Lapas attēli
PDF
ePub
[blocks in formation]

II. APPOINTMENT, QUALIFICATION, AND TENURE.

$ 17 (N.Y.Sup.) The Surrogate's Court has no discretion as to the granting of letters of administration; its duty being limited to following the order prescribed by Code Civ. Proc. § 2660.-In re Wolff's Estate, 146 N. Y. S. 495. Under Code Civ. Proc. § 2660, authorizing the granting of letters of administration to any

See Appeal, § 263: Criminal Law, §§ 1056, next of kin "entitled to share in the distribution

1060.

EXCEPTIONS, BILL OF.

See Landlord and Tenant.

EXECUTION.

See Wills, §§ 119, 303.

X. SUPPLEMENTARY PROCEEDINGS. § 360 (N.Y.Co.Ct.) Proceedings supplementary to execution under a void judgment are themselves void. In re Korpolinski, 146 N. Y. S. 859.

$418 (N.Y.Sup.) Under Code Civ. Proc. 8 2121, providing that certiorari shall not issue to review any determination in a civil action or special proceeding, certiorari will not issue to review a conviction for criminal contempt committed in proceedings supplementary to execution in a civil action.-Hanbury v. Benedict, 146 N. Y. S. 44.

Under Code Civ. Proc. § 2122, providing that certiorari shall not issue where there is an adequate remedy by appeal, and section 1356, authorizing appeals from any order affecting a substantial right made in a special proceeding, an appeal and not certiorari is the proper remedy to review a conviction for contempt committed in proceeding supplemental to execution in a civil action.-Id.

8419 (N.Y.Sup.) In a proceeding to punish a judgment debtor for contempt for failure to appear for examination in proceedings supplementary to execution, a fine equal to the sum plaintiff might have obtained by garnishment of the debtor's salary during the period between the order for examination and the order punishing for contempt cannot be imposed under Judiciary Law, § 773, limiting the court to a fine, unless the contempt caused an actual loss. -Schwartz v. Sill, 146 N. Y. S. 1068.

XI. EXECUTION AGAINST THE

PERSON.

8443 (N.Y.Sup.) Failure to comply with Code Civ. Proc. § 572, relating to discharge from an order of arrest, held not ground for vacating an execution against the person of defendant in an action for breach of promise.-Linder v. Feier, 146 N. Y. S. 1066.

EXECUTORS AND ADMINIS

TRATORS.

See Appeal, 8 1178; Contempt, § 82; Contracts, § 45; Courts, § 14; Descent and Dis

of the estate," the words quoted were words of limitation, so that a cousin of an intestate who was not entitled to share in the estate was not entitled to letters.-Id.

$35 (N.Y.Sur.) Where an executrix has been guilty of misconduct authorizing revocation of her letters under Code Civ. Proc. § 2685, subd. 2, the fact that her continuance in office can do no harm will not prevent revocation of her letters.-In re Engel, 146 N. Y. S. 793.

That at the institution of a proceeding to revoke letters testamentary there is before the court the account of the executors that they are amply responsible will not preclude their removauthorizing removal under Code Civ. Proc. § al, where they have been guilty of misconduct 2685, subd. 2.-Id.

III. ASSETS, APPRAISAL, AND INVENTORY.

§ 39 (N.Y.Sup.) Where a grantor of land reserved to himself all rights of action for damages to the easements of light, air, and access caused by the construction of an elevated railroad, the covenant, if of any force, reserved an interest in real property which descended to the heirs at law of the grantor and not his personal representative.-Drucker v. Manhattan Ry. Co., 146 N. Y. S. 410.

$45 (N.Y.Sup.) A gift of property in trust for certain purposes after the donor's death, although part of it is illegal, is not property of which the donor dies possessed, and the administrator is not entitled thereto.-Casey v. Casey, 146 N. Y. S. 348.

IV. COLLECTION AND MANAGEMENT

OF ESTATE.

(A) In General.

§ 86 (N.Y.Sup.) Where the proceeds of the sale of a deceased infant's realty are deposited with the county treasurer, an order of the County Court is a prerequisite to payment of any portion to the infant's administratrix; such order being required by Code Civ. Proc. § 751, and section 2359 not being inconsistent therewith. People ex rel. Jenny v. Brown, 146 N. Y. S. 123.

