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(K) Subsequent Appeals.

$ 1099 (N.Y.Sup.) A decision on a prior appeal that correspondence between the parties indicated that plaintiff's acceptance of a check was without prejudice to his claim for interest, and that there was no waiver of the right to interest, is the law of the case on a subsequent appeal.cause remitted to the trial court for the filing of Havender v. Brodbeck, 150 N. Y. S. 162.

XVII. DETERMINATION AND DISPO-
SITION OF CAUSE.

(A) Decision in General.

$1107 (N.Y.) Code Civ. Proc. § 1317, as amended September 1, 1912, applies to appeals pending at the time of its adoption.-Lamport v. Smedley, 106 N. E. 922, 213 N. Y. 82.

will award the proper judgment.-Wasserstrom
v. Cohen, Frank & Co., 150 N. Y. S. 638.
§ 1176 (N.Y.) Where a judgment was errone-
ously entered without the filing of findings or
decision before appeal taken to the Appellate
Division, the judgment will be reversed and the
findings or a decision and the entry of a new
judgment.-Ventimiglia v. Eichner, 107 N. E.
48, 213 N. Y. 147.

§ 1177 (N.Y.Sup.) The Appellate Division is not required to grant a new trial in an action tried before the court, where the judgment is right on the material facts as it finds them.Levering & Garrigues Co. v. Century Holding Co., 150 N. Y. S. 649.

APPLIANCES.

That a party's exceptions to the rulings of the trial judge were omitted from the case on appeal, pursuant to the practice prevailing under See Master and Servant, §§ 107, 116. the then existing statute, held not to preclude the Appellate Division, on reversing the judgment in an action in equity, from making its own findings and proceeding to a new and complete adjudication, pursuant to Code Civ. Proc. § 1317, as amended September 1, 1912.-Id.

(B) Affirmance.

APPOINTMENT.

See Executors and Administrators, §§ 17-22;
Guardian and Ward, §§ 13, 15.

ARBITRATION AND AWARD.

See Parties, § 58.

ARGUMENT OF COUNSEL.

$1133 (N.Y.Sup.) Where the court, on appeal from the grant of a new trial, cannot, because of confusion in the record, determine the reasons of the trial court, the order will be affirmed. James Livingston Const. Co. v. Red- See Trial, 88 1082-133. mond, 150 N. Y. S. 1021.

(C) Modification,

$11.49 (N.Y.Sup.) Where the court erroneously enters judgment, not merely for an injunc tion and an accounting, but makes findings as to the amounts due, the appellate court will correct and then affirm the judgment.-Sauerbrunn v. Hartford Life Ins. Co., 150 N. Y. S. 1039.

(D) Reversal.

ARREST.

I. IN CIVIL ACTIONS.

$25 (N.Y.Sup.) Under Code Civ. Proc. § 557, an affidavit for the arrest of the defendant in an action for malicious prosecution, merely stating that he acted with malice, but not stating the facts, is insufficient.-Reiss v. Levy, 150 N. Y. S. 440.

ARSON.

$37 (N.Y.Sup.) Circumstantial evidence held insufficient to sustain a conviction of arson in the second degree.-People v. Myer, 150 N. Y. S. 317.

ASSAULT AND BATTERY.

§ 1175 (N.Y.) Under Code Civ. Proc. § 1317, as amended September 1, 1912, the Appellate Division, on reversing the judgment in an action in equity, may make its own findings and proceed to a new and complete adjudication.-Lamport v. Smedley, 106 N. E. 922, 213 N. Y. 82. $1175 (N.Y.Sup.) Where judgment for specific performance is reversed, judgment will be See Criminal Law, § 252. rendered by the appellate court for defendant as prayed in the answer, where the title is such that it could not be cured upon second trial. Adami v. Gercken, 150 N. Y. S. 8.

ASSESSMENT.

See Municipal Corporations, §§ 407-508; Taxation, 319-500.

ASSETS.

$1175 (N.Y.Sup.) Where the record showed that plaintiff established a prima facie case, and did not disclose any defense thereto, a judgment for defendant will be reversed, and a judgment See Corporations, § 544. for the amount claimed entered for plaintiff.Ajax Grieb Rubber Co. v. Marshall, 150 N. Y. S. 72.

