1897, chap. 378, § 587- Contract for lighting the town of Jamaica
is void where it is to be executed only after the consolidation of the town in the
Greater New York.
See HENDRICKSON v. CITY OF NEW YORK.....
1897, chap. 378, § 927- City marshals in New York city - their fees
on collecting a personal tax.
See MANHATTAN RAILWAY Co. v. MERGES ...
1897, chap. 420 — Partnership- an injunction to restrain the use of the
firm name and trade marks by a surviving partner.
See DE GRAUW . SCHMID
1897, chap. 444 - Contract for the lighting of a district outside the limits
of an incorporated village — an assignment of such contract without consent
avoids it.
See SUBURBAN EL. Co. v. TOWN OF HEMPSTEAD..
[See table of Session Laws cited, ante, in this volume.]
SET-OFF - Judgment in an action in which a set-off is used merely to defect a
claim.] 1. A defendant who, in the use of a set off or counterclaim inter-
posed by him, is necessarily confined to the defeat of the plaintiff's demand,
and is not permitted to obtain an affirmative judgment, is entitled to split
such set-off or counterclaim, and his recovery only extinguishes his set off
or counterclaim to the amount of the plaintiff's demand.
2. The judgment is not a bar to an action to recover the excess of the set-off
over the claim of the plaintiff in the first action.] Where, in an action brought
to recover moneys collected by the defendant, the latter interposes a counter-
claim exceeding the amount claimed by the plaintiff, a judgment rendered
in such action in favor of the defendant, which recites that the court had
"instructed the jury that if they found that the defendant was entitled to
the same amount as, or a greater amount than, that claimed by the plaintiff
in his complaint from the defendant, they must render a general verdict for
the defendant; and
that the defendant was not entitled to recover
in this action from the plaintiff a sum greater than the amount of the funds
in the defendant's hands on which he claims a lien," and that the jury had
rendered a general verdict for the defendant, is not a bar to the assertion of
such counterclaim in a subsequent action by the same plaintiff against the
same defendant. Id.
3. Action to recover for goods sold― allegation in the answer that the
plaintiff's conspired to exact excessive prices from the defendant.] In an action
brought to recover for certain shrubs and flowers sold to the defendant by the
plaintiffs' assignors, a firm of florists, an answer which alleges that the plain-
tiffs, a father and son, of whom one was a member of such firm of florists
and the other had charge of a department in the defendant's stere, entered
into a conspiracy by which supplies were purchased of the firm at prices
greatly in excess of their market value, states a counterclaim "connected with
the subject of the action" within the meaning of section 501 of the Code of
Civil Procedure and is not demurrable. SIEBRECHT v. SIEGEL-COOPER CO.. 549
4. -
Election to sue on contract.] The fact that the defendant, while alleg-
ing the conspiracy in its answer, confines its demand for judgment to the aggre-
gate amount of the overpayments shown to have been wrongfully taken, is,
in the absence of affirmative acts pointing in a contrary direction, conclusive
as to its election to waive the tort and to proceed upon the implied contract
of the plaintiffs to repay the moneys which they or their assignors had
received, without giving a valuable consideration therefor. Id.
When the accommodation maker of a note cannot insist that the note be
used as an offset to the principal maker's claim against the holder.
See DE CAUMONT v. RASINES.....
SHERIFF — What is not a conversion of book accounts.
See VOGEDES v. BEAKES..
SPECIFIC PERFORMANCE- 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.
STATUTE - Power to ordain "fixed penalties"
sum, not a sum less than one nor more than another sum, be prescribed.
See CITY OF POUGHKEEPSIE v. KING..
Foreign corporation— the statutes of New York are not applicable to its
mortgaging its property or issuing its stock.
STENOGRAPHER'S MINUTES - Where a motion to resettle a case is made
on a private stenographer's minutes the order must recite, although the court
rejects, them.
STIPULATION — Issue — joined by an answer returned because unverified,
and subsequently verified and re-served - when the cause can be put on the calen-
dar — stipulation as to the date of the issue.
See PRITCHARD v. NEDERLAND LIFE INS. Co. (No. 1).
SUBROGATION - 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.
receiving them from a partner who is afterwards obliged to pay them to his client
will not be ordered to repay them on a summary application.
See ATTORNEY AND CLIENT.
SUMMING UP- Of counsel on a trial.
Mortgages given by a life tenant and by remainder
men-surplus moneys, arising on a foreclosure thereof the mortgagors' rela-
tive interests therein.
