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(202 N.Y.S.) Matter of Solomon WEISSBLATT V. Aaronder 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 và- Orange county action. No opinion. Order cated Order 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, Appel- | Applt. (Supreme Court, Appellate Division, late Division, First Department. December 21, First Department. February 1, 1924.). Order 1923.) Order modified, by striking out the reversed, with $10 costs and disbursements, and words “to enable the plaintiff to prove the al motion granted, with $10
costs, on the authorlegations of the amended complaint, as well as ity, of Dimmerling y. Andrews, 236 N. Y. 43, to avoid the affirmative defenses of new matter 139 N. E. 774. Order filed. 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 Depart. tion to proceed to be fixed in the order. No ment. January 18, 1924.) Order modified, as opinion. Settle order on notice.
iudicated in order, and, as so modified, af. firmed, without costs. No opinion, Order filed.
WESTERN N. Y. WATER CO., respt., v. Edwin J. COLE et al., individually and as mem
Fred B. WRIGHT, applt., V. John W. bers of Board of Public Works of City of Nia- LOCKIE and one, respts. (Supreme Court, gara Falls, applts. (Supreme Court, Appellate Appellate Division, Fourth Department. JanDivision, Fourth Department.
January 11, uary 11, 1924.)
On stipulation of attorneys, 1924.) Appeal dismissed, without costs, on motion to dismiss appeal granted, unless printstipulation filed,
ed papers and briefs are filed and served by
W. S. WILSON CORPORATION, respondas Mayor of the City of Niagara Falls, et al., ent, y: Robert PURCELL et al., appellants, Respts. (Supreme Court, Appellate Division, and John E. Purcell, defendant. (Supreme Fourth Department. January 2, 1924.) Ap
Court, Appellate Division, Second Department. peal dismissed, without costs, upon stipulation December 14, 1923.) Order modified, by strikfiled.
ing out the following: The specification numbered (1), so much of the specification num
bered (2) as reads "as well as the manner Matthew J. WHEELEHAN v. Clarence E. thereof,” the words "prepared and" in the BLOCK et al. (Supreme Court, Appellate Di. specification numbered (4), the specification vision, First Department. February 11, 1924.) numbered (5), the words "specifying in detail Motion denied, with $10 costs, and stay va- the conversation relating thereto" in the speccated. Order filed.
ification numbered (6), and by striking out the allowance of costs at the Special Term. As
so modified, the order is affirmed, without In the Matter of Edward J. WHITE, an at. costs. Kelly, P. J., and Rich, Kelby, Young, torney. (Supreme Court, Appellate Division, and Kapper, JJ., concur. Settle order on First Department. February 1, 1924.), erence ordered to Hon. Joseph E. Newburger, official referee, Settle order on notice.
Joseph YOCUS, as administrator de bonis non, etc., of Nikodemas Petkieviez, respondent,
V. SOUTHERN PACIFIC COMPANY, appelMatter of Application of CITY OF NEW lant. (Supreme Court, Appellate Division, YORK. In re WHITE PLAINS ROAD. (Su-Second Department. December 14, 1923.) preme Court, Appellate Division, First Depart- Judgment (120 Misc. Rep. 554, 199 N. Y. Supp. ment. December 21, 1923.) Motion denied, 116) and order unanimously affirmed, with with $10 costs. Order filed.
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. V. 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. Nó opinion. Order First Department. December 21, 1923.) Or. I filed.
END OF CASES IN VOL. 202
KEY NUMBER SYSTEM
THIS IS A KEY-NUMBER INDEX
Prior Reporter Volume Index-Digests
ABATEMENT AND REVIVAL.
ADVERSE POSSESSION. II. ANOTHER ACTION PENDING.
I. NATURE AND REQUISITES. On 13 (N.Y.Sup.) Pendency of action for
(E) Duration and Continuity of Pos
session. specific performance held no defense to action for breach of contract.-Wilson v. Brauer, 771. Ewa 50 (N.Y.Sup.). One offering to purchase
cannot set up adverse possession.-Bissell v. (V. TRANSFER
ww57 (N.Y.App.Div.) Evidence held to sustain LIABILITY.
finding that defendants had not acquired title Ow43 (N.Y.Sup.) Action against bankrupt not
by adverse possession.-Arcady Camps v. Berabated by bankruptcy.-Pett v. Spiegel, 650.
