current consist of merchandise and money advanced, does not state how
much merchandise, what its value was or how such value was arrived at, or
upon what basis the plaintiff claims a recovery, fails to state facts sufficient
to constitute a cause of action, and, therefore, is not sufficient to sustain an
attachment. WESSELS. BOETTCHER.
306
Non-resident defendant — “residence" distinguished from “domi-
cile."] A defendant is not a resident of the State," within the meaning of
that term, as used in section 636 of the Code of Civil Procedure, as a ground
for obtaining an attachment, when his residence, i. e., the abode or place
where he actually lives, is not in the State of New York, although his
legal domicile may be within this State. HANOVER NAT. BANK 7. STEBBINS. 308
Agreement to work a farm for one year — ownership of an unharvested
crop-attachment — plaintiff liable for conversion.
ATTORNEY AND CLIENT-Contingent fee - settlement of the suit by
the client-prosecution of the suit by the attorney for his own benefit.] The
provisions of section 66 of the Code of Civil Procedure, which make an
attorney's compensation a matter of agreement, and give him a lien there-
for upon his client's cause of action which cannot be affected by any settle-
ment between the parties, do not prevent a party, who has given his attorney
a right to a specific share in any amount that may be recovered by judg-
ment or settlement, from settling the action, in good faith, without the
attorney's consent, and after notice of his lien to the opposite party.
Where, however, the client is not responsible, and the payment of the
whole amount of the settlement to him might result in prejudice to the
attorney, it is the duty of the court to permit the attorney to proceed with
the action for his own benefit, unless his share of the amount of the settle-
ment is paid to him within a specified time. HART. MAYOR, ETC......
Action on a claim against a municipality — services rendered as counsel,
at the request of the president and the attorney of a village — statutory prohibi-
tion against contracting debts without authorization.
See MARK . VILLAGE OF WEST TROY..
-Drainage commissioners — attorney for the petitioners acting as attorney
BAILMENT - Rights of a pledgee, as against a depositary of the pledge, not
affected by a change in the terms of the pledge.
See MERCANTILE TRUST Co. v. ATLANTIC TRUST Co..
BANKING - Dismissal of a complaint — what objections are available at
General Term-failure of a bank to pay a depositor's check or note.] 1. An
objection to the sufficiency of a complaint, not raised in the trial court, and
which might have been avoided by amendment if taken there, and which
was not stated as a ground for the dismissal of the complaint, is not available
at General Term on the hearing of exceptions ordered to be heard there in
the first instance on the dismissal of the complaint.
But in such a case, an objection to the complaint which shows that the
action cannot be maintained at all is available at General Term, although not
raised below. BROOKE v. TRADESMEN'S NAT. BANK..........
2.- Measure of damages.] The measure of damages for the unauthor-
ized refusal of a bank to pay the note of a depositor who has funds on deposit
sufficient for the purpose, is the amount of the actual loss sustained by the
depositor, naturally resulting from the breach of contract arising from the
relation of debtor and creditor existing between a bank and its depositor,
according to the usual course of things, namely, the amount of the debt,
with interest and costs.
The complaint, in an action brought by the receiver of a judgment debtor
against a bank, alleged that the bank wrongfully neglected to pay a note
for $517.51, drawn by the debtor and made payable at the bank, where he
had funds on deposit to the amount of $611.08; and that by reason thereof,
certain creditors of the debtor entered judgment against him for $8,000,
and issued execution, by means of which his business, valued at $50,000,
was ruined, for which amount judgment was demanded.
Held, that the damages claimed were not those which naturally arose from
the breach of contract between a debtor and creditor, and, hence, that the
action was not maintainable, and that a dismissal of the complaint should be
upheld. Id.
Savings bank account in trust for another - the trust not affected
by subsequent acts or declarations of the depositor.] The inference of the crea-
tion and declaration of an irrevocable trust arising (in the absence of any
evidence of contemporaneous facts or circumstances indicating a contrary
intent) from the deposit of money and the opening of an account in a savings
bank by the depositor "for" another, accompanied by the issuance of a
bank book to the depositor "in trust" for such other person, cannot be
refuted by evidence of subsequent acts or declarations of the depositor, not
connected with the deposit so as to constitute res gesta.
Interpleader of rival claimants to a savings bank deposit - Code of Civil
Procedure, 820-insufficient affidavit,
See MARS v. ALBANY SAVINGS BANK..
BANKRUPTCY - Corporation mortgage--bonds held as collateral security
right of redemption -judgment of foreclosure - insolvency of the corpora-
tion-proof as to the actual indebtedness to each bondholder.
See COCHRAN v. ANGLO-AMERICAN Co.......
Transfers of property by a foreign corporation in contemplation of
BILLS AND NOTES-Assignment of a fund by an order drawn against it
- liability of the drawee - his right to a lien upon security held by him, is inde-
pendent of the time of payment of the order.
Dismissal of a complaint what objections are available at General
Term-failure of a bank to pay a depositor's check or note· - measure of
damages.
See BROOKE v. TRADESMEN'S NAT. BANK.....
79
BILLS AND NOTES- Continued.
Statute of Limitations - Code of Civil Procedure, § 395- the debtor's
check as an acknowledgment in writing.
See HEATON v. LEONARD.
