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See Highways.


See Master and Servant, §§ 141, 286.


See Appeal, § 564; Jury.


fuse to deliver because no such instructions were promptly given.-Seeman v. Chas. M Scott Packing Co., 139 N. Y. S. 944.


$272 (N.Y.Sup.) The law would imply the seller's agreement that rice sold was of a me chantable quality.-Standard Milling Co. v. De Pass, 139 N. Y. S. 611.

§ 288 (N.Y.Sup.) Where an oral contract for the sale of yarn contained an express warranty of quality equal to a sample, such express wa v. New England Cotton Yarn Co., 139 N. Y. S. 569.

See Master and Servant, §§ 101-103, 107, 118. ranty survives acceptance of the goods.-Powel


See Corporations, $$ 308, 312, 320; Municipal Corporations, § 213.


See Appeal, § 1050; Bills and Notes. § 497; Brokers; Contracts, $$ 47, 117; Corporations, §§ 121, 320; Deeds: Evidence, § 441; Execution, § 410: Frauds, Statute of. $$ 83, 118, 125; Injunction, $$ 61, 113; Intoxicating Liquors Landlord and Tenant, § 44: Limitation of Actions, § 195; Master and Servant, $70; Mines and Minerals, § 99; Pleading, $125; Pledges; Principal and Agent, §§ 69, 164; Set-Off and Counterclaim, § 21; Vendor and Purchaser.


$23 (N.Y.Sup.) Facts held to show a suffi cient meeting of minds to constitute a contract for the sale of rubber.-Poel v. BrunswickBalke-Collender Co., 139 N. Y. S. 602.

II. CONSTRUCTION OF CONTRACT. $81 (N.Y.Sup.) Where one orders a belt, saying that he desired it by a certain day and the other party said he would try to have it ready then, but did not have it ready until the day following, the same being within a reasonable time after the order, the right of rescission did not exist.-Morse v. Canaswacta Knitting Co., 139 N. Y. S. 634.

§81 (N.Y.Sup.) A contract calling for the delivery of merchandise about December 20th, and for a shipment f. o. b. Boston, is complied with where the goods are shipped on December 22d.— Hughes v. Constantin, 139 N. Y. S. 865.

IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods.

§ 1682 (N.Y.Sup.) Where purchasers of rice reserved the right to examine it before accept ance, and did examine and reject it, title did not pass, so that they could not be compelled to accept the rice and recover by counterclaim damages for its defective quality, but could resist an action for its price on the ground of breach of contract.-Standard Milling Co. v. De Pass, 139 N. Y. S. 611.

$173 (N.Y.Sup.) Defendant, selling tomatoes to be packed, by contract giving the address of plaintiffs, the purchasers, providing for shipment "as soon as packed," and not providing for further shipping instructions, could not re


(E) Actions for Price or Value. $353 (N.Y.Sup.) Complaint in an action for price of lumber held insufficient, because it dii not show that the lumber was sold by plaintifs, or, if sold by another, that the claim had beet assigned to them, or that defendant's promise to pay was made to them.-McCarthy v. Fitzgerald, 139 N. Y. S. 950.

VIII. REMEDIES OF BUYER. (C) Actions for Breach of Contract. $416 (N.Y.Sup.) In an action for breach of a contract to sell goods for resale, it was error to exclude plaintiff's evidence that he endeavored to buy goods of the same character in the open market, though the complaint did not state the measure of damages to which such evidence would be pertinent.-Finkelstein v. Selwitz, 139 N. Y. S. 122.

$418 (N.Y.Sup.) A manufacturer, breaching his contract to furnish goods for resale, is liable the time and place of delivery and the agreed for the difference between the market price at price, if the goods are obtainable in the market, and, if not, for the difference between the contract price and the resale price, less expense saved.-Finkelstein v. Selwitz, 139 N. Y. S. 122.

For breach of a contract to manufacture and deliver merchandise bought for resale, the purchaser is entitled to recover as general damages the difference between the market price at the time and place of delivery and the contract price, though he fails to prove special damages. Id.

(D) Actions and Counterclaims for Breach of Warranty.

$429 (N.Y.Sup.) Where the sale of a mare was conditional on payment of the price, an action for breach of warranty of soundness will not lie, where the purchase-money note was not paid at maturity.-Carpenter v. Chapman, 139 N. Y. S. 849.

§ 430 (N.Y.Sup.) If there was a warranty as to the condition of a mare sold and breach thereof, the mare dying, the seller could not recover the balance of the purchase-money note in the buyer's action for breach of warranty.Carpenter v. Chapman, 139 N. Y. S. 849.

$440 (N.Y.Sup.) In an action for breach of an express warranty that yarn should be of a quality equal to a sample, proof that underwear manufactured therefrom was worth 50 cents per dozen less than if made from such



Spirituous Liquors


yarn as defendant was to furnish was not the
proper mode of showing the difference in value,
and hence the admission of such proof was er- See Master and Servant.
ror.-Powell v. New England Cotton Yarn Co.,
139 N. Y. S. 569.

