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DEBTOR AND CREDITOR

Continued.

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.

See BRUMME v. HEROD....

-

558

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.

See VIETOR v. LEWIS

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.

See VOGEDES v. BEAKES..

-

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.....


Corporation-preference given by, in contemplation of insolvency -
accounts assigned to replace other assigned accounts collected by the debtor.
See HILTON. ERNST..

DECREE:

266

· 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..

-

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..

street

Principal and surety — when a creditor must first resort to the property
of the principal debtor.

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.

PAGE

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See JUDGMENT.

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.

―――

*

*

84

*

316

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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.

-

See SMITH . TERRY..

APP. DIV.-VOL. XXXVIII.

380

75

94

66

* *

* *

*

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
to Manhattan
street; thence along said Manhattan street
* 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 . RILEY..

154

134

153

123

82

394

DEED Continued.

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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.

See O'ROURKE . HALL

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.

--

See SCRIPTURE T. MORRIS.

DEFECT - Of parties.
See PARTY.

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.

See HAMERSHLAG . DURYEA.

Restrictive covenants · -a restriction to "a family residence" does not
prevent the erection of an apartment house.

See SONN v. HEILBERG.
See REAL PROPERTY.

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DIRECTOR - Of a corporation.

See CORPORATION.

PAGE.

DISBURSEMENTS:
See COSTS.

Of debts.

See PAYMENT.

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DEFINITION -"Intermediate order" — what is an "intermediate order”.
reviewable on an appeal from a judgment.
See APPEAL.

DELAY:

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See LACHES.

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
judge's order.

137

See WIECHERS . NEW HOME SEWING MACHINE CO

―――

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.

534

377

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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

130

515

273

1

144

DISCREDITING-Witnesses.

See WITNESS.

DISCOVERY- Continued.

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..

137

DOCUMENTARY EVIDENCE:

See EVIDENCE.

DRAFT:

See BILLS AND NOTES.

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..

EDUCATION:

See SCHOOL.

PAGE.

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 . RILEY..

164

2. 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.

ELEVATOR- Liability for injury resulting from its use.

See NEGLIGENCE.

ELECTION 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...

60

EMINENT DOMAIN-Action against a railroad by an abutting moner 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

549

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 elerated 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 :

See MASTER AND SERVANT.

PAGE.

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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.....

-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.

See FINKEL v. KOHN..

426

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 lai -a delay to disaffirm for fourteen months, and until death, is not a
ratification of the deed.

See O'ROURKE 0. HALL

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.

See WEISER v. KLING..

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 v. KING......

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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.....

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Partnership- - an injunction to restrain the use of the firm name and
trade marks by a surviving partner.

See DE GRAUW v. SCHMID.....

16

Injunction not granted where the relief sought is contingent upon the
happening of a future event.

See VIETOR . LEWIS...

47

534

199

266

360

2

189

316

EQUITY - Continued.

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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....

ESTATE- In real property.

See REAL PROPERTY.

See WEISER v. KLING..

By judgment.

See JUDGMENT.

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
land.

-

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

PAGE.

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· - a party
liable for a deficiency is incompetent.

See SQUIRE v. GREENE.

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.

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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 . 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.

See DEERING . RILEY..

369

123

146

266

159

431

140

227

451

505

445

56

164

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