$1175 (N.Y.Sup.) Failure of proof by plaintiff at both first and second trials requires a dismissal of the complaint.-Silverman v. Charles Jacobs Co., 150 N. Y. S. 631.

$1175 (N.Y.Sup.) Where there is no disputed question of fact, the court, on appeal from affirmance by a determination of the Appellate Term of a judgment of the Municipal Court,

ASSIGNMENTS.

See Bankruptcy, $$ 138, 154; Bonds, § 102; Fraud, § 20; Fraudulent Conveyances; Limitation of Actions, § 67.

I. REQUISITES AND VALIDITY. (C) Validity.

$65 (N.Y.Sup.) There is no public policy forbidding an assignment of claims to a private in

dividual for collection.-Thornton v. Bell, 150 N. Y. S. 39.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

See Bankruptcy.

V. RIGHTS AND REMEDIES OF
CREDITORS.

(B) Presentation, Proof, and Payment of Claims.

§ 308 (N.Y.Sup.) Where by agreement part of the employe's compensation was paid in notes, held, that the amount evidenced by such notes was actually owing, within Debtor and Creditor Law, § 27, as renumbered and amended by Laws 1914, c. 360, § 22, giving a preference to debts actually owing employés.-Strauss v. Morrison, 150 N. Y. S. 587.

Under Debtor and Creditor Law, § 27, as renumbered and amended by Laws 1914, c. 360, § 22, an employé of one who made an assignment for the benefit of creditors on July 2. 1914, could not be preferred for more than $300, nor for services not rendered within three months.-Id.

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$ 100 (N.Y.Sup.) An attachment on the ground that defendant was about to remove his property from the state to defraud his creditors held unsustainable, where the affidavits did not set forth the sources of the affiant's information and the grounds of his belief.-Kapan v. Schannon, 150 N. Y. S. 444.

$ 102 (N.Y.Sup.) Where the moving papers upon which an attachment was asked show that the plaintiff claimed and intended to rely upon full performance of the contract by him, they are sufficient in that particular, in the absence of a specific objection for defects or omissions.Allied Mfrs. v. Zurn, 150 N. Y. S. 243.

$122 (N.Y.Sup.) Code Civ. Proc. § 768, permits plaintiff in attachment to cure defects in the original papers by additional affidavits, even after a motion to vacate.-Cutler v. Allavena, 150 N. Y. S. 790.

An order permitting plaintiff in attachment to file additional affidavits with the clerk, without requiring the submission to the court of such affidavits, will be reversed.-Id.

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See Wills, § 111.

ATTORNEY AND CLIENT.

See Account Stated, § 3; Attorney General; Contempt, § 20; Contracts, §§ 26, 52; Criminal Law, § 730; Divorce, § 221; Evidence, § 246; Executors and Administrators, §§ 91, 111, 494; Infants, §§ 81, 83; Insane Persons, §§ 29, 79; Libel and Slander, §§ 38, 123; Pleading, § 317; Principal and Surety, § 190; Sheriffs and Constables, $$ 47, 51; Taxation, § 598; Trial, §§ 1082-133; Witnesses, § 268.

Ì. THE OFFICE OF ATTORNEY.

(C) Suspension and Disbarment.

§ 44 (N.Y.Sup.) Where respondent, an attorney, had offices with the attorney for a bankrupt, and, having been consulted by him concerning the bankruptcy proceedings, did not disclose such connection to the creditors at the time they employed him to act for them, he was guilty of misconduct deserving of severe censure. -In re Lichtenberg, 150 N. Y. S. 7.

§ 44 (N.Y.Sup.) Attorney held to be disbarred for procuring client to invest trust funds in real estate speculation, making false representations to the client, and misappropriating moneys given him for investment.-In re Weill, 150 N. Y. S. 802.

§ 58 (N.Y.Sup.) In proceedings to disbar an attorney, the attorney held not entitled to throw himself on the mercy of the court after a hearing before a referee, and a judgment disbarring him must be entered.-In re Lewis, 150 N. Y. S. 753.

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

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III. DUTIES AND LIABILITIES OF AT-III. ASSIGNMENT, ADMINISTRATION,
TORNEY TO CLIENT.

