ute of frauds was originally enacted.-Reisterer | be made within a reasonable time after the X. PLEADING, EVIDENCE, TRIAL, § 152 (N.Y.Sup.) The statute of frauds must FRAUDULENT CONVEYANCES. See Bankruptcy, § 303. I. TRANSFERS AND TRANSACTIONS (J) Knowledge and Intent of Grantee. filing of the order.-City of Buffalo v. Buffalo Whether the Public Service Commission shall GIFTS. See Limitation of Actions, § 197. I. INTER VIVOS. § 18 (N.Y.Sur.) To make a valid gift inter vi- § 18 (N.Y.Sur.) It is essential to a valid gift S. 353. PURCHASERS. (A) Persons Entitled to Assert Invalidity. GOOD FAITH. § 208 (N.Y.Sup.) Action to set aside a deed See Vendor and Purchaser, §§ 230, 231. § 208 (N.Y.Sup.) That an owner of land in V. (J) Judgment or Decree and Execution. S. 353. GOVERNOR. See Pardon; States, § 52. GRAND JURY. See Criminal Law, § 6272; Indictment and § 41 (N.Y.Sup.) The secrecy of the proceed- A personal judgment held to be rendered GAMING. III. CRIMINAL RESPONSIBILITY. (A) Offenses. § 73 (N.Y.Co.Ct.) Laws 1910, c. 488, which GAS. § 14 (N.Y.Sup.) An application to the Public GUARDIAN AND WARD. See Infants, § 81; Insane Persons, §§ 42, 45, 94. IV. SALES AND CONVEYANCES UN- § 77 (N.Y.Sup.) Under Real Property Law, § GUARDS. See Master and Servant, §§ 139, 270. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER GUESTS. See Innkeepers; Landlord and Tenant, §§ 167, 169. HABEAS CORPUS. I. NATURE AND GROUNDS OF REMEDY. years of such period.-Dean v. Carroll, 143 N. Y. S. 12. (D) Title to Fee and Rights of Abutting Owners. § 83 (N.Y.Sup.) The owner of the abutting lands and the fee of a country highway has the right to quarry the stone under it; he constructing and maintaining a good temporary road during the time of removal, and thereafter restoring the highway.-Dean v. Carroll, 143 N. HOMICIDE. $19 (N.Y.Sup.) It is the duty of a court or judge having jurisdiction to entertain proceedings in habeas corpus to protect the liberty of. S. 12. a prisoner, though his right depends on a pardon, in passing on the validity of which a different conclusion may be reached as to the powers of the Governor while under impeachment from that of the Court of Impeachment.People ex rel. Robin v. Hayes, 143 N. Y. S. 325. II. JURISDICTION, PROCEEDINGS, V. EXCUSABLE OR JUSTIFIABLE § 118 (N.Y.Sup.) A person attacked is not bound to retreat if it would imperil his safety the more, or if a reasonable man under the cir cumstances would be justified in believing that to retreat would add to the danger.-People v. Buccufurri, 143 N. Y. S. 62. VII. EVIDENCE. (B) Admissibility in General. § 163 (N.Y.Sup.) In proving the reputation of an accused in a prosecution for murder, evidence of his reputation in various shops in which he had been employed was competent evidence of his general reputation.-People v. Buccufurri, 143 N. Y. S. 62. $65 (N.Y.Sup.) The right of a court or justice having jurisdiction to grant writs of habeas corpus to protect the liberties of the people cannot be restricted by the Legislature, and the writ may be made returnable to another county than that in which the prisoner is restrained, though a court be in session in that county, regardless of legislative provisions.People ex rel. Robin v. Hayes, 143 Ñ. Y. S. 325. $ 92 (N.Y.Sup.) In habeas corpus proceedings by a prisoner to secure his freedom on the strength of a pardon, the court has no jurisdiction to inquire into the sufficiency of charges for which the Governor was under impeachment See Asylums. when the pardon was issued, nor whether the proceedings were properly conducted, unless at their foundation the Constitution is violated. HOSPITALS. HUSBAND AND WIFE. People ex rel. Robin v. Hayes, 143 N. Y. S. See Banks and Banking; Divorce; Trusts, 325. 59. See Habeas Corpus, §§ 19, 92; Officers; States, § 52; Witnesses, $$ 350-402. IMPLIED CONTRACTS. $7 (N.Y.Sup.) A road never laid out and established by the town authorities, but traveled by the public for 20 years, and either kept in repair by or taken in charge of the public au- See Money Received; Work and Labor. thorities, is a highway.