Contract to pay debts out of the proceeds of sale" of property conveyed to the promisor liability of the promisor thereunder - the fact that a creditor holds a mortgage to secure his claim is immaterial.
Injunction restraining a sheriff from paying over the proceeds of the sale of property on executions — not granted where the relief sought is contingent upon the happening of a future event.
A transfer is void as to creditors, though made in consideration of a bona fide debt, if made with intent to defraud — presumption where there is no change of possession.
Fraudulent conveyance—the grantee estopped to enforce against the prem- ises a mortgage paid by him, which he seeks to re-establish as a lien on the land. See WEISER v. KLING.............
- Attachment — statement_that_the defendant has absconded, followed by averments as to the persons by whom the affiant was so informed, when sufficient. See LACKER v. DREHER..
Corporation-preference given by, in contemplation of insolvency - accounts assigned to replace other assigned accounts collected by the debtor. See HILTON v. ERNST...
-Guaranty of a bond - not discharged because part of its consideration is represented by a credit instead of by cash.
See AMERICAN COPPER Co. v. LowTHER.
Principal and surety — when a creditor must first resort to the property
See DE CAUMONT v. RASINES.
Receiver in a creditor's suit — when his appointment is not justified. See NATIONAL UNION BANK v. RIGER...
· Assignment by debtor.
See ASSIGNMENT.
DEDICATION — Municipality-extent to which land may be taken for a - dedication of a court yard which excludes the right to build upon it. See MATTER OF CURRAN..
DEED - Description which does not convey to the middle of an abutting road.] A deed of conveyance, describing the property conveyed as "beginning on the northeasterly corner of Blackburry alley, on the southeasterly side of the Bloomingdale road, and running along said Blackburry alley * thence along the line of lot No. ninety-four street; thence along said Manhattan street
to Manhattan to the corner of Bloom- ingdale road and said Manhattan street; thence along the Bloomingdale road to the place of beginning, being lots numbers fifty-three, fifty-five, fifty seven and fifty nine on the southeasterly side of Blooming- dale road, as laid out and surveyed on a map of Manhattanville by Adolphus Loss, city surveyor," when read in connection with the map referred to, which shows the lots as situated when Bloomingdale road was used, does not convey the land outside the east side or line of Bloomingdale road or the title to the middle of the road. DEERING v. RILEY..
Husband and wife - conveyance of land by the husband to a trustee to apply the income to the support of the wife during her life, and convey the land to the husband's heirs at law should he predecease her it creates an irrevocable power in trust · effect of a reconciliation between the husband and wife — pos- session of the premises by one holding under a lease from the widow does not avoid a deed from the trustee to the heirs.
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 - a delay to disaffirm for fourteen months, and until death, is not a ratification of the deed.
Purchaser at a judicial sale· when the title to a lot bounded on a street which, by legislative act, is mored ten feet after its conveyance by the original owner, is not marketable — effect of the owner's having made conveyances of other lots referring to the street.
Adverse possession — when it does not begin to run under a warranty deed from one of two tenants in common — acts of user not inconsistent with the right of the other co-tenant.
DEFINITION —“Intermediate order” — what is an "intermediate order" reviewable on an appeal from a judgment.
DEPOSITION - Perjury — when a deposition states facts from which it may be inferred that the false testimony was willfully and knowingly given — false imprisonment.
See KRAUSKOPF . TALLMAN..
Examination of a defendant's officers. a plaintiff required to give a bill
of particulars of matter contained in the defendant's books. See CAMPBELL . BROCK'S COMMERCIAL AGENCY... Examination of a witness before trial -the order therefor must be a
See WIECHERS . NEW HOME SEWING MACHINE CO
DIRECTOR - Of a corporation.
See CORPORATION.
DISCHARGE - Of a servant-when incompetency for one, only, of two posi- tions to which the employee might be assigned, does not justify his discharge. See MASTER AND SERVANT.