§ 123 (N.Y.Sup.) Attorney, suing on account
stated, held to have the burden of showing that
no undue advantage was taken, and that the ac-
count was fair, where the relation of trust and
confidence existed when the account was stated.
-Brauer v. Lawrence, 150 N. Y. S. 497.

Evidence held insufficient to show any such
termination of the relation of attorney and cli-
ent, or reliance on independent advice, as re-
lieved plaintiff of the burden of showing that
no undue advantage was taken of the client.-Id.

IV. COMPENSATION AND LIEN OF

ATTORNEY.

(A) Fees and Other Remuneration.

AND DISTRIBUTION OF BANK-
RUPT'S ESTATE.

(B) Assignment, and Title, Rights, and

Remedies of Trustee in General.

§ 138 (N.Y.Sup.) A trustee in bankruptcy
may recover chattels, taken by a mortgagee
thereof more than a year after the original fil-
ing of the chattel mortgage, where no renewal
statement of the mortgage was filed, as required
by Lien Law, § 235.-Benedict v. Zutes, 150
N. Y. S. 147.

§ 154 (N.Y.) Bankruptcy Act, § 68, declar-
ing that in all cases of mutual debts or credits,
one debt shall be set off against the other, was
not intended to enlarge the doctrine of set-off,
and does not give a party rights which he did
not enjoy under previous statutes or general
equitable principles.-Morris v. Windsor Trust

$135 (N.Y.Sup.) An attorney, who was dis-
charged after transmitting an offer of settle-Co., 106 N. E. 753, 213 N. Y. 27.
ment to his client which was accepted, had per-
formed his contract and earned his fee.-Ber-ing for the set-off of mutual debts, nor under
mant v. Keveney, 150 N. Y. S. 949.

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Neither under Bankruptcy Act, § 68, provid-

general principles, can a party sued for con-
version of a pledge set off as a counterclaim
rights based on contracts unconnected with the
conversion.-Id.

Bankruptcy Act, § 1 (11), declaring that the
term "debt" shall include any debt, demand, or
claim provable in bankruptcy, does not increase
rights of counterclaim against the bankrupt's

estate.-Id.

BANKS AND BANKING.

See Corporations, § 430; Principal and Agent, See Courts, § 97; Municipal Corporations, §
§§ 92, 123.

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2552.

III. FUNCTIONS AND DEALINGS.
(C) Deposits.

$124 (N.Y.Sup.) Where a depositor drew a
draft for her balance payable to defendant, and
the bank paid the draft, by crediting it to de-
fendant's account, defendant became vested with
the absolute title to the funds.-Ahearn v. Bow-
ery Savings Bank, 150 N. Y. S. 244.

$129 (N.Y.Sup.) Where the proceeds of land
sold by husband and wife were deposited in
their joint names, they were joint tenants of the
deposit, and the husband was not ousted there-
from by the wife's withdrawal of a portion of
the money, nor by her loaning a part of it and
receiving a note therefor.-In re Klenk, 150 N.
Y. S. 365.

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V. SAVINGS BANKS.
$309 (N.Y.Sup.) Under Banking Law, § 404.
providing for the reduction of a savings and
lean association's liability to its members, held,
that the court, upon petition therefor, approved

See Assignments for Benefit of Creditors; by the superintendent of banks, without deter-
Banks and Banking, § 317.

mining its authority therein, would experiment-

ally order such reduction of liability. In re V. RIGHTS AND LIABILITIES ON INEagle Savings & Loan Co., 150 N. Y. S. 442.

VI. LOAN, TRUST, AND INVESTMENT
COMPANIES.

DORSEMENT OR TRANSFER.

(D) Bona Fide Purchasers.

a

§ 354 (N.Y.Sup.) Where the indorsee of note gave to the indorser three checks for that note and two others, the amount of the checks being about one-half the face of the notes, he was entitled to recover one-half of the note from the maker, under Negotiable Instruments Law, § 93, notwithstanding the fraud of the indorser.-Rosenbaum v. Roth, 150 N. Y. S. 396. BOARDS.

