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DER, 1.

As to practice in criminal cases, see ASSAU LT, p art.-Pakalinsky v. The N. Y. C. & H. R.

1; CRIMINAL LAW, 1, 2, 4, 8, 9; FALSE RR. Co., 44.

2. The statute requiring certain signals to be

given by the engine at road or street cross-
As to practice in different classes of cases, ings is intended for the protection of per-

see those titles, as ATTACAMENT, 3, 6, 10, sons crossing the track while traveling on
11; COMMON CARRIERS, 2; CONTRACT, 1-3; a street or road which is hoth travelled and
DIVORCE; FALSE IMPRISONMENT, 3; IN- public.-Byrne v. The N. Y. C. & I. R.
INSURANCE, 2, 5; NEGLIGENCE. 8, 9, 13, 18,
20, 25, 27, 31; NEGOTIABLE PAPER, 6; 3. An alley which is only used at one end by
PARTNERSHIP, 4; SURROGATES, 1, 8-10. teams which turn before reaching the track

is not a travelled street within the meaning
See also, ARREST, 1; BROKERS, 3; CHARTER of the statute.-Id.

PARTY, 1; Costs, 6, 8, 12, 16-18; CRIMI-

4. Plaintiff, a brakeman, was injured by the
6; FRAUD, 1; INJUNCTION, 7; Jury; Mas-

breaking of a brakewheel. He testified

that there was a new brakewbeel that was

of a different shape, but failed to show
12; RAILROADS, 4; RECEIVERS, 6,7, 11-13; which kind was least liable to break or that
REFERENCE, 9; SHERIFFS, 2, 5, 8, 9; Town

the old shape was not strong enough for its
Bonds, 2; VENUE, 2, 4; VILLAGES, 2;

purpose. He also introduced a rin which
Wills, 15, 28-30, 40.

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
See Banks, 1, 3; LIEN, 2; RECORD, 1.

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.

10 the construction of a street railroad,

need not be under seal and need not con-

vey to the railroad company any fee or
See Wills, 4, 7-9, 13, 18, 25, 27-30, 34, 35,

easement in the street.-In re The Cortland
40, 44.

d. Homer Horse RR. Co. v. T'he Syr., B. &

N. Y. RR. Co., 163.

6. Defendant covenanted with plaintiff that
See CONTRACT, 11; EXECUTORS, &c., 6.

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.

[blocks in formation]

9. The liability of a railroad company for, ceived by him while so travelling. - Vick v.

damages to cattle, etc., resulting from de- The N. Y. C. & H. R. RR. Co., 505.
feciive fences is not limited to injuries
caused by its agents or engines, but attaches

18. Plaintiff's intestate, who lived in Roches-
to all cases where cattle, etc., escape on the

ter, was employed by defendant as foreman
track through a defective fence, irrespec-

of its tinshop at Buffalo, defendant agree-
tive of the manner in which they receive

ing to pass him to and from his work. Held,
injury.-Knight v. The N. Y., L. E. & W. That his conveyance to and from his work
RR. Co., 214.

was part of the contract of employment and

that during such conveyance he was not a
10. An agreement by a railroad company to

passenger but an employee of the com-
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-

LIGENCE, 2, 3, 8, 9, 15, 20, 26, 27, 29, 30.
surer for au injury or loss occurring on the
route to which was diverted.-


v. The N. Y. C. & II. R. RR. Co., 282.

11. It is within the apparent scope of a bag.

NIES, 1.
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-

1. Receipts given by plaintiff, a Government

director of The Union Pacific RR. Co., for
swer, and the passenger may rely upon salary and expenses for the years 1874 to
such answer without examining his check.

1877, were not releases nor receipts given

in settlement or compromise of a contro-
12. A baggage check does not embody the

verted claim, and are susceptible of ex-
contract of carriage, but is only a voucher

planation, and though in full may be shown
or token to enable the holder to identify

to have been given under a misapprehen-
and claim his baggage at the end of the

sion of his rights, and will not preclude

him from recovering the balance due him.

- Brewer' v. The Union Pacific RR. Co., 426.
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,

1. The statutes of this State restricting the
And is chargeable with knowledge of de-

compensation of receivers of moneyed cor-
fects which a competent examination would

porations to that of executors and adminis-
have disclosed. – Vosburgh v. The L. S. &

trators, and providing also that the compen-

sation of such receivers shall not exceed
M. S. RR. Co., 300.

