CODE OF CRIMINAL PROCEDURE - § 395- Confessions, as evidence on
criminal trials.
[See table of sections of the Code of Criminal Procedure cited, ante, in this
volume.]
COMMISSIONERS- Of drainage-entertainment of, by one of the peti-
tioners-subpanaing witnesses · attorney for the petitioners acting as attorney
for the commissioners.
See MATTER OF DRAINAGE IN TOWN OF PENFIELD..
COMMISSIONS- Of real estate brokers.
See PRINCIPAL AND AGENT.
COMPTROLLER - Corporation Tax Act-voluntary payment under a
mistake of law - there can be no resettlement by the comptroller.
See PEOPLE EX REL. EDISON ELECTRIC, ETC., Co. v. WEMPLE...... 367
CONDITION Devise over, in case of the death of a prior devisee without
issue-time of happening of the contingency, with reference to the testator's
death.
Costs paid as a condition of amending a pleading, not subsequently
CONSTITUTIONAL LAW- Charter of the city of Yonkers-election of
supervisors constitutionality of the amendment of 1892.] The provision of
section 4 of chapter 54 of the Laws of 1892, amending the charter of the city of
Yonkers, which had theretofore given the city but one supervisor by enacting
that the elective officers of the city should include a supervisor for each ward
CONSTITUTIONAL LAW - Continued.
to be elected by the electors of their respective wards, does not violate the
clause of the Constitution of the State of New York (art. 3, § 18) which pro-
hibits the Legislature from passing a private or local bill "providing for the
election of the members of the boards of supervisors."
The constitutional provision in question was designed to limit the legis-
lative power in the manner of electing supervisors by the vote of the electors,
and was not intended to deprive the Legislature of the power to equalize
representation by giving a supervisor to each ward of a city.
PEOPLE EX REL MCGRATH . SUPERVISORS....
Railroad income bonds are subject to the statutory right of railroad con-
See HART v. OGDENSBURG & L. C. R. R. Co....
CONSTRUCTION - Of constitutional provisions.
See CONSTITUTIONAL LAW.
Of contracts.
See CONTRACT.
Of deeds.
See DEEDS.
Of statutes.
See REVISED STATUTES.
See SESSION LAWS.
See STATUTES.
Of wills.
See WILL.
CONTEMPT — Of court — violation of an injunction obtained by a board
of health technical objections.] On the return of an order to show cause
why a defendant should not be punished for contempt for having violated
an injunction, obtained by the board of health of a city, forbidding him
to draw off the waters of certain mill ponds below the level of the dams
during the summer, the defendant objected that the moving papers were
defective in that they were not entitled in the action in which the injunc-
tion was granted, that the contempt proceeding was not instituted by the
attorney of record for the plaintiff in such action, and that neither the
original nor a copy of the injunction order had been served on him; the
objections were overruled and an order made adjudging the defendant
guilty of contempt.
Held, that these technical objections were not well founded, and that the
order should be affirmed, it appearing that the proof of the violation of the
injunction was sufficient, and that previous to the institution of the con-
tempt proceeding the defendant was notified of his violation of the injunc-
tion, but gave no heed thereto.
MATTER OF BOARD OF HEALTH OF YONKERS.
CONTRACT — Agreement for the assignment of a patent and the formation
of a copartnership· dissolution of the partnership - accounting — equitable
rights enforced.] 1. In 1879, one Willis, being the owner of a patent for an
improvement in " sap-spouts," agreed orally with James Spears to sell him
an undivided half interest in the patent for a certain sum, and that they, as
copartners, should enter into the business of making and selling sap-spouts
under the patent. They entered into such partnership and carried on the
business under the firm name until 1887, when the firm entered into a con-
tract with a third party by which the latter was given the exclusive right to
sell the sap-spouts to the public in consideration of his buying from the firm
a certain number each year. The spouts made by the firm were not in strict
conformity with the specifications of the patent.
In the fall of 1887 Spears removed from the town where the business
was carried on, and Willis then stated to him that the business was not
enough to divide, but that he must buy out the business or sell, and there-
upon tore the firm name from the contract for the exclusive sale of the
spouts, and notified the other party thereto to change the account to his
(Willis') name, which was done and remittances under this contract were
thereafter made to Willis personally, and he refused to account to Spears
therefor.
