KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABSENTEES.

ADMINISTRATION.

ADMIRALTY.

6 (N.Y.App.Div.) Surrogate Court cannot See Executors and Administrators.
summarily order person holding property in
hostility to absentee owner to turn it over to
temporary administrator (Surrogate's Court See Seamen; Shipping.
Act [Laws 1920, c. 928] §§ 126, 127, 131, sec-
tion 40, as amended by Laws 1921, c. 439, and
Laws 1924, c. 100, section 130, as amended by
Laws 1923, c. 272, section 205, as amended by
Laws 1923, c. 273, and Laws 1924, c. 100, and
section 206, as amended by Laws 1924, c. 100).
-In re Ort's Estate, 217 N. Y. S. 46.

ACKNOWLEDGMENT.

I. NATURE AND NECESSITY.

4 (N.Y.Sup.) Real Property Law, § 308,
providing how acknowledgment of conveyances
may be taken, held not to forbid acknowledg-
ment of deed containing a blank.-2409 Broad-
way Corporation v. Lange, 217 N. Y. S. 666.

II. TAKING AND CERTIFICATE.

I. JURISDICTION.

20 (N.Y.App.Div.) State workmen's com-
pensation laws, whether elective or compulsory,
cannot displace admiralty jurisdiction of federal
courts, or common-law jurisdiction of state Su-
preme Court.-Kursa v. Overseas Shipping Co.,
217 N. Y. S. 194.

21 (N.Y.App.Div.) Right of action for in-
juries from maritime tort resulting in death is
same as before enactment of Workmen's Com-
pensation Law.-Kursa v. Overseas Shipping
Co., 217 N. Y. S. 194.

One mortally injured on navigable waters
leaves behind right of action in favor of his
survivors, notwithstanding he died on land.-Id.
II. REMEDIES IN PERSONAM AND IN

REM.

16 (N.Y.Sup.) Acknowledgment taken be-
fore one duly appointed as justice of the peace31 (N.Y.Sup.) Contributory negligence can-
held valid, notwithstanding he failed to file cer-
tificate of town clerk showing filing of under-
taking, and to file oath of office with town clerk
(Town Law, § 106).-Allen v. Leet, 217 N. Y.

S. 274.

ACTION.

See Dismissal and Nonsuit.

III. JOINDER.

SPLITTING, CONSOLIDA-

TION, AND SEVERANCE.

53 (2) (N.Y.App.Div.) Plaintiff in tort ac-
tion may not split cause and sue on divided
parts.-Lang v. Brooklyn City R. Co., 217 N.
Y. S. 277.

not be pleaded as defense in action for negli-
gence arising out of maritime tort.-Dopico v.
New York Marine Co., 217 N. Y. S. 295.

ADVERSE POSSESSION.

I. NATURE AND REQUISITES.
(A) Acquisition of Rights by Prescrip-
tion in General.

4 (N.Y.Sup.) A town board is not a sov-
ereign power as respects adverse possession
of cemetery, title to which is vested in town by
Town Law, § 332 as amended by Laws 1920,
c. 577.-A. F. Hutchinson Land Co. v. White-
57(1) (N.Y.App.Div.) Vendor's action for head Bros. Co., 217 N. Y. S. 413.
specific performance of contract assigned, or 4 (N.Y.Sup.) In absence of statute, doctrine
as reformed, if reformation is necessary, may be
consolidated with action by vendees' assignee
to recover down payment and expenses of title
examination, and for lien therefor.-Levy v.6 (N.Y.Sup.) Land ceasing to be used as
Portugal, 217 N. Y. S. 236.

IV. COMMENCEMENT, PROSECUTION,
AND TERMINATION.

of adverse possession does not apply to state.-
In re Certain Lands on North Shore of Harlem
River in City of New York, 217 N. Y. S. 544.

public cemetery may be acquired by adverse
possession, at least if completed before 1890
(Laws 1890, c. 569, § 195; Town Law, § 332 as
amended by Laws 1920, c. 577).-A. F. Hutch-
inson Land Co. v. Whitehead Bros. Co., 217 N.
Y. S. 413.

65 (N.Y.Sup.) Rule that equity administers
relief on facts existing at close of trial is sub-
ject to qualification that there must be founda-7(2) (N.Y.Sup.) Title by adverse posses-
tion for action when commenced.-Park Slope sion may be obtained against state, town, or
Amusement Corporation v. Schultheis, 217 N. individuals to any land not held by state in
Y. S. 297.
trust for public purpose, if it matures before
(1)

217 N.Y.S.-66

Agency

217 NEW YORK SUPPLEMENT

public has acquired title.-A. F. Hutchinson follow such rule, but based verdict on correct
Land Co. v. Whitehead Bros. Co., 217 N. Y. rule.-Bondy v. Harvey, 217 N. Y. S. 877.
S. 413.

