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(202 N.Y.S.)

Matter of Solomon WEISSBLATT v. Aaron | der reversed, with $10 costs and disbursements, SPANIER. (Supreme Court, Appellate Divi- and motion denied, with $10 costs, with leave sion, First Department. January 14, 1924.) to respondents to move for a stay in the Motion denied, with $10 costs, and stay va- Orange county action. No opinion. Order cated. Order filed. filed.

Applt.

(Supreme Court, Appellate Division, First Department. February 1, 1924.). Order reversed, with $10 costs and disbursements. and motion granted, with $10 costs, on the authority of Dimmerling v. Andrews, 236 N. Y. 43, 139 N. E. 774. Örder filed.

WEPCO FUEL COMPANY, Inc., Respt., VTIONAL BANK OF FT. LEE, NEW JERSEY, George WITZMANN, Respt., v. FIRST NANATIONAL BANK OF COMMERCE IN NEW YORK, Applt. (Supreme Court, Appellate Division, First Department. December 21, 1923.) Order modified, by striking out the words "to enable the plaintiff to prove the allegations of the amended complaint, as well as to avoid the affirmative defenses of new matter set forth in the amended answer to the amended complaint, which, if undenied, would defeat the plaintiff's cause of action," and, as so modi- S. Herbert WOLFE and another, Applts., v. fied, affirmed, with $10 costs and disbursements FARBWERKE-HOECHST CO., Respt. (Suto the appellant. The time for the examina-preme Court, Appellate Division, First Departtion to proceed to be fixed in the order. No ment. January 18, 1924.) Order modified, as opinion. Settle order on notice. indicated in order, and, as so modified, affirmed, without costs. No opinion. Order filed.

WESTERN N. Y. WATER CO., respt., v. Edwin J. COLE et al., individually and as members of Board of Public Works of City of Niagara Falls, applts. (Supreme Court, Appellate Division, Fourth Department. January 11, 1924.) Appeal dismissed, without costs, on stipulation filed.

WESTERN NEW YORK WATER CO., Applt., v. William LAUGHLIN individually and as Mayor of the City of Niagara Falls, et al., Respts. (Supreme Court, Appellate Division, Fourth Department. January 2, 1924.) Appeal dismissed, without costs, upon stipulation filed.

Matthew J. WHEELEHAN v. Clarence E. BLOCK et al. (Supreme Court, Appellate Division, First Department. February 11, 1924.) Motion denied, with $10 costs, and stay vacated. Order filed.

In the Matter of Edward J. WHITE, an attorney. (Supreme Court, Appellate Division, First Department. February 1, 1924.) Reference ordered to Hon. Joseph E. Newburger, official referee. Settle order on notice.

Matter of Application of CITY OF NEW YORK. In re WHITE PLAINS ROAD. (Supreme Court, Appellate Division, First Department. December 21, 1923.) Motion denied, with $10 costs. Order filed.

V.

Fred B. WRIGHT, applt., v. John W. LOCKIE and one, respts. (Supreme Court, Appellate Division, Fourth Department. JanOn stipulation of attorneys, uary 11, 1924.) motion to dismiss appeal granted, unless printed papers and briefs are filed and served by February 11th.

W. S. WILSON CORPORATION, respondent, v. Robert PURCELL et al., appellants, (Supreme and John E. Purcell, defendant. December 14, 1923.) Order modified, by strikCourt, Appellate Division, Second Department. ing out the following: The specification numbered (1), so much of the specification numbered (2) as reads "as well as the manner thereof," the words "prepared and" in the specification numbered (4), the specification numbered (5), the words "specifying in detail the conversation relating thereto" in the specification numbered (6), and by striking out the allowance of costs at the Special Term. As so modified, the order is affirmed, without costs. Kelly, P. J., and Rich, Kelby, Young, and Kapper, JJ., concur. Settle order on notice.

Joseph YOCUS, as administrator de bonis non, etc., of Nikodemas Petkieviez, respondent, v. SOUTHERN PACIFIC COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. December 14, 1923.) Judgment (120 Misc. Rep. 554, 199 N. Y. Supp. 116) and order unanimously affirmed, with costs. No opinion.

William WITKIN, Respt., v. Herbert A. Belen ZELENDAN, as Adm'x, etc., Respt., KEIGWIN, Applt. Charles ALPERT, Respt., v. GIMBEL BROS., NEW YORK, Applt. SAME, Applt. Herbert A. KEIGWIN, (Supreme Court, Appellate Division, First De Applt., v. Charles ALPERT and another, partment. February 1, 1924.) Judgment and Respts. (Supreme Court, Appellate Division, order affirmed, with costs. No opinion. Order First Department. December 21, 1923.) Or-filed.

END OF CASES IN VOL. 202

*

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL.

II. ANOTHER ACTION PENDING.

ADVERSE POSSESSION.

