tion of the sum then received, and that the other payments were not applied
on the note, and that it supported a finding that the note was unpaid except
as to the portion for which the receipt had been given. PAINTER 7. POWER. 61
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..
Pecuniary legacy — receipt in full, a bar to a claim for interest.
PENAL CODE-§ 415-Indictment for unlawfully maintaining a ferry —
an excursion boat distinguished from a ferry.
$707-Power to take by devise, not suspended by imprisonment
power of alienation not suspended by a devise on condition subsequent.
See LA CHAPELLE . BURPEE.
[See table of sections of the Penal Code cited, ante, in this volume.]
PERFORMANCE - Of contracts.
·Securities wrongfully pledged by the agent of
the undisclosed owner, and converted by the pledgee — right of the owner to ratify
the pledge and sue the agent's pledgee for the conversion election of remedies.
See SMITH v. SAVIN...
Executory contract of sale of personal property, without warranty
promptness required in rejecting the property as defective — perishable fruit.
See RICHARDSON . LEVI...
Purchase of the exclusive right to produce a play — representations as to
the vendor's rights in the play.
Chattel mortgage on farm products-future products.
See VAN VECHTEN . MCKONE.
PHYSICIAN- Veterinary surgeon the rule as to skill and diligence.
See BOOм v. READ...
PLEADINGS - Bill of particulars—particulars of special damages, pecu-
liarly within the plaintiff's knowledge.] 1. A complaint assigned as a cause of
action, breaches by the defendants, who were manufacturers of paper in
Europe, of a written agreement to deliver paper upon orders received by
the plaintiff from customers, which purchase orders it was alleged the
defendant had accepted, and claimed as damages the difference between the
price to be paid by plaintiff and the price at which he had resold to the
customers; annexed to the complaint was a schedule of these orders and of
their numbers, and of the number of reams of paper covered by each order
and of the value thereof; the defendants demanded a bill of particulars of
the names and addresses of the persons to whom the plaintiff made sales as
alleged.
Held, that the defendants were entitled to these additional particulars,
because the damages claimed were in the nature of special damages, and the
particulars attached to the complaint were not sufficient to identify the pur-
chase orders as being the same as those alleged to have been taken by the
plaintiff, and did not state the number of reams sold to any person or the
dates of such sales, which information was peculiarly within the knowledge
of the plaintiff, and the absence of which might result in surprise and
injury to the defendants. ISAAC T. WILISCH.....
2. Acts complained of fully known to the defendant.] A plaintiff
should not be compelled to furnish a bill of particulars, when it appears
that knowledge of the acts complained of by him is peculiarly and
thoroughly with the defendant, and that the purpose of the application is
to find out just what evidence and what witnesses, together with their
names, the plaintiff may have to sustain his cause of action.
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Bond executed by a married woman for a debt of her husband — pleas
of invalidity of the bond and of payment — counterclaim not affected thereby.]
In an action brought against the maker of a bond, a married woman, to
recover the full amount thereof, held, that the setting up of a plea of pay-
ment, in connection with a denial of the bond, did not preclude the defendant,
on a dismissal of the complaint on the ground that the bond was not binding
on her, because it did not charge her separate estate with its payment,
from recovering an affirmative judgment on a counterclaim for the same
amount as that alleged in the plea of payment, being the value of goods
sold and delivered by her to the plaintiff, for which it appeared she had
never been paid, although the bill therefor had been receipted by her hus-
band, for whose debt the bond had been given, for which receipt for the
price of the goods the husband had received nothing from the plaintiff
except a credit on his debt, and which application of the price of the goods
was not shown to have been made with the knowledge or consent of the
defendant. SKINNER. WHITE.
4. Action for rent, in a Justice's Court-allegation of ownership by the
defendant question of title.] When, in an action brought in a Justice's
Court to recover rent, the defendant alleges in his answer that he is the owner
in fee of the premises, title to real property is brought in question.
When a defendant's answer, in a Justice's Court, shows that the title to
real property is brought in question, and the defendant delivers to the justice
the undertaking required to remove the case, the action is ipso facto discon-
tinued, the justice is ousted of jurisdicion, and any judgment he may ren-
der is a nullity (Code Civ. Pro. §§ 2951, et seq.).
A tenant is not precluded, in an action for rent, from showing that since
the execution of the lease he has acquired a title superior to that of the
lessor or has acquired the lessor's title. VAN ETTEN. VAN ETTEN..
5. Stockholder's liability under the Manufacturing Corporations Act-
amendment of the complaint-independent causes of action.] An amendment,
which seeks to set up a liability upon the part of a stockholder, under section
14 of the Manufacturing Corporations Act (Chapter 40 of the Laws of 1848),
in reference to the purchase of property and the issuing of stock therefor, pre-
sents an independent cause of action and cannot be inserted in a complaint
which seeks to enforce a stockholder's liability under sections 10 and 11 of
the same act, because of the failure to file a certificate that the whole of the
capital stock has been paid in. ROWELL . JANVRIN
6. — Claim of title to real property arising on the pleadings — costs.]