Spears thereupon sued Willis, demanding an assignment of an undivided
half interest in the patent, a dissolution of the partnership and an account-
ing. It appeared that Spears had never paid the purchase price for his
interest in the patent and that Willis had never demanded payment, but
Willis' answer admitted the sale of the undivided half interest in the patent
to Spears and the formation of the partnership.
Held, that aside from such admissions, by the verbal agreement between
the parties, under which they had as copartners carried on the business for
eight years, treating the patent as partnership property, and under all the
circumstances of the case, the plaintiff acquired an equitable title or interest
in the invention which equity would protect;
That the fact that the partners, who, under the partnership agreement,
were to manufacture sap-spouts under the patent, in fact made and sold
spouts varying from the specifications of the patent, did not interfere with
the plaintiff's right to recover his share of the partnership profits.
Damages to date of trial.] That the defendant should account for
all sales, under the contract for the exclusive sale of the spouts, down
to the day of the entry of judgment. Id.
3. -Contract unlawfully destroyed by one of the partners· -a new con-
tract made by him personally inures to the partnership.] That as he had
unlawfully assumed to destroy that contract and to make a new one for his
own benefit, he should be deemed to hold it for the benefit of the firm, and
that this was so, notwithstanding the fact that the spouts furnished since
the defendant's attempted destruction of said contract, although in sub-
stance in the form and pattern used immediately prior to the making of that
contract, were not exactly the same. Id.
4. Offer to exchange stock of a railroad company formed by reorganization,
for stock of the original company failure to comply with the conditions of the
offer.] Iselin, who had purchased the property of a railroad company on
foreclosure, published an offer to exchange stock in a new company which
was to be organized, for such stock in the old company as should be deposited,
before a date named, with a transfer and power of attorney signed in blank,
in a certain trust company, which would issue receipts therefor. Schores-
tene, who had a certificate for stock in the old company in the name of
James Champ, upon which there was a transfer and power of attorney
in blank purporting to be signed by Champ, presented it to the trust
company, before the expiration of the time stated in Iselin's offer, but the
trust company declined to take it, saying it was not good.
Schorestene did nothing more until after the expiration of the time men-
tioned in the offer, and then brought an action against Iselin to recover dam-
ages for the breach of an express contract which he claimed had been
created by Iselin's offer and by his acts.
Held, that the action was not maintainable;
That a contract with Iselin could be created only by a compliance with
the terms of his offer, by depositing stock with the trust company and
receiving its receipt therefor;
That the plaintiff's inability to comprehend the objection of the trust
company to receiving the certificate without some proof of the genuineness
of the signature of Champ on the back of it, which might have been
obviated, did not excuse his laches. SCHORESTENE . ISELIN..
5. · Agreement to work a farm for one year — ownership of an unhar-
cested crop.] Phelps, the owner of a farm, and one Owens, entered into an
agreement to the effect, as was found, among other things, that Owens
should work and carry on the farm for one year from March first; that the
produce should be divided equally at the end of the year, and that each
should furnish one-half the seed. Under this agreement Owens worked
the farm until about the middle of August, when he absconded, leaving
wheat and oats thereon partially unharvested; a third party thereafter
sued out an attachment against Owens' property, and caused a levy to be
made upon all the wheat and oats, in the straw, and sold the same thereunder.
Held, that the effect of the agreement was to make Phelps the owner
of an undivided half of the wheat and oats, and that he was, therefore,
entitled to maintain an action for the conversion of that one-half, against
the plaintiff in the attachment. PHELPS . DELMORE..
To erect a building for its cost and a stipulatel sum for services — evi-
dence, as to the agreement.] Blazo, an architect and builder, agreed to
"supervise, build, furnish and complete" a house for Gill for a certain
sum for his services, in addition to the exact cost of the labor and
material; there was a memorandum annexed to the agreement, containing a
list of work and materials, with sums set opposite each, which footed up
a certain amount. Blazo having brought an action against Gill to recover a
balance unpaid on his claim for services and the cost of the house, the
defendant claimed that there was an agreement that the house should cost
only the amount stated in the memorandum, and that the cost so stated was
less than the sum claimed by the plaintiff.