I. NATURE AND REQUISITES. (E) Duration and Continuity of Pos

session.

13 (N.Y.Sup.) Pendency of action for specific performance held no defense to action for breach of contract.-Wilson v. Brauer, 771.50 (N.Y.Sup.) One offering to purchase cannot set up adverse possession.-Bissell v. Georger, 533.

IV.

TRANSFER OR DEVOLUTION OF
TITLE, RIGHT, INTEREST, OR

LIABILITY.

43 (N.Y.Sup.) Action against bankrupt not abated by bankruptcy.-Pett v. Spiegel, 650.

ACCORD AND SATISFACTION.

See Compromise and Settlement.

ACTION.

57 (N.Y.App.Div.) Evidence held to sustain finding that defendants had not acquired title by adverse possession.-Arcady Camps v. Berry, 398.

AGENCY.

See Principal and Agent.

AGRICULTURE.

6 (N.Y.App.Div.) Evidence held to show milk producers' breach of marketing contract. 663.

See Abatement and Revival; Dismissal and-Dairymen's League Co-op. Ass'n v. Holmes, Nonsuit.

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Past expenses held no consideration for marketing contract.-Id.

Recital in exclusive marketing contract with co-operative association held not to show consideration.-Id.

ket products at reasonable price held implied, Promise by co-operative association to marsupplying consideration.-Id.

Co-operative association's charges to nonmembers limited to cost of services.-Id.

Arrangement for pro rata distribution of proceeds from sales under marketing contract held within statutory authorization.-Id.

"Overhead" of co-operative association may be included in charges for services.-Id.

General losses of co-operative association fall on members, and not on nonmembers.-Id.

Contract provision for deductions as loans from proceeds of products sold by association held ultra vires.-Id.

Provision of marketing contract for deduction for subscription to paper held ultra vires.

-Id.

Question of ultra vires may be raised as to unexecuted part of contract.-Id.

Provision for future loans, not specifying amount, interest, or duration, held invalid.-Id. APPEAL.

See Certiorari; Courts, 237; Criminal Law. 1036-1169.

For review of rulings in particular actions or proceedings, see also the various specific topics.

(1)

Appeal

202 NEW YORK SUPPLEMENT

III. DECISIONS REVIEWABLE.

(F) Mode of Rendition, Form, and Entry able criticism of counsel held prejudicial error. 1046(5) (N.Y.App.Div.) Court's unjustifiof Judgment or Order. -Cooke v. Glassheim, 599.

129 (N.Y.App.Div.) Orders denying motions for summary judgment reviewable.-Interstate Pulp & Paper Co. v. New York Tribune, 232.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
171(1) (N.Y.App.Div.) Theories for sus-
taining verdict, not relied on at trial, not con-
sidered.-Pallister v. New York Stamping Co.,

173.

that

1064(1) (N.Y.App.Div.) Instruction sellers never were ready to ship held prejudicial error.-Robinson v. Liebman, 645.

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(D) Reversal.

1175(1) (N.Y.Sup.) In absence of motion (B) Objections and Motions, and Rulings appellate court could only reverse and order new trial.-Victory Sample Card Co. v. Aniline Sales Corporation, 702.

Thereon.

184 (N.Y.App.Div.) Defendant in no position to raise question not raised below.-Strebel v. Smith, 420.

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X. RECORD AND PROCEEDINGS NOT IN buyer money received from his vendor for

RECORD.

only

(L) Matters Not Apparent of Record. 712 (N.Y.Sup.) Facts determined from record.-Bernstein v. Ginsburg, 280. 714(5) (N.Y.App.Div.) Evidence discovered after trial not considered on appeal.-Bronner v. Walrath, 577.

XVI. REVIEW.

(A) Scope and Extent in General. 843 (2) (N.Y.App.Div.) Question of great public interest and likely to recur decided, though it had become academic.-Neary v. Voorhis, 236.

ex

14 (N.Y.App.Div.) Seller's promise to pay shortage held not to create fiduciary relation.Asano Bussan Co. v. Skinner, 519.

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853 (N.Y.App.Div.) Instructions not cepted to became law of case.-Fountaine v. make gift cannot be supported as equitable asFuld & Hatch Knitting Co., 535.

ASSOCIATIONS.

(C) Parties Entitled to Allege Error. 878(1) (N.Y.App.Div.) Record held to preclude retrial in appellate court, dismissal or See Insurance, 694–754. other judgment.-Manursing Island Beach Corporation v. Sackett, 327.

(F) Discretion of Lower Court. 964 (N.Y.App.Div.) Trial court's refusal to order separate trial of issue not disturbed. -Romania v. Lamport & Holt, 216.

(G) Questions of Fact, Verdicts, and Findings.

ATTACHMENT.

