PAGE.

CERTIORARI- Within what time the writ must be applied for — review of
an assessment levied in Richmond county.] 1. Chapter 286 of the Laws of 1896,
which is a special act relating to assessments for taxation in the county of
Richmond, is to be read in connection with chapter 269 of the Laws of 1880,
the General Tax Law, in existence at the time of its passage, in contempla-
tion of whose provisions it was passed.

Under the former statute, the fifteen days within which a person seeking to
review an assessment levied in that county in 1897 must apply for a writ of
certiorari, is to be computed from the time that the roll is filed in the office
of the board of county assessors, and notice of that fact is posted; and it is
not necessary that such roll should be filed in the office of the town or city
clerk, as prescribed in section 38 of the General Tax Law (Laws of 1896,
chap. 908), in order to limit, under section 251 of that act, the time within
which application for the writ of certiorari must be made.

The rule of procedure prescribed by chapter 269 of the Laws of 1880 is, in
so far as it is adopted by chapter 286 of the Laws of 1896, continued in force
by the latter act, notwithstanding the fact that the act of 1880 was repealed by
chapter 908 of the Laws of 1896.

PEOPLE EX REL. CRYSTAL WATER Co. v. COLER...

2. School teacher removal of, in New York city - it cannot be recieved
by certiorari.] A teacher in a public school in the city of New York who,
after a hearing, has been removed by the board of school superintendents under
section 26 of chapter 387 of the Laws of 1896, with the approval, subsequently
given, of the school inspectors of the district, and whose appeal, taken from
such decision to the board of education and referred by it on January 31,
1898, to the school board for the boroughs of Manhattan and the Bronx, which
came into existence on February 1, 1898, under the provisions of the new
charter of the city of New York, has been dismissed by the latter body, can-
not, by certiorari, review the action of the board of school superintendents or
of the inspectors of the district or of the board of education or of the school
board for the boroughs of Manhattan and the Bronx.

PEOPLE EX REL. EVERITT v. HUBBELL..

604

194

CIVIL SERVICE New York city civil service· a veteran employed in
Brooklyn at the time of the consolidation is not entitled to the same salary when
transferred to a position in the consolidated city.] Under section 127 of the
Greater New York charter (Laws of 1897, chap. 378), providing that veterans
in the employ of the municipalities consolidated "shall be retained in like
positions and under the same conditions by the corporation constituted by
this act, to serve under such titles and in such way as the head of the
appropriate department or the mayor may direct," a veteran who, at the time
the consolidation was effected, was employed by the city of Brooklyn as a

CIVIL SERVICE-Continued.

PAGE.

street inspector, at a salary of $1,200 per annum, and who was assigned, in
good faith, to the position of section foreman in the consolidated municipal-
ity (which was the position most closely approximating in character that
of the position which he formerly held), the salary attached to which posi-
tion is, by section 536 of the Greater New York charter, fixed at $1,000, is
not entitled to receive compensation at the rate of $1,200 per annum- - espe-
cially as, under the charter of the city of Brooklyn, the head of the depart-
ment in that city, in which the veteran was employed, might have increased
or diminished his compensation. PEOPLE EX REL. SCHUMANN v. COLER.... 615
CLAIM Against a decedent's estate.

See EXECUTOR AND ADMINISTRATOR.

CODE OF CIVIL PROCEDURE - §§ 365, 368 — Ejectment — maintainable
by one of several joint tenants or tenants in common proof of seizin or the right
of possession, rather than actual poseession within twenty years, is sufficient.
See DEERING v. RILEY..

-

§ 451 Irregularity in continuing an action under a fictitious name,
with knowledge of a defendant's true name how taken advantage of.
See PEOPLE EX REL. MAIBACH v. DUNN..

452-Action by one of several heirs at law of deceased grantors to set
aside a deed executed by them to their father during minority- non-joinder of
the other heirs at law.

See O'ROURKE v. HALL..

§ 473-

-

-

Power to appoint a guardian ad litem practice in a special
proceeding — an appointment of a guardian nominated by the adverse party will
be vacated.

See MATTER OF CUTTING. (No. 1)......

§ 501-Counterclaim — action to recover for goods sold - allegation in
the answer that the plaintiff's conspired to exact excessive prices from the defend-
ant - election to sue on contract.

-

See SIEBRECHT v. SIEGEL-COOPER Co....

§ 713, subd. 1- Receiver in a creditor's suit. - when his appointment is

not justified.

See NATIONAL UNION BANK v. RIGER..

-

-

829- Personal transactions with a decedent - they cannot be proved
inferentially by facts stated by a party incompetent, under section 829 of the
Code of Civil Procedure, to testify directly in regard to such transactions.
See MOSES v. HATCH..

-

Examination of a witness before trial ·

-

$ 873
- the order therefor must
be a judge's order.
See WIECHERS v. NEW HOME SEWING MACHINE CO.....

§ 933-Liability of a director of a corporation which filed a defective
annual report - what is insufficient documentary proof that the defendant was
a director- — a certified copy of the certificate of incorporation and annual reports
as evidence thereof.

