CEMETERY - Venue - the right to remove a dead body from a cemetery does
not affect any right or interest in real property.] An action in equity, brought
against a corporation maintaining a cemetery in which the mother of the
plaintiffs had been interred, to compel the cemetery corporation to allow the
plaintiffs to disinter the body for the purpose of reinterring it in another
cemetery, does not affect any right or interest in real property, and is con-
sequently not a local action within the meaning of section 982 of the Code
of Civil Procedure. COHEN v. CONGREGATION SHEARITH ISRAEL.......
CERTIFICATE - Of an architect — when its production is excused.
CHATHAM — Village ordinance
- when passed under subdivision 4 of section
14 of chapter 458 of the Laws of 1870, it must be published as required by subdi-
vision 25 of section 57 of chapter 426 of the Laws of 1847 — the record thereof,
how put in evidence.
See SHAW v. N. Y. CENTRAL & H. R. R. R. Co......
See GUARDIAN AND WARD.
See INFANT.
See MUNICIPAL CORPORATION.
CIVIL SERVICE- Removal of the chief clerk in the tax department, New
York city - he is not a regular clerk."] 1. The chief clerk in the tax
department for the borough of Manhattan in the city of New York is not a
regular clerk," but occupies a confidential relation to the commissioners
of taxes, and can, therefore, be peremptorily discharged without the pre-
ferring of charges or the assigning of reasons.
PEOPLE EX REL. BERLINGER . WELLS.
2. Effect of classification by civil service commissioners.] The fact that
a position has been classified by the civil service commissioners in the non-
competitive schedule, while not conclusive, is entitled to great weight in
doubtful cases upon the question whether the incumbent of such position
holds a confidential relation to the appointing power. Id.
Teachers having grade A licenses from the board of education of the
city of Brooklyn - their right to promotion cannot be affected by any
by-laws of the board of education of the city of New York-they are enti-
tled to a mandamus to compel the board of education to place their names
upon a special list of those eligible for promotion in the order in which the
licenses were issued. MATTER OF BROOKLYN TEACHERS' ASSN....
47
See SCHOOL.
CODE OF CIVIL PROCEDURE — § 452— Replevin- the court can direct
a party to be brought in only in an equity case a third party filing a claim to
the property can be brought in only on his own application.
See GOLDSTEIN v. SHAPIRO.
CODE OF CIVIL PROCEDURE — Continued.
§ 479-Default-failure to demand a copy complaint within twenty
days -a motion to require plaintiff's attorney to serve a copy complaint and
accept an answer is improper — it should be to open the default and for leave to
serve a demand.
See STOKES v. SCHILDKNECHT..
$ 549
· Execution against the person — it may issue in an action for
the negligent killing of the plaintiff's decedent — the limit of time imposed by
section 572 of the Code of Civil Procedure, when applicable - if an execution is
unauthorized a remedy exists by habeas corpus or preferably by motion.
See PEOPLE EX REL. HARRIS v. GILL....
§ 549 Order of arrest —it may be granted on affidavits - the com-
plaint, when served, must state a cause of action under section 549 of the Code
of Civil Procedure.
§ 572 Execution against the person - the limit of time imposed by
section 572 of the Code of Civil Procedure, when applicable.
See PEOPLE EX REL. HARRIS v. GILL.......
it may be granted on affidavits - the com-
plaint, when served, must state a cause of action under section 549 of the Code
of Civil Procedure.
· action to recover a bond and mortgage and assign-
ment thereof a delivery of the assignment into court where the defendant has
delivered the bond and mortgage to another claimant does not entitle him to
interplead such claimant — such claimant should be made a party defendant.
See MASON . RICE....
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§ 829-Devise trust to pay rents to the testatrix's husband and
daughter, and, in case of their payment of a mortgage on the property, to allow
them to occupy it right of the trustee to testify, in an action to recover one-
half of the amount of the mortgage paid by the daughter, as to statements made
by the husband, then deceased, in reference to the payment of the mortgage.
See FARRAR v. FARMERS' LOAN & TRUST Co.....
§ 829- Witness — disqualification of, to testify to a personal transac-
tion with a decedent -the party alleging it must prove it—when a specific
legacy does not disqualify the legatee a witness to a conversation not partici-
pating therein either by word or sign is not disqualified.
See FARRAR v. FARMERS' LOAN & TRUST CO....
§ 829- Contract between an attorney and client-proof required in
support thereof where the attorney is dead- testimony of the client as to his hav-
ing given a lien on the fund to any one upon the fund in dispute.
See BOYD v. ĎAILY...
829-Testimony as to transactions with a decedent-how far the giv-
ing of testimony by the executrix qualifies a claimant to testify in respect thereto
- her statement on cross-examination not considered.
See MOTZ v. Morz.
§ 982- Venue - the right to remove a dead body from a cemetery does
not affect any right or interest in real property.