$10,000 per annum, do not apply to receiv.
14. Railroad companies are invested with dis-

ers of insolvent insurance companies.-In
cretion as to the mode of exercising their

re The Security Life Ins. Co., 154.
franchise, and so long as their operations 2. Chapter 378, Laws of 1883, fixing compen-
are not suspended or their duties unper- sation of receivers, etc., does not apply to
formed courts will not interfere to regulate receivers who had rendered services and
the exercise of such discretion, especially acquired the right to compensation therefor
on the application of a private individual.
- The People ex rel. Wheeler v. The L. 1.

prior to the passage of said Act.-Id.
RR. Co.,466.

3. Executors, trustees and receivers selling

property subject to incumbrances are not
15. A railroad cannot be termed a nuisance entitled to commissions upon the amount
when managed without negligence or wil-

of incumbrances. But where the receiver
ful misconduct.-Briesen v. The L. I. RR. pays off the incumbrances personally and
Co., 467.

reimburses himself, such course being

necessary to effect a sale of the corporate
16. So long as the operation of a railroad is real estate, he will be entitled to commis-

kept within the scope of the powers grant- sions upon the amount of such incum-
ed to it it is protected from all legal pro- brance.-10.
ceedings, provided the resulting injury
arises as a natural result of the exercise of 4. Section 13 of Chap. 902, Laws of 1869,
the statutory authority.-Id.

rendering the compensation of clerks and

actuaries employed by receivers -ubject to
17. Where travelling on the cars to and from the approval of the Superintendent of the

his work constitutes a part of the contract Insurance Department, applies to and in-
of service of a railroad employee the com- cludes only receivers appointed under that
pany is not responsible for an injury re- Act.- Id.

5. A receiver will not be allowed in the set- and the Attorney General and on which all

tlement of his accounts for moneys actually parties interested in the funds of the receiv.
paid an employee whose services were un- ership may be heard. - The People v. The
necessary to the proper management of the Knickerbocker Life Ins. Co., 492.
trust and might and should have been dis-
pensed with. - ld.

14. A receiver in supplementary proceedings

is not justified by the order of appointment
6. A receiver cannot properly be removed in taking forcible possession of property in

without notice of the application for re- the possession of a third person who claims
moval and an opportunity to be heard in to own it.Deuey et al. v. Finn, 558.
opposition.-Bruns v. The Sterart Mfg. Co.,

15. The third person, not a party to the pro-
7. There is nothing to prevent the parties to

ceeding, and without notice thereof, whose
an action from naming suitable persons

property is thus seized and carried away is

entitled to the usual remedies given by com-
from whom a selection of a receiver of the
property of defendant may be made, and

mon law and is not punishable for con-
the bare fact that a party has nominated the

tempt where he sues the receiver for the

trespass without leave of court.-Id.
the person appointed by the court not
sufficient of itself to justify the court in See CORPORATIONS, 1 ; INSURANCE COMPA-
subsequently removing him of its own mo- NIES, 3, 4 ; PARTNERSHIP, 10 ; SALE, 2.
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

1. The mortgage in suit was assigned after
the compensation of receivers, is prospect-

being recorded by S., the mortgagee, to
ive and does not apply to receivers who

plaintiff's assignor, but the assignments

were not recorded, and S. thereafter execu-
were appointed and entered upon the dis-
charge of their duties before its passage.-

ted and delivered a satisfaction picce, which

was recorded. Subseqnently a mortgage on
The People ex rel. Nerocomb v. McCall, 361.

the same premises was given to R. et al.,
9. The power of the court to appoint a re-

who had knowledge of the prior mortgage,
ceiver of rents and profits in foreclosure

and they assigned the same for value to
cases was not abrogated by $ 713, Code Civ.

defendants, who took without notice and
Proc., but still exists.-- Hollenbeck et al. v.

recorded their assignment, Held, That de-
Donell, 365.

fendants were entitled to preference under

the recording act.Clark v. Mackin et al.,
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

2. The assignment to defendants contained a
separately, a receiver of the whole farm guaranty of payment. IIeld, That defend-
should not be appointed. --Id.

ants could not be compelled to resort to the

guaranty, and that while plaintiff, on pay.
11. Section 4 of Chap. 378, Laws of 1883, ment of the amount due, might compel an

only requires that the accounts of receivers assignment of the mortgage, he could not
of insurance, banking or railroad corpora- be subrogated to defendants' rights under
tions or of trust companies shall be filed in the guaranty.-Id.
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 1. The premises were sold under execution
under the former practice. - The People v. on a judgment against W., who allowed
The K’nickerbocker Life Ins. Co., 492.

the time of redemption to pass. Defendant,

a subsequent judgment creditor, redeemed
12. Said statute requires the approval of the and obtained a deed from the sheriff. Held,

General Term, and not of the Special Term, That W. could not maintain an action to
of the costs, fees and allowances of attor-

recleem; and that defendant's title having
neys or counsel before payment of the same been acquired under the law a court of
by the receiver, and, consequently, all such

equity could not divest him of it.- Weed
accounts must be presented to the General

et al. v, Root, 310.
Term in the first instance.— The People v.
The Globe Mut. Ins. Co., 492.