See Principal and Agent.

AGENCY.

V. PRESENTATION AND

RESERVATION

IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
171(1) (N.Y.) Where courts below, in ab-
sence of proof, construed contract, stipulating
it was to be interpreted according to laws of
foreign state according to common law, Court
of Appeals may do likewise.-De Forest Radio
Telephone & Telegraph Co. v. Triangle Radio
Supply Co., 243 N. Y. 283, 153 N. E. 75.

173(11) (N.Y.) Contention that loss to corporation resulting from death of president might not be offset, for transfer tax purposes, against insurance on his life carried by corporation, not made in lower courts, will not be considered on appeal.-In re Reed's Estate, 243 N. Y. 199, 153 N. E. 47.

(B) Objections and Motions, and Rulings Thereon.

236(2) (N.Y.App.Div.) Sufficiency of complaint held reviewable on appeal, where Special Term passed on its sufficiency on affidavits, notwithstanding absence of formal motion to dismiss complaint (Rules of Civil Practice, rule 112; Civil Practice Act, § 117).-Willey v. Cameron, Michel & Co., 217 Ñ. Y. S. 248.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.

(B) Petition or

XVII. DETERMINATION AND DISPOSI-
TION OF CAUSE.

(A) Decision in General.

1107 (N.Y.) Tax statute passed after decision of appellate division involving former statutes and declared to be retroactive as of date prior to controversy will be applied by decision.-People ex rel. Clark v. Gilchrist, court of appeals as it stands at time of their 243 N. Y. 173, 153 N. E. 39.

(D) Reversal.

1178(6) (N.Y.App.Div.) Appellate Division on appeal, has power to direct judgment for (Civil Practice Act, $584).-United Paperinjunction and remit case to Special Term for board Co. v. Iroquois Pulp & Paper Co., 217 assessment of damages; N. Y. S. 762. "final judgment"

(F) Mandate and Proceedings in Lower

Court.

franchises for bus routes in city, litigated but
1194(2) (N.Y.Sup.) Objections to sale of
ruled by necessary implication.-Yonkers R. Co.
v. City of Yonkers, 217 N. Y. S. 686.
not specifically disposed of on appeal, held over-

1194 (3) (N.Y.) Appellate Court ruling that plaintiff should reply to affirmative defense cannot apply to issues raised by reply.Clark v. Kirby, 243 N. Y. 295, 153 N. E. 79.

APPEARANCE.

24(5) (N.Y.App.Div.) Objection by defendant, brought in by original defendant, that order permitting service of supplemental summons was procured ex parte, held waived by appearing generally and moving to dismiss crossclaim against it for insufficiency (Civil Practice Act, 193, subd. 2, as amended by Laws los v. Commercial Union of America, 217 N. 1922, c. 624, and Laws 1923, c. 250).-TravY. S. 459.

ARBITRATION AND AWARD.

II. ARBITRATORS AND PROCEEDINGS. 31 (N.Y.Sup.) Courts may not indirectly interject their rules of procedure or evidence into an arbitration, except so far as clearly warranted by statute or necessity.-In

Prayer, Allowance, and Schwartz, 217 N. Y. S. 233.
Certificate or Affidavit.

363 (N.Y.App.Div.) Question of power of Appellate Division, under Civil Practice Act, § 584, to direct judgment for injunction and remit case to Special Term for assessment of damages, is novel and important, and motion for leave to appeal to Court of Appeals will be granted.-United Paperboard Co. v. Iroquois Pulp & Paper Co., 217 N. Y. S. 762.

XVI. REVIEW.

(G) Questions of Fact, Verdicts, and Findings.

III. AWARD.

re

76 (N.Y.Sup.) Where arbitrators have not within which they were directed to make award made mutual, final, and definite award, and time has expired, award may be vacated and sent to they were appointed (Civil Practice Act. § new arbitrators, under contract under which 1457, as renumbered by Laws 1921, c. 199). Hauck v. Rochester Taxicab Co., 217 N. Y. S. 2.

ASSESSMENT.

See Taxation, ~376–496.