DISCOVERY - Action to recover commissions on sales—what facts do not establish a right to examine the defendant's books.] In an action for the breach of a contract for the payment of commissions upon sales of merchandise made by the defendant, an order directing the defendant to deposit with the county clerk, for six days, its sales books, cash books and all other books of account, showing the sales made by it during a certain period of time, to enable the plaintiff with his attorney to examine and take copies of the entries of such sales in said books, should not be granted where the moving affidavits show that the plaintiff already has all the information necessary to frame his complaint, and that the only pretext upon which further informa- tion could be required, is to enable him to state the amount of damages claimed. TAYLER . AMERICAN RIBBON CO
Examination of a defendant's officers - a plaintiff required to give a bill of particulars of matter contained in the defendant's books. See CAMPBELL v. BROCK'S COMMERCIAL AGENCY..
DOMICILE-Proof of the plaintiff's residence in the State of New York in an action against a foreign corporation for an injury outside of the State. See BUMP. NEW YORK, NEW HAVEN & H. R. R. Co..
EJECTMENT — Maintainable by one of several joint tenants or tenants in common.] 1. Neither section 118 of the Code of Procedure, nor section 1500 of the Code of Civil Procedure, requires that joint tenants or tenants in common must unite in an action of ejectment.
Section 1500, in its strictest construction, which imports only that where two or more persons are joint tenants or tenants in common, an action of ejectment to recover an undivided share cannot be supported unless the action might be maintained by all owning the shares, is fully satisfied when in a given case the proof shows that the plaintiff is entitled to possession as a joint tenant or tenant in common, and that those in whom the title to the other undivided interests rests may, prima facie, maintain an action to recover possession of those interests. It is not necessary for the plaintiff to make proof of the names of the individuals who own the other interests or to try their title. DEERING v. RILEY..
Proof of seizin or the right of possession, rather than actual posses- sion within twenty years, is sufficient.] Section 365 of the Code of Civil Pro- cedure, providing that "an action to recover real property, or the possession thereof. cannot be maintained by a party other than the people, unless the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the commencement of the action," must be read in connection with section 368, declaring that a "per- son who establishes a legal title to the premises is presumed to have been in possession thereof within the time required by law, and the occupation of the premises by another person is deemed to have been under and in subordi- nation to the legal title, unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action."
Where there is no defense interposed of adverse possession, or possession with claim of title adverse to that set up by the plaintiff, section 368 of the Code of Civil Procedure is to be construed as requiring seizin or the right of possession, rather than actual possession under section 365 within twenty years before the commencement of the action. Id.
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.......
ELEVATOR- Liability for injury resulting from its use.
EMINENT DOMAIN-Action against a railroad by an abutting owner who, pending the suit, has parted with the title - issues sent from the Special Term to the Trial Term-entry of judgment on the verdict - period of assessment of damages.] 1. During the pendency of an action by an abutting owner against elevated railroad companies, the plaintiff parted with his interest in
EMINENT DOMAIN- Continued.
the property, and an order was thereupon made, upon the motion of the defendants, transferring the case from the Special Term calendar to the Trial Term calendar, and directing a jury trial of the claim for past or rental dam- ages alleged in the complaint to have been suffered by the plaintiff during his ownership of the premises; the trial judge followed the direction of the order, and judgment was entered upon the verdict of the jury as of course as in an action at law.
Held, upon an appeal from the judgment, that, assuming that the action was still to be regarded as an equitable action, and that it was improper to enter judgment upon the verdict as of course, instead of applying to the Special Term, the defect was an irregularity for which the defendants might have moved to set the judgment aside, but which was waived by their fail- ure to do so;
That the trial court was bound to try the issue sent to it by the order, that is, to have the jury fix and assess the damages from the commencement of the action down to the time when the plaintiff parted with the title to the prop- erty. CAMERON . N. Y. ELEVATED R. R. Co.....
2. Damages to an abutting owner from an elevated railroad — when a devisee and residuary legatee of such owner is not entitled to damages accruing before the latter's death.] A devisee of property abutting upon an elevated railroad is not entitled, in his capacity as such, to recover rental damages accruing during the lifetime of his testatrix, as, upon the latter's death, the right of action for such damages passed to her executor.