(B) Real Property and Interests Therein.

§ 148 (N.Y.Sup.) Executors have no right to purchase land, and, if they do, it is regarded as personalty, which they may sell, and where the executors, with power to sell, purchased testator's real estate at foreclosure, they could sell it so as to pass title free from any claim of the testator's devisees or representatives;

the sale being doubly protected by the power
of sale.-McCarty v. Downes, 146 N. Y. S. 973.
Where executors, with power to sell, pur-
chased testator's realty at foreclosure, if a
sale thereof by them to the wife of one was
voidable, it was a matter to have been consid-
ered upon their accounting, and did not affect
the title of those claiming thereunder, par-
ticularly after the lapse of more than ten years
without any question being raised.-Id.

VI. ALLOWANCE AND PAYMENT OF
CLAIMS.

(A) Liabilities of Estate.

IX. INSOLVENT ESTATES.
8416 (N.Y.Sup.) During administration of an
insolvent estate, no interest should be allowed
to creditors as between themselves.-United
States Fidelity & Guaranty Co. v. Carnegie
Trust Co., 146 N. Y. S. 804.

EXEMPTIONS.

See Taxation, §§ 242, 251.

EXPERT TESTIMONY.

See Evidence, §§ 474-568.

EXPULSION.

§ 221 (N.Y.Sup.) In an action for compensa-
tion for services rendered and supplies advanc-
ed to defendants' testatrix, under an agreement
that at her death plaintiff should receive her
property, evidence held to warrant a finding
for plaintiff.-Mead v. Herdman, 146 N. Y. S. See Habeas Corpus, § 85.

See Beneficial Associations, § 12; Insurance, §
694.

353.

(B) Presentation and Allowance.
$241 (N.Y.Sup.) Under Code Civ. Proc. 8
2552, providing that a decree directing payment
by an executor is conclusive that there are suffi-
cient assets, and section 2555, providing for en-
forcing such a decree by contempt proceedings,
held that a final decree ordering executors to
pay to themselves as trustees a certain sum was
conclusive as to assets in proceedings for con-
tempt.-In re Scheuer, 146 N. Y. S. 707.

(D) Priorities and Payment.

EXTRADITION.

FACTORIES.

See Health, § 32.

FACTORS.

See Brokers; Trial, § 165.

FEES.

See Attorney and Client, §§ 130-165: Taxation,
§ 598.
FELLOW SERVANTS.

FENCES.

$263 (N.Y.Sup.) Costs against executors, ad- See Master and Servant, §§ 159-185.
ministrators, assignees for the benefit of credi-
tors, and receivers, are payable out of the es-
tate and have priority over the claims of gen-
eral creditors.-In re Carnegie Trust Co., 146
N. Y. S. 809.

VII. DISTRIBUTION OF ESTATE.
8318 (N. Y. Sup.) A residuary legatee, who,
before the winding up of the estate, receives
money on account, must refund the money if it
is thereafter determined that it is needed for the
payment of debts.-Clark v. Truslow, 146 N.
Y. S. 750.

Where executors pay a residuary legatee a
sum of money to apply on account, the legatee
need not refund the money to pay debts if
through the negligence of the executors they are
unable to meet such debts.-Id.

See Nuisance, § 3.

§ 19 (N.Y.) In determining whether a barbed
wire fence has been legally constructed pursu-
ant to Town Law, § 369, the purpose for which
the fence has been built is immaterial.-Barr
v. Green, 104 N. E. 619, 210 N. Y. 252.

$ 24 (N.Y.) In an action for injuries to a
child by running into defendant's barbed wire
fence, separating his land from school grounds,
whether defendant was negligent in construct-
ing the fence held for the jury.-Barr v. Green,
104 N. E. 619, 210 N. Y. 252.
FINAL JUDGMENT.

See Appeal, § 74.

Executors held not negligent in leaving money
in a bank which failed, so as to defeat their right
to recover money paid in advance to a residuary See Appeal, § 1010.
legatee.-Id.