§ 442 (N.Y.Sup.) Where an article is deliver-
ed to a buyer with an express warranty, the
measure of the buyer's damages on breach of
warranty is the difference between the value of
the article if it had been as warranted and its
actual value.-Powell v. New England Cotton
Yarn Co., 139 N. Y. S. 569.

$467 (N.Y.Sup.) Where there is no evidence
of intent nor any disputed facts, the construc-
tion of the waiver in a contract providing that
a purchaser waived all the benefits of the pro-
visions of the Lien Law, the blank in which the
contract was drawn having been printed when
such law, which had then been repealed and re-
enacted in the Personal Property Law, was in
force, is solely for the court.-Saitch v. Kelley,
139 N. Y. S. 534.

A contract drawn by a vendor which is de-
signed to work a forfeiture of goods sold and
money paid thereon on certain conditions is to
be strictly construed against the vendor.-Id.

§ 479 (N.Y.Sup.) A seller in a conditional
contract of sale may, in default of payment,
exercise his right to take possession, and he is
not deprived thereof merely because he attempt-
ed to exercise it by void process of replevin.-
Mendelson v. Irving, 139 N. Y. S. 1065.

§ 481 (N.Y.Sup.) Under Personal Property
Law, § 65, providing that a seller is liable for
payments made for property sold conditionally,
where he retakes the property and retains it
exceeding a certain time without selling same,
a seller who retook property and rented it for
four months and appropriated the rent without
applying it on the contract, was liable for a re-
turn of the payments.-Crowe v. Liquid Car-
bonic Co., 139 N. Y. S. 587.

See Sales, § 440.




See Master and Servant, § 70; Work and Labor.


See Judgment, § 654; Jury; Sales, § 1682;
Work and Labor, §§ 27, 30.


§ 21 (N.Y.Sup.) The fact that defendant, sued
for the conversion of horses, had sold them
without compliance with the Lien Law, did not
preclude him from proving a counterclaim, al-
leging that a certain amount was originally due
from the plaintiff, and allowing credit for the
sale price.-Waters v. Lang, 139 N. Y. S. 844.

fully continued in the possession and manage-
§ 22 (N.Y.Sup.) Manager of hotel, who wrong-
ment after discharge, held not entitled, when
sued by the owner for the money collected, to
recoup his losses on the hotel from the rents
wrongfully_collected for storerooms in the same
building.-Pakas v. Hurley, 139 N. Y. S. 72.

for the conversion of horses, alleging that a cer-
§ 29 (N.Y.Sup.) A counterclaim in an action
tain amount was originally due from the plain-
tiff, and allowing credit for the sale price, arose
out of the contract under which the horses were
delivered, and so was connected with the sub-
ject of the action, as defined by Code Civ. Proc.
8 501, relating to the subject of a counterclaim.
-Waters v. Lang, 139 N. Y. S. 844.


See Accord and Satisfaction; Account Stated;
Executors and Administrators, §§ 507, 509;
Payment; Release.


See Pleading, § 362.


See Accord and Satisfaction; Payment; Re- See Courts, § 169; Execution, § 450.



See Evidence, §§ 181, 182.

See Evidence, § 271.

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See Municipal Corporations, §§ 763, 818, 821.


See Landlord and Tenant, § 22; Wills, § 303.


See Libel and Slander.


See Carriers, §§ 413, 417.


See Intoxicating Liquors.

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

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in view of the existing condition of the law § 184 (N.Y.Sup.) Statutes must be construed and the evil aimed at.-People ex rel. Darling v. Warden of City Prison, 139 N. Y. S. 277. $215 (N.Y.Sup.) In determining the meaning of a word used in a statute, the court is warranted in considering the scope and purpose of the act, its history, other statutes in pari materia, and judicial construction of similar other jurisdictions.-Lipstein T.



See Frauds, Statute of; Limitation of Ac- Provident Loan Society of New York, 139 N.



§ 35% (N.Y.Sup.) The referendum provision of Bronx County Act, § 16, that the act should be inoperative unless a majority of the votes in the new county should be in its favor, held unconstitutional.-People ex rel. Unger v. Kennedy, 139 N. Y. S. 896.

Y. S. 799.

$224 (N.Y.Sup.) In determining the proper construction of apparently conflicting statutes. be gathered, not only from the language of the the intent in their passage governs, which is to acts themselves, but from their relation to each other in the order of time of their enactment.Dominick v. Stern, 139 N. Y. S. 59.

$ 226 (N.Y.Sup.) When the Legislature en$64 (N.Y.Sup.) Invalidity of Bronx County acts a statute which is a transcript of an EngAct, § 16, providing that the act should be in-lish act that has received a known and settled operative unless a majority of the votes cast in such construction is deemed to be within the construction by the courts of that country, the county should be in its favor, held to affect intent of the lawmaking power.-Lipstein v. a substantial part of the act, and to render the Provident Loan Society of New York, 139 N. whole act unconstitutional.-People ex rel. v. Y. S. 799. Unger v. Kennedy, 139 N. Y. S. 896.