Om6 (N.Y.App.Div.) Evidence held to show
milk producers' breach of marketing contract. See Abatement and Revival; Dismissal and -Dairymen's League Co-op. Ass'n v. Holmes, Nonsuit.
Past expenses held no consideration for marIII. JOINDER, SPLITTING, CONSOLIDA keting contract.-Id. TION, AND SEVERANCE.
Recital in exclusive marketing contract with Cm 38(3) (N.Y.App.Div.) Complaint held to co-operative association held not to show coustate single cause of action with two items of sideration.-Id. damages.-Packard v. Fox Film Corporation,
Promise by co-operative association to mar164.
ket products at reasonable price held implied, ADJOINING LANDOWNERS.
Co-operative association's charges to nonSee Boundaries.
members limited to cost of services.--Id.
Arrangement for pro rata distribution of proADMINISTRATION.
ceeds from sales under marketing contract held
within statutory authorization.-Id. See Executors and Administrators.
"Overhead" of co-operative association may
be ircluded in charges for services.--Id. ADMIRALTY.
General losses of co-operative association fall
on members, and not on nonmembers.-Id. See Seamen; Shipping.
Contract provision for deductions as loans
from proceeds of products sold by association I. JURISDICTION.
held ultra vires.-Id. mw20 (N.Y.App.Div.) State act abrogating
Provision of marketing contract for deducfellow-servant rule not available to stevedore, tion for subscription to paper held ultra vires. injured in hold of vessel.-Martis v. Union
-Id. Transport Co., 56.
Question of ultra vires may be raised as to Om20 (N.Y.Sup.) State courts have jurisdic. unexecuted part of contract.-Id.
Provision for future loans, not specifying tion of actions for injury or death.-Bennett v. Connelly, 568.
amount, interest, or duration, held invalid.--Id.
See Certiorari; Courts, 237; Criminal Law, 31 (N.Y.App.Div.) Common-law rule of 1036-1169. contributory negligence applies to actions in For review of rulings in particular actions or state court for maritime 'tort.-Ward v. Turner proceedings, see also the various specific & Blanchard, 895.
(1) 202 N.Y.S.-63
202 NEW YORK SUPPLEMENT
III. DECISIONS REVIEWABLE. Cam 1046(5), (N.Y.App.Div.). Court's unjustifi(F) Mode of Rendition, Form, and Entry able criticism of counsel héid prejudicial error. of Jadgment or Order.
-Cooke v. Glassheim, 599. em 129 (N.Y.App.Div.) Orders denying
1064(1) (N.Y.App.Div.) Instruction that tions for sumniary judgment reviewable.--In- sellers never were ready to ship held prejuditerstate Pulp & Paper Co. v. New York cial error.–Robinson v. Liebman, 645. Tribune, 232.
XVII. DETERMINATION AND DISPOSIV. PRESENTATION AND RESERVATION
TION OF CAUSE.
(C) Modification, OF KEVIEW. (A) Issues and Questions in Lower Court. decree corrected to conform to decision. In re
Om 149 (N.Y.App.Div.) Inadvertent error in em 171 (1) (N.Y.App.Div.) Theories for sus- Braasch's Ex'rs, 844. taining verdict, not relied on at trial, not considered.-Pallister v. New York Stamping Co.,
(D) Reversal. 173.
m 175(1) (N.Y.Sup.) In absence of motion (B) Objections and Motions, and Rulings appellate court could only reverse and order Thereon.
new trial.- Victory Sample Card Co. v. Ani
line Sales Corporation, 702. 0184 (N.Y.App.Div.) Defendant in no position to raise question not raised below.–Strebel (F) Mandate and Proceedings in Lower V. Smith, 420.
Court. (C) Exceptions.
Omw 1208(1) (N.Y.) Failure to order restitution am 257 (N.Y.App.Div.) Defendant in no posi- not adjudication adverse to plaintiff's right.
on reversal of order awarding possession held tion to raise question 'not raised below:-Stre- Golde Clothes Shop v. Loew's Buffalo Theatres, bel v. Smith, 420.
