As to practice in criminal cases, see ASSAULT, 1; CRIMINAL LAW, 1, 2, 4, 8, 9; FALSE PRETENCES; FORGERY; LARCENY, 3; MUR- DER, 1.
As to practice in different classes of cases, see those titles, as ATTACHMENT, 3, 6, 10, 11; COMMON CARRIERS, 2; CONTRACT, 1-3; DIVORCE; FALSE IMPRISONMENT, 3; IN- SURANCE COMPANIES, 2; LIBEL, 6; LIFE INSURANCE, 2, 5; NEGLIGENCE. 8, 9. 13, 18, 20, 25, 27, 31; NEGOTIABLE PAPER, 6; PARTNERSHIP, 4; SURROGATES, 1, 8-10.
See also, ARREST, 1; BROKERS, 3; CHARTER PARTY, 1; Costs, 6, 8, 12, 16-18; CRIMI- NAL LAW, 11; DiscoVERY, 3; ESTOPPEL, 6; FRAUD, 1; INJUNCTION, 7; JURY; MAS- TER AND SERVANT, 1, 3; MUNICIPAL COR- PORATIONS, 3: PARTIES, 1; PLEADING, 10- 12; RAILROADS, 4; RECEIVERS, 6,7, 11-13; REFERENCE, 9; SHERIFFS, 2, 5, 8, 9; TOWN BONDS, 2; VENUE, 2, 4; VILLAGES, 2; WILLS, 15, 28-30, 40.
See BANKS, 1, 3; LIEN, 2; RECORD, 1.
See WILLS, 4, 7-9, 13, 18, 25, 27-30, 34, 35, 40, 44.
See CONTRACT, 11; EXECUTORS, &c., 6.
See CONTRACT, 3; EVIDENCE, 25, 26; LIMI- TATION, 6, 7; NEGOTIABLE PAPER, 1-6, 7, 10; PARTNERSHIP, 9; SURETYSHIP, 8.
1. In an action against a railroad company for personal injuries, the fact that the en- gineer neglected to look in the direction in which he was backing his engine, when by so doing he could have seen the plaintiff and might have avoided the accident, war- rants a finding of negligence on defendant's
part.-Pakalinsky v. The N. Y. C. & H. R. RR. Co., 44.
2. The statute requiring certain signals to be given by the engine at road or street cross- ings is intended for the protection of per- sons crossing the track while traveling on a street or road which is both travelled and public.-Byrne v. The N. Y. C. & H. R. RR. Co., 75.
3. An alley which is only used at one end by teams which turn before reaching the track is not a travelled street within the meaning of the statute.-Id.
4. Plaintiff, a brakeman, was injured by the breaking of a brakewheel. He testified that there was a new brakewheel that was of a different shape, but failed to show which kind was least liable to break or that the old shape was not strong enough for its purpose. He also introduced a rim which he claimed to belong to the wheel which broke, but failed to prove that it belonged to that wheel or that it was found near the scene of the accident; he could only say it was of the same pattern. Held, That a non- suit should have been granted; that there was a total failure to show any negligence of defendant growing out of the kind or pattern of the wheel.-Disher v. The N. Y. C. & H. R. RR. Co., 103.
5. The consent of abutting owners, required by 18, Art. 3, of the State Constitution, to the construction of a street railroad, need not be under seal and need not con- vey to the railroad company any fee or
easement in the street.-In re The Cortland & Homer Horse RR. Co. v. The Syr., B. & N. Y. RR. Co., 163.
6. Defendant covenanted with plaintiff that it would pave the streets in and about its rails in a permanent manner, and keep the same in repair to the entire satisfaction of the Street Commissioner. Held, That de- fendant's covenant required it to keep the pavement in repair between the rails.- The Mayor, &c., of N. Y. v. The Second Ave. RR. Co., 203.
7. Upon failure on the part of defendant after demand to repair the pavement plaintiff, having done the work, can recover the amount actually and in good faith expended in the ordinary way in repairing the pave- ment between the tracks, although defend- ant might have procured the work done for less. Id.