SURROGATE — Power of, to decree a previous order and a payment there-
under to be erroneous.] A surrogate has no power to make an order decree-
ing that an order of appraisal made in a transfer tax proceeding, and which
has remained unreversed, was erroneous in certain respects, and that a pay-
ment in pursuance thereof, of the transfer tax so assessed, so far as it related
to certain securities, was made in error.
Quare, as to the power of the surrogate to modify the order of appraisal.
MATTER OF SCHERMERHORN ....
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 adminis-
tratrix will not sustain it.
— a surrogate may direct substituted service of a cita-
tion upon an administratrix.
See SCHARMANN v. SCHOELL..
Executor's accounting — payments made by an executor after his account
is filed the surrogate cannot decide between adverse claimants to a legacy -
renunciation by executors of a specific compensation under section 2730 of the
Code of Civil Procedure — laches.
See MATTER OF ARKENBURGH.......
Compulsory accounting by executors—not ordered on the application of
one whose claim to be a creditor is disputed by the executors — exercise of his dis-
cretion by the surrogate — silence is not an admission of a claim by executors.
See MATTER OF WHITEHEAD......
TAX-City marshals in New York city-their fees on collecting a personal
tax.] 1. Section 1710 of the Consolidation Act (Laws of 1882, chap. 410)
which states "fees shall be allowed to the said city marshals for services
rendered under the provision of this title as follows," and further provides
that marshals shall receive certain fees "for serving and levying an execu-
tion," applies only to executions issued out of the District Courts of the for-
mer city of New York, and not to warrants for the collection of personal
taxes issued by a receiver of taxes of that city, under section 853 of the same
This view is emphasized by a provision of section 854 of the same act, to
the effect that where the receiver of taxes shall proceed by distress and sale
of the goods and chattels of any person for the payment of any tax due and
payable, it shall be lawful for him to authorize and empower the officer
making such distress and sale to collect, in addition to the tax and interest
thereon, the costs of such distress and sale, it being evident that this provis-
ion would not have been inserted had it been intended to treat the warrant
as an execution and to permit the same fees upon its enforcement as are
allowed for serving and levying an execution it being also further pro-
vided by section 1710 that the fees therein allowed are all that the marshals
shall demand or charge, and that they shall perform all other services
required of them by law without any fee or compensation whatever.
Semble, that under section 927 of the charter of the present city of New
York (Laws of 1897, chap. 378) re-enacting and amending section 854 of the
Consolidation Act, the marshals are now entitled to charge as fees upon the
collection of a personal tax, five cents for every dollar collected, to the amount
of one hundred dollars, and two and one-half cents for every dollar collected
over one hundred dollars. MANHATTAN RAILWAY CO. v. MERGES.
2. Transfer tax on property transferred in contemplation of death —
what transfer is subject to such tax.] Property conveyed by certain instru-
ments, executed and delivered to a trust company at different times between
August 19, 1889, and February 3, 1892, providing that the party making such
transfer could, at any time prior to his death, withdraw from the possession
of the trust company any or all of the property transferred, and substi-
tute other property in its place, and that he could alter, amend or termi-
nate the trust in whole or in part, and that, in case of a termination, all the
property should be returned to him, a further provision being inserted in
some of the instruments to the effect that the income from the property, or
the greater portion of it, should, during the life of the party making the
transfer, if he so desired, be paid by the trust company to him, or to such
other persons as he might direct, is subject to the transfer tax authorized by
chapter 399 of the Laws of 1892, imposing a tax upon the transfer of any
property, real or personal, of the value of $500 or over, or of any interest
therein or income therefrom, in trust or otherwise, when the transfer is
effected by "deed, grant, bargain, sale or gift made in contemplation of the
death of the grantor, vendor or donor, or intended to take effect in possession
or enjoyment at or after such death." MATTER OF BOSTWICK....
Certiorari - within what time the writ must be applied for-review of
an assessment levied in Richmond county.
See PEOPLE EX REL. CRYSTAL WATER Co. v. Coler..
Surrogate - power of, to decree a previous order and a payment thereun-
See MATTER OF SCHERMERHORN.
Inheritance tax- — a legacy absolute in terms, impressed by extrinsic proof
See MATTER OF EDSON..
TAXATION - Of costs.
TENANCY - In common and joint tenancy in real property.
TENDER-Condition 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 - if such tender be once declined it does not prevent
the subsequent enforcement of the condition.
See STOKES v. STOKES...
TOWN Petition for the lighting of a district outside the limits of an incor-
porated village · - names may be withdrawn before a contract is awarded — if
reduced to less than twenty-five the contract is void - an assignment of such con-
tract without consent avoids it the inclusion in such lighting district of a part
of an incorporated village avoids it.
See SUBURBAN EL. Co. v. TOWN OF HEMPSTEAD.
Contract for lighting the town of Jamaica—it is void where it is to be
executed only after the consolidation of the town in the Greater New York —
notice of the filing of a petition.
See HENDRICKSON v. CITY OF NEW YORK.....
TOWN CLERK — The offices of justice of the peace and town clerk cannot be
held by the same person.
See PEOPLE EX REL. EARWICKER v. DILLON..
TRADE MARK Partnership-an injunction to restrain the use of the
firm name and trade marks by a surviving partner.
TRIAL- Verdict of "not proren," corrected by the court and entered "no"
affidavits of jurors as to their intent.] 1. In an action for divorce, in which
thirteen issues had been submitted to the jury under a charge that unless the
party, on whom rested the burden of proof of adultery, had proved it, the
answer to the questions should be "no," the jury rendered a verdict in which
twelve of the issues were answered "no," while the other was answered "not
proven." The court stated that it understood the jury to mean no by the
words "not proven," and said that if it misunderstood the jury the court
desired to be corrected; no response being made, it directed that the verdict
APP. DIV.-VOL. XXXVIII. 90
be entered accordingly; affidavits of each of the jurors were afterwards
submitted to the effect that the change in the wording of the verdict
expressed their true intent and verdict.
Held, that the trial court was justified in correcting the wording of the
verdict, especially so as this construction was put upon the words in the
presence of the jury and with their assent;
That the only effect of the affidavits was to fortify the trial court in its
conclusion, and that it was not error to receive them for the purpose of
determining the real intent of the jury. CRUIKSHANK 7. CRUIKSHANK...... 580
2.- - Examination of witnesses by the court, when improper.] Where, upon
the trial of an action to recover damages for personal injuries, the court
takes the examination of the plaintiff's witnesses out of his counsel's hands
and proceeds to bring out the plaintiff's case upon points which have not been
touched upon in the examination by the plaintiff's counsel, and not only asks
questions which are leading in form and which would have been incom-
petent in their nature had they been asked by the plaintiff's counsel, but
calls the attention of the plaintiff's witnesses to apparent contradictions in
their testimony and suggests corrections, and makes no effort to elucidate
the facts of the defendant's case, a judgment entered upon a verdict in
favor of the plaintiff will be reversed upon the ground that the peculiar con-
duct of the trial probably prejudiced the jury against the defendant, espe-
cially where it appears that when the defendant's counsel expostulated
against the conduct of the trial by the court he was placed in a position of
direct antagonism with the court. BOLTE . THIRD AVENUE R. R. Co..... 234
3. The preponderance of evidence which authorizes a nonsuit or the direc-
tion of a verdict.] Where the weight of evidence is so decidedly prepon-
derating in favor of one party that a verdict contrary to that preponder-
ance would be set aside on motion, a trial judge should nonsuit or direct a
verdict as the case may require. COHN . MAYER BREWING CO.....
4. Corroboration of an interested witness.] Where, in such a case, the
testimony of an interested witness is fully corroborated, the case may be
decided by the court without submitting the question as to the witness' credi-
bility to the jury. Id.
5. A reference by counsel, in summing up, to a verdict rendered in
another case, held to require a reversal.] In an action for libel, the plaintiff's
counsel in summing up to the jury stated, "To show how juries give ver-
dicts in libel suits, I have here a bound volume of Court of Appeals cases
from the library, and in the action entitled Le Huray Sisters the jury ren-
dered a verdict for the plaintiff for $10,000," and, upon the court ruling that
the statement was improper, further stated, And the Court of Appeals
affirmed this judgment."
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Upon the defendant's counsel taking an exception to the remarks, the
plaintiff's counsel said, "I withdraw my remark about that ten thousand
dollar verdict and ask you, gentlemen, not to consider it."
Held, that the conduct of the plaintiff's counsel in attempting to place
improper matter before the jury, was of such a persistent, continuous and
flagrant character as to warrant a reversal of a judgment in favor of the
plaintiff
That the charge of the court to the jury, that the matter referred to had
nothing to do with the case then on trial, and that they knew nothing about
it, and were not to give it any significance in arriving at their verdict, did
not cure the error. BAGULLY. MORNING JOURNAL ASSN.
Pleadings-admission in an answer that one installment of the purchase
price of goods sold was due on the day the action was brought· it does not
entitle the plaintiff to a judgment on the pleadings — when the right of action
See STURZ . FISHER....
Acceptance of a draft· - a statement by the bank discounting it, that if
certain goods were not delivered by the maker it would not be enforced, is admis-
sible to defeat it.
See TRADESMEN'S NATIONAL BANK v. CURTIS..
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