APPEARANCE.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

$20 (N.Y.Sur.) Under Code Civ. Proc. §§ 424, 2474, 2528, relative to appearance, where a See Bankruptcy. party appears voluntarily by a general notice of appearance in proceedings for the revocation of

IN GENERAL.

letters of administration, the Surrogate's Court II. CONSTRUCTION AND OPERATION obtains jurisdiction, and service of citation is waived. In re McMullen, 148 N. Y. S. 1092.

APPLIANCES.

See Master and Servant, §§ 101-121.

APPOINTMENT.

$179 (N.Y.Sup.) Where a portion of a debtor's goods assigned for the benefit of creditors was covered by a mortgage void as to creditors, and the assignee delivered them to the mortgagee, who immediately surrendered them to the assignee for sale, the mortgagee acquired no rights under such delivery, but the goods or the

See Executors and Administrators, §§ 24-35; proceeds were subject to the assignee's right to Judges, §§ 2, 3; Officers, § 30.

ASSETS.

reclaim.-Baillargeon v. Dumoulin, 148 N. Y.

S. 443.

IV. ADMINISTRATION OF ASSIGNED

ESTATE.

§ 228 (N. Y. Sup.) Where an assignee for the benefit of creditors was charged with knowledge that a chattel mortgage on a portion of the assigned goods was void as to creditors, it was his duty, under Personal Property Law, § 19, to disaffirm the same and treat it as void.Baillargeon v. Dumoulin, 148 N. Y. S. 443.

$232 (N.Y.Sup.) An assignee for the benefit of creditors is a trustee of an express trust, with the duties of a voluntary trustee, not acting gratuitously, and bound to exercise that degree of diligence which persons of ordinary prudence are accustomed to use in their own affairs.-Baillargeon v. Dumoulin, 148 N. Y.

S. 443.

ASSOCIATIONS.

§ 14 (N.Y.) Plaintiff, having purchased propSee Bankruptcy, § 143; Executors and Admin- erty which, under the deed, she was authorized istrators, § 41.

ASSIGNMENTS.

See Assignments for Benefit of Creditors; Fraudulent Conveyances; Guardian and Ward, § 64; Insurance, §§ 201, 204; Landlord and Tenant, $$ 76, 209; Mechanics' Liens, 198; Mortgages, § 420; Municipal Corporations, § 373; Reformation of Instruments, § 17; Subrogation, §§ 31, 41; Trusts, § 357.

I. REQUISITES AND VALIDITY. (A) Property, Estates, and Rights Assignable.

to use as a boarding house in a residence locality, did not lose her right by becoming a member of an association of owners which thereafter resolved to prevent the erection or leasing of other or additional houses for boarding house, lodging house, or hotel purposes.-Biggs v. Sea Gate Ass'n, 105 N. E. 664, 211 N. Y. 482.

§ 15 (N.Y.Sup.) An absolute gift to an unincorporated voluntary association is invalid.Ely v. Ely, 148 N. Y. S. 691.

ASSUMPSIT, ACTION OF.

See Work and Labor.

ASSUMPTION OF RISK.

§18 (N.Y.) An executory contract not necessarily personal in its character which can, con- See Master and Servant, §§ 204, 280. sistently with the rights of the adverse party, be sufficiently executed by an assignee is assignable in the absence of an agreement in the contract.

ATTESTATION.

-Smith v. Craig, 105 N. E. 798, 211 N. Y. 456. See Wills, § 119.

IV. ACTIONS.

§ 136 (N.Y.Sup.) In an action by an assignee for goods sold, it was error to admit in evidence the assignment without any proof of its execution and delivery.-Goldstein v. Schwartz, 148 N. Y. S. 256.

ATTORNEY AND CLIENT.

See Clerks of Courts, § 65; Death, § 101; Divorce, 262; Execution, § 418; Executors and Administrators, §§ 111, 120; Highways, § 53; Insurance, § 129; Judgment, §§ 509,

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

II. BANKING CORPORATIONS AND

ASSOCIATIONS.

(C) Stockholders.

844 (N.Y.Sup.) Const. art. 8, § 7, declaring
that the stockholders of every banking corpo-
ration shall be individually responsible to the
amount of their respective shares for all its
debts, held not violated by Stock Corporation
Law, 59, providing that no action shall be
brought against a stockholder for any debt of
the corporation after two years from the time
he ceases to be a stockholder, since the provi-
sion relates to the remedy alone as distinguish-
ed from the obligation.-Smith v. Quale, 148 N.

Y. S. 448.

$47 (N.Y.) Under Const. art. 8, § 7, Bank-
ing Law, § 71, and Stock Corporation Law, §
59, in order to recover alleged stockholder's lia-
bility for the debts of an insolvent bank, it must
be shown that the defendants were stockhold-
ers and that there existed a debt or liability on
the part of the bank due the alleged creditor
during the time defendants were stockholders.-
Assets Realization Co. v. Howard, 105 N. E.
680, 211 N. Y. 430.