8. To establish the time expended in doing the work it is competent evidence to permit the general foreman to state from a memo- randum the times given by the foreman of each gang twice each day to him, and then to show by the foreman of each gang that he reported the time correctly to the gen- eral foreman.—Id.
9. The liability of a railroad company for, damages to cattle, etc., resulting from de- fective fences is not limited to injuries caused by its agents or engines, but attaches to all cases where cattle, etc., escape on the track through a defective fence, irrespec- tive of the manner in which they receive injury.-Knight v. The N. Y., L. E. & W. RR. Co., 214.
10. An agreement by a railroad company to check baggage by a specified through route includes an agreement to deliver it at the end of its road to the next succeeding car- rier on such route, and for a misdelivery to a different carrier it remains liable as in- surer for an injury or loss occurring on the route to which it was diverted.-Isaacson v. The N. Y. C. & H. R. RR. Co., 282.
11. It is within the apparent scope of a bag- gage-master's employment, when asked by a passenger if the company checks over a route indicated by his ticket, to answer the question and bind the company by his an- swer, and the passenger may rely upon such answer without examining his check. -Id.
12. A baggage check does not embody the contract of carriage, but is only a voucher or token to enable the holder to identify and claim his baggage at the end of the route.-Id.
13. A railroad company must take reasona- ble care to know or ascertain the safety of the design and construction of its bridges, whether they are built by it or purchased, and is chargeable with knowledge of de- fects which a competent examination would have disclosed. -Vosburgh v. The L. S. & M. S. RR. Co., 300.
14. Railroad companies are invested with dis- cretion as to the mode of exercising their franchise, and so long as their operations are not suspended or their duties unper- formed courts will not interfere to regulate the exercise of such discretion, especially on the application of a private individual. -The People ex rel. Wheeler v. The L. 1. RR. Co.,466.
15. A railroad cannot be termed a nuisance when managed without negligence or wil ful misconduct.-Briesen v. The L. I. RR. Co., 467.
16. So long as the operation of a railroad is kept within the scope of the powers grant- ed to it it is protected from all legal pro- ceedings, provided the resulting injury arises as a natural result of the exercise of the statutory authority.—Id.
17. Where travelling on the cars to and from his work constitutes a part of the contract of service of a railroad employee the com- pany is not responsible for an injury re-
ceived by him while so travelling. - Vick v. The N. Y. C. & H. R. RR. Co., 505.
18. Plaintiff's intestate, who lived in Roches- ter, was employed by defendant as foreman of its tinshop at Buffalo, defendant agree- ing to pass him to and from his work. Held, That his conveyance to and from his work was part of the contract of employment and that during such conveyance he was not a passenger but an employee of the com- pany.-Id.
See EMINENT DOMAIN, 1-9; EVIDENCE, 28; LEASE, 7; MASTER AND SERVANT, 6; NEG- LIGENCE, 2, 3, 8, 9, 15, 20, 26, 27, 29, 30.
See CONTRACT, 6, 8; INSURANCE COMPA- NIES, 1.
1. Receipts given by plaintiff, a Government director of The Union Pacific RR. Co., for salary and expenses for the years 1874 to 1877, were not releases nor receipts given in settlement or compromise of a contro- verted claim, and are susceptible of ex- planation, and though in full may be shown to have been given under a misapprehen- sion of his rights, and will not preclude him from recovering the balance due him. -Brewer v. The Union Pacific RR. Co., 426.
1. The statutes of this State restricting the compensation of receivers of moneyed cor- porations to that of executors and adminis- trators, and providing also that the compen- sation of such receivers shall not exceed $10,000 per annum, do not apply to receiv- ers of insolvent insurance companies.-In re The Security Life Ins. Co., 154.
2. Chapter 378, Laws of 1883, fixing compen- sation of receivers, etc., does not apply to receivers who had rendered services and acquired the right to compensation therefor prior to the passage of said Act.-Id.
3. Executors, trustees and receivers selling property subject to incumbrances are not entitled to commissions upon the amount of incumbrances. But where the receiver pays off the incumbrances personally and reimburses himself, such course being necessary to effect a sale of the corporate real estate, he will be entitled to commis- sions upon the amount of such incum- brance.-Id.
