.) 838.

The lessor's removal of a sign belonging to
the lessee, and at once notifying the lessee that
the sign was at his disposal, held not to be a
conversion.-O. J. Gude Co. v. Farley (Sup.)


54 N.Y.S.-74


Conveyances in trust for creditors, see "Assign-

ments for Benefit of Creditors."
Creation of trust in fund, see "Insurance," § 1.
Trust deeds, see "Mortgages."

§ 1. Creation, existence, and validity.
Evidence held to show such an inexcusable
nonperformance of the cestui que trust's obliga-
tions as to defeat the enforcement of the trust.
-Stafford v. Carragan (Sup.) 432.

Where one sued as the beneficiary under a
trust claimed to have been created by a bank
deposit, held, that evidence that a part of
the deposit was the wages of beneficiary was
material only in determining whether the mon-
ey was deposited in trust without condition.-
Lee v. Kennedy (Sup.) 155.

The use by a depositor in opening a bank ac-
count of his own name, followed by the word
"for" another person named, does not, of it-
self, create a trust.-Lee v. Kennedy (Sup.)

On an issue whether a deposit was intended
to create an irrevocable trust, held, that the
depositor herself may testify as to her conver-
sations with the bank officer on the opening
of the account.-Lee v. Kennedy (Sup.) 155.

Evidence of statements by depositor at the
time of opening a bank account held to show
the creation of only a qualified trust in the
deposit.-Lee v. Kennedy (Sup.) 155.

Notice to, or assent of, the policy holders to
be benefited by a trust fund created by the
company is not essential to the completeness of
the trust.-Babcock Printing-Press Mfg. Co. v.
Ranous (Sup.) 1048.

Evidence held to establish a valid trust.-
Board of Domestic Missions of the Reformed
Church in America v. Mechanics' Sav. Bank
(Sup.) 28.

A trust in bank accounts held not defeated by
a failure to direct the bank in writing, as re-
quired by its rules, to make the transfer to the
trust fund.-Board of Domestic Missions of
the Reformed Church in America v. Mechan-
Lics' Sav. Bank (Sup.) 28.

and 88 New York State Reporter.

A conveyance to a sister-in-law, where induced by her husband (plaintiff's brother) under a parol promise to reconvey, held to create § 1. a trust in plaintiff's favor, on refusal to reconvey.-Bullenkamp v. Bullenkamp (Sup.) 482. Where words in a bequest indicate that the legatee is to have the property absolutely, subsequent precatory words do not impose a trust on it.-First Presbyterian Church in Village of Waterford v. McKallor (Sup.) 740.

§ 2. Appointment, qualification, tenure of trustee.


The appointment of new trustees without notice to some of the beneficiaries held an ir

regularity which would not invalidate the appointment.-Wood v. Travis (Sup.) 60.

§ 3. Management and disposal of trust property.




contracts and transac

The defense of usury held not established where it was not shown that the payee knew that his agent exacted a usurious commission or received any of it.-Friedman v. Bruner (Sup.) 997.

A transaction attacked as usurious will, if the proofs are evenly balanced and it be capable of being so construed, be regarded as done with an innocent, rather than a corrupt, design.Newman v. Simpson (Sup.) 1040.

has the burden of proof.-Newman v. SimpA party attacking a transaction as usurious son (Sup.) 1040.

Burden of proof held on defendants.-Friedman v. Bruner (Sup.) 997.

Trustee of premises occupied by a low class An affidavit stating that the lender of money of tenants held not liable for not employing real-was a "private banker" and president of a estate agent during general business depression bank is insufficient to show that the lender to get tenant who would make improvements. was a "private banker," exempted by Laws -Gomez v. Gomez (Sup.) 237. 1882, c. 409, § 68, from the effect of the genCo. (Sup.) 862. eral usury law.-Sexton v. Home Fire Ins.

Trustee of leased property held not liable for renewing the lease, instead of buying the improvements, where he had no money belonging to the estate. and no right to mortgage and buy improvements.-Gomez v. Gomez (Sup.) 237.

Compromise by trustee, instead of relying on suit for land in controversy, held justified; the law as to the rights of his beneficiaries being uncertain.-Gomez v. Gomez (Sup.) 237.

Equity will not instruct trustees how to act when there are no allegations of conflicting claims, nor any ambiguity of terms, and the trust has not terminated.-Crawford v. Winston (Sup.) 246. § 4.

The question whether payments by maker of a note to an indorser were usurious, or in corsideration of the loan of the indorser's credit. held for the jury.-Union Bank of Rochester v. Benedict (Sup.) 721.


See "Sales."

Requirements of statute of frauds, see "Frauds,
Statute of," § 2.

§ 1. Construction and operation of con-

Establishment and enforcement of Under an executory contract, the vendor be trust. comes the owner of the purchase money, and Beneficiaries, with equal rights and priorities the purchaser the equitable owner of the land. in a trust fund, cannot obtain priorities against-Wagstaff v. Marcy (Sup.) 1021.

each other by attachment.-Babcock Printing- § 2. Modification or rescission of conPress Mfg. Co. v. Ranous (Sup.) 1048.

Where the only claim against plaintiff by one not a party to the action to compel a reconveyance of land was on an outlawed note, held error to make its payment a condition of the reconveyance. Bullenkamp v. Bullenkamp (Sup.) 482.

Costs awarded beneficiary in an action against the trustee, to be paid out of the estate, can be paid only out of the share of such beneficiary, none of the others being parties. Gomez v. Gomez (Sup.) 237.

Where beneficiary has surcharged trustee's account for $1,000, and costs allowed beneficiary out of his share of the estate equals such share, no costs should be allowed trustee.Gomez v. Gomez (Sup.) 237.

See "Bonds."



The right of a vendee to rescind sale for fraud held barred by a delay of a year after knowledge thereof.-Kaufmann v. McLaughlin (Sup.) 160.

§ 3. Performance of contract.

Proof of undisturbed possession is insufficient to show marketable title, without proof that the owner was not under disability, and that the possession was hostile to him.-Ruess v. Ewen (Sup.) 357.

Purchaser will not be compelled to take title based on facts to be determined by parol evidence.-Ruess v. Ewen (Sup.) 357.


§ 1. Change of venue or place of trial. Where the witnesses as to the principal issue in a cause were mainly in another county, held error to refuse a motion for a change of venue to such county.-Snyder v. Mack (Sup.) 534.

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