217. ASSUMPTION OF RISK.

1010(1) (N.Y.) On appeal in corporation creditor's action to enforce stockholders' liability, evidence supporting finding that defendants held stock which was not fully paid when See Master and Servant, debt was contracted held not reviewable.-Bottlers' Seal Co. v. Rainey, 243 N. Y. 333, 153 N. E. 437.

INDEX-DIGEST

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

in which property was located, and filed re-
turn with clerk of court which issued such
warrant, property was not subject to further
levy by another city marshal.-Florea
Schultz, 217 N. Y. S. 764.

V. LEVY, LIEN, AND CUSTODY AND DIS-8 (N.Y.Sup.) Buyer at auction sale, who
POSITION OF PROPERTY.

Automobiles

217 NEW YORK SUPPLEMENT

amended by Laws 1921, c. 134, § 33; Transportation Corporations Law, §§ 25, 26, as added and amended; Second Class Cities Law, § 37). -Id.

Ordinance giving right to forfeit franchise for bus routes, if viewed as attempted waiver by franchise holder of right to resort to courts, is void (Public Service Commissions Law, § 53, as amended by Laws 1921, c. 134, § 33; Transportation Corporations Law, §§ 25, 26, as added and amended; Second Class Cities Law, § 37). -Id.

Ordinance requiring successful bidder to operate bus route or portion for which certificate of convenience and necessity should be granted held not invalid (Public Service Commissions Law, 53, as amended by Laws 1921, c. 134, § 33; Transportation Corporation Law, §§ 25, 26, as added and amended; Second Class Cities Law, § 37).-Id.

|

285 (N.Y.Ct.Cl.) Automobile driver, familiar with depressions in highway, was bound to use more than ordinary care to avoid accident. -Moffett v. State, 217 N. Y. S. 825.

286 (N.Y.Ct.CI.) Automobile driver, familiar with highway, held guilty of contributory negligence in driving down grade, paving of which was rough and out of repair, at 15 or 20 miles an hour.-Moffett v. State, 217 N. Y. S. 825. (B) Actions.

304 (3) (N.Y.Ct.CI.) Automobile driver, alleging injury from defective state highway, must establish state's negligence and his freedom therefrom.-Moffett v. State, 217 N. Y. S. 825.

VII. OFFENSES AND PROSECUTIONS. (A) Offenses.

339 (N.Y.Sup.) Statute making taking and 85 (N.Y.Sup.) Certificate of convenience operating of automobile without owner's conand necessity, granted motor bus corporation sent larceny changes common-law rule by elimwithout notice to paralleling electric railroad, inating requirement of felonious intent (Peheld void and subject to collateral attack (Pub-nal Law, § 1293-a, as amended by Laws 1922, c. lic Service Commissions Law, §§ 23, 53; Trans- 500).-Schenectady Varnish Co. v. Automobile portation Corporations Law, 88 20, 22, 24-26). Ins. Co. of Hartford, Conn., 217 N. Y. S. 504. -Hudson Valley Ry. Co. v. United Transp. Co., 217 N. Y. S. 614.

IV. LICENSE AND REGULATION OF
CHAUFFEURS.

132 (N.Y.Sup.) Since license to operate automobile and certificate of registration conferred on operator privilege, and not right, revocation thereof, under Highway Law, 290-a, as added by Laws 1924, c. 360, § 34, amended by Laws 1925, c. 440, invaded no constitutional right.-People v. Cohen, 217 N. Y. S.

726.

Automobile operator, advised of violation of Highway Law, had opportunity to be heard in matter of suspension of license (Highway Law. § 286, subd. 1, as added by Laws 1910, c. 374, as amended by Laws 1925, c. 310). -Id.

(B) Prosecution and Punishment. 350 (N.Y.Sup.) Defendant charged under Highway Law, § 290, as amended by Laws 1926, c. 732, with driving automobile while intoxicated is subject to summary trial by justice of the peace under Code Cr. Proc. $ 56, subd. 35, as amended by Laws 1926, c. 720). People ex rel. Pierce v. Howe, 217 N. Y. S. 739.

See Pledges.

BAILMENT.

(N.Y.Sup.) Bailee is not an insurer, but is liable only for his fault or negligence.-Lemnos Broad Silk Works v. Spiegelberg, 217 N. Y. S. 595.