$317 (N.Y.) Under Banking Law, § 186, subds. 6, 11, and sections 189, 190, and Code Civ. Proc. $$ 743-754, relating to depositaries of money paid or brought into court, money received by a trustee or receiver in bankruptcy and deposited (subject to withdrawal by check) with a trust company, a depositary designated by the state comptroller, is not money paid into court within the meaning of the Banking Law, and the debt created thereby is not entitled to See Counties, § 46. a preference in the event of bankruptcy.-Henkel v. Carnegie Trust Co., 107 N. È. 346, 213 N. Y. 185.

BONA FIDE PURCHASERS.

BONDS.

$317 (N.Y.Sup.) In action by superintendent See Bills and Notes, § 354. of banks to enforce liability of stockholders of trust company under Banking Law, § 196, debt due stockholder from corporation held not available as a defense or counterclaim.-Van See Attachment, § 337; Corporations, §§ 202, Tuyl v. Lewis, 150 N. Y. S. 786.

In action to enforce liability of stockholders of trust company under Banking Law, § 196, stockholder, who was also a creditor, held not entitled to set off the pro rata amount that would eventually be paid to him as creditor. -Id.

BAR.

473, 521; Executors and Administrators, §§ 471, 535, 537; Fraud, § 11; Guaranty, § 36; Guardian and Ward, § 15; Intoxicating Liquors, $$ 86, 88; Principal and Surety. III. NEGOTIABILITY AND TRANSFER. $102 (N.Y.Sup.) An owner of bonds stolen, and transferred by forged indorsement, may reclaim them from the transferee, though new

See Judgment, §§ 585-750; Limitation of Ac- bonds have been issued.-Chester County Guar

tions.

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antee & Safe Deposit Co. v. Securities Co., 150 N. Y. S. 1010.

Where bonds, nonnegotiable and transferable only by indorsement, were stolen and indorsements forged, persons deriving title through the larceny and forgery must account to the owners.-Id.

A corporation, transferring bonds in the name of executors as registered owners on an indorsement of one executor by a rubber stamp used by one stealing the bonds, held negligent, and liable to persons receiving the bond in good

BEST AND SECONDARY EVIDENCE, faith.-Id.
See Evidence, § 164.

See Witnesses, § 367.

BIAS.

BILLS AND NOTES.

BREACH.

See Contracts, §§ 287-322; Sales, §§ 152-182.
BREACH OF MARRIAGE PROMISE.
See Trial, § 105.

BRIBERY.

See Assignments for Benefit of Creditors, $ 308; See Criminal Law, § 507,
Bonds, § 102; Contribution, §§ 4, 6; Plead-

ing, § 36.

BROKERS.

III. MODIFICATION, RENEWAL, AND See Damages, § 120; Guaranty, §§ 4, 36;

RESCISSION.

§ 141 (N.Y.Sup.) Where a creditor agreed to accept a note of the debtor in payment of the debt, and to renew it for a year, on performance by the debtor of a condition precedent, and no performance or tender thereof was made by the debtor in time, the creditor could recover on the original note.-Shape v. Shape, 150 N. Y. S. 367.

Joint Adventures, § 7; Judgment, § 240.

V. ACTIONS FOR COMPENSATION.

$86 (N.Y.Sup.) In a suit to recover commissions for obtaining a loan for defendant, evidence held insufficient to sustain a verdict that plaintiff had procured one ready, able, and willing to make the loan, and had tendered performance before defendant terminated the transac

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

tion.-Von Bayer v. Ninigret Mills Co., 150 N. Y. S. 291.

§ 88 (N.Y.Sup.) Where, in an action for a commission, the evidence did not show performance on plaintiff's part before defendant's termination of the transaction, defendant's motion to dismiss on that ground should have been granted.-Von Bayer v. Ninigret Mills Co., 150 N. Y. S. 291.

§ 88 (N.Y.Sup.) In action for commissions by broker, who claimed that he interested other brokers and was to have a share in the commissions to defendants' knowledge, evidence held sufficient to make a question for the jury Rosenzweig v. Raubitschek, 150 N. Y. S. 353.

CANALS.

I. ESTABLISHMENT, CONSTRUCTION, AND MAINTENANCE.

$15 (N.Y.) Contractors for a barge canal held entitled to recover from the state extra expenses of construction caused by the leaks from an old canal due to its lack of repair.-Sundstrom v. State, 106 N. E. 924, 213 N. Y. 68.