-Dean v. Carroll, 143 N. Y. S. 12. § 14 (N.Y.Sup.) Location of a highway established by user for 50 years is defined by substantial fences erected on both sides by the abutting owners and maintained for the last 40 IMPROVEMENTS. See Constitutional Law, § 290; Municipal Corporations, §§ 278-508, 867, 1000; Navigable Waters, §§ 2, 8. INCOME. See Trusts, § 272; Wills, § 684. INDEMNITY. See Partnership, § 302. $ 15 (N.Y.Sup.) An undertaking to secure the repurchase of certain corporate stock held for the benefit of B. only, and not enforceable by the administrator of her legatee, to whom she bequeathed the stock.-Herendeen v. Wilson, 143 N. Y. S. 669. INDIANS. See Judgment, § 713. § 27 (N.Y.Sup.) In a suit in equity under Indian Law, 52, to enforce a judgment rendered by the Peacemakers' Court of the Allegany Reservation of the Seneca Nation of Indians, proof of the judgment of the Peacemakers' Court by parol, and by the subsequent judgment on a remittitur, was sufficient, where it appeared that the original record of the judgment had been lost.-Silverheels v. Maybee, 143 N. Y. S. 655. § 144 (N.Y.Sup.) Where a verdict of guilty was returned on all counts, but the court directed amendment by omitting one of the counts, thereby in effect dismissing that count, held that it was error to permit to remain in the case evidence relevant only on that count.-People v. Jacobs, 143 N. Y. S. 21. § 144 (N.Y.Sup.) Notwithstanding Code Cr. Proc. § 313, limiting the causes for setting aside an indictment, a person indicted has a constitu tional right to move its dismissal, if there was insufficient legal evidence to support it.-People V. Evans, 143 N. Y. S. 49. § 149 (N.Y.Co.Ct.) Accused having demurred to the indictment at the time of arraignment, as authorized by Code Cr. Proc. § 322, his right to demur was not affected by the fact that he had previously moved for a copy of the minutes of the grand jury and to dismiss the indictment thereon.-People v. Waldhorn, 143 N. Y. S. INDORSEMENT. $32 (N.Y.Sup.) Jurisdiction over Indians and their property, which is vested in Congress and in the United States courts, does not invalidate the provisions of the Indian Law purporting to regulate the ownership of property by Indians and to create and provide courts for the trial of controversies between them.-Silver-484. heels v. Maybee, 143 N. Y. S. 655. A suit in equity under Indian Law, § 52 to enforce a judgment of the Peacemakers' Court See Bills and Notes, § 301. of the Allegany Reservation of the Seneca Nation of Indians held not barred by a prior invalid judgment of the Indian council rendered long prior to the commencement of the action in the Peacemakers' Court.-Id. INDICTMENT AND INFORMATION. II. FINDING AND FILING OF INDICT- §10 (N.Y.Sup.) Under the express terms of Code Cr. Proc. § 256, the grand jury can receive only legal evidence, and under section 258 they should find an indictment only when the evidence, in their judgment, if unexplained or uncontradicted, would warrant a conviction.People v. Evans, 143 N. Y. S. 49. V. REQUISITES AND SUFFICIENCY § 109 (N.Y.Sup.) In a prosecution for a statutory offense, all facts necessary to bring the case within the statute must appear.-People v. Silver, 143 N. Y. S. 43. VI. JOINDER OF PARTIES, OFFENSES, § 125 (N.Y.Sup.) An indictment charging conspiracy to cheat and defraud the state by defective and dishonest work, by failure to fur INFANTS. See Adoption; Conversion; Divorce, 88 306309; Guardian and Ward; Injunction, § 26; Parent and Child. IV. CONTRACTS. $58 (N.Y.Sup.) An infant, on reaching majority, cannot avoid a contract, of which he has enjoyed the benefit, and recover back the consideration paid.-Lown v. Spoon, 143 N. Y. S. 275. VII. ACTIONS. requiring a "competent and responsible per§ 81 (N.Y.Sup.) Under Code Civ. Proc. § 469, son" to be appointed to appear for an infant plaintiff, defendants are entitled to have a guardian ad litem appointed who is pecuniarily responsible.-Faulkner v. Brown, 143 N. Y. S. 791. Under Code Civ. Proc. § 469, requiring appointment of a competent and responsible person as guardian ad litem, an irresponsible guardian ad litem will be given an opportunity to file an undertaking conditioned for the payment of costs before a motion will be granted revoking his appointment.-Id. INHERITANCE TAX. See Taxation, §§ 879–906. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER INJUNCTION. See Appeal, § 954; Carriers, § 251; Courts, 207: Insurance, § 26; Trade-Marks and Trade-Names, § 95. $175 (N.Y.Sup.) In an action to cancel an agreement by which defendant attorney was to appear in condemnation proceedings against persons with whom plaintiff had agreements relative thereto, the burden is on plaintiff to show his right to an injunction restraining de II. SUBJECTS OF PROTECTION AND fendant pending appeal from collecting fees or RELIEF. (A) Actions and Other Legal Proceedings. $26 (N.Y.Sup.) Equity will enjoin an action at law by an infant, seeking to rescind a contract and recover back money paid for the purchase of stock of a corporation, where a full and complete investigation of the rights of the parties could not be had in the action at law. Lown v. Spoon, 143 N. Y. S. 275. (C) Contracts. § 57 (N.Y.Sup.) An injunction will not be granted to restrain defendant's alleged violation of certain contracts, where it had been agreed between the parties on a good consideration to terminate the same prior to the commencement of the suit.-Northland Rubber Co. v. International Automobile League, 143 N. Y. S. 1. amounts due plaintiff under such contracts.United States Title Guaranty Co. v. Brown, 143 N. Y. S. 835. VII. VIOLATION AND PUNISHMENT. $219 (N.Y.Sup.) It is essential to sustain a conviction for civil contempt in violating an injunction that plaintiff show a cause of action for equitable relief.-Northland Rubber Co. v. International Automobile League, 143 N. Y. S. 9. It is not essential to the imposition of punishment for criminal contempt in violating an injunction that plaintiff should be entitled to equitable relief on the merits.-Id. $229 (N.Y.Sup.) Under Judiciary Law, § 750, subd. 3, and Code Civ. Proc. §§ 603, 606, where the court had jurisdiction of the parties and subject-matter in a suit to enjoin the violation of § 62 (N.Y.Sup.) The purchaser of a lot from certain contracts, it had power to punish dea vendor, who in a prior conveyance of an ad- fendants for contempt in willfully violating a joining lot has covenanted that both lots should temporary injunction of which they had notice. be subject to certain reasonable building restric--Northland Rubber Co. v. International Autions, may be enjoined from violating such cove- tomobile League, 143 N. Y. S. 9. nant, where he was chargeable with notice of same at the time of his purchase.-Whistler v. Cole, 143 N. Y. S. 478. IV. PRELIMINARY AND INTERLOCU. INNKEEPERS. §11 (N.Y.Sup.) Where a guest at a restaurant hung his overcoat on a nearby hook during a meal, without delivering it into the possession of the restaurateur or any of his servants, and it was lost or stolen, there was no bailment, and the restaurateur was not liable for its loss in absence of proof of negligence.-Wentworth v. Riggs, 143 Ñ. Y. S. 955. (A) Grounds and Proceedings to Procure. 737. § 137 (N.Y.Sup.) A preliminary injunction to restrain the letting of contracts or incurring of IN PAIS. INQUISITION. indebtedness in connection with a municipal See Insane Persons, § 26. water plant will be denied, where the affidavits as to existence of sufficient funds are conflicting, and under General Municipal Law, § 51, funds INSANE PERSONS. illegally expended may be recovered from the See Asylums; Wills, §§ 52, 53, 400. (B) Continuing, Modifying, Vacating, or Dissolving. § 162 (N.Y.Sup.) Where an injunction was granted restraining plaintiff from doing certain acts pendente lite, plaintiff should be given leave to renew the motion to vacate the injunction, if defendant interposed unreasonable delay to the trial of the action.-Reilly v. Frias, 143 N. Y. S. 869. II. INQUISITIONS. § 26 (N.Y.Sup.) Finding on taking of inquisition that maker of notes was incompetent held presumptive evidence that she was incompetent when the notes were made at a time within the period covered by the finding.-Richie V. Shepard, 143 N. Y. S. 19. III. GUARDIANSHIP. § 42 (N.Y.Sup.) One appointed committee of an incompetent is required to account for money of the incompetent which as such committee she withdraws from the bank, though withdrawing it before qualifying by giving the required bond. Thayer v. Erie County Savings Bank, 143 N. § 163 (N.Y.Sup.) Where, on a motion to continue a temporary injunction pending the action, it appears that there is no merit in plaintiff's case, the motion will be denied, though great loss will be thereby caused to plaintiff.