Double liability of stockholders of a bank for
the bank's debts, imposed by Const. art. 8, § 7,
and Banking Law, § 71, held a secondary and
exceptional one developed only by the fact that
the corporation has become insolvent.-Id.

The double liability of a stockholder of an in-
solvent bank, created by Const. art. 8, § 7, and
Banking Law, § 71, is an independent and orig-
inal remedy given to the creditor and is not an
asset belonging to, coming through, or asserted
in behalf of the corporations.-Id.

Const. art. 8, § 7, and Banking Law, § 71,
imposing on the stockholders of an insolvent
bank a liability for the bank's debts, etc., and
Stock Corporation Law, § 59, providing that
suit shall not be brought against a stockholder
to enforce his statutory liability until judgment
recovered against the corporation and execution
returned unsatisfied and the amount due on the
execution shall be the amount recoverable, held
not to render a judgment recovered against the
corporation conclusive of the indebtedness as
against the stockholders.-Id.

Under contract for the transfer of a bank's
assets to another bank for liquidation, in con-
sideration of the latter's advance of sufficient
funds to pay the liquidating, bank's depositors,
the assets so transferred held, as against stock-
holders, to constitute the exclusive fund for the
liquidating bank's advancement, so that a de-
ficiency subsequently arising did not constitute
a debt of the bank liquidated, to pay which the
stockholders were subject to double liability un-
der Const. art. 8, § 7, Banking Law, § 71, and
Stock Corporation Law, § 59.-Id.

§ 49 (N.Y.) Recovery of a money judgment
against an insolvent bank in a suit to which
stockholders are not parties held not conclusive
evidence of the existence of a debt against the
bank in a suit by the alleged creditor or his
assignee to enforce stockholders' liability under
Const. art. 8, § 7, and Banking Law, § 71.-As-
sets Realization Co. v. Howard, 105 N. E. 680,
211 N. Y. 430.

$49 (N.Y.Sup.) Since the state superintend-
ent of banks represents the creditors in an ac-
tion against stockholders to enforce their statu-
tory liability under Banking Law, § 19, a claim
based on services rendered to the corporation
before plaintiff took possession cannot be as-
serted as a counterclaim under Code Civ. Proc.
§ 501.-Van Tuyl v. Schwab, 148 N. Y. S. 292.
bank held not entitled to maintain an action
$49 (N.Y.Sup.) Receiver of an insolvent state
to collect an assessment against stockholders
without making out a prima facie case of valid
and subsisting indebtedness against the bank;
his testimony that in order to pay the debts an
assessment was necessary, being a mere conclu-
sion and insufficient.-Smith v. Quale, 148 N.
Y. S. 448.

Stock Corporation Law, § 59, forbidding an
action against a stockholder for any debt of the
corporation after two years from the time he
ceased to be a stockholder, held to apply to
banking corporations, as well as to general busi-
ness corporations, and to bar a receiver's ac-
tion to enforce an assessment against bank
stockholders to pay indebtedness not brought for
8 or 9 years after the decree dissolving the cor-
poration and appointing the permanent receiv-
er.-Id.

Code Civ. Proc. § 394, which provides that
an action against a stockholder of a banking
association to enforce a liability created by
common law or statute shall be brought within
three years after the cause of action accrues,
applies to an action by the receiver of an in-
solvent state bank to collect an assessment
against stockholders for the discharge of its in-
debtedness.-Id.

(E) Insolvency and Dissolution.
§ 77 (N.Y.Sup.) A decree dissolving a state
bank and appointing a permanent receiver of its
assets terminated the relation of stockholders
to the bank.-Smith v. Quale, 148 N. Y. S. 448.

III. FUNCTIONS AND DEALINGS.

(C) Deposits.

129 (N.Y.Sup.) Laws 1907, c. 247, amend-
ing Banking Law, § 144, and providing that
when a deposit is made in the names of the de-
positor and another, to be paid to either or
survivor, such deposit shall become their prop-
erty as joint tenants, does not make that form
of words exclusive for the creation of such a
joint ownership.-Corcoran v. Hotaling, 148 N.
Y. S. 302.

Bank deposits in the names of J. R. C. or
wife, J. M., and of J. M. C. or husband, J. R.,
did not necessarily imply a joint tenancy with
survivorship, but it was open to proof as to
whether that was the intention.-Id.

§ 148 (N.Y.Sup.) Where plaintiff's employé,
authorized to use a stamped indorsement of
plaintiff's name and to affix thereto the signa-
ture of its treasurer, indorsed checks in that
manner and added her own name as indorser
and sold them to bona fide purchasers, who de-
posited them with defendant bank, which paid
the proceeds on the depositors' orders, defend-
ant was not liable as for a conversion.-Stand-

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

$154 (N.Y.Sup.) Evidence held insufficient to See Witnesses, § 370. show that maker or payee of check paid by bank to R. on the payee's forged indorsement intended R. to have the proceeds of the check. See Bills and Notes. Universal Discount Co. v. Corn Exchange Bank, 148 N. Y. S. 83.