Provisions in a contract for a barge canal relating to the duties of contractors as to inspection, etc., held not to avoid the state's liability for damage to the contractor caused by the leaks in an old canal near the line of the barge canal, which so saturated the soil as to cause additional expense to excavate it.—Id.

A contractor for a barge canal close to an old state canal, may not recover damages for the extra expense of construction caused by the leaks and overflow of the old canal, though due to its lack of repair, if the contractor on his inspection of the work as required by the contract observed that the canal leaked.—Id.

Where a contract for the construction of a state canal did not require the construction of wash walls, but provided that when the prism should have been fully excavated and trimmed, and on being so ordered, the protection work should be placed on the inside faces, the state did not have to order the wash walls until the prism of that part of the canal covered by the contract was completed.-Id.

§18 (N.Y.) The state is liable to a neighboring proprietor for the failure to maintain in proper condition the walls and banks of its canals. Sundstrom v. State, 106 N. E. 924, 213 N. Y. 68.

CANCELLATION OF INSTRUMENTS. See Corporations, § 189; Discovery, § 36; Fraudulent Conveyances, $ 57: Indictment and Information. § 137: Municipal Corporations, §§ 654, 990; Reformation of InstruCARRIERS.

ments.

See Appeal, § 1050; Evidence, § 271.

I. CONTROL AND REGULATION of COMMON CARRIERS.

(A) In General.

$ 12 (N.Y.Sup.) Under Railroad Law, § 101, one accepted as a passenger on a short service car of a street railway company is entitled to

a transfer to enable him to continue his journey over the company's lines.-Goodman v. New York Rys. Co., 150 N. Y. S. 702.

II. CARRIAGE OF GOODS.
(D) Transportation and Delivery by

Carrier.

$89 (N.Y.Sup.) To justify a carrier in selling goods, the necessity for the sale must be shown, or the impossibility of notifying the owner or receiving his instructions.-Sauer v. Lehigh Valley R. Co., 150 N. Y. S. 977.

A carrier, failing to notify the shipper of the consignee's refusal to receive perishable goods, held negligent, rendering the carrier liable for damages on a sale by it.-Id.

(E) Delay in Transportation or Delivery. $105 (N.Y.Sup.) The measure of damages for delay in transportation of goods was the amount reasonably within the contemplation of the parties when the contract of shipment was made, and not damages based upon the fact, of which the carrier had no notice, that the goods were seasonable goods.-Rosenberg v. Delaware, L. & W. R. Co., 150 N. Y. S. 75.

kerchiefs were consigned to a factory to be § 105 (N.Y.Sup.) Where broken sets of handmade into completed sets for the holiday trade, the measure of damages for delay, whereby the handkerchiefs had to be replaced for such trade, was the cost of replacing.-James R. Kaiser, Inc., v. Fuller Express Co., 150 N. Y. S. 974.

IV. CARRIAGE OF PASSENGERS. (A) Relation Between Carrier and Pas

senger.

$247 (N.Y.Sup.) A street car passenger held none the less so because he proposed to submit the question how much change he was entitled to to the inspector, who would be met further down the line.-Seidman v. New York Rys. Co., 150 N. Y. S. 578.

A temporary leaving of a street car to submit a dispute over the fare to the inspector held not to have severed the relation of carrier and passenger.-Id.

A street car passenger's demand for the return of his money, saying he would take out his children, and the receipt of the money held not a severance of the relation between the carrier and himself until opportunity for removing the children had been given.-Id.

(B) Fares, Tickets, and Special Contracts.

iting their use to the original purchaser and $253 (N.Y.Sup.) A condition in tickets, limmaking them void in the hands of any one else, is valid.-Salomon v. New York Cent. & H. R. R. Co., 150 N. Y. S. 282.

$ 255 (N.Y.Sup.) Plaintiff held not entitled to the rights of a passenger on defendant's road for failure to exhibit a ticket, which she claimed had been taken by the conductor of a connecting carrier.-Robinson v. New York, N. H. & H. R. Co., 150 N. Y. S. 925.

The conductor of a connecting carrier is not authorized to bind defendant to accept plaintiff as a passenger without the exhibition of a ticket.-Id.

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