The fact that the devisee is the executor of his testatrix and the residuary legatee under her will, does not alter the situation, as the right to recover such damages will not vest in the devisee personally until after he has accounted for his administration and been discharged from his trust.
GUCKER V. METROPOLITAN ELEVATED R. Co..
EMPLOYER AND EMPLOYEE :
EQUITY Contract authorizing the printing from the vendor's plates of books to be sold at a specified price — sale of plates to another party by a receiver of the vendor — the purchaser restrained from selling a better edition at a less price contract in restraint of trade - monopoly.
See MURPHY v. CHRISTIAN PRESS ASSN. PUB. Co....
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 laio a delay to disaffirm for fourteen months, and until death, is not a ratification of the deed. See O'ROURKE . HALL
Written contract to convey property which may be bought in at a fore- closure sale — construction thereof in disregard of the exact terms of the agreement ·when equity will not specifically enforce it.
Fraudulent conveyance—the grantee estopped to enforce against the premises a mortgage paid by him, which he seeks to re-establish as a lien on the land.
Action to foreclose a mechanic's lien and to set aside as fraudulent a con- veyance of the premises — an intermediate grantee is not a necessary party. See BIERSCHENK . KING.....
Defect of parties in a creditor's suit -the death of the judgment debtor does not prevent the hearing of a demurrer alleging it.
See FIRST NATIONAL BANK v. WRIGHT....
Partnership - an injunction to restrain the use of the firm name and trade marks by a surviving partner.
See DE GRAUW v. SCHMID...
Injunction not granted where the relief sought is contingent upon the
happening of a future event.
Plea of the pendency of an action at law in an equity suit.
See CONSOLIDATED FRUIT JAR Co. v. WISNER..
Receiver in a creditor's suit — when his appointment is not justified. See NATIONAL UNION BANK v. RIGER...
ESTOPPEL-Guaranty of an indebtedness for goods to be sold — when given to a firm it does not survive its dissolution-officers of the corporation which gave the guaranty cannot extend it by parol. See FRIEDLANDER v. N. Y. PLATE GLASS INS. Co...... Fraudulent conveyance · the grantee estopped to enforce against the premises a mortgage paid by him, which he seeks to re-establish as a lien on the
See WEISER v. KLING.. By judgment.
See JUDGMENT.
EVIDENCE — 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 an answer not denying an allegation of the complaint that the defendant was a director.
See BANK OF THE METROPOLIS v. Faber
Personal transactions with a decedent — when a predecessor in title may testify to them · - an assignee of a mortgage may not testify that her deceased assignor, owning three mortgages, stated that hers was a prior lien liable for a deficiency is incompetent.
Personal transactions with a decedent - they cannot be proved inferen- tially 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.
A mortgage taken with intent to defraud creditors — the mortgagee is not a bona fide purchaser as to a vendor of the mortgaged property from whom the mortgagor purchased with intent not to pay for it - burden of proof of bona fides.
See MOYER v. BLOOMINGDALE....
Partnership accounting the right thereto is not lost because all the books of account cannot be produced · consent to an unequal division of profits not presumed — admissibility of a schedule prepared by an expert accountant from the books.
See VAN NAME v. VAN NAME.
Evidence that a trustee has paid over to the cestuis que trustent the amount of the income of the estate is sufficient to authorize the court to find that the deficit is in the corpus of the estate and not in the income. See ANDERSON v. DALEY...
Conversion the refusal of a bank to pay a check given by an agent for moneys collected for his principal - it does not establish a conversion-admis- sions testified to as made by the agent may be explained by him.
See NATIONAL LIFE ASSOCIATION . THOMPSON..
Contract-proof competent under a denial of its performance— negotia- tions and conversations competent in determining its construction — proof as to the importance of a certificate of the board of fire underwriters.
See N. Y. & N. H. SPRINKLER Co. v. ANDREWS..
Ejectment — maintainable by one of several joint tenants or tenants in common — proof of seizin or the right of possession, rather than actual possession within twenty years, is sufficient.
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