25 (N.Y.Sup.) Remedy of manufacturer, delivering goods to defendants, who guaranteed buyers' credit and made advances, but did not 144 (N.Y.Sup.) Right to summary review sell goods, held by action at law, and not for of revocation of automobile operator's license accounting.-Lemnos Broad Silk Works v. and certificate of registration held to relate to Spiegelberg, 217 N. Y. S. 595. suspension or revocation other than on convic-31 (1) (N.Y.Sup.) Burden is on bailor to tion (Highway Law, § 286, subd. 1, as added by prove that bailee's negligence or fault caused Laws 1910, c. 374, as amended by Laws 1925, loss of goods bailed.-Lemnos Broad Silk Works c. 310, and section 290-a, as added by Laws v. Spiegelberg, 217 N. Y. S. 595. 1924, c. 360, § 34, amended by Laws 1925, c. 440).-People v. Cohen, 217 N. Y. S. 726.

V. INJURIES FROM OPERATION, OR USE
OF HIGHWAY.

(B) Actions.

Bailee, having sole, exclusive, actual, and undivided possession of goods, is presumed negligent, if he cannot explain loss of goods.-Id.

Where bailor's selling agents had partial custody and access to goods, bailees, making advances thereon and guaranteeing buyers' credit, held not required to prove freedom from negli

247 (N.Y.App.Div.) Verdict against injur-gence or fault.-Id. ed passenger held inconsistent with verdict for owners of automobile, against drivers of automobiles colliding therewith.-Ziemann v. Miller, 217 N. Y. S. 761.

VI. INJURIES FROM DEFECTS OR OB-
STRUCTIONS IN HIGHWAYS AND
OTHER PUBLIC PLACES.

(A) Nature and Grounds of Liability. 256 (N.Y.Ct.CI.) State cannot be considered negligent as to automobile driver because it did not employ enough men to repair all highways in few days or weeks after season opened. -Moffett v. State, 217 N. Y. S. 825.

Where state commenced to repair highway as soon as weather permitted in spring, it cannot be held guilty of negligence because it had not repaired portion where automobile accident occurred prior to date thereof.-Id.

BANKRUPTCY.

III. ASSIGNMENT, ADMINISTRATION, AND
DISTRIBUTION OF BANKRUPT'S
ESTATE.

(C) Preferences and Transfers by Bank-
rupt, and Attachments and Other
Liens.

159 (N.Y.Sup.) Repayment of stolen money before bankrupt's insolvency held restitution, and not voidable preference.-Saperston v. National Bond & Investment Co., 217 N. Y. S. 611.

185 (N.Y.Sup.) Trustee in bankruptcy is empowered, under Bankruptcy Act, to set aside transfer of property in fraud of creditors (U. S. Comp. St. $9651).-Newman v. Deveson, 217 N. Y. S. 683.

Trustee in bankruptcy cannot have bankrupt's bulk sale set aside solely because defendant, in

INDEX-DIGEST

Bills and Notes For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER purchase of merchandise from bankrupt, failed to save principal from loss or lessen its damto comply with Personal Property Law. § 44 (as age.-Bown Bros. V. Merchants' Bank amended by Laws 1914, c. 507), where sale Rochester, 243 N. Y. 366, 153 N. E. 493. took place more than four months prior to date of adjudication.-Id.

of

171 (5) (N.Y.) Bank, employed by shipper during World War to collect drafts from consignee in Sweden, held liable for loss by failure (D) Administration of Estate. to promptly notify shipper that consignees were 246 (N.Y.Sup.) Trustee in bankruptcy on prohibited by Swedish law from signing British appointment acquires right to administer bank-neutrality declaration.-Bown Bros. v. Merrupt's estate.-Newman v. Deveson, 217 N. Y. chants' Bank of Rochester, 243 N. Y. 366, 153 S. 683. N. E. 493..

BANKS AND BANKING.

II. BANKING CORPORATIONS AND

ASSOCIATIONS.

(C) Stockholders.

44 (N.Y.App.Div.) Statute withholding authority to form voting trust from banking corporations held prospective, and not effective to annul existing valid voting trusts (Laws 1925, 120, amending Stock Corporations Law [Laws 1923, c. 7871 § 50, formerly General Corporation Law, § 25; General Construction Law, § 93).-Tompers v. Bank of America, 217 N. Y. S. 67.

C.

(F) Exchange, Money, Securities, and Investments.

1882 (N.Y.App.Div.) Purchaser from defendants of wireless transfer of money to German bank, to be credited to certain estate, held not entitled to recover of defendants, where money was delivered to German bank, but because of wireless company's mistake was not credited to proper account.-Pichler v. Guinness, 217 N. Y. S. 5.

BILLS AND NOTES.