See COHEN v. CONGREGATION SHEARITH ISRAEL..
§ 1207 The provision that no judgment shall be taken more favorable
to the plaintiff than that demanded in the complaint does not apply where an
answer is served.
See LATIMER 0. MCKINNON. (No. 1)......................
§§ 1301, 1358- An order authorizing the construction by a railroad of
a temporary crossing is not a final order in a special proceeding- a statement
in the notice of appeal therefrom of an intention to bring up for review certain
intermediate orders, is ineffective.
See ONEONTA, C. & R. S. R. Co. v. C. & C. V. R. R. Co.....
§ 1487 Execution against the person · it may issue in an action for
the negligent killing of the plaintiff's decedent · the limit of time imposed by
section 572 of the Code of Civil Procedure, when applicable—if an execution is
unauthorized a remedy exists by habeas corpus or preferably by motion.
See PEOPLE EX REL. HARRIS v. GILL..
SS 1638, 1645- Determination of a claim to real property ·
the legal title, although not in possession, may compel it-form of the judgment.
See WHITMAN v. CITY OF NEW YORK...
§ 3063 Power of a County Court to reverse a justice's judgment as being
against the weight of evidence.
See MURTAGH v. DEMPSEY..
§ 3253-Extra allowance beyond $200 proper in a difficult and extra-
ordinary mortgage foreclosure suit.
See LONG ISLAND L. & T. Co. v. L. I. C. & N. R. R. Co..........
§ 3361 Section 68 of the Railroad Law is not inconsistent with the
provisions of the Railroad Law for the determination of compensation and the
manner of intersection and the construction of a temporary crossing the Con-
demnation Law does not govern the proceeding to appoint commissioners of
appraisal.
See ONEONTA, C. & R. S. R. Co. v. C. & C. V. R. R. Co........... 284
§§ 3371, 3375- Condemnation of land· -review of a report of commis-
sioners by the Appellate Division the Special Term cannot receive affidavits as
to value- when affidavits may be read - the commissioners are not controlled by
technical rules.
See MATTER OF Town of GUILFORD...
- Personal judgment, when a mechanic's lien is not established in
an action brought for its foreclosure-right to a jury trial, how secured - how
waived.
See STEUERWALD v. GILL.....
§ 3412-Mechanic's lien — a personal judgment is not proper where no
lien could have been acquired.
[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]
CODE OF CRIMINAL PROCEDURE:
[See table of sections of the Code of Criminal Procedure cited, ante, in this
volume.]
§ 448- Partition — power of the court in 1869
to entertain an action to partition real property devised to executors in trust
appointment therein of a guardian ad litem for an infant defendant under
fourteen years of age who was served with the summons in the State of Virginia
- effect of the appearance of the guardian ad litem.
[See table of sections of the Code of Procedure cited, ante, in this volume.]
COMMISSION - Principal and agent· when an agent earns his commission
although the contract is not in writing and not, therefore, enforcible against the
purchaser.
COMMON GAMBLER — Section 344a of the Penal Code is constitutional
possession of the writing or article enumerated therein and knowledge thereof
constitute the crime what indictment is sufficient—it may charge the offense
in the language of the statute.
COMPENSATION — Principal and agent — when an agent earns his commis-
gion although the contract is not in writing and not, therefore, enforcible against
he purchaser.
See VEEDER v. SEATON...
COMPETITION — Combination to restrict.
See CONTRACT.
COMPLAINT:
See PLEADING.
CONDEMNATION - Of real property.
See EMINENT DOMAIN.
CONFLICT OF LAW - Action to enforce a liability imposed by a statute of
another State - when the courts of the State of New York will not entertain it.]
The courts of the State of New York will not entertain an action to enforce
a liability imposed by a statute of another State, if the liability thus imposed
is penal, or, even though it is not penal, if the liability thereby imposed is
not contractual in its nature or founded upon the principles of the common
law. HUTCHINSON v. STADLER...
Attachment of a debt owing by a limited partnership to a corporation,
both organized under the laws of another State and doing business therein -
defeated by the prior appointment of a receiver of the corporation in such
other State. NATIONAL BROADWAY BANK v. SAMPSON...
See ATTACHMENT.
CONSTITUTIONAL LAW- The Legislature cannot authorize a munici-
pal ordinance prohibiting advertisements on fences.] 1. The Legislature has no
power to authorize a municipal corporation to prohibit the posting of any
advertisements whatever upon fences inclosing private property, fronting
on, or adjacent to, the public parks in such municipality, without the con-
sent of the municipal authorities in charge of such parks.