V. LEVY, LIEN, AND CUSTODY AND DIS-
POSITION OF PROPERTY.

184 (N.Y.Sup.) Issuance of general execution does not destroy lien established by prior levy. Appleton v. National Park Bank of New York, 516.

VI. PROCEEDINGS TO SUPPORT OR
ENFORCE.

1010(1) (N.Y.) Appellate court cannot disturb findings having some basis in evidence.Frank v. Von Bayer, 236 N. Y. 473, 141 N. E.209(6) (N.Y.) Service outside state may 920.

(H) Harmless Error

1033(4) (N.Y.App.Div.) Submitting tion of ratification to jury held not error in quesview of evidence.-Dairymen's League Co-op. Ass'n v. Holmes, 663. (2)

be made without order of publication where
attachment is levied on defendant's property
488, 142 N. E. 156.
in state.-American Bank v. Goss, 236 N. Y.

Act requiring affidavit that attachment was levied on defendant's property where summons

INDEX-DIGEST

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

is served outside state does not require order of publication.-Id.

Sheriff's certificate ordinarily equivalent to affidavit that warrant was levied.-Id.

224 (N.Y.Sup.) Provision of law concerning set-off relates solely to assignments for creditors.-Appleton v. National Park Bank of New York, 516.

ATTORNEY AND CLIENT.

See District and Prosecuting Attorneys; Trial, 120-133.

1. THE OFFICE OF ATTORNEY. (C) Suspension and Disbarment. 44(1) (N.Y.App.Div.) Hiring detective to spy on client held prejudicial to administration of justice. In re Gilbert, 885.

BILLS AND NOTES.

Brokers

1. REQUISITES AND VALIDITY. (B) Form and Contents of Promissory Notes and Duebills.

48 (N.Y.App.Div.) Parties signing notes presumed joint and several makers, and are jointly and severally liable.-Bronner v. Walrath, 577.

V. RIGHTS AND LIABILITIES ON INDORSE-
MENT OR TRANSFER.

(D) Bona Fide Purchasers,
375 (N.Y.App.Div.) Note given as illegal
preference held enforceable by holder in due
course.-New Howard Mfg. Co. v. Cohen, 449.
VI. PRESENTMENT, DEMAND, NOTICE,
AND PROTEST.

53(2) (N.Y.App.Div.) Evidence of attor-394 (N.Y.App.Div.) Payee need not prove neys' collusion and malpractice held sufficient to require suspension.-In re Gilbert, 885.

IV. COMPENSATION AND LIEN OF

ATTORNEY.

(A) Fees and Other Remuneration. 167(2) (N.Y.Sup.) Reasonable value of professional services held for jury.-Everitt v. Mitchell, 260.

ATTORNEY GENERAL.

6 (N.Y.App.Div.) Authorized to compromise action to compel conveyance of lands to state.-People v. Finch, Pruyn & Co., 582. AUTOMOBILES.

See Livery Stable and Garage Keepers.

BAILMENT.

18(2) (N.Y.Sup.) Defendant held to have lien under contract with third party for bodies built for trucks delivered by defendant, as well as for other bodies he was to build.-Hare's Motors v. Fred Roeder Mfg. Co., 830.

21 (N.Y.Sup.) Plaintiff entitled to recover property deposited without her knowledge. Lubbell v. Stolls, 229.

BANKRUPTCY.

III. ASSIGNMENT, ADMINISTRATION,
AND DISTRIBUTION OF BANK-
RUPT'S ESTATE.

presentment.-Wells v. Chaffee, 538.

408 (N.Y.App.Div.) Payee need not prove protest.-Wells v. Chaffee, 538.

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33 (N.Y.App.Div.) No presumption that (B) Assignment, and Title, Rights, and fence marks boundary line.-Fountain v. Fuld & Hatch Knitting Co., 535.

Remedies of Trustee in General.

locating

156 (N.Y.Sup.) Trustee need not inter-37(1) (N.Y.App.Div.) Finding vene in action against bankrupt.-Pett v. Spie- boundary held sustained by evidence.-Manursgel, 650. ing Island Beach Corporation v. Sackett, 327.

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BROKERS.

IV. COMPENSATION AND LIEN. 42 (N.Y.Mun.Ct.) Failure to pay federal tax on shipbrokers held no defense to action for commissions.-Christophersen & Kiaer v. U. S. Nav. Co., 902.

52 (N.Y.Sup.) Commission earned when vendor and purchaser make contract for sale. -Juhasz v. Kocor, 303.

54 (N.Y.Sup.) Commission earned when purchaser produced who is ready, able and willing to purchase.-Juhasz v. Kocor, 303.

61(4) (N.Y.Sup.) Broker not entitled to commission on purchaser's refusal to complete sale for broker's concealment of lease.-Juhasz v. Kocor, 303.

64(1) (N. Y. Sup.) Commission earned although, without fault of broker, purchaser refuses to continue.-Juhasz v. Kocor, 303.

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