Abatement of action for divorce by death of party before final
judgment.
See People v. Blinn (Mem.), 554.
ACCIDENT INSURANCE.
Construction of policy - insurance against injury, "if caused by
burning of building."
See INSURANCE, 1, 2.
ACCOUNTING.
See Taft v. South Brooklyn Sawmill Co. (Mem.), 508; Matter of
Harteau (Mem.), 513; Matter of Dittrich (Mem.), 521; Cobb v.
Crittenden (Mem.), 534; Matter of Parker (Mem.), 564; Matter of
Meeks (Mem.), 573.
1. Public service commission — Right_to appeal from order of Appellate
Division reversing its determination. The public service commission is
entitled to prosecute an appeal from an order of the Appellate Division
which annulled its determination denying an application by a railroad
company for permission to construct and operate an extension of its road.
People ex rel. South Shore Traction Co. v. Willcox.
2. When order vacating former order appointing a trustee is a final order
in special proceeding. An order of the Appellate Division affirming an
order of the Special Term, which vacated a former order appointing a
trustee under a will in place of a deceased trustee, is a final order in a
special proceeding and, therefore, may be appealed from to this court.
Matter of Earnshaw.
330
3. Filing of return. The filing of a return to the Court of Appeals can-
not be compelled until the appeal is fully perfected. Polito v. Pitriello
(Mem.)
517
4. Order of Appellate Division should show reversal to be on the law. To
render a review by the Court of Appeals effective, an order of the Appel-
late Division reversing an order adjudging one guilty of criminal con-
tempt should show on its face that the reversal was solely on the law.
People ex rel. Drake v. Andrews (Mem.)
538
See Greenebaum v. Fleischmann R. & C. Co. (Mem.), 516; Morning
Telegraph Co. v. City of New York (Mem.), 516; Bergstrom v. W.
R. Corp. (Mem.), 538; Dexter v. Jetter Brewing Co. (Mem.), 562;
Coffey v. Burke (Mem.), 563.
Unreasonable delay in argument.
When Court of Appeals will not review errors to which no exceptions
have been taken.
When error cannot be ignored by Court of Appeals.
Order of, should show when reversal is on the law.
What must be considered by, in reviewing action of state board of
tax commissioners.
See People ex rel. L. S. & M. S. Ry. Co. v. City of Buffalo (Mem), 518;
People ex rel. Waclark Realty Co. v. O'Donnel (Mem.), 521; People
ex rel. Cunningham v. Feitner (Mem), 567; People ex rel. C. Nat.
Bank v. Purdy (Mem.), 550; People ex rel. Fleischmann Mfg. Co.
v. Marenus (Mem.), 569.
Of franchise tax on corporations
valuation under net earnings rule.
See TAX, 7-13.
ASSOCIATIONS.
no prescribed rule of valuation -
Amendments to constitution or by-laws of mutual benefit associations,
which nullify or cut down benefits to which a beneficiary has become
entitled under his contract, are void and of no effect even where the
right to amend has been expressly reserved.
Mutual benefit associations cannot change constitutional provision that
beneficiary shall be assessed according to age when admitted, without his
See Matter of Shay (Mem.), 530; Matter of Randall (Mem.), 569.
BANKS.
When bank entitled to be subrogated to lien of city for assessments
paid by forged check - when not entitled to be subrogated to lien of city
for taxes paid by forged check.
See SUBROGATION, 2, 3.
May institute certiorari proceedings to review assessment of capital
stock-limitation of action— validity and effect of curative act.
Amendments to constitution or by laws, which nullify or cut down
benefits to which a beneficiary has become entitled under his contract, are
void and of no effect even where the right to amend has been expressly
reserved.
Cannot change constitutional provision that beneficiary shall be assessed
according to age when admitted, without his consent.
BILLS, NOTES AND CHECKS.
See Nat. Park Bank v. Sartti (Mem.), 548.
When bank entitled to be subrogated to lien of city for assessments paid
by forged check when not entitled to be subrogated to lien of city for
taxes paid by forged check.
Parties to action against surety upon bond given by agent receiving
money for transmission abroad.
See PRINCIPAL AND SURETY.
When information fails to allege facts constituting crime of.
1. Definition of terms "act of God" and "inevitable accident." Defi-
nitions of the terms "act of God" and "inevitable accident" collated
and discussed, with relation to the liability of common carriers of goods
and passengers.
Cormack v. N. Y., N. H. & H. R. R. Co.
2. Carrier not insurer as to time when passenger shall reach destination.
A common carrier is not an insurer as to the time when passengers
will reach their destination, in the absence of an express contract on
the subject. If a railroad company negligently fails to keep the time
it promises it will be liable in damages for injury thereby accruing to
a passenger. But to entitle the plaintiff to recover there must be proof
of negligence. Neither time table nor advertisement is a warranty of
punctuality.
Id.
3. When severe snow storm excuse for delay. A snow storm of such
severity as that it delays a train, although the railroad company made
strenuous efforts to clear the track, must be classed as an act of God, and
proof of its occurrence and effect constitute a complete defense to the
claim of a passenger for damages by reason of being delayed thereby. Id.
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4. Neglect of railroad company to mitigate conditions. Question of fact.
Where, however, a passenger was delayed by a snow storm and com-
plained of the dark, cold and uncomfortable condition of the car in
which he claims to have been compelled to spend the night, and the
failure of the railroad company to mitigate such condition, as to the
truth of which allegations there is a conflict of evidence, he is entitled
to go to the jury on that issue.
Id.
Claims for unpaid rent for each year a separate cause of action.
CHAMPERTY.
When deed not champertous.
See REAL PROPERTY, 1.
See People ex rel. Fogarty v. Cassidy (Mem.), 568; People ex rel. Collins
v. Ahern (Mem.), 572.
CODE OF CIVIL PROCEDURE.
1. § 432-Supplementary proceedings Corporations Improper service
of order in supplementary proceedings upon foreign corporation. It is not
sufficient service of an order in supplementary proceedings, by which a
foreign corporation is required to make discovery on oath concerning
its property, to deliver such order to a person designated by the cor-
poration as one upon whom a summons might be served in accordance
with the General Corporation Law and section 432 of the Code of Civil
Procedure, but such service must be made in accordance with section
2452 of the Code upon an officer of the corporation. Matter of Meyer v.
Consolidated Ice Co
471
CODE OF CIVIL PROCEDURE - Continued.
2. S$ 611, 623-Injunctions - Damages -- A counterclaim in an injunc-
tion suit cannot be included in the damages" recoverable by the enjoined
party under the bond given pursuant to the statute. The word "damages,"
in section 611 of the Code of Civil Procedure, does not include a recovery
upon an equitable counterclaim interposed in an injunction suit in which
the defendant is the actor and occupies the position of plaintiff, but relates
to damages which the enjoined party may be able to show that he has
sustained by reason of the injunction under section 623, which provides
for the ascertainment of such damages by the court or by a referee or by
a writ of inquiry. Brace Co. v. Kraft.
468
3. § 763-Entry of final judgment after death of party. An action of
divorce is of a personal nature which in the absence of statutory provi-
sion abates with the death of the party bringing it. Section 763 of the
Code of Civil Procedure, providing for the entry of final judgment on
the death of a party after the interlocutory judgment, applies ouly to
actions which do not abate by death Matter of Crandall.
4. § 1391-Execution against wages. Since an execution is a remedial
process the court may under section 1391 of the Code of Civil Procedure,
as amended in 1908, allow execution to issue against wages, although the
judgment upon which the execution is sought was rendered before the
enactment of such amendment. Laird v. Carton.
5. § 1781-Corporations― Liability of directors. It is a violation of duty,
under subdivision 2 of section 1781 of the Code of Civil Procedure, on the
part of the directors of a corporation to divest it of all its property with-
out affording a reasonable opportunity to its creditors to present and
enforce their claims before the transfer shall become effective, and such
action renders the directors liable for the amount of a claim established
against a corporation as having accrued before the transfer. Darcy v.
