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$1195 (N.Y.Sur.) A decree of the Appellate Division, on appeal from the decree of the surrogate, that the life tenant by signing certain vouchers was not estopped from claiming an extraordinary stock dividend was conclusive in a retrial in proceedings on the judicial settlement of the accounts of the trustees, where there were no further facts shown.-In re Afflack, 146 N. Y. S. 835.

UNDERTAKINGS.

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ASSIGNMENTS.

See Assignments for Benefit of Creditors; Contracts, 186; Fraudulent Conveyances; Joint Adventures, § 4; Mechanics' Liens, § 202; Mortgages, 88 260-270; Wills, § 634.

I. REQUISITES AND VALIDITY. (B) Mode and Sufficiency of Assignment. $49 (N.Y.Sup.) Under Negotiable Instruments Law, § 325, a check does not operate as an equitable assignment of any part of a deposit, and the bank is not liable to the holder until it accepts or certifies the check.-AngloSouth American Bank v. National City Bank of New York, 146 N. Y. S. 457.

IV. ACTIONS.

§ 126 (N.Y.Sup.) Where defendants contractXVIII. LIABILITIES ON BONDS AND ed to produce a play and share the profits and losses in certain proportions, subject to royalties, it was no defense to the liability of one of such joint adventurers to an assignee of a portion of the profits by the other that the latter had secretly acquired an interest in the authors' royalties.-Selwyn & Co. v. Waller, 146 N. Y. S. 7.

§ 1227 (N.Y.Sup.) Sureties on an appeal bond conditioned to pay whatever judgment should be entered against their principal are not discharged by a stipulation between the parties that judgment should not be entered until a time in the future.-Montrose v. Baggott, 146 N. Y. S. 649.

APPEARANCE.

See Courts, § 189.

§ 2 (N.Y.Sup.) A person named as a party defendant, in an action and against whom a personal judgment is demanded, has a right to voluntarily appear, though not served with process.-White v. White, 146 N. Y. S. 368.

APPOINTMENT.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

See Bankruptcy; Insolvency.

I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Trusts for Creditors.

§3 (N.Y.Sup.) A giving of property in trust for the payment of funeral expenses and debts due at the death of the assignor is not an as

See Executors and Administrators, 88 17, 35; signment for the benefit of creditors, but is a Judges, § 11.

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valid trust.-Casey v. Casey, 146 N. Y. S. 348.

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ASSUMPTION.

See Eminent Domain, §§ 205-243; Municipal Corporations, §§ 407-492, 971-980; Taxation, Of risk, see Master and Servant, §§ 209, 295. §§ 376-496.

ASSETS.

ATHLETIC COMMISSION.

See Executors and Administrators, §§ 39, 45. See Theaters and Shows, § 1.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

ATTORNEY AND CLIENT.

See Champerty and Maintenance, § 5: Compromise and Settlement, § 2; Constitutional Law, 276; Criminal Law, 88 707-730; Insane Persons, § 64; Judges, § 47; Judgment, 8 707; Limitation of Actions, § 46; Trial, §§ 1082, 127; Witnesses, § 202.

I. THE OFFICE OF ATTORNEY.

(C) Suspension and Disbarment. $38 (N.Y.Sup.) An attorney who verified a false answer in a suit against him, for the purpose of avoiding or postponing payment of an admitted debt, should be disbarred.-In re Greenbaum, 146 N. Y. S. 969.

$42 (N.Y.Sup.) An attorney presenting affidavits of his client in an alimony proceeding, falsely stating that she had no funds to pay him, when he knew she had a savings bank account deposit of $2,400, and either she or some one for her had paid counsel $300. the attorney was guilty of misconduct warranting suspension for three months.-In re Wagener, 146 N. Y. S. 589.

§ 44 (N.Y.Sup.) Where an attorney, engaged to collect part of the proceeds of an estate belonging to nonresident infants, misappropriated the funds and tried to conceal his misappropriation by false testimony, he should be disbarred. -In re Feinblatt, 146 N. Y. S. 304.

§ 44 (N.Y.Sup.) Where an attorney in a criminal case was paid money to use for defendant, and without authority used it to suppress testimony in violation of Pen. Law, §§ 379, 570, and in gambling and appropriated it to his own use, and thereafter presented a false claim for expenditures never made, he is guilty of conduct calling for disbarment.-In re Hartridge, 146 N. Y. S. 421.

§ 44 (N.Y.Sup.) Where an attorney obtained money from his client to loan on real estate security so as to pay her $150 a month, but appropriated it to his own use and lost it, he was guilty of professional misconduct, justifying disbarment, though he repaid some of the money.In re Avrutis, 146 N. Y. S. 741.