-Y. S. 77. West Virginia Pulp & Paper Co. of Delaware v. Peck, 143 N. Y. S. 720. § 42 (N.Y.Sup.) The committee of an incompetent person held not subject to have his ac count surcharged by the amount of the interest of his ward in a lease which was subject to renewal, by reason of the committee's failure as trustee of the ancestor's estate to exercise the option to renew.-In re Anderson, 143 N. Y. S. 627. $45 (N.Y.Sup.) The bond of the committee of an incompetent given in compliance with the order appointing her, and conditioned that she shall in all things faithfully discharge her trust and account for all moneys "received" by her, renders the sureties liable for money previously received by her, for which she was legally liable and accountable.-Thayer v. Erie County Sayings Bank, 143 N. Y. S. 77. IX. ACTIONS. § 94 (N.Y.Sur.) Code Civ. Proc. § 2527, when construed in the light of the history and policy of the law, and of section 2528, providing that a person of full age may, unless judicially declared incompetent, prosecute or defend in the Surrogate's Court, does not prevent an heir for whom a special guardian has been appointed as provided by that section from traversing the allegation that she is mentally incompetent. In re Haynes' Will, 143 N. Y. S. 570. Where an allegation of the proponent of a will that an heir is mentally incompetent, upon which a special guardian has been appointed, is traversed by the heir, the burden is on proponent to prove the incompetency beyond all peradventure.-Id. In such case the surrogate will not grant a reference to try the competency of the heir; since such reference would not be conclusive in the Supreme Court.-Id. The surrogate has jurisdiction to vacate an appointment of a special guardian for an heir alleged by proponent to be mentally incompetent, and to permit the heir to contest the will in person.-Id. Where the appointment of a special guardian for an heir alleged to be incompetent was vacated upon her traverse of the allegations and the affidavits in support thereof, the allegation of incompetency will not be stricken out.-Id. $97 (N.Y.Sup.) In action on notes, where defendants pleaded maker's incompetency, record of inquisition proceedings instituted by plaintiff held admissible against him, although not specifically pleaded.-Richie v. Shepard, 143 N. Y. S. 19. INSOLVENCY. See Bankruptcy. INSTRUCTIONS. To jury, see Criminal Law, § 776; Trial, §§ 252-296. INSURANCE. See New Trial, § 76. I. CONTROL AND REGULATION IN § 26 (N.Y.Sup.) A court of this state has jurisdiction to order an accounting against a foreign insurance company and to determine | therefrom in an action against it by a member, whether he has been and is being charged excessive rates on his insurance certificate, and thereupon to render judgment for any excess collected, and enjoin such future collections.--Sauerbrunn v. Hartford Life Ins. Co., 143 N. Y. S. 1009. In an action against a foreign insurance company to enjoin it from fixing and collecting alleged illegal rates, and asking an accounting, the question whether the court will attempt to regulate the affairs of the foreign company may not be raised by demurrer.-Id. a V. THE CONTRACT IN GENERAL. VI. PREMIUMS. DUES, AND ASSESS- $193 (N.Y.Sup.) Insurance company held not X. FORFEITURE OF POLICY FOR BREACH OF PROMISSORY WAR- (B) Matters Relating to Property or In terest Insured. § 336 (N.Y.Sup.) Where subsequent to issuance of policy additional insurance was obtained on property without notice to the insurer and consent, contrary to a provision of the policy. the policy became invalid in the absence of waiver or estoppel.-Tilton v. Farmers' Ins. Co. of Town of Palatine, 143 N. Y. S. 107. Where, in the negotiations for an insurance policy, the insurer's secretary, on being told that assured wanted a permit for additional insurance, stated that it would be necessary to present the request to the board of directors, there was no agreement by him that the permit would be issued.-Id. XI. ESTOPPEL, WAIVER, OR AGREE- § 371 (N.Y.Sup.) Acts or conduct of insurer which will constitute an estoppel or waiver as to a forfeiture of an insurance policy, stated. -Tilton v. Farmers' Ins. Co. of Town of Palatine, 143 N. Y. S. 107. § 376 (N.Y.Sup.) A holder of a policy of insurance would be presumed to have contracted with reference to conditions of the policy, imposing limitations on the authority of the insurer's secretary to consent to additional insur For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER |