Action against trustees - examination to frame complaint.
Of executor - further accounting as to assets.
See EXECUTORS AND ADMINISTRATORS, 1.
Jurisdiction of Supreme Court - stay of proceedings before surrogate.
See EXECUTORS AND ADMINISTRATORS, 2, 3.
Of testamentary trustee.
See TRUST, 4, 5.
Statute of Limitations upon.
See LIMITATION OF ACTION.
ADMINISTRATORS.
See EXECUTORS AND ADMINISTRATORS.
1. Statement of facts in charge - failure to except. When there is no exception to the charge of a trial judge stating that certain facts must concur in order to charge a defendant with negligence, the correctness of the charge in that respect is conceded, and on appeal those facts must be regarded as the basis upon which questions of law raised by motions for a nonsuit at the close of the evidence and for a new trial upon the minutes must be determined. Statler v. Ray Manufac- turing Co., 69.
2. To Appellate Division - default in filing papers - jurisdiction to excuse default. When the case on appeal to the Appellate Division has been settled and filed, all subsequent proceedings with reference to the filing and serving the printed papers upon which the appeal is to be heard are part of the appeal, and a motion to excuse a default therein must be made to the Appellate Division, not to the Special Term. Bankers' Money Order Association v. Nachod, 373.
3. From denial of new trial on newly-discovered evidence after appeal from judg- ment. A motion for a new trial upon the ground of newly discovered evidence in bastardy proceedings in a court of Special Sessions is appealable only as an intermediate order, and the papers and proceedings thereon must be attached to the judgment roll. No appeal lies from the denial of a new trial on newly- discovered evidence where the motion was made after an affirmance of the judgment on appeal.
4. Case on appeal. In settling a case on appeal the evidence should be reduced to strict narrative. Pulcino v. Long Island R. R. Co., 629.
5. To Court of Appeals - dismissal of appeal from order. An order dismissing an appeal from an order amending a judgment is not appealable to the Court of Appeals.
Appeals to said court may only be taken, as of right, from judgments or orders finally determining actions or special proceedings, excepting orders granting new trials on exceptions. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined on the merits.
On an appeal from an order only an order, not a judgment, can be entered thereon. Van Nostrand v. Van Nostrand, 718.
6. Same power of county clerk. A county clerk has no authority to enter any judgment or order on an appeal to the Appellate Division which was not made or directed by that court. Id.
7. Review of discretionary order. The Appellate Division may, under section 2570 of the Code of Civil Procedure, review an order refusing to open a decree, although the order is discretionary, and where it appears that the appellant thought it was agreed that his claim should be tried in another proceeding and justice will be served by opening such decree, it will be done. Matter of Doig, 746.
8. Calendar. An order placing a cause on a particular calendar is not appealable, as no substantial right is affected. Standard Finance Co. v. Hollins, 894.
Effect of affirmance of order adjudging one guilty of contempt.
See CONTEMPT OF COURT, 1.
Technicalities not affecting substantial rights disregarded.
From order granting discharge on habeas corpus.
From order sequestrating property for failure to pay alimony.
See HUSBAND AND WIFE, 1, 2.
Right of assignee after recovering judgment to question attorney's fee.
See ATTORNEY AND CLIENT, 2.
Of chattel mortgage-sale by mortgagor - burden on assignee to show unextinguished lien.
Action by assignee of foreign corporation - allegation of license to do business.
Action by assignee of foreign corporation
Action on portion of claim assigned - joinder of parties. See PRACTICE, 9-11.
Of railroad franchise - rights of assignee.
See RAILROAD, 1-3.
ASSOCIATION.
Mutual benefit insurance corporation.
See INSURANCE, 5, 6.
1. Champerty - contingent fee. An agreement between a client and his attor- ney that the latter should retain a portion of the proceeds of the claim as his compensation and by way of repayment for any expenses he might incur is not void for champerty where the attorney did not promise to advance any part of the expense and his agreement was not made as an inducement to have the claim placed in his hands.
Such a contract cannot be condemned solely because the proportion of the claim to be retained by the attorney was inordinately large if it was deliberately entered into, was free from fraud and no purpose to obtain undue advantage is shown. Weeks v. Gattell, 402.
2. Assignment. One taking an assignment of a claim as security after having recovered the amount secured cannot question the amount of the attorney's fee. Id.
3. Lien-defense of claim against administratrix. The attorney for an admin- istratrix who, on her accounting, has defeated the claim of next of kin that cer- tain property in her hands belonged to the estate, is not entitled to a lien upon his client's property under section 66 of the Code of Civil Procedure. Matter of Robinson, 424.
4. Disbarment - evidence. On an application to disbar an atttorney he is enti- tled as a matter of right to an independent investigation by the State courts, and he can only be disbarred upon evidence good at common law, delivered if he chooses in his presence and by witnesses subject to cross-examination the court cannot act upon testimony taken in the United States courts in a similar proceeding. Matter of Joseph, 544.