AND
DORSEMENT OR TRANSFER.

LIABILITIES ON IN

Transfer by Payee.

dorser was president of corporate maker of note did not make him joint maker, but he was liable as indorser.-William Segar, Inc., v. 1967-1975 Ocean Ave. Realty Corporation, 217 N. Y. S. 471.

442 (N.Y.App.Div.) Even if General Cor- V. RIGHTS poration Law, § 26, prohibits bank officers or directors from acting as trustees under voting (A) Indorsement Before Delivery to or trust agreement relating to bank's stock, a voting trust agreement which provided that per-243 (N.Y.Sup.) That accommodation insons other than bank officers could be trustees, and named alternates if a trustee was disqualified or could not act, met such objection. Tompers v. Bank of America, 217 N. Y. S. 67. Laws 1925, c. 120, amending Stock Corporation Law, § 50, formerly General Corporation 248 (N.Y.Sup.) Under Negotiable InstruLaw, § 25, withdrawing authority to form voting trusts from banking corporations merely prohibits voting trust agreements in future, and does not prohibit stockholders from joining existing voting trusts.-Id.

Under Stock Corporation Law, § 50, before its amendment by Laws 1925, c. 120, stockholders of bank had right to create voting trust agreement for self-defense to prevent others from acquiring control of bank.-Id.

III. FUNCTIONS AND DEALINGS. (C) Deposits.

ments Law, § 114, irregular indorser is liable to payee, unless he proves contrary agreement, but payee must prove indorsement was made before delivery of note.-William Segar, Inc., v. 1967-1975 Ocean Ave. Realty Corporation, 217 N. Y. S. 471.

(D) Bona Fide Purchasers.

337 (N.Y.App.Div.) Under Negotiable Instruments Law, §§ 94, 95, 98, 115, transferee of negotiable paper, to have notice of defect in transferor's title, must have had actual knowledge of defect, or of such facts that his taking of paper amounts to bad faith.-Hoberg v. Sofransey, 217 N. Y. S. 97.

120 (N.Y.Sup.) Bank without right to receive "money," other than United States money, on deposit (Banking Law, §§ 2, 112, 142; Pe-339 (N.Y.App.Div.) Holder of negotiable nal Law, § 298 [amended by Laws 1910, c. 398, instrument, put on inquiry by knowledge of cir$21).-Webber v. American Union Bank, 217 cumstances, is chargeable with knowledge of N. Y. S. 833. all facts inquiry would have revealed.-Hoberg v. Sofransey, 217 N. Y. S. 97.

Receipt of deposits in foreign money is against public policy (Banking Law, § 2; U. S. Comp. St. §§ 4775, 6289, 6480, 6536-6540, 6571, 9768). -Id.

133 (N.Y.Sup.) Payment of deposits in foreign money is against public policy (Banking Law. § 2; U. S. Comp. St. §§ 4775, 6289, 6480, 6536-6540, 6571, 9768).-Webber v. American Union Bank, 217 N. Y. S. 833.

Depositor, opening kronen account, entitled to return of amount deposited in dollars (Banking Law. 2).-Id.

VIII. ACTIONS.

453 (N.Y.Sup.) If note is delivered under agreement between holder and accommodation indorser, any defense arising out of transaction is available to latter, but, if given under agreement of holder with maker, indorser may not plead defense of holder's breach of agreement.-William Segar, Inc., v. 1967-1975 Ocean Ave. Realty Corporation, 217 N. Y. S. 471.

Defenses available to accommodation indorser under statute enumerated (Negotiable Instruments Law, §§ 54, 55, 96, 114, 115, 116).

153 (N.Y.Sup.) Deposit of dollars in bank to open kronen account held not a "special deposit," but to create relation of debtor and cred--Id. itor between bank and depositor (Banking Law, 88 112, 142; Penal Law, $ 298 [amended by Laws 1910, c. 398. § 2]).-Webber v. American Union Bank, 217 N. Y. S. 833.

(D) Collections.

171(1) (N.Y.) Agent of bank, employed by shipper to collect drafts in Sweden, who knew that Swedish law prohibited consignee from signing neutrality declaration provided, had duty

Defense of absence or failure of consideration is available to indorser.-Id.

Defense that plaintiff payee performed work and furnished materials in improper and unworkmanlike manner held available to accommodation indorser joined as defendant with maker.-Id.

476(1) (N.Y.Sup.) In an action on trade acceptance, answer showing that defendant resold goods without intimation of nonacceptance,