4. Section 13 of Chap. 902, Laws of 1869, rendering the compensation of clerks and actuaries employed by receivers subject to the approval of the Superintendent of the Insurance Department, applies to and in- cludes only receivers appointed under that Act.-Id.
5. A receiver will not be allowed in the set- tlement of his accounts for moneys actually paid an employee whose services were un- necessary to the proper management of the trust and might and should have been dis- pensed with.-Id.
6. A receiver cannot properly be removed without notice of the application for re- moval and an opportunity to be heard in opposition.-Bruns v. The Stewart Mfg. Co.,
7. There is nothing to prevent the parties to an action from naming suitable persons from whom a selection of a receiver of the property of defendant may be made, and the bare fact that a party has nominated the the person appointed by the court is not sufficient of itself to justify the court in subsequently removing him of its own mo- tion when no party to the suit objects to his performing the functions of the office and no charges are made against him.-Id.
8. Chap. 378, Laws of 1883, so far as it fixes the compensation of receivers, is prospect- ive and does not apply to receivers who were appointed and entered upon the dis- charge of their duties before its passage. The People ex rel. Newcomb v. McCall, 361. 9. The power of the court to appoint a re- ceiver of rents and profits in foreclosure cases was not abrogated by § 713, Code Civ. Proc., but still exists.-Hollenbeck et al. v. Donell, 365.
10. Where only a portion of the mortgage debt is due and premises consist of a farm divided into equal parts which can be sold separately, a receiver of the whole farm should not be appointed.-Id.
11. Section 4 of Chap. 378, Laws of 1883, only requires that the accounts of receivers of insurance, banking or railroad corpora- tions or of trust companies shall be filed in the court, and does not call upon the court to pass upon their correctness, or to deter- mine whether or not they should be approv- ed. Their correctness must be determined under the former practice.-The People v. The Knickerbocker Life Ins. Co., 492.
12. Said statute requires the approval of the General Term, and not of the Special Term, of the costs, fees and allowances of attor- neys or counsel before payment of the same by the receiver, and, consequently, all such accounts must be presented to the General Term in the first instance.-The People v. The Globe Mut. Ins. Co., 492.
13. When a bill of attorney and counsel's fees, presented for the approval of the Gen- eral Term under the statute, is without verification and contains a very large num- ber of items the correctness of which the court has no means of ascertaining except by a reference, a reference will be ordered, for that purpose on notice to the receiver
and the Attorney General and on which all parties interested in the funds of the receiv- ership may be heard.-The People v. The Knickerbocker Life Ins. Co., 492.
14. A receiver in supplementary proceedings is not justified by the order of appointment in taking forcible possession of property in the possession of a third person who claims to own it.-Dewey et al. v. Finn, 558.
15. The third person, not a party to the pro- ceeding, and without notice thereof, whose property is thus seized and carried away is entitled to the usual remedies given by com- mon law and is not punishable for con- tempt where he sues the receiver for the trespass without leave of court.-Id.
See CORPORATIONS, 1; INSURANCE COMPA- NIES, 3, 4; PARTNERSHIP, 10; SALE, 2.
1. The mortgage in suit was assigned after being recorded by S., the mortgagee, to plaintiff's assignor, but the assignments were not recorded, and S. thereafter execu- ted and delivered a satisfaction picce, which was recorded. Subsequently a mortgage on the same premises was given to R. et al., who had knowledge of the prior mortgage, and they assigned the same for value to defendants, who took without notice and recorded their assignment, Held, That de- fendants were entitled to preference under the recording act.-Clark v. Mackin et al., 250.
2. The assignment to defendants contained a guaranty of payment. Held, That defend- ants could not be compelled to resort to the guaranty, and that while plaintiff, on pay- ment of the amount due, might compel an assignment of the mortgage, he could not be subrogated to defendants' rights under the guaranty.—Id.