Where a defendant in an action in the Supreme Court pleads title to real
property in such form that, under section 522 of the Code of Civil Procedure,
the plea is to be deemed denied by the plaintiff, a claim of title to real prop-
erty arises upon the pleadings and, by force of subdivision 1 of section 3228
of the Code of Civil Procedure, the plaintiff, if he recovers any judgment,
will be entitled to costs, without any certificate and although no evidence on
the question of title was offered on the trial. FARRELL v. HILL.
455
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 -
insufficiency of the complaint.
See KERR v. UNION MUT. LIFE INS. Co.....
Personal injury — negligence — variance between the allegations of the
complaint and the proof as to the cause of the injury.
See WOOLSEY v. TRUSTEES OF ELLENVILLE..
Complaint against a firm covering a period in which the membership
changed — misjoinder of causes of action.
Costs paid as a condition of amending a pleading, not subsequently
Libel-examination of the plaintiff before answer.
Goods sold and delivered — affirmative of the issue.
See FELTS C. CLAPPER...
Criminal charge of assault-form of the complaint.
See PEOPLE v. PARKER.
Defect of parties, waiver.
See LAZARUS . METROPOLITAN EL. RY. Co.....
PLEDGE-Rights of a pledgee, as against a depositary of the pledge, not af
fected by a change in the terms of the pledge. When a pledge is in the posses-
sion of a depositary for the pledgee, the pledgee, having no notice of any
other rights on the part of the depositary, does not lose his lien upon the
pledge and his right to receive it from the depositary, by reason of the fact
that the pledgor and pledgee have made alterations in the terms of the
pledge.
The complaint of the Mercantile Trust Company alleged that the United
Electric Traction Company executed to the plaintiff a guaranty for the pay-
ment of certain bonds, whereby the traction company agreed not to incum-
ber its property until the guaranteed bonds were paid, and that at the same
time there were deposited with the defendant, the Atlantic Trust Company,
certain shares of stock as security for the performance of the guaranty; that
the defendant, the Atlantic Trust Company, indorsed upon the guaranty its
certificate that the stock was deposited with it as security for the perform-
ance of the guaranty; that default had been made on the guaranteed bonds,
and demanded that the defendant deliver up the stock so deposited with it.
The defendant, the Atlantic Trust Company, set up in its answer, as a
defense in avoidance, that it had made the certificate of the deposit of the
stock, and had made advances to the traction company on the stock, on the
faith of the agreement of the traction company in its guaranty to the
plaintiff not to incumber its property, and that, contrary to that agreement,
and without the consent of the defendant. the traction company had mort-
gaged certain of its property to the plaintiff.
It was not alleged that notice of any claim upon the stock had been given
by the defendant to the plaintiff.
Held, on demurrer, that the facts set up in the answer in avoidance did not
constitute a defense. MERCANTILE TRUST CO. r. ATLANTIC TRUST Co..... 264
Securities wrongfully pledged by the agent of the undisclosed owner, and
concerted by the pledgee-right of the owner to ratify the pledge, and sue the
agent's pledgee for the conversion - election of remedies.
POSTHUMOUS CHILD- Right of action under the Civil Damage Act.
See QUINLEN. WELCH..
POWER - Of sale after a definite term — not a suspension of the power of aliena-
tion. A power of sale to be exercised after a definite term does not neces-
sarily create an illegal restraint upon alienation.
A will gave the residue of the testator's property to his children; by
another clause, the executors were authorized, at any time in their discre-
tion "after the lapse of one year, but not over two years from the date" of
the testator's death, to sell a certain parcel of the testator's land, and were
directed to deduct from the proceeds the taxes and assessments then due, and
a sum then owing to the testator by a person named, and to pay the balance
to such person; the power of sale was executed after one year and within
two years after the testator's death.
Held, that there was no suspension of the power of alienation, and that the
power of sale was valid, and a title acquired thereunder was good.
Will — power conferred upon the testator's widow to dispose by will of
property remaining at her death.
See MATTER OF GARDNER.
Of alienation-suspension of, by a decise.
See WILL.
Of courts.
See COURTS.
PRACTICE-Supplementary proceedings · examination of a third person ·
what proceedings must be had in the district where the judgment debtor resides.
See GILDERSLEEVE . LESTER..
Condemnation of real property under chapter 23, title 1. of the Code of
Ciril Procedure-appeal from an intermediate order — defective notice of the
presentation of the petition.