§ 44 (N.Y.Sup.) An attorney who, after agreeing to accept as his fee 30 per cent. of the judgment and all costs, tendered to his client an amount less than one-half the judgment as full satisfaction, and falsely testified to an interview with the client authorizing the retention of certain sums by him, held guilty of professional misconduct.-In re Smith, 146 N. Y. S. 906.

An attorney, guilty of professional misconduct in withholding from a judgment more than the amount to which he was entitled by contract and falsely testifying to authority for the retention of part of such amount, will be suspended for two years with leave to apply for reinstatement at the end of that term on conditions. -Id.

§ 44 (N.Y.Sup.) Junior partners of a firm of attorneys, who received moneys drawn from the personal account of the senior partner, into which were put the firm fees, and out of which were paid the firm expenses, are not guilty of misconduct, under Judiciary Law, § 88, because they did not ascertain that taking money from

that account would deprive a client of the senior partner of money which he had deposited therein.-In re Clarke, 146 N. Y. S. 1030.

846 (N.Y.Sup.) Court held to have the duty of protecting attorneys against unjustifiable and malicious attacks upon their integrity, and not to allow charges of professional misconduct to be used to enforce claims against them, so that one having any grievance not enforceable by civil action was bound to present the facts within a reasonable time after the alleged wrongful act was committed.-In re Whitridge, 146 N. Y. S. 336.

§ 53 (N.Y.Sup.) Evidence held to show that respondent committed perjury in verifying an answer in a suit against him for an admitted debt, and also in testifying before the referee on the hearing of charges based thereon.-In re Greenbaum, 146 N. Y. S. 969.

§ 54 (N.Y.Sup.) Disbarment by the Appellate Division, under Judiciary Law, § 88, subd. 2, as amended by Laws 1913, c. 720, of an attor ney guilty of crime, is not dependent on his conviction, as it is under subdivision 3; so that, the bar association having preferred a charge against an attorney not indicted, the referee should take and report all the testimony for both sides.-In re Stanton, 146 N. Y. S. 890.

II. RETAINER AND AUTHORITY. § 63 (N.Y.Sup.) A contract for the employment of attorney for a contingent fee held to create the same relation that arises from a general retainer.-Martin v. Camp, 146 N. Y. S. 1041.

$76 (N.Y.Sup.) The relation of attorney and client may be dissolved by either party for cause, and the client may dissolve it without cause.-Martin v. Camp, 146 N. Y. S. 1041.

$ 77 (N.Y.Sup.) Counsel in charge of a proceeding in an action has authority of the attor ney appearing for the same party to make any stipulation or do any other act in relation to the procedure which, in his judgment, would benefit the cause of his client.-Montrose v. Baggott, 146 N. Y. S. 649.

III. DUTIES AND LIABILITIES OF ATTORNEY TO CLIENT.

$106 (N.Y.Sup.) Where attorneys are sued for negligence in that they permitted sureties on an appeal bond to become discharged by failure to justify, after taking exceptions to them, their liability is to be determined by the settled law at the time of the acts which are asserted to be negligent.-Montrose v. Baggott, 146 N. Y. S. 649.

$112 (N.Y.Sup.) Since a stipulation by counsel for a defendant to withdraw exceptions to sureties on an appeal bond is sufficient to hold the sureties though the sureties do not justify, attorneys for plaintiff are not liable for negligence for the reason that, in an action on the bonds, the court held the sureties discharged because of their failure to justify.-Montrose v. Baggott, 146 N. Y. S. 649.

Attorneys for plaintiff are not liable to him because in an action on an appeal bond the court incorrectly determined that the sureties were discharged by a stipulation between the parties.-Id.

129 (N.Y.Sup.) In an action against attor-
neys for negligence in permitting sureties on ap-
peal bonds to be discharged by failure to jus-
tify, evidence held sufficient to take to the jury
the question of the making of an oral stipula-
tion between the parties to the suit withdrawing
the exceptions to the sureties.-Montrose v. Bag-
gott, 146 N. Y. S. 649.

IV. COMPENSATION AND LIEN OF

ATTORNEY.

(A) Fees and Other Remuneration.

§ 130 (N.Y.Sup.) An attorney cannot recover
compensation for services rendered a member
of a firm which was in financial difficulties,
where he not only represented the firm, but cred-
itors of the firm.-Eisemann v. Hazard, 146 N.

Y. S. 685.

That an attorney, who represented a member
of a bankrupt firm, disclosed to the committee of
creditors of which he was a member owing to
his representation of firm creditors that he was
the attorney for the firm, will not entitle him
to compensation.-Id.