A residuary legatee who is compelled to re-
fund an advance made to her is liable for in-
terest thereon, where she expressly agreed in a
refunding bond for interest, though such bond
was not sued on.-Id.

FINDINGS.

FINES.

FIRES.

See Execution, § 419.

In a suit to compel a residuary legatee to re- See Woods and Forests, § 8.
fund an advance made to her, a refunding bond
executed by her, but not sued on, is admissible to
show the prepayment and acceptance of the ad-
vance.-Id.

FIXTURES.

See Mechanics' Liens, § 30.

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

[blocks in formation]

VII. SALES OF GOODS.

(B) Acceptance of Part of Goods. $90 (N.Y.City Ct.) To satisfy the statute, there must be, subsequent to the sale, a delivery by the seller, with intent to surrender his control

See Insurance, § 354; Intoxicating Liquors, §§ and lien, and to vest the right of possession 106, 242.

FORGERY.

See Banks and Banking, §§ 148, 174.

FORMER ADJUDICATION.

See Judgment, §§ 641-717.

FORMER JEOPARDY.

See Criminal Law, §§ 168, 173.

FRANCHISES.

See Railroads, § 18; Taxation, §§ 117, 1712, 376.

FRAUD.

See Accord and Satisfaction, § 20; Contracts, § 99; Frauds, Statute of: Fraudulent Conveyances: Husband and Wife, § 281; Limitation of Actions, §§ 55, 100; Principal and Surety, § 42; Trusts, § 65; Wills, §§ 163, 166, 386.

I. DECEPTION CONSTITUTING
FRAUD, AND LIABILITY
THEREFOR.

§ 12 (N.Y.Sup.) Actionable false representations must be of existing facts.-Ball v. Gerard, 146 N. Y. S. 81.

II. ACTIONS.

§ 41 (N.Y.Sup.) Complaint alleging purchase of stock of a corporation in open market in reliance upon false representations contained in a prospectus published and distributed by defendant to the investing public held to state a cause of action for damages for deceit. -Reusens v. Gerard, 146 N. Y. S. 86.

$59 (N.Y.Sup.) Plaintiff held only entitled to recover nominal damages resulting from defendant's fraudulent representation to plaintiff that the owner of a theater for which plaintiff had contracted with defendant to procure a tenant was solvent and able to pay plaintiff's commissions.-Ochs v. Woods, 146 N. Y. S. 4.

in the buyer, and an acceptance by the buyer with intent to take possession as owner; mere words are not sufficient.-Gold v. Gross, 146 N. Y. S. 164.

Delivery of a piece of merchandise to the buyer that he might see that the other goods were of like quality, and for which he was to be charged, held not to take the case out of the statute, where the contract was then executory and dependent upon whether the seller's principal would authorize a sale at the price quoted. -Id.

Delivery of a sample, forming no part of the bulk sold and to be paid for, held not such a delivery and acceptance of part of the goods sold as to constitute a symbolical delivery which would satisfy the statute.-Id.

IX. OPERATION AND EFFECT OF STATUTE.

$120 (N.Y.Sup.) A parol option by which plaintiff agreed to convey to defendant a concession, lands, and property in Cuba pertaining to a railroad and power company for $1,500,000 United States currency held unenforceable for want of protocolization in a public instrument, as required by Cuban Civ. Code, arts. 1216, 1218, 1280.-Reilly v. Steinhart, 146 N. Y. S. 534.

X. PLEADING, EVIDENCE, TRIAL, AND REVIEW.

§ 159 (N.Y.Sup.) Where, in an action for breach of an oral contract of employment plaintiff in his testimony made two contradicting statements as to dates of the contract, one statute of frauds, the court should have subof which would bring the contract within the mitted the case to the jury.-Epstein v. Hiller, 146 N. Y. S. 305.

FRAUDULENT CONVEYANCES.

III. REMEDIES OF CREDITORS AND PURCHASERS.

(A) Persons Entitled to Assert Invalidity. $208 (N.Y.Sup.) A conveyance by a husband to his wife cannot be attacked by subsequent creditors as fraudulent, unless it caused insolvency upon the part of the husband as to his

existing creditors, or was made with the intent of defrauding subsequent creditors.-Weinstock v. Hallenbeck, 146 N. Y. S. 1047.