236 N. Y. 465, 141 N. E. 917. VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE.
ARGUMENT OF COUNSEL, (A) Time of Taking Proceedings. See Trial, em 120–133. Omm 348(1) (N.Y.App.Div.) Clerk's entry of order submitted by defeated party does not
ARREST. limit time for appeal without notice-George A.
I. IN CIVIL ACTIONS. Moore & Co. v. Heymann, 99.
C 14 (N.Y.App.Div.) Seller's promise to pay X. RECORD AND PROCEEDINGS NOT IN buyer money received from his vendor for RECORD.
shortage held not to create fiduciary relation.(L) Matters Not Apparent of Record. Asano Bussan Co. v. Skinner, 519. Emo 712 (N.Y.Sup.) Facts determined only from record.-Bernstein y. Ginsburg, 280.
ASSESSMENT. Cm714(5) (N.Y.App.Div.) Evidence discovered See Municipal Corporations, 405-489; Tax. after trial not considered on appeal.-Bronner ation, 379_496. v. Walrath, 577. XVI. REVIEW.
ASSIGNMENTS. (A) Scope and Extent in General.
I. REQUISITES AND VALIDITY. Om 843(2) (N.Y.App.Div.) Question of great (B) Mode and Sufficiency of Assignment. public interest and likely to recur decided, m48 (N.Y.App.Div.) No equitable assignthough it had become academic.-Neary v. ment, if assignor retains control over fund. Voorhis, 236.
Farmers' Loan & Trust, Co. v. Winthrop, 456. Oww 853 (N.Y.App.Div.) Instructions not ex- m54 (N.Y.App Div.) Voluntary promise cepted to became law of case.-Fountaine v. make gift cannot be supported as equitable asFuld & Hatch Knitting Co., 535.
signment.-Farmers' Loan & Trust Co. v. Win
throp, 456. (C) Parties Entitled to Allege Error.
ASSOCIATIONS. 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.
ATTACHMENT. (F) Discretion of Lower Court.
V. LEVY, LIEN, AND CUSTODY AND DIS
POSITION OF PROPERTY. 964 (N.V.App.Div.) Trial court's refusal to_order separate trial of issue not disturbed. w 184 (N.Y.Sup.) Issuance of general execu-Romania v. Lamport & Holt, 216.
tion does not destroy lien established by prior
levy:- Appleton v. National Park Bank of New (G) Questions of Fact, Verdicts, and York, 516.
Findings. 1010(1) (N.Y.) Appellate court cannot dis
VI. PROCEEDINGS TO SUPPORT OR turb findings having some basis in evidence.
ENFORCE. Frank v. Von Bayer, 236 N. Y. 473, 141 N. E. Em 209(6) (N.Y.) Service outside state may 920.
be made without order of publication where (H) Harmless Error
attachment is levied_on defendant's property 1033(4) (N.Y.App.Div.) Submitting ques- in state.-American Bank v. Goss, 236 N. Y. tion of ratification to jury held not error in 488, 142 N. E. 156. view of evidence.--Dairymen's League Co-op. Act requiring affidavit that attachment was Ass'n v. Holmes, 663.
levied on defendant's property where summons
Brokers For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see samo topic and KEY-NUMBER is served outside state does not require order
BILLS AND NOTES. of publication.-Id. Sheriff's certificate ordinarily equivalent to
I. REQUISITES AND VALIDITY. affidavit that warrant was levied.--Id.
(B) Form and Contents of Promissory 224 (N.Y.Sup.) Provision of law concern
Notes and Duebills. ing set-off relates solely to assignments for 48 (N.Y.App.Div.) Parties signing notes creditors.--Appleton v. National Park Bank of presumed joint and several makers, and are New York, 516.
jointly and severally liable.-Bronner v. Wal
rath, 577. ATTORNEY AND CLIENT.
V. RIGHTS AND LIABILITIES ON INDORSESee District and Prosecuting Attorneys; Trial,
MENT OR TRANSFER. Om 120-133.
(D) Bona Fide Purchasers, 1. THE OFFICE OF ATTORNEY. w375 (N.Y.App.Div.) Note given as illegal (C) Suspension and Disbarment. preference held enforceable by holder in due
44(1), (N.Y.App.Div.) Hiring detective to course.—New Howard Mfg. Co. y. Cohen, 449. spy on client held prejudicial to administration VI. PRESENTMENT, DEMAND, NOTICE, of justice.- In re Gilbert, 885.