1. The premises were sold under execution on a judgment against W., who allowed the time of redemption to pass. Defendant, a subsequent judgment creditor, redeemed and obtained a deed from the sheriff. Held, That W. could not maintain an action to redeem; and that defendant's title having been acquired under the law a court of equity could not divest him of it.-Weed et al. v. Root, 316.
2. A tenant in common in possession is not en- titled to compensation for his improvments from his co-tenants who have not assented to his making them.-Ford et al. v. Knapp et al., 471.
3. A holder of a sheriff's certificate is not au- thorized to make repairs or improvements as against or at the expense of judgment creditors having a right to redeem.-Id.
1. Under § 3331, Code of Civil Procedure, a referee who commenced the performance of his services as such before § 3296 went into effect is entitled to only $3 per day as compensation, there being no writ- ten agreement, etc., notwithstanding the fact that judgement was not entered and the fees taxed until after § 3296, fixing his compensation at $6 per day, went into effect.-Green v. The Nassau Bank, 58.
2. A referee is not obliged to deliver his report until his fees are paid, and, having deliv- ered it, he takes the consequences of that act, and must seek payment from the party in whose favor the report was made if the order confirming his report is ultimately reversed on appeal.-The Att'y Gen. v. The Continental Life Ins. Co., 260.
1. In an action by an attorney for services, in- volving a long account, it is discretionary with the Court to order a reference.-Steb- bins v. Cowles, 152.
2. A referee has co-extensive power with the court to allow amendments of a pleading. -Knapp v. Fowler, 230.
3. An action brought against the heirs or de- visees of a decedent to recover demands owing by said decedent in his lifetime, on the ground that the personal estate is insuf- ficient to pay such debts, and that defend- ants have become vested with real estate owned by the decedent in his lifetime, can- not be referred for the reason that said de- mands consist of long accounts without the consent of all parties.-Read v. Lozier et al., 310.
4. It is only actions in which the immediate object of the party is to recover the account relied upon that can be referred without the consent of all parties.-Id.
5. The right to appeal from an order denying a motion to vacate an order of reference is not waived by participating in the trial of the action before the referee if the appellant objected to such trial proceeding before the referee on the ground that the reference was unauthorized, and only went on with the trial after such objection was overruled by the referee.-Id.
6. In an action to recover money alleged to have been deposited with defendants as bankers, the answer alleging that it was left with defendants as brokers as margin with which to operate in stocks, and setting out as a counterclaim a long account showing a balance due defendants from losses aris- ing therefrom, the Court has power to order a reference, though it appears that
plaintiff's liability depends on her husband's authority to act as her agent.-Day v. Jameson et al., 374.
7. It is within the discretion of the court to deny the motion if a stipulation that will render an accounting before a jury unneces- sary be given-e. g., that if the husband's agency be found, the account will not be disputed.-Id.
8. The liability of a guardian to account to his ward is a personal claim against him dur- ing his life and against his estate after his death, and is referable under the statute. -Skidmore v. Post, 472.
9. On such a reference the burden of showing the guardian's dealings with the estate rests upon the executor.-Id.
See APPEAL, 14; COSTS, 12; PRACTICE, 3-7; RECEIVERS, 13; SURROGATE, 10; TRUSTS, 1.
See LIFE INSURANCE, 3, 4.
1. A release from liability for false imprison- ment executed without consideration by one in actual custody under a void process is void for duress.-Guilleaume v. Rowe et al., 196.
See CONTRACT, 14.
RELIGIOUS SOCIETIES. See DEEDS, 4. REMOVAL.
1. A letter written by the head of a depart- ment to the head of a bureau proposing to remove him for dereliction of duty, stating the facts out of which such a cause is al- leged to have arisen, and which, if true, are sufficient to authorize his removal, and de- signating a time and place for explanation, is sufficient to answer the requirements of 28 of the Charter of 1873. It is not neces- sary that the cause for removal should be established by proof taken before the su- perior officer; it is sufficient that cause is assigned and an opportunity for explanation afforded, and after that the question of re- moval rests in the discretion of the superior officer. The People ex rel. Keech v. Thomp- son, 320.