$134 (N.Y.Sup.) Where an attorney, having
contracted to render services for contingent fee,
was displaced after a portion of the service
had been rendered, his cause of action was on
the contract and not on a quantum meruit.-
Martin v. Camp, 146 N. Y. S. 1041.

Where an attorney was employed to obtain
certain awards and reduced assessments for a
percentage of the award and a portion of the
reduction of assessments, and before his work
was completed he was displaced by his client,
he was entitled to wait until the awards were
made and the assessments reduced by his suc-
cessor and then recover contract compensation.
-Id.

$165 (N.Y.Sup.) It is unnecessary for one
sued for an attorney's fee to set up the illegal-
ity of the attorney's action in representing con-
flicting interests, where the facts appear from
the testimony given in support of the attorney's
case.-Eisemann v. Hazard, 146 N. Y. S. 685.

ATTORNEY GENERAL.

See Railroads, § 79.

AUTHORITY.

See Attorney and Client, §§ 63-77.

AUTOMOBILES.

See Highways, § 184; Railroads, § 350.

BAILMENT.

See Carriers, § 1812; Depositaries; Pledges.
$14 (N.Y.Sup.) Where empty carboys, to con-
tain acid sold, were delivered to defendant un-
der the agreement that those not returned should
be paid for at a fixed price, defendant was only
a bailee of the carboys, and not liable for their
loss owing to an act of God.-Niagara Alkali
Co. v. Champion Coated Paper Co., 146 N. Y.
S. 284.

BANKRUPTCY.

See Assignments for Benefit of Creditors; In-
solvency; Set-Off and Counterclaim, § 31.

III. ASSIGNMENT, ADMINISTRATION,
AND DISTRIBUTION OF BANK-
RUPT'S ESTATE.

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

as

§ 192 (N.Y.Sup.) Bankr. Law, § 47a,
amended in 1910, would not render ineffectual
a materialman's lien on money due on a con-
tract for a street improvement because the con-
tractor was adjudicated a bankrupt before the
filing of the lien.-Hildreth Granite Co. v. City
of Watervliet, 146 N. Y. S. 449.

V. RIGHTS, REMEDIES, AND DIS-
CHARGE OF BANKRUPT.

§ 424 (N.Y.) An intentional sale by a broker-
age firm of stock held by it upon an account
and depositing the proceeds in bank in the firm
name held to create a liability for willful and
malicious "injury to the property of another,"
with Bankruptcy Act, § 17, as amended by Act
Feb. 5, 1903, § 17, exempting such debts from
discharge.-Kavanaugh v. McIntyre, 104 N. E.
135, 210 N. Y. 175.

§ 429 (N.Y.) If some of the members of a
bankrupt firm wrongfully converted corporate
stock so as to create a liability for "willful and
malicious injury to the property of another"
within Bankruptcy Act, § 17, as amended by
Act Feb. 5, 1903, exempting such debts from
discharge, the members of the bankrupt firm
who did not participate in such wrongful acts
are not released from liability for such debts
by the discharge in bankruptcy.-Kavanaugh v.
McIntyre, 104 N. E. 135, 210 N. Y. 175.

BANKS AND BANKING.

See Assignments, § 49; Bills and Notes, § 340.
II. BANKING CORPORATIONS AND

ASSOCIATIONS.

(E) Insolvency and Dissolution.

§ 80 (N.Y.Sup.) An allegation of a claim
against an insolvent bank that the claimant has
by virtue of a demand become entitled to all
the "right, title and interest" of the people of
the state to the money deposited therein, rep-
resenting the canal funds of the state, indicat-
ed that it stood in the shoes of the state.-
United States Fidelity & Guaranty Co. v. Bor-
ough Bank of Brooklyn, 146 N. Y. S. 870.
III. FUNCTIONS AND DEALINGS.
(C) Deposits.

$119 (N.Y.Sup.) The relation between a de-
positor and a bank is that of debtor and cred-
itor.-North British & Mercantile Ins. Co. v.
Merchants' Nat. Bank, 146 N. Y. S. 720.

§ 145 (N.Y.Sup.) Where a check was obtained
from the drawer by certain conspirators, who
had no authority to receive it for the payee,
and, after the conspirators had procured its

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

COMPANIES.

certification, they also procured a forged in- | VI. LOAN, TRUST, AND INVESTMENT dorsement of the name of the payee and obtained payment from defendant, the check was never lawfully delivered, and plaintiff, notwithstanding the certification, was entitled to recover the amount from the drawee bank.-Anglo-South American Bank v. National City Bank of New York, 146 N. Y. S. 457.