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
presentment.-Wells v. Chaffee, 538. to require suspension.-In re Gilbert, 885.
408 (N.Y.App.Div.) Payee need not prove IV. COMPENSATION AND LIEN OF protest.-Wells v. Chaffee, 538. ATTORNEY.
VIII. ACTIONS. (A) Fees and Other Remuneration,
en 495 (N.Y.App.Div.) Parties signing notes 167(2) (N.Y.Sup.) Reasonable value of professional services held for jury.-Everitt v.
presumed joint and several makers.--Bronner
v. Walrath, 577, Mitchell, 260.
Chm525 (N.Y.Sup.) 'Knowledge that goods preATTORNEY GENERAL.
viously bought were defective no proof of in
dorsee's knowledge of existing equities.--Bufmm 6 (N.Y.App.Div.) Authorized to compro- falo Porcelain Enameling Corporation v. Parmise action to compel conveyance of lands to amount Service Corporation, 301. state.-People v. Finch, Pruyn & Co., 582. ww532 (N.Y.App.Div.) Protest fees not recor.
erable.-Wells v. Chaffee, 538. AUTOMOBILES.
BONDS. See Livery Stable and Garage Keepers.
III. NEGOTIABILITY AND TRANSFER. BAILMENT,
Em79 (N.Y.Sup.) Interest coupons, attached w 18(2) (N.Y.Sup.) Defendant held to have to negotiable bonds, held promissory notes.--lien under contract with third party for bodies Levy v. Cleveland, C., C. & St. L. R. Co., 396. built for trucks delivered by defendant, as well as for other bodies he was to build.-Hare's
BOUNDARIES. Motors v. Fred Roeder Mfg. Co., 830.
1. DESCRIPTION. Om21 (N.Y.Sup.) Plaintiff entitled to recover property deposited without her knowledge.-- with other facts when 'description indefinite.
3(9) (N.Y.App.Div.) Quantity considered Lubbell v. Stolls, 229.
Manursing Island Beach Corporation v. SackBANKRUPTCY.
ett, 327. III. ASSIGNMENT, ADMINISTRATION, II. EVIDENCE, ASCERTAINMENT, AND AND DISTRIBUTION OF BANK
C33 (N.Y.App.Div.) No presumption that (B) Assignment, and Title, Rights, and fence marks boundary line.-Fountain v. Fuld Remedies of Trustee in General.
& Hatch Knitting Co., 535. 156 (N.Y.Sup.). Trustee need not inter-On37(1) (N.Y.App.Div.) Finding locating vene in action against bankrupt.-Pett v. Spie- boundary held sustained by evidence.- Manursgel, 650.
ing Island Beach Corporation v. Sackett, 327. BANKS AND BANKING.
BROKERS. III. FUNCTIONS AND DEALINGS.
IV. COMPENSATION AND LIEN. (C) Deposits.
42 (N.Y.Mun.Ct.) Failure to pay federal Com 134(2) (N.Y.Sup.) No legal right to offset tax on shipbrokers held no defense to action for note not yet matured.--Appleton v. National commissions.-Christophersen & Kiaer y. U. Park Bank of New York, 516.
S. Nav. Co., 902. Om 134(4) (N.Y.Sur.) Bank cannot apply time w52 (N.Y.Sup.) Commission earned when deposit or securities to overdraft in checking vendor and purchaser make contract for sale. account.-In re Fricke's Will, 906.
-- Juhasz v. Kocor, 303.
54 (N.Y.Sup.) Commission earned when BASTARDS.
purchaser produced who is ready, able and
willing to purchase.-Juhasz v. Kocor, 303. I. ILLEGITIMACY IN GENERAL.
Om6i (4) (N.Y.Sup.) Broker not entitled to Omal (N.Y.App.Div.) Annulment of marriage commission on purchaser's refusal to complete will not make child of marriage illegitimate. -- sale for broker's concealment of lease.-Juhasz Jacobson v. Jacobson, 96.
v. Kocor, 303.
Gm64 (1) (N. Y. Sup.) Commission earned BENEFICIAL ASSOCIATIONS.
although, without fault of broker, purchaser reSee Insurance, em 694-754.
fuses to continue.-- Juhasz v. Kocor, 303.