2. Section 3, Art. 10, of the Constitution, which, in cases not there provided for or declared by law, limits the duration of of- fice to the pleasure of the authority mak- ing the appointment," applies only where the authority is continuous.-Bergen v. Powell, 344.
3. The power of appointment delegated by Chap. 305, Laws of 1878, to certain officers
of the town of New Lots, embraced a single act only and was exhausted with its per- formance, and therefore such officers have no authority to remove an officer appointed by them by virtue of said act.-Id.
1. Defendant sold L. a machine upon an agreement that it should remain the prop- erty of the vendor until full payment. L. sold the same to plaintiff. In an action by plaintiff to recover the machine, which had been retaken by defendant for non-pay- ment of the price, plaintiff, who was a wit- ness, gave no evidence that he was a purchaser without notice and for value be- yond producing a bill of sale of the machine to him, signed by L., which stated that L. had received full payment. Held, That plaintiff could not recover.-Hughes v. Bax- ter, 91.
2. A complaint which contained the usual al- legations in replevin, also stated that the goods in question had been sold on a cer- tain day to the vendees, and that plaintiffs were induced to make the sale through false representations. It appeared that there had been dealings between the parties for more than a year previous. Held, That plaintiffs might show, under such a com- plaint, that from the beginning of the deal- ings down to the sale defendants had made to plaintiffs false statements of their re- sources; that such evidence was competent under the allegation of ownership in plain- tiffs and would tend to show that the title never passed to the vendees.-Coffin et al. v. Hollister, 129.
3. A lease is not of itself a subject of replevin. -Nichols v. Mase, 277.
1. An order was made, on notice, substituting the assignee of the cause of action as plain- tiff, without directing an amendment of the pleadings. Held, That the order was a con clusive adjudication as to the ownership and title of the substituted plaintiff and left only the issues originally framed to be ex- amined.-Smith v. Zalinski, 282.
RIPARIAN OWNERS. See DEEDS, 12; TRESPASS, 2. SALARY.
1. On the resignation of the police justice of the village in April, 1882, the trustees passed a resolution reducing the salary and appointed relator to fill the vacancy until the election in December, when he was elected to the office. Held, That although
he was elected to fill a vacancy his term commenced January 1, 1883. and that the resolution having been passed more than two months prior thereto the salary was di- minished as to him pursuant to statute.— The People ex rel. Smith v. Trustees of blush- ing, 190.
See CORPORATIONS, 20, 21.
1. A judicial sale is subject to the supervisory power of the court, which can, in the ex- ercise of a just discretion, sanction or dis- approve of it.-In re Atty. Gen. v. The Con- tinental Life Ins. Co., 172.
2. Where the receiver of a corporation, in selling stocks belonging to it under a decree of the court, acted in ignorance of a mater- ial fact known to the purchaser, the court is not bound to order a transfer of the shares to the purchaser if in its judgment the sale was inequitable, although the purchaser was under no legal duty to disclose his in- formation and the receiver omitted to ex- ercise the diligence which is expected of a prudent officer.-Id.
See CONTRACT. 6, 8, 16, 19, 24; DEFENSE, 1; EVIDENCE, 7-9; FRAUD, 14, 16; LUNATICS,
1. The school authorities of Brooklyn have the right to classify the pupils, putting scholars of different races in separate schools and to determine the persons who may or may not attend such schools.-The People ex rel. King v. Gallagher, 104.
2. The act authorizing the establishment of separate schools for colored people was not repealed by the civil rights act, and is not within the inhibition of the 14th amend- ment of the Federal Constitution.-Id.
1. To constitute a valid service by publication on an infant it is not necessary that the papers should also be served on the father, mother or guardian.—The Home Ins. Co. v. Head, 229.
2. When a party who has an apparent lien upon premises being foreclosed is served by publication of the summons upon an affidavit simply stating that such party is a resident of the State of Connecticut, the court acquires no jurisdiction over such party, and proof given in the case that such lien was paid will not bind such party and the court will not compel the purchaser to take title therein.-Argall v. Bachrach, 267. 3. In an action against an unincorporated association under § 1919 of the Code, the service of the summons is properly made if made personally upon the president or
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