§ 148 (N.Y.Sup.) A bank must know the signatures of its depositors and is primarily liable if it pays out money on forged checks, unless the depositor's negligence contributed to the payment without any negligence upon the part of the bank.-North British & Mercantile Ins. Co. v. Merchants' Nat. Bank, 146 N. Y. S. 720. A bank depositor held not entitled to complain that its cashier did not have authority to sign an instrument by which the bank was authorized to deliver to the person named the depositor's passbook and take his receipt in printed form on the reverse side.-Id.

The fact that a bank which paid checks fraudulently drawn on a depositor's account by the depositor's employés received the checks for payment from other solvent banks, so that if required to again pay their amount to the depositor it could seek reimbursement from the other banks, would not be ground for requiring it to again pay checks.-Id.

§ 154 (N.Y.Sup.) In an action by a bank depositor to recover the proceeds of checks fraudulently drawn by plaintiff's employés against plaintiff's account, evidence held to make it a jury question whether plaintiff by reason of its negligence in not examining its books should recover.-North British & Mercantile Ins. Co. v. Merchants' Nat. Bank, 146 N. Y. S. 720.

(D) Collections.

§ 317 (N.Y.Sup.) The State Superintendent of Banks taking possession of the assets and propLaw, § 19, for purposes of liquidation, may sue erty of a trust company pursuant to Banking and be sued in effect as a receiver.-In re Carnegie Trust Co., 146 N. Y. S. 809.

Under Code Civ. Proc. § 3246, allowing recovery of costs against a person sued as trustee or under authority of statute, held, that a claimant against a trust company in liquidation by the State Superintendent of Banks was entitled to interest on costs from the date when the | court directed the payment of a dividend on his judgments.-Id.

A creditor of a trust company in liquidation whose dividend was deferred by reason of an unsuccessful contest of his claim held entitled to interest on the dividend founded upon his judgments notwithstanding he had been allowed interest in the computation of the amount of such judgments.-Id.

BENEFICIAL ASSOCIATIONS.

See Associations; Insurance, §§ 694-825; Judg. ment, § 585; Mandamus, § 160.

$12 (N.Y.Sup.) A by-law giving a member of a benefit society the right to appeal to a meeting thereof from any decision of the society does not apply to an expulsion for nonpayment of dues, and the pursuit of such remedy is not a condition precedent to mandamus to review the expulsion.-People ex rel. Weiss v. Philip Bernstein Sick & Benefit Society, 146 N. Y. S. 886.

Instru- See Wills.

§ 174 (N.Y.Sup.) Under Negotiable
ments Law, § 42, bank which collected checks
upon which payee's indorsement was forged held

liable to make good the amount it had received. See Gaming.
-Standard Steam Specialty Co. v. Corn Ex-
change Bank, 146 N. Y. S. 181.

Where an employé of a corporation, author

BEQUESTS.

BETTING.

BIDS.

BILL OF EXCHANGE.

ized only to indorse checks to the order of the See Taxation, § 685.
bank in which they were customarily deposited,
indorsed them in blank, held, that the indorse-
ment was a forgery, and the bank which col-
lected them for transferees was liable for the See Bills and Notes.

amount collected.-Id.

BILL OF PARTICULARS.

(F) Exchange, Money, Securities, and In- See Pleading, §§ 318, 323.

vestments.

8190 (N.Y.Sup.) Where bankers issued traveler's checks, payable through correspondents on the holder's countersignature, the bankers, having paid lost or stolen checks on a countersignature that was forged, were liable to the owner, and were entitled to recover reimbursement against their immediate indorser, each indorser being entitled to recover against his prior indorser in turn.-Sullivan v. Knauth, 146 N. Y. S. 583.

Traveler's checks, lost or stolen and paid by the drawee under a forged countersignature of the owner, held not lost within a provision of the agreement that the bankers would refund the amount of lost checks on a suitable bond of indemnity.-Id.

BILLS AND NOTES.

See Accord and Satisfaction, §§ 9, 11; Assignments, § 49; Banks and Banking, §§ 145, 190; Contracts, § 159; Contribution, §§ 4, 9; Corporations, § 425; Principal and Agent, § 136; Principal and Surety, § 112.

I. REQUISITES AND VALIDITY. (B) Form and Contents of Promissory Notes and Duebills.

8 46 (N.Y.Sup.) That a writing, promising to pay a certain sum on a certain date with interest, also contained a receipt for the money loaned did not affect its legal character as a note.-Scantlebury v. Tallcott, 146 N. Y. S. 184.