$154 (N.Y.Sup.) The burden of proof as to the nature of the ownership of bank deposits See Carriers, §§ 153, 159. in the names of J. R. C. or wife, J. M., and of J. M. C. or husband, J. R., rested upon the plaintiff, who was the wife and claimed ownership as survivor.-Corcoran v. Hotaling, 148 N. See Pleading, §§ 318–329.

566, 568; Parties, § 40; Principal and Sure- margins were running out, held improperly exty; Railroads, §§ 152, 169, 179; Replevin, cluded.-Smith v. Craig, 105 N. E. 798, 211 132; Street Railroads, § 52; Taxation, § N. Y. 456. 879; Trusts, §§ 356, 357.

BOUNDARIES.

I. DESCRIPTION.

$20 (N.Y.Sup.) Where the record title under which one claimed land showed that the premises were bounded by a street, and not by the line of the street, the description would include the fee to the center of the street, provided the grantor owned the fee.-Appleton v. City of New York, 148 N. Y. S. 870.

BREACH.

IV. COMPENSATION AND LIEN. $55 (N.Y.Sup.) A broker, who brought the property to the attention of a third person, was not entitled to commissions, where a sale was made several months later through another broker.-Owcharoffsky v. Trustees of Welsh Calvinistic Methodist Church, 148 N. Y. S. 138.

$74 (N.Y.Sup.) A complaint in a broker's action, alleging that a property owner had employed plaintiff to obtain a loan on the property to be conveyed to her, and he was prevented from earning such commissions by defendant's refusal to convey, held to state no

See Contracts, §§ 277-322; Sales, §§ 178, 180; cause of action against defendant; he not being Vendor and Purchaser, § 133.

BRIBERY.

See Criminal Law, §§ 42, 372, 419, 420, 5102, 698, 1169; Witnesses, §§ 305, 352.

$10 (N.Y.Sup.) On a trial of a state senator for bribery for reporting favorably a bill desired by prosecutor to prevent discrimination against his company by a stock exchange, photographs of signs put up by prosecutor characterizing the members of the exchange as robbers and thieves held properly excluded.-People v. Stilwell, 148 N. Y. S. 59.

§11 (N.Y.Sup.) Evidence held to sustain a conviction of attempted bribery of a public official.-People v. Anhut, 148 N. Y. S. 7.

BRIDGES.

See Injunction, § 163; Judgment, § 524; Municipal Corporations, § 1038; Pleading, 276; Towns, § 70.

BROKERS.

a party to such contract.-Hevia v. Wheelock, 148 N. Y. S. 165.

A complaint in a broker's action, which alleged that a property owner had agreed to pay plaintiff $4,500 for effecting an exchange, which he was prevented from earning by defendant's refusal to convey, stated no cause of action against defendant.-Id.

broker's

V. ACTIONS FOR COMPENSATION. action held to state a cause of action for com§ 82 (N.Y.Sup.) A complaint in a missions.-Hevia v. Wheelock, 148 N. Y. S. 165. A complaint in a broker's action, alleging that, at the instance of defendant, he, plaintiff, employed a title company, whose services were worth $3,500, for which plaintiff was responsible, was demurrable for not alleging performance of the services by such company.-Id.

he paid another broker, consummating a sale § 85 (N.Y.Sup.) Evidence of defendant that for a less price, was improperly excluded.Owcharoffsky v. Trustees of Welsh Calvinistic Methodist Church, 148 N. Y. S. 138.

See Action, § 47; Corporations, § 265; Pledg- VI. RIGHTS, POWERS, AND LIABILIes, § 56.

III. DUTIES AND LIABILITIES TO
PRINCIPAL.

TIES AS TO THIRD PERSONS.

§ 106 (N. Y. Sup.) Plaintiff, having been employed to sell certain tapestries on commission, and defendants having agreed that if they purchased for themselves, either directly or indirectly, they would notify her and do nothing to prejudice her right to a commission, a complaint alleging that they did purchase through some person unknown to plaintiff, without more, held insufficient to establish a cause of action against them.-Springer v. Duveen, 148 N. Y. S. 508.

§ 24 (N.Y.) An agreement between cotton brokers and a customer that marginal transactions might be closed without notice when margins were running out, if made, was a complete defense to an action for the sale of cotton purchased on margin without notice. Smith v. Craig, 105 N. E. 798, 211 N. Y. 456. An agreement between cotton brokers and a customer that marginal transactions might be closed without further notice when the margins were running out authorized sales by the broker without notice; the words "further notice" See Contracts, §§ 286, 322. including any notice other than that contained in the agreement to sell.—Id.

BUILDING CONTRACTS.

BURIAL.

See Dead Bodies; Death, § 84.

§ 38 (N.Y.) In an action against cotton brokers for selling cotton on margin without notice to the customer, confirmatory statements of prior transactions between the parties, bearing a notice that all marginal transactions might be closed without further notice when the See Cemeteries.

BURIAL GROUNDS.

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