Held, that the evidence warranted a finding that the amount stated in the
memorandum was a mere estimate of the cost. BLAZO T. GILL.....
7. - As to the cost.] The plaintiff testified as to the cost of the house
in gross and detail, and was supported by vouchers, and it appeared that he
looked over and specified everything that was ordered and sent to the house.
Held, that the rule would be too strict which should require the plaintiff
personally to know that each article was furnished and day's work done, and
that, in the absence of proof that articles ordered were not delivered, a
finding in his favor as to the cost was warranted by the evidence. Id.
The expression of a consideration in a sealed instrument is not sub-
ject to contradiction.] The rule- that while the mere presumption of a con-
sideration which arises from the use of seals in the execution of an instru-
ment is subject to rebuttal the expression of a consideration in such an
instrument is not subject to contradiction for the purpose or with the effect
of invalidating the instrument applied in an action for the specific per-
formance of a contract under seal, whereby the defendant, "in consideration
of one dollar and other valuable considerations, the receipt whereof is hereby
acknowledged," gave the plaintiffs' assignors the refusal of his farm or cer-
tain mining privileges therein, at prices specified, and gave them a certain
time in which to decide whether they would take either or neither.
9. Guarantee of payment for goods to be furnished to another — discharge
of the guarantor by a departure from the guaranteed contract — ratification.]
A guarantor of the payment for goods ordered in a certain form to be furnished
to another has a right to insist upon a strict compliance with the terms
and conditions of his undertaking, and if the terms of the contract or
obligation guaranteed are departed from in the slightest particular in the
form of the order the guarantor's obligation is discharged, unless, with a
full knowledge of the facts, he ratifies the departure.
10. ·Building contract — extra work.] When the owner of premises,
with whom a builder has contracted to erect a building for a stipulated
price, agrees to do the preliminary grading, and violates such agreement, and
the contractor, in the performance of his duty, to mitigate the damages
caused by such violation of the owner's agreement, furnishes extra work
made necessary because of such defective grading, he will be entitled to recover
from the owner for such extra work.
BECKER . NAT. PROHIBITION PARK CO...
11. Assignment of a mortgage by an administrator to himself — voidable,
but not void.] If an administrator assigns a mortgage belonging to his intes-
tate's estate for a nominal consideration to an intermediary, who assigns it to
him in his individual name, such an assignment is not void but voidable only,
and that at the instance of some person interested in the estate; and an
objection to the validity of such assignment is not available to a stranger to
the estate as a defense to the foreclosure of a mortgage by the assignee.
12. Of employment - variation of.] When a written contract of employ-
ment is sure in its terms, strong proof is required to establish a variation
thereof; and the writing should be upheld when the variation is not fully
proven. MOORE . BROOKLYN ADVERTISING CO......
- Usury — compensation for a loan of credit — cancellation of an usurious
instrument-equitable relief - no adequate remedy at law-pleading supple-
mented by proof.
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
-Executory contract of sale of personal property, without warranty.
promptness required in rejecting the property as defective-perishable fruit —
appeals from Justices' Courts power to grant new trials.
Liability of the owner of a house or the contractor, for a furnace — build-
ing contract as evidence.
Payment of royalty for the use of a patent·
patentee of an assigned patent, inures to the owner of the patent.
See MANN CAR Co. v. GILBERT CAR Co.....
Made by a special agent in excess of his authority risk assumed in
dealing with a special agent.
Conveyance to a corporation-condition therein as to its control by the
Parol promise to maintain a fence - -barbed wire railroad fence.
See GUILFOOS v. N. Y. C. & H. R. R. R. Co.......
Breach of a theatrical “sharing terms" agreement · damages.
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....
Employment to procure a purchase of real estate compensation for serv-
ices in effecting an exchange.
See BRUNDAGE v. MCCORMICK.
Specific performance of a partly-executed agreement concerning lands,
not in writing.
Injunction — undertaking — effect of bringing in new defendants.
See BERGMANN v. SALMON..
Railroad income bonds are subject to the statutory right of railroad
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