(A) General Rules of Construction. § 181 (N.Y.Sup.) While the courts cannot so interpret a statute as to avoid inequalities

§ 231 (N.Y.Sup.) A construction of statutes based upon the order of their passage was not affected by the subsequent re-enactment thereof in the Consolidated Laws, in view of the statutory provision for the construction of the Consolidated Laws.-Dominick v. Stern, 139 N. Y. S. 59.

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


See Corporations, §§ 82-155, 320.


See Corporations, §§ 151, 308, 320.

See Receiving Stolen Goods.


See Master and Servant, §§ 278, 285, 289;
Nuisance, § 72; Railroads.


§ 13 (N.Y.Sup.) The confirmation in 1907 of a report of commissioners that a subway should not then be constructed in a certain street held not an adjudication that a subway should never be constructed in that street, so as to preclude a subsequent application. In re Public Service Commission, 139 N. Y. S. 982.

tracks of defendant railway at their intersec tion with Flatbush Avenue extension, where the consent of the requisite number of owners along Flatbush Avenue extension is shown, will be granted.-Manhattan Bridge Three Cent Line v. Brooklyn Heights R. Co., 139 N. Y. S. 216.

The consent of existing railroads having trackage on streets other than Flatbush Avenu extension, on routes coincident with those of plaintiff, is not necessary to plaintiff's right of crossing the defendant's tracks where they intersect that avenue.-Id.

II. REGULATION AND OPERATION. § 113 (N.Y.Sup.) Evidence that the city had contracted for the paving of a street adjacent to the tracks of defendant street railroad, by defects in which plaintiff was jolted from his pair it for 15 years, and the city had rendere wagon, and that the contractor agreed to re a bill to the railroad company for its part of the expense, held admissible for the railroad company in an action for plaintiff's injuries.Maloney v. City of New York, 139 N. Y. S. 794.



Highways; Municipal Corporations, # 658-706, 796, 806.


Under Rapid Transit Act (Laws 1891, c. 4, as amended by Laws 1912, c. 226) § 4, requiring the general plan of construction of a subway, etc., to contain details showing the extent to which abutting property is affected, and section 6, requiring Public Service Commissions to prepare detail plans of construction in accordance with See Pleading, § 362. the general plan, the general plan need not show how deep an excavation will be necessary, or what detailed changes are required to properly construct the road.-Id.

The action of the Public Service Commission in amending the general plan of construction of a double-track subway, so as to show that the tracks were to be on one level, was a mere detail, not requiring the plans to be resubmitted to a new commission or the municipal authori


In so far as possible, the city should secure abutting owners for damage to abutting property because of defective plans for the construction of a subway or negligence in construction, or for damages from its construction upon the proposed plan.-Id.

construct its road over a public highway, it $22 (N.Y.Sup.) Before a street railway may

must obtain the certificate of convenience and necessity from the Public Service Commission provided by Railroad Law, § 9, or the consent of the Commission, under Public Service Commission Law, § 53, or both, the consent of the local authorities, and the consent of the abutting owners, or the determination of commissioners in favor of the road, under Const. art. 3, § 18, and Railroad Law, §§ 171, 174.-Manhattan Bridge Three Cent Line v. Brooklyn Heights R. Co., 139 N. Y. S. 216.


See Principal and Surety, § 147.

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(N.Y.Sup.) Subrogation is based on the facts of each particular case, and is generally applied where one person is compelled for his own protection, or that of some interest which he represents, to pay a debt for which another is primarily liable.-Sexton v. Fensterer, 139 N. Y. S. $11.

87 (N.Y.Sup.) A surety, who pays the debt of his principal, is subrogated to all the securities, liens, and equities held by the creditor against the principal, and is entitled to enforce them against the principal in a court of is subrogated to the rights of the holder.-Id. equity.-Sexton v. Fensterer, 139 N. Y. S. 811. A surety for the drawer of a bill on payment be subrogated to the rights of the creditor A prior surety, compelled to pay a debt, will against the subsequent surety.—Id.


$11 (N.Y.Sup.) Where agent received money from the owner to pay assessments on property, and the agent's servant forged a check against funds of the agent, which was used to pay the assessments, the bank on which the check was drawn was not entitled to subrogation, on repaying the money to the agent's es tate, to the lien of the city on the assessments. Title Guarantee & Trust Co. v. Haven, 139 N. Y. S. 207.

§ 25 (N.Y.Sup.) The commissioner of bridges of New York City cannot authorize the operation of a street railroad over a public street not otherwise authorized in the manner prescribed by law.-Manhattan Bridge Three-Cent Line v. Third Avenue Ry. Co., 139 N. Y. S. See Corporations, § 82; Judgment, § 250.


$41 (N.Y.Sup.) Application, under Railroad

Law, § 22, for the appointment of commission

ers to determine the compensation for crossing See Action.



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