See MATTER OF BROADWAY & SEVENTH AVENUE R. R. Co....... 275
Usury-compensation for a loan of credit-cancellation of an usurious
instrument-equitable relief - no adequate remedy at law-pleading supple-
mented by proof.
Case remitted by the Court of Appeals for review upon the facts-effect
of a former examination of the evidence-change in members of the General
Term.
See TEN EYCK v. WHITBECK.
A perfected appeal from a judgment for rent is a stay upon pre-existing
summary proceedings Code Cic. Pro. § 1310, as amended January 24, 1893.
See PEOPLE EX REL. DURANT LAND Co. v. JEROLOMAN.
Interpleader of rival claimants to a savings bank deposit - Code of Civ.
Pro. § 820-insufficient affidavit.
See MARS v. ALBANY SAVINGS BANK..
Dismissal of a complaint — what objections are available at General Term.
See BROOKE v. TRADESMEN'S NAT. BANK...
Referee's report - further findings-further direction of judgment.
See HUFFMAN . BEEVER..
PRINCIPAL AND AGENT - Securities wrongfully pledged by the agent
of the undisclosed owner, and converted by the pledgee.] 1. An undisclosed prin-
cipal has a right to enforce the contract of his agent in respect to his property.
PRINCIPAL AND AGENT - Continued.
Right of the owner to ratify the pledge, and sue the agent's pledgee
for the conversion.] An undisclosed owner of securities which have been
placed in the possession of his agent and wrongfully pledged by the agent to
a third party, and converted by the pledgee, may, on ratifying the pledge
made by his agent, maintain an action for the conversion of his property by
the agent's pledgee.
When a pledgee violates the terms of his pledge and converts the pledge,
the pledgor has an immediate right of possession and an immediate right of
action for the pledge, to which claim of possession the pledgee may offset the
amount actually due him.
If a stockbroker, clothed with the apparent ownership of securities placed
in his possession by the real owner thereof, wrongfully pledges the same with
a third party as security for a loan made to him by the pledgee, and the
pledgee wrongfully sells the securities and applies the proceeds on the loan,
the owner may adopt the act of his broker, and maintain an action for conver-
sion against the pledgee, in which he may recover the market value of his
securities within a reasonable time after his discovery of the conversion, less
the amount actually due the defendant for money advanced by him on the
securities. Id.
3. Election of remedies.] If the complaint, in an action originally
brought in equity to reach the proceeds of a sale of personal property, is
amended, on condition of the payment of costs, which are accepted by the
defendant, so that it becomes in effect a complaint for the conversion of the
property sold, the defendant cannot, on appeal from a judgment recovered
by the plaintiff on the amended complaint, invoke the doctrine of the election
of remedies, as an objection to the right of the plaintiff to recover as for a
conversion. Id.
Liability on a note signed by another as agent-payment of subse-
quent notes similarly signed, as evidence of liability.] On the trial of an action
brought against one Temple as the maker or principal of a note signed “A. L.
Fogg, Agent," in which the question was whether the note was or was not the
defendant's note, the plaintiff was permitted to show that the defendant
subsequent to the giving of the note in suit paid other notes similarly
signed. The fact of the payment of subsequent notes and the defendant's
liability thereon was conceded.
Held, that for the purpose of showing that a sale, to the defendant, of a
stock of goods which formed the consideration of the note in suit was an
actual transfer, and that consequently it was probable that the note given
for the purchase price was the defendant's, it was competent to show that
the defendant, after his purchase of said goods, through Fogg, conducted
the business and paid notes for debts contracted by "A. L. Fogg, Agent;"
and that, as the defendant's liability upon the subsequent notes was conceded,
the reception of the evidence could produce no injury to him.
Immaterial error.] An error, if any, in the admission of evidence
of a conversation in relation to undisputed facts in the case, held, not mate-
rial and, hence, not a ground for reversal. Id.
6. — Contract made by a special agent in excess of his authority.] Author-
ity conferred by a principal upon a special agent, to sell barley for cash, on
immediate delivery, at Detroit, Michigan, at one dollar and fifty cents per
hundred pounds, held, not to authorize the agent to contract for the sale of
barley for delivery at Phelps, New York, at intervals of a week during a
period of more than two months, at eighty cents a bushel, payable in install-
ments after each delivery. NESTER &. CRAIG..
7. - Risk assumed in dealing with a special agent.] One who deals with
a special agent, specially authorized for that transaction, is put upon inquiry
as to the extent of the agent's authority and deals with him at the risk of his
authority being exceeded. Id.
8. Employment to procure a purchaser of real estate - compensation
for services in effecting an exchange.] In an action brought to recover the
value of services rendered in procuring a sale of real estate under an employ-
ment by the owner, proof that the employment was only to produce a pur-
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