Brooklyn & N. Y. Ferry Co.
99
2452. See par. 1, this title.
CODE OF CRIMINAL PROCEDURE.
§ 293- Power of trial court to amend indictment to conform with the proof.
Under section 293 of the Code of Criminal Procedure the court may
amend an indictment to conform with the proof in respect to time, or
the name or description of any place, person or thing, if the defendant
cannot be thereby prejudiced in his defense on the merits; but it was
not the purpose of the legislature to authorize the court by amendment
to change the substantial elements and nature of the crime charged and
thus in effect substitute a new indictment in the place of the one found
by the grand jury. People v. Geyer.
364
Exclusive right of Congress to regulate foreign and interstate commerce.
See CONSTITUTIONAL LAW, 4.
When executors, also acting as trustees, are only entitled to one full com-
mission upon moneys collected and paid out.
See DECEDENT'S ESTATE, 5-7.
COMPTROLLER.
When comptroller's deed need not be acknowledged -
- when comptroller's certificate evidence of due service of notice to
redeem.
See REAL PROPERTY, 5, 8, 9.
CONDEMNATION PROCEEDINGS.
See Matter of City of New York (Mem.), 520; N. Y. C. & H. R. R. R.
Co. v. Untermyer (Mem.), 531.
CONDEMNATION PROCEEDINGS — Continued.
Buildings erected after institution of proceedings — what award, if any,
should be made for such buildings.
See EMINENT DOMAIN, 1, 2.
Payment of interest on land taken by city prior to completion of con-
demnation proceedings.
See NEW YORK (CITY OF), 1.
Condemnation of fee of street -
Exclusive right to regulate foreign and interstate commerce.
See CONSTITUTIONAL LAW, 4.
1. Validity of chapter 185, Laws of 1907, regulating the taking of deposits
for transmission to foreign countries. Chapter 185 of the Laws of 1907,
entitled An act to regulate the taking of deposits by certain persons,
firms and corporations," is constitutional in subjecting to regulation the
particular class of persons designated by the statute. The regulation of
the business of receiving deposits of money is plainly within the power
possessed by the state to regulate the conduct of various pursuits, when
necessary for the protection of the public. The statute does not improp-
erly discriminate against the class of persons engaged in selling steamship
tickets, who in conjunction with such business carry on the business of
receiving deposits of money for future transmission to foreign countries,
and in favor of others. Musco v. United Surety Co.
2. Waiver of constitutional benefits. An individual may waive even a
constitutional provision for his benefit when no question of public policy
or public morals is involved, and where a person, engaged in the business
of selling steamship tickets to foreign countries, and desiring to carry on,
in conjunction therewith, the business of receiving deposits of money for
the purpose of transmitting it to foreign countries, gave, pursuant to
chapter 185 of the Laws of 1907, a bond to the People of the state, with a
surety, for the faithful holding and transmission of all moneys deliv-
ered to him for that purpose, he thereby waived the right to question
the constitutionality of the statute, and his surety is estopped from raising
that question in an action, thereafter brought against it, upon the prin-
cipal's defalcation, by those who made deposits on the faith of the under-
taking.
3. When statutory provision for penalty does not constitute duress. The
fact that the statute provides that a person, who carries on the business
of receiving deposits of money for transmission to foreign countries,
without giving such bond shall be guilty of a misdemeanor, does not
constitute a duress which relieves the principal and surety who exe-
cuted the bond in question from the imputation of having voluntarily
waived the invalidity, if any, of the statute.
4. Exclusive right of Congress to regulate foreign and interstate commerce.
The statute is not unconstitutional as infringing on the exclusive right
of Congress to regulate foreign and interstate commerce. Although in a
limited degree affecting interstate commerce, it is not for that reason a
needless intrusion upon the Federal jurisdiction, or strictly a regulation
of interstate commerce, but is to be considered as an ordinary police
regulation and, therefore, not invalid.
Id.
Limit of indebtedness of New York city.
See NEW YORK (CITY OF), 2-14.
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