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892 (N.Y.Sup.) The advance by the payee of a note to the party signing it of the amount thereof, for the benefit of a company of which the party signing was treasurer, was a sufficient consideration to support the obligation of such party, whether he retained the money personally or delivered it to the company.-Scantlebury v. Tallcott, 146 N. Y. S. 184.

shows him to be the real owner.-Cleary v.
Dykeman, 146 N. Y. S. 611.

Where defendant claimed that plaintiff was
not entitled to recover as he was acting for
the accommodation payee, evidence held insuffi-
cient to establish that fact.-Id.

BONA FIDE PURCHASERS.

See Bills and Notes, §§ 335-362; Eminent Do-
main, § 153; Vendor and Purchaser, § 228.

BONDS.

106-129; Executors and Administrators, 5082; Master and ServSee Appeal, § 1227; Attorney and Client, 318; Insurance, ant, §§ 30, 40; Principal and Surety.

BOUNDARIES.

§ 98 (N.Y.Sup.) A recital, in a nonnegotiable
note, "value received" is an admission that the
instrument was issued for a sufficient considera- See Fences; Trial, § 105.
tion, binding, as such, upon each of the makers;
the promise being joint and several.-Owens v.
Blackburn, 146 N. Y. S. 966, 969.

V. RIGHTS AND LIABILITIES ON IN-
DORSEMENT OR TRANSFER.

(D) Bona Fide Purchasers.
$335 (N.Y.Sup.) The holder of a note, who
accepted it with knowledge that if defendant
should be indebted to the payee in a less amount
than that named in the note, he was to be li-
able only for the reduced amount, could recover
only the actual debt.-Sellitto' v. Lamberti
Const. Co., 146 N. Y. S. 178.

$340 (N.Y.Sup.) The bank receiving a check of a corporation indorsed by an officer or agent thereof in blank or to his own order is thereby put upon inquiry.-Standard Steam Specialty Co. v. Corn Exchange Bank, 146 N. Y. S.

181.

$362 (N.Y.Sup.) A bona fide purchaser of an accommodation note can, even after maturity, transfer good title to another person, though the assignee has notice of defenses.-Cleary v. Dykeman, 146 N. Y. S. 611.

I. DESCRIPTION.

§14 (N.Y.Sup.) Where a division line was side of a millpond and thence up the said pond described as beginning at a corner on the west 434 degrees east, etc., which line ran along the westerly bank of the pond, sometimes 30 feet from the water and sometimes nearer, plaintiff's record title did not extend to the thread of the pond.-Sherman v. Brown, 146 N. Y. S. 867.

II. EVIDENCE, ASCERTAINMENT, AND

ESTABLISHMENT.

§ 36 (N.Y.Sup.) In a suit involving a disputed boundary, notes of a survey of the land made when it was owned by the parties' common grantor held inadmissible, where it did vey was made and defendant's deed in no way not appear under what circumstances the surreferred to it.-Wightman v. Campbell, 146 N. Y. S. 666.

§ 48 (N.Y.Sup.) Where a portion of plaintiff's east line ran along the bank of the upper portion of a pond some distance from the water, the extension of the south line fence by defendant's grantors to and into the water held not a recognition of plaintiff's ownership of the bank and shores of the pond opposite his land.

VII. PAYMENT AND DISCHARGE. 8430 (N.Y.Sup.) The substitution of a note signed by a third person in place of a prior-Sherman v. Brown, 146 N. Y. S. 867. note constitutes a payment of the prior note, if that was the intention of the parties.-Orth V. Anderson, 146 N. Y. S. 689.

VIII. ACTIONS.

8493 (N.Y.Sup.) Under Negotiable Instruments Law, § 20, a note not payable to bearer or order is not presumed to be supported by a consideration.-Owens v. Blackburn, 146 N. Y. S. 966, 969.

an

action on a note, § 496 (N.Y.Sup.) In where defendant claimed that plaintiff was not the real party in interest, but was acting for the accommodation payee, he has the burden of establishing that fact.-Cleary v. Dykeman, 146 N. Y. S. 611.

849 (N.Y.Sup.) Practical location of a boundary line with a continued and undisturbed occupation thereto by the grantee for more than 20 years held conclusive on the parties and their successors in title, even though the boundary line so located was erroneous.-Myer v. Idlewood Ass'n, 146 N. Y. S. 469.

BOXING.

See Theaters and Shows, § 1.

BREACH OF MARRIAGE PROMISE. See Execution, § 443.

BRIDGES.

$523 (N.Y.Sup.) Proof that a party furnished the money for the purchase of a note prima facie See Contracts, §§ 54, 187, 330.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

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