GAMING.

I. GAMBLING CONTRACTS AND

TRANSACTIONS.

(A) Nature and Validity.

§ 17 (N.Y.Sup.) In view of the declared policy of the state, as shown by Laws 1802, c. 44, §§ 1. 5, substantially embodied and continued in Revision of 1813, vol. 1, p. 222, 1 Rev. St. 1829, pt. 1, c. 20, tit. 8, art. 5, § 55, and article 3, 8, which provisions were not repealed by the Percy-Gray Law (Laws 1895, c. 570), and are substantially embodied in Penal Law, $$ 987, 991, 992, held, that a contract to act as betting commissioner to wager on horse races for another is against public policy.Cahill v. Gilman, 146 N. Y. S. 224.

III. CRIMINAL RESPONSIBILITY.

(A) Offenses.

HABEAS CORPUS.

II. JURISDICTION, PROCEEDINGS,
AND RELIEF.

$85 (N.Y.Sup.) Where, in habeas corpus by a person held under a warrant of extradition, the preponderance of evidence sustains his contention that he was not in the demanding state when the crime was committed, and is not a fugitive from justice, he will be released.-People ex rel. Fuchs v. Police Com'r of City of New York, 146 N. Y. S. 781.

HARMLESS ERROR.

See Appeal, 88 1050-1178; Criminal Law, § 11702.

HEALTH.

II. REGULATIONS AND OFFENSES. $32 (N.Y.Sup.) A portion of one floor of a building, though used for manufacturing purposes, is not a factory, within the purview of Labor Law, § 82, requiring every factory consisting of three or more stories in height to be equipped with fire escapes.-Goetz v. Duffy, 146 N. Y. S. 152.

§ 68 (N.Y.Sp.Sess.) A machine for vending gum which gave, in addition to one cent's worth of gum for each penny inserted therein, a chance for additional gum or candy, is a gambling device which renders the proprietor of the place in which it is kept guilty of violating Penal Law, $$ 483, 973.-People v. Stein, 146 N. Y. S. 852. See Evidence, § 318. Same v. Nahmias, Id. 856.

GIFTS.

See Executors and Administrators, § 45; Taxation, § 879; Trusts, § 35.

GOOD FAITH.

HEARSAY.

HEIRS.

See Descent and Distribution.

HIGHWAYS.

See Certiorari, §§ 24-41.

I.

See Bills and Notes, §§ 335-362; Brokers, § 88; Vendor and Purchaser, § 228.

GOOD WILL.

See Taxation, §§ 866, 895.

ESTABLISHMENT, ALTERATION,
AND DISCONTINUANCE.

(C) Alteration, Vacation, or Abandon-
ment.

$ (N.Y.Sup.) Good will defined.-In re Ball's close highways, consisting of the application, Estate, 146 N. Y. S. 499.

GRAND JURY.

877 (N.Y.Sup.) Under Highway Law, § 191, all papers in a proceeding by town officers to consent of the town board, release from damages, and order of the town superintendent, must be recorded as well as filed in the town clerk's office.-People ex rel. Simons v. Dowling, 146

See Criminal Law, 8 6272; Indictment and N. Y. S. 919.

[blocks in formation]

III. CONSTRUCTION, IMPROVEMENT,
AND REPAIR.

§ 113 (N.Y.) Coal sold to a state highway contractor for use in the boilers of road rollers and traction engines used in a highway construction contract held not materials furnished Law, § 5; and hence claimants were not entifor the construction of the highway within Lien tled to a lien therefor.-Shultz v. C. H. Quereau Co., 104 N. E. 621, 210 N. Y. 257.

Law, § 132, the determination of the State § 113 (N.Y.Sup.) Notwithstanding Highway

Highway Commissioner that a contract for the building of a state highway is not for the best interest of the public is conclusive upon the contractor, although it does not deprive him of his

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 146 N.Y.S.-73

right of action for breach of contract.-Standard Bitulithic Co. v. Carlisle, 146 N. Y. S. 386. IV. TAXES, ASSESSMENTS, AND WORK ON HIGHWAYS.