5. Contingent fee - agreement not to settle pending negotiations — when whole con- tract not invalidated thereby. A contract of retainer between attorney and client provided that the attorney as compensation for prosecuting the claim should be entitled to receive forty per cent of any compromise or settlement before judg- ment, or after judgment, forty per cent of any verdict or award, etc. In a subsequent article of the contract, the client agreed not to settle or compromise the claim with any person or corporation without the consent in writing riting of the attorney, and that if such settlement were made without the attorney's con- sent, the client should pay to the attorney such part of the settlement as was thereinbefore agreed to be the attorney's share as compensation for services ren- dered. The defendant settled with the client after issue joined, ignoring the rights of the attorney.
On appeal from a judgment enforcing the attorney's lien,
Held, that the two clauses of the contract were separate and distinct, and that even though the latter were invalid as against public policy in binding the client not to settle, the prior clause fixing the amount of the attorney's com- pensation in case of settlement by the client was still binding, since the set- tlement was in fact made after issue joined. Syme v. Terry & Tench Co., 610.
6. Evidence - negligence of attorney at law-proof of damage. A client, suing his attorney at law to recover damages caused by negligence in prosecuting an action, is entitled to prove that he had a cause of action in the original case which the defendant undertook to prosecute and that but for the defendant's negligence he would have recovered a judgment for a substantial amount, for the burden is on the plaintiff to show the actual damage suffered and the evidence is relevant on that question. Lamprecht v. Bien, 811.
Trust-allowance to attorney for trustee
Case v. Beloe (Nos. 1, 2), 906.
Employment of Deputy Attorney-General as counsel. See RECEIVER.
Action for professional services - long account not involved.
See REFERENCE.
ATTORNEY-GENERAL.
Receiver-employment of Deputy Attorney-General as counsel. See RECEIVER.
Right to have name appear. See CONTRACT, 10.
Compensation dependent upon sobriety-breach of conditions - interest in
1. Stocks-purchase on margin - conversion. The relation between a stock- broker and his customer on a purchase of stocks on margin is that of pledgee and pledgor, and a sale by the broker of the stock without demand and notice is a conversion for which he is liable in damages. Clappe v. Taylor, 605.
2. Deposit of stock for safekeeping - conversion by depositary. Where stock- brokers, with whom stock indorsed in blank has been deposited solely for safekeeping, transfer the same as security for their own obligations, it is larceny, and no title can be obtained against the owner except by one who in good faith purchases the stock or loans money upon it relying upon the apparent title conferred by the owner upon the depositary. Maiter of Mills, 730.
3. Same insolvency - rights owner as against owners of other stock pledged for margins. Hence, when after the insolvency of the depositaries their creditor sells the stock wrongfully pledged, together with other stock originally held by the insolvents as security for purchases on margin and thus rightfully pledged, the owner of the converted stock is entitled to have her claims first satisfied in full out of any surplus remaining after the sale by the creditor, and is not remitted to share pro rata with those whose stock was pledged for margins. This, although prior to the insolvency, the owners of the stock pledged for margins, tendered payment and demanded its return. Id.
4. Same-estoppel. The rights of a person who in good faith has purchased stock from a bailee or has acquired the right to hold the same as security for a loan, are based upon the estoppel of the owner in so acting as to preclude him from disputing as against the pledgee the existence of the title or the powers of his bailee. Id.
Loss of grain stored in elevator - liability of warehouseman and lessee - charge.
Buffalo Grain Co. v. Sowerby, 897.
1. Bills and notes -payment of forged checks -facts showing negligence of drawer. The plaintiffs, as testamentary trustees, kept an account of considerable magni- tude with the defendant trust company, and employed one H. to keep the books of the estate and also gave him custody of the pass book and allowed him to make deposits. H. forged a series of checks drawn against this account, purporting to be signed by plaintiff Morgan, as trustee, and which were impressed with the name of the estate with a rubber stamp to which he had access. When the account was balanced H. removed the forged checks from the package, together with the typewritten list of checks, and delivered to the trustees only the pass book and the genuine checks. The plaintiffs did not call for the typewritten list of checks, nor did they compare the totals represented by the checks and stubs with the balance to their credit on the pass book, though either of these proceedings would have apprised them of the forgery. In an action against the trust company to recover the amount paid on the forged checks,
Held, that as to the forgeries committed subsequent to the balancing of the account, the plaintiffs were negligent as a matter of law in failing to discover the same, and were not entitled to recover. Morgan v. United States Mortgage & Trust Co., 22.
2. Same-facts not establishing negligence of drawee. It further appeared that the plaintiffs drew a check for the full amount of the account for the purpose of transferring it to another bank, and delivered the same to H. for that purpose. When the check was received by the defendant through the clearing house, H. stated to it that though the account was overdrawn it would be made good before the close of the bank for that day, and later on that day H. changed the date of another check drawn by the plaintiffs to the defendant's order on another bank
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