BOARDS - Of county officers.
BOND-Replerin in Justice's Court return of the chattel to the defendant
before the return day — undertaking — justification of sureties.
Executed by a married woman for a debt of her husband pleas of
invalidity of the bond and of payment-counterclaim not affected thereby.
See SKINNER. WHITE...
Railroad income bonds are subject to the statutory right of railroad
See HART v. OGDENSBURG & L. C. R. R. Co......
Injunction undertaking — effect of bringing in new defendants.
See BERGMANN v. SALMON.
BOOKS AND PAPERS - Inspection of.
CARRIER - Railroad passenger's baggage checked to an intermediate station,
to await the return of the passenger — liability of the company as a common
carrier
See BURGEVIN v. N. Y. C. & H. R. R. R. Co....
By land.
See RAILROAD.
By water.
CERTIORARI - Boards of supervisors — decision as to a contested seat,
after an adjudication by the courts - when reviewable by certiorari.
See PEOPLE EX REL. BRADLEY v. SUPERVISORS..
To review proceedings generally.
To review an erroneous assessment for the purpose of taxation.
See TAX.
CITY COURT OF ALBANY - Personal tax — different residences — princi-
pal place of business — jurisdiction of the City Court of Albany.
See BowE v. JENKINS.
Decision of a judge of, on questions of fact.
See BOOм v. READ...
CITY STREETS:
See MUNICIPAL CORPORATIONS.
CIVIL DAMAGE ACT — Liability under.
See INTOXICATING LIQUORS.
CLAIM AND DELIVERY — Of chattels,
[See table of sections of the Code of Procedure cited, ante, in this volume.]
CODE OF CIVIL PROCEDURE § 395- Statute of Limitations—the
debtor's check as an acknowledgment in writing.
§ 436-Substituted service of a summons · residence of the defendant.
§ 449-Life insurance for the benefit of a wife- the wife is not a
necessary party to an action to obtain a paid-up policy and an accounting as to
accumulations.
See KERR v. UNION MUT. LIFE INS. Co......
§ 522 — Claim of title to real property arising on the pleadings — costs.
See FARRELL v. HILL.
Replerin in Justice's Court-return of the chattel to the defend-
ant before the return day — undertaking — justification of sureties.
See CLARK v. HOOPER
§803- Discovery of books and papers-exercise of discretion by the
See HART v. OGDENSBURG & L. C. R. R. Co......
CODE OF CIVIL PROCEDURE Continued.
§ 812-Replevin in Justice's Court· -return of the chattel to the defend-
ant before the return day — undertaking — justification of sureties.
See CLARK v. HOOPER.
§ 820- Interpleader of rival claimants to a savings bank deposit —
insufficient affidavit.
See MARS . ALBANY SAVINGS BANK..
- Case on appeal must be settled and signed, and ordered filed —
effect of an omission what brought up for review.
See WOODHULL v. MAYOR, ETC..
§ 1310-As amended January 24, 1893—a perfected appeal from a
judgment for rent is a stay upon pre-existing summary proceedings.
See PEOPLE EX REL. DURANT LAND Co. v. JEROLOMAN.
§ 1356
- Condemnation of real property under chapter 23, title 1, of the
Code of Civil Procedure-appeal from an intermediate order - defective notice
of the presentation of the petition.
See MATTER OF BROADWAY AND SEVENTH AVE. R. R. Co....... 275
§ 1630-Existence of a judgment for the mortgage debt as a bar to an
action of foreclosure — judgment by confession.
See GUILFORD v. CRANDALL.
Stockholder's liability under section 18 of chapter 40 of 1848 -
action against the corporation excused by a judgment of sequestration, enjoining
it-the judgment of sequestration is not open to collateral attack.
§ 2232- Landlord and tenant. agreement by a quarry-worker to pay
the landowner a specified part of the proceeds of the stone produced-summary
proceedings for dispossession - thirty days' notice.
2576- Review of facts found by a surrogate -
-case containing the evi-
SS 2750, 2798-Payment of a decedent's debts out of foreclosure surplus
money -the three years' limitation upon sales of a decedent's real estate for pay-
ment of debts.
§ 2925 Replerin in Justice's Court return of the chattel to the
defendant before the return day — undertaking-justification of sureties.
See CLARK . HOOPER..
$2951-Action for rent, in a Justice's Court — allegation of ownership
by the defendant question of title.
§ 3228, subd. 1 — Claim of title to real property arising on the plead-
ings-costs.
See FARRELL v. HILL.....
§ 3334-Condemnation of real property under chapter 23, title 1, of the
Code of Civil Procedure-appeal from an intermediate order — defective notice
of the presentation of the petition.
See MATTER OF BROADWAY AND SEVENTH AVE. R. R. Co.......
§ 3361 - Condemnation of real property under chapter 23, title 1, of the
Code of Civil Procedure — appeal from an intermediate order — defective notice
of the presentation of the petition.
See MATTER OF BROADWAY AND SEVENTH AVE. R. R. Co... .. .. . . .
Chapter 23, title 1- Condemnation of real property under chapter 23,
title 1, of the Code of Civil Procedure — appeal from an intermediate order —
defective notice of the presentation of the petition.
See MATTER OF BROADWAY AND SEVENTH AVE. R. R. Co........
[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]
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