§ 124 (N.Y.Sup.) Where notice of the acceptance of certain highways was given to the board of supervisors under Highway Law, § 172, that notice was not given until after the tax levy for 1912 was made did not relieve the board of the duty to include in the levy a tax for maintenance for that year under section 134.-In re Carlisle, 146 N. Y. S. 665.

V. REGULATION AND USE FOR

TRAVEL.

(B) Use of Highway and Law of the Road.

§ 184 (N.Y.Sup.) In an action by one run down by an automobile, the question of whether the driver was negligent held under the evidence for the jury.-Taylor v. Glens Falls Automobile Co., 146 N. Y. S. 699.

HISTORICAL SOCIETY.

See Taxation, § 876.

HOMICIDE.

Insurance, 143; Marriage; Mortgages, }}
28, 86; Principal and Surety, § 112.
I. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.

§ 19 (N.Y.Sup.) Where goods furnished a wife were necessaries, in the absence of contract limiting liability and of proof that the husband had already supplied similar articles or given notice not to extend credit, the presumption is that she contracted as agent for her husband, and he is liable.-Baccaria v. Landers, 146 N. Y. S. 158.

VIII. SEPARATION AND SEPARATE

MAINTENANCE.

8278 (N. Y. Sup.) A separation agreement whereby the husband is to make certain regular payments to the wife, is valid and binding. -Randolph v. Field, 146 N. Y. S. 247.

$278 (N.Y.Sup.) A release of all claims on her husband in a separation agreement, given by a wife in consideration of the payment to her of $2,500 by her husband's mother, held not violative of Domestic Relations Law, § 51. -Greenfield v. Greenfield, 146 N. Y. S. 865.

$279 (N.Y.Sup.) The fact that a wife receiving payments under a separation agreement

See Criminal Law, §§ 339, 427, 655, 720, 7222, brings suit for a legal separation and obtains 811, 834, 1056, 1088, 11702.

[blocks in formation]

an allowance of alimony does not relieve the husband of his liability under the agreement.Randolph v. Field, 146 N. Y. S. 247.

A wife's adultery before or after a separation agreement does not defeat her claim under such agreement.-Id.

§ 281 (N.Y.Sup.) In a wife's action to recov er payments due under a separation agreement, defendant's allegation that before such agreewhich fact was unknown to him, was not equiv ment was signed she had committed adultery, alent to an allegation of fraud perpetrated either by direct representations or concealment. -Randolph v. Field, 146 N. Y. S. 247.

IMPEACHMENT.

§ 253 (N.Y.) Evidence, on a trial for homicide, held to support a conviction for murder in the first degree.-People v. Seidenshner, 104 N. See Witnesses, §§ 330-400. E. 420, 210 N. Y. 341.

VIII. TRIAL.

(B) Questions for Jury.

$268 (N.Y.) Evidence in a homicide case held to make defendant's guilt a question for

IMPLIED CONTRACTS.

See Work and Labor.

IMPROVEMENTS.

the jury. People v. Seidenshner, 104 N. E. 420. See Municipal Corporations, §§ 366-492. 210 N. Y. 341.

(C) Instructions.

INCOMPETENT PERSONS.

See Insane Persons.

INCUMBRANCES.

§ 294 (N.Y.) In a prosecution for homicide, an instruction that accused's intoxication could only be considered if it was so great that accused could not have formed an intent to commit mur- See Covenants, § 121. der is erroneous; Penal Code, § 1220, providing that voluntary intoxication shall not make the act less criminal but the jury may consider such fact where intent is essential.-People v. Gerdvine, 104 N. E. 129, 210 N. Y. 184.

HUSBAND AND WIFE.

See Appeal, § 959; Divorce; Dower; Estoppel, 65; Fraudulent Conveyances, § 208;

INDEMNITY.

See Contracts, § 310; Guaranty.

§ 9 (N.Y.Sup.) Where defendant agreed to indemnify a surety, which executed a bond for the defendant's performance of a contract with the federal government, for any liability incurred in its behalf, and the government, under

« iepriekšējāTurpināt »