See BANK OF THE METROPOLIS v. FABER.

§ 1274 Confession of judgment—when it states " 'concisely the facts
out of which the debt arose" — a misstatement as to the amount due constitutes
perjury the facts are sufficiently stated if they would constitute a good
complaint.

See MATHER v. MATHER..
S 1316- Appeal · what is an

164

112

534

247

549

123

140

1

159

32

appeal from a judgment.

See RAFF . KOSTER, BIAL & Co...

336

§ 1500- Ejectment — maintainable by one of several joint tenants or ten-
ants in common -proof of seizin or the right of possession, rather than actual
possession within twenty years, is sufficient.

See DEERING . RILEY..

164

CODE OF CIVIL PROCEDURE - Continued.

§ 1877-Receiver in a creditor's suit — when his appointment is not
justified.
See NATIONAL UNION BANK v. RIGER....

§ 2521-Action to charge a surety upon the bond of an administratrix
- when a judgment in an action at law based upon a substituted service upon
the administratrix will not sustain it - -a surrogate may direct substituted sero-
ice of a citation upon an administratrix.
See SCHARMANN v. SCHOELL.

$2726
- Compulsory accounting by executors — not ordered on the appli-
cation of one whose claim to be a creditor is disputed by the executors—exercise
of his discretion by the surrogate.

See MATTER OF WHITEHEAD.....

2730--Renunciation by executors of a specific compensation under sec-

tion 2730 of the Code of Civil Procedure- laches.

See MATTER OF ARKENBURGH.

[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]

COLLATERAL- To secure an indebtedness.

See DEBTOR AND CREDITOR.

COLLATERAL INHERITANCE TAX:

See TAX.

COMMISSION - Of executors and administrators.
See EXECUTOR AND ADMINISTRATOR.

Of a real estate broker.

See PRINCIPAL AND AGENT.

COMPENSATION - Of city marshals in New York city on collecting a per-
sonal tax.

See MUNICIPAL CORPORATION.

COMPLAINT:

See PLEADING.

CONDEMNATION PROCEEDINGS:
See EMINENT DOMAIN.

CONDITION - In insurance policies.
See INSURANCE.

PAGE.

123

528

319

473

- Requiring the payment of costs and the giving of a bond, imposed by an order
granting a new trial. — a tender of the costs and bond does not discharge the condition.
See NEW TRIAL.

CONFESSION Of judgment.

See JUDGMENT.

---

CONFLICT OF LAWS — Foreign corporation — the statutes of New York
are not applicable to its mortgaging its property or issuing its stock.
See ERNST v. RUTHERFORD & B. S. GAS Co....

CONSIDERATION - Of contracts.

See CONTRACT.

CONSTITUTIONAL LAW-Municipal Court of New York city-chapter
378 of 1897 creating it is constitutional.] 1. The statute creating the Municipal
Court of the city of New York (Laws of 1897, chap. 378) is not uncon-
stitutional because it extends the jurisdiction of that court over more than
one county, as it was not the intention of the framers of the Constitution
of 1894, in enacting section 18 of article 6 thereof, providing that "The
legislature shall not hereafter confer upon any inferior or local court of its
creation any equity jurisdiction, or any greater jurisdiction in other respects
than is conferred upon county courts by or under this article,” to restrict, by

388

CONSTITUTIONAL LAW- Continued.

the reference to the County Court, the territorial jurisdiction of such inferior
or local courts as the Legislature should establish, but rather to restrict their
jurisdiction as to subject-matter and persons.

2.

IRWIN . METROPOLITAN STREET R. Co......

PAGE.

253

City of Yonkers — removal of an action from a Justice's Court to a
City Court-it is a change of forum, not of renue, and is not prohibited by sec-
tion 18 of article 3 of the Constitution.] The removal of an action, com-
menced in the Justice's Court of the city of Yonkers, to the City Court
of that city, pursuant to chapter 186 of the Laws of 1878, entitled "An act
in relation to the city court of Yonkers," as amended by chapter 416 of the
Laws of 1893, constitutes a change of forum and not a change of venue
within the provision of section 18 of article 3 of the Constitution of the
State of New York, forbidding the Legislature to pass a local bill "provid-
ing for changes of venue in civil or criminal cases." DORAN v. BUSSARD.. 30
CONSTRUCTION— Of constitutional provisions.

-

See CONSTITUTIONAL LAW.

Of contracts.

See CONTRACT.

Of deeds.

See DEED.

Of statutes.

See REVISED STATUTES.

See SESSION LAWS.

See STATUTE.

Of wills.

See WILL.