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2. New York city legislation.] Section 610 of the Greater New York
charter (Laws of 1897, chap. 378), giving the park board of the city of New
York power to enact ordinances for the government and protection of all
parks, parkways, squares and public places within the city, and providing
that any person violating any of such ordinances shall be guilty of a mis-
demeanor and shall on conviction before a city magistrate be punished by
a fine not exceeding fifty dollars, or in default of payment of such fine
by imprisonment not exceeding thirty days," does not confer upon the park
board power to enact an ordinance prohibiting the posting of bills on a fence
inclosing private property adjacent to a public park without obtaining a
permit to do so from the park board.
Where the park board, assuming to act under the authority given to it by
section 610 of the Greater New York, charter, re enact an ordinance, not
authorized by that section, but which had been adopted by the old park
board pursuant to section 688 of the Consolidation Act (Laws of 1882, chap.
410, as amd. by Laws of 1896, chap. 836), which provided, "The said depart-
ment shall have power to enforce obedience to such ordinances or rules as may
be made as aforesaid, and observance thereof, by ordaining penalties for
each and every violation thereof in such sums as they may deem expedient,
not exceeding two hundred and fifty dollars, to be paid into the city treas-
ury," a person violating such ordinance cannot be convicted of a misde-
meanor under section 610 of the Greater New York charter and punished
as prescribed in that section. Id.
Power of the Legislature over fishing in non-navigable streams-its
right to make hunting and fishing in private parks a misdemeanor and impose
exemplary damages limitation on the right of the State to confer special
fishing privileges in public waters. ROCKEFELLER v. LAMORA.................
See FISHERIES, GAME AND FOREST LAW.
Municipality-ordinance prohibiting the "hindrance of free and
unmolested travel" in its streets the Legislature may authorize it
ordinance may be lawfully adopted thereunder. PEOPLE v. PIERCE........ 125
See MUNICIPAL CORPORATION.
CONSTITUTIONAL LAW- Continued.
Documents unlawfully seized by public officers may be put in evi-
dence on a criminal trial- the fifth amendment of the Federal Constitution
applies to United States courts only. PEOPLE v. ADAMS.
[See table of sections of the United States and New York State Constitu-
tions cited, ante, in this volume.]
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CONTRACT-Combination to restrict competition in the price of books — when
illegal under chapter 690 of the Laws of 1899.] 1. A large number of book
publishers, who published ninety-five per cent of all books published in the
United States, organized a membership corporation under the laws of the
State of New York, and thereafter the corporation and the members thereof
entered into an agreement, by which each member of the corporation agreed
that all copyrighted books published by any of them should be sold at retail
at the published price thereof; that they would sell books, whether copy-
righted or not, or whether published by them or not, only to such booksellers
as would maintain the retail price of the copyrighted books, and only to
those booksellers and jobbers who would sell books at wholesale to no one
who was known to them to cut or sell such copyrighted books at a lower
figure than the retail price, and not to any one whose name should be given
to them by the association as one who had cut such prices.
Through the efforts of the corporation and its members, a voluntary
association of booksellers, composing a large majority of the wholesale and
retail booksellers in the United States, was organized, who co-operated with
and assisted the corporation and the members thereof in establishing and
maintaining the prices of copyrighted books.
Held, that the combination or arrangement in question was prohibited by
section 1 of chapter 690 of the Laws of 1899, which provides: "every con-
tract, agreement, arrangement or combination whereby a monopoly in the
manufacture, production or sale in this State of any article or commodity
of common use is or may be created, established or maintained, or whereby
competition in this State in the supply or price of any such article or com-
modity is or may be restrained or prevented, or whereby for the purpose of
creating, establishing or maintaining a monopoly within this State of the
manufacture, production or sale of any such article or commodity, the free
pursuit in this State of any lawful business, trade or occupation is or may
be restricted or prevented, is hereby declared to be against public policy,
illegal and void,'
That books are an article or commodity of common use within the mean-
ing of the statute;
That the fact that the arrangement related to copyrighted books did not
render the combination lawful, as the Copyright Law does not give the
publisher any right to control the resale of the book after it has once been
sold by him.
Semble, that the statute in question does not attempt to prevent a single
manufacturer of an article or commodity of common use from fixing the
price at which he will sell such article or prevent such a manufacturer from
agreeing with a purchaser of the article that such purchaser will not resell
the article at a price less than that fixed by the manufacturer or prevent
the manufacturer from making an agreement to give special facilities to a
customer who lives up to such an agreement.
STRAUS. AMERICAN PUBLISHERS' ASSN
Measure of damages for a breach of a contract to deliver coal on cars
at the mines.] In an action brought to recover damages for the breach
of a contract made between the plaintiff's assignors and the defendants, who
controlled the entire output of the Crescent colliery, located in the State of
Pennsylvania, by which the defendants agreed to deliver to the plaintiff's
assignors, free on board the cars at the mines, 5,000 tons of Crescent coal at
a stipulated price per ton, it appeared that the alleged breach consisted in
the refusal of the defendants to deliver the coal, which it was intended
should be shipped to Chicago and the vicinity.
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