2. A tenant in common in possession is not en-

titled to compensation for his improvments
13. When a bill of attorney and counsel's from his co-tenants who have not assented
fees, presented for the approval of the Gen-

to his making them.- Ford et al. v. K’napp
eral Term under the statute, is without

et al., 471.
verification and contains a very large num-
ber of items the correctness of which the 3. A holder of a sheriff's certificate is not au-
court has no means of ascertaining except thorized to make repairs or improvements
by a reference, a reference will be ordered as against or at the expense of judgment
for that purpose on notice to the receiver 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 thi
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.

plaintiff's liability depends on her husband's
authority to act as her agent.–Day v.

Jan on et al., 371.
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

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.-ld.
See APPEAL, 14; Costs, 12; PRACTICE, 3–7;

RECEIVERS, 13; SURROGATE, 10; Trusts, 1.



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. Roue

et al., 196.
See ContRACT, 14.


See DEEDS, 4.


2; PLEADING, 14.


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 selling 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

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 bis removal, and de-
signating a time and place for explanation,
is sufficient to answer the requirements of
§ 28 of the Charter of 1973. It is not neces-
sary that the cause for removal should be
established by proof taken before the su-
perior officer; it is sufficient Uhat 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 ile 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 he was elected to fill a vacancy bis term
act only and was exhausted with its per- commenced January 1, 1883. and that the
formance, and therefore such officers have resolution having been passed more than
no authority to remove an officer appointed two months prior thereto the salary was di-
by them by virtue of said act.-Id.

minished as to him pursuant to statute.-

The People ex rel. Smith v. Trustees of Flush-

ing, 190.
1. Defendant sold L. a machine upon an See CORPORATIONS, 20, 21.

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 1. A judicial sale is subject to the supervisory
been retaken by defendant for non-pay-

power of the court, which can, in the ex-
ment of the price, plaintiff, who was a wit- ercise of a just discretion, sanction or dis-
ness, give no evidence that he was approve of it.-In re Att Gen. v. The Con-
purchaser without notice and for value be- tinental Life Ins. Co., 172.
yond producing a bill of sale of the machine
to him, signed by L., which stated that L.

2. Where the receiver of a corporation, in
had received full payment. Held, That

selling stocks belonging to it under a decree
plaintiff could not recover.-Hughes v. Bax-

of the court, acted in ignorance of a mater-
ter, 91.

ial fact known to the purchaser, the court is

not bound to order a transfer of the shares
2. A complaint which contained the usual al-

to the purchaser if in its judgment the sale
legations in replevin, also stated that the

was inequitable, although the purchaser
goods in question had been so!d on a cer-

was under no legal duty to disclose bis in.
tain day to the vendees, and that plaintiffs

formation and the receiver omitted to ex-
were induced to make the sale through

ercise the diligence which is expected of a
false representations. It appeared that

prudent officer.-Id.
there had been dealings between the parties

See CONTRACT. 6, 8, 16, 19, 24; DEFENSE, 1;
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 1. The school authorities of Brooklyn have
under the allegation of ownership in plain-

the right to classify the pupils, putting
tiffs and would tend to sliow that the title scholars of different races in separate schools
never passed to the vendees.- Coffin et al. v.

and to determine the persons who may or
Hollister, 129.

may not attend such schools.The People

ex rel. King v. Gallagher, 104.
3. A lease is not of itself a subject of replevin.
- Nichols v. Mase, 277.

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. An order was made, on notice, substituting

the assignee of the cause of action as plain-
tiff, without directing an amendment of the 1. To constitute a valid service by publication
pleadings. Held, That the order was a con on an infant it is not necessary that the
clusive adjudication as to the ownership papers should also be served on the father,
and title of the substituted plaintiff and left mother or guardian.7'he Home Ins. Co. v.
only the issues originally framed to be ex- Head, 229.
amined.-Smith v. Zalinski, 282.

2. When a party who has an apparent lien
See Bar, 6.

upon premises being foreclosed is served

by publication of the summons upon an

aildavit 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
1. On the resignation of the police justice of

take title therein.- Argall v. Bachrach, 267.
the village in April, 1882, the trustees
passed a resolution reducing the salary and 3. In an action against an unincorporated
appointed relator to till the vacancy until association under $ 1919 of the Code, the
the election in December, when lie was service of the summons is properly made if
elected to the office. lleld, That although made personally upon the president or

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