* *

*

-

CONTRACT — Building contract — construction of an agreement abrogating
it and providing that materials furnished be paid for arbitration · -effect of
an agreement to submit “all questions relative to this contract" to an architect
- award ineffective, because indefinite.] 1. After a building contract had been
partly executed, the parties thereto entered into an agreement which pro-
videl that the contract should be annulled, and that "for any labor and mate-
rials furnished by the second party (the builder) and used in construction under
said first-mentioned contract and answering its requirements, and for any
material furnished by the second party for construction under said first-
mentioned contract and answering its requirements, and now on the ground
adjacent to said construction,
the first party (the owner) is to be
debited with a proportionate part of the contract price fixed or provided
for in said first-mentioned contract, but the second party is to dispose
of any and all such unused materials to the best advantage, but only on terms
to be approved by Henry Ives Cobb, architect, and the first party is to be
credited with the proceeds of the sale thereof," and further provided that
"all matters between the parties, pertaining to or growing out of the con-
tracts aforesaid, shall be settled and adjusted between them on the basis
herein before set forth." The agreement also provided, "It is further mutu.
ally agreed that all questions relative to this contract shall be referred to
Henry Ives Cobb, architect, whose decision shall be binding upon both
parties."

Held, that the provision of the agreement, that "all matters between the
parties, pertaining to or growing out of the contracts aforesaid, shall be
settled and adjusted between them on the basis herein before set forth," indi-
cated an understanding that the contractors were to be paid such proportion
of the original contract price as the labor performed and the materials
furnished which answered the requirements of the contract bore to the whole
amount;

That the provision that all questions arising under the contract should be
referred to the architect, related only to disputes which might arise between
the parties as to the amount of work performed or of material furnished, and
the relations which these bore to the original contract price, and did not
constitute him a general arbitrator or invest him with power to determine the
amount due to the contractors under the contract;

CONTRACT-Continued.

That, even conceding the authority of the architect to determine that
question, an award made by him, which was wholly inconclusive and did not
finally determine the questions which he assumed to decide, was not conclu-
sive upon the contractors or upon those claiming under them, especially
where it did not appear that any questions ever arose between the parties or
were submitted to the architect, or that either of the parties was ever noti-
fied to appear before him, or that the contractors ever recognized or acqui-
esced in the so-called award. HICKS v. MAGOUN....

2. Written contract to convey property which may be bought in at a
foreclosure sale construction thereof in disregard of the exact terms of the
agreement when equity will not specifically enforce it.] After a judgment of
foreclosure and sale had been entered in an action brought by a bank to
foreclose a second mortgage, one Kohn, the vice-president thereof, having
no interest in the mortgage except as an officer of the bank, on the day before
the foreclosure sale entered into an agreement with one Finkel, under the
terms of which the premises were to be purchased at such sale by Kohn, at
a price not to exceed a certain sum over the amount secured by the first
mortgage and interest, and were to be held by him for a specified time, at
the expiration of which, or at any prior time, the said Finkel was to have the
privilege of redeeming the premises by paying to Kohn whatever sum he
might have paid on or for such property, with interest thereon up to the date
of such redemption, "it being understood that said Arnold Kohn is to be
paid sufficient, so that no loss whatever will enure to him or his assigns by
reason of such purchase, this to include all charges he may have paid for
legal services rendered, or to be rendered, interest on first mortgage, costs of
action now pending to foreclose the same, and any charge for extension of
said mortgage.'

Held, that, although the mortgaged premises were purchased by Kohn at
the sale for less than the amount due upon the second mortgage, Kohn
should not be compelled, except upon the payment of the whole amount
due to the bank upon such second mortgage, including the expenses of fore-
closure, to convey them to Finkel, it being evident from the circumstances
surrounding the transaction that the agreement was intended to enable the
mortgagor to again become the owner of the mortgaged premises upon pay-
ing the amount which they had cost Kohn or the bank, and that Kohn was
acting therein simply as an officer of the bank and to protect its interests, and
that, so far as the agreement provided otherwise, it did not correctly express
the understanding between the parties;

That, as to require a specific performance of the contract, by compelling
a conveyance of the property by Kohn for the amount for which it was pur-
chased by him, would violate the real object which was in the contemplation
of the parties, and would produce a result not contemplated by any of them
at the time of the execution of the agreement, the court, in the exercise of its
judicial discretion, might properly refuse specifically to enforce it, leaving
Finkel to his remedy at law to recover any damage which he sustained if any
valid contract with him had been broken by Kohn or the bank.

FINKEL v. KOHN

-

3. Contract of employment — when incompetency for one only of two_posi-
tions to which the employee might be assigned does not justify his discharge.] In
an action to recover damages for a breach of a contract of employment in the
following terms: "We, Doherty & Wadsworth, agree to engage Mr. A.
R. Runyon (the plaintiff) to take charge of the sales department of our
business from April 1st, 1895, and ending Jany. 1st, 1897, at a guaranteed
salary of $5,000 (Five Thousand Dollars) per year, and a commission of
of 1% on all net sales, with this proviso: That if, at the end of March, 1896,
we want Mr. Runyon to take a position as salesman for the balance of the
year, he is willing to do so," one of the defendants testified that they under-
stood the proviso to mean that Runyon would, if requested, at the end of
March, 1896, take the subordinate position of salesman upon the same terms
as to salary and compensation. The plaintiff was discharged on January 1,
1896, for the assigned reason that he was incompetent to manage the defend-

ants' business.

Held, that it was not error to refuse to charge the jury that if, at the end
of the first year, the 31st of December, 1895, the plaintiff was incompetent

PAGE.

573

199