ACT OF GOD — As a general rule, injury produced by an act of God does not
relieve one from liability where his own negligent acts concur in or contribute to
the injury.

See GREELEY v. STATE OF NEW YORK

-

ADMISSION — Oral admissions of an ancient date have little probative force.]
Oral admissions, uncorroborated by other facts or evidence, should always
be weighed with great caution, and admissions made in the course of a casual
conversation are, after a great lapse of time, of little probative force.
ROBERGE V. BONNER......

See EVIDENCE.

ADVERSE POSSESSION - Occupation of land under a sale for a term of
years for non-payment of a municipal assessment - the title in fee is not dis-
turbed thereby the possession of the purchaser during the term of the lease
and its continuance thereafter is subordinate thereto.

MILLER v. WARREN..

See LANDLORD AND TENANT.

AGENCY- Generally.

See PRINCIPAL AND AGENT.

ALIMONY:

See HUSBAND AND WIFE.

ALLOWANCE:

See COSTS.

ANARCHIST - Charge that one is an anarchist - it is a charge of criminal
anarchy.

See SLANDER,

APARTMENT HOUSE- Injury to a prospective tenant from falling down
a staircase.
See NEGLIGENCE.

605

342

192

PAGE.

APPEAL-Criticism by the trial court of the decision of the Appellate Divi-
sion rendered on an appeal previously taken — when it requires a reversal.
See SMITH v. LEHIGH VALLEY RAILROAD Co....

125

What errors in the rejection of evidence, bearing on issues not disputed on
the trial, do not require the reversal of a judgment.
See ROBERGE v. BONNER..

342

Appeal from an interlocutory judgment in partition of a County Court,
heard by stipulation as a motion for a new trial.
See Russ v. MAXWELL..

107

Right to appeal from an order granting a new trial, after such new trial
has been had.

198

See PROCESS COPPER Co. v. PERFECT ARC LAMP CO......
ARBITRATION AND AWARD Award under an insurance policy —
where the umpire has acted with one appraiser without consultation with the other
the award will be set aside.

See N. Y. MUT. SAV. ASSN. v. MANCHESTER ASSUR. Co.......
ARREST Without a warrant
what is insufficient.

when a proper information must be filed —

See PEOPLE EX REL. FARLEY v. CRANE...
ASSAULT-When the question whether a defendant used excessive force in
removing the plaintiff from his personal property is improperly submitted to the
jury.] In an action brought to recover damages for an assault it appeared
that the plaintiff was a tenant on a farm of the defendant under an agree-
ment by which each was to have half the produce; that on the day in
question the defendant attempted to remove from the farm a number of
bags of grain to which he claimed to be entitled as part of his share
of the product; that after the defendant had removed a number of them
the plaintiff assaulted him, scratched him, raised a pitchfork as if to strike
him and seated herself upon the bags; that the defendant took the pitch-
fork from her, and, taking her by the wrists, removed her from the bags
and held her while his assistants put the bags in the wagon. His action in
this respect constituted the alleged assault.

There was nothing in the evidence to indicate that the plaintiff was taken
off the bags without resistance or that any more force was used by the
defendant than was necessary to enable him to secure what he claimed to be
his share of the grain.

Held, that it was improper for the court to submit to the jury the question
whether the defendant used excessive force, and that a judgment entered
upon a verdict in favor of the plaintiff should be reversed."

104

397

478

ASSIGNMENT - By a contractor with the State of a portion of the contract
price to a sub-contractor — duty of the State after notice thereof-chapter 755
of the Laws of 1900 is simply a waiver by the State of its right not to be sued.
See WILLIAMS v. STATE OF NEW YORK...

ASSIGNMENT FOR CREDITORS — As against one filing a mechanic's
lien for materials furnished, a trustee in bankruptcy has no greater right than
a general assignee for the benefit of the sub-contractor's creditors would
have. CRANE Co. v. PNEUMATIC SIGNAL Co..
See LIEN.

ASSOCIATION - Expulsion from a labor union — when it is not necessary
to prosecute an appeal within the organization before appealing to the courts
for reinstatement.] 1. A member of a local union of printers, who has been
unlawfully expelled therefrom without notice and without a hearing, and
been thereby deprived of his means of livelihood, will not be denied redress

489

53

ASSOCIATION — Continued.

PAGE.

by the courts because of his failure to seek relief within the organization
by an appeal to an international union with which the local union was affili-
ated, where it appears that the local union refused to afford him access to
the records, charges and evidence upon which he was expelled and which
were necessary to his appeal, except upon the payment or deposit by him
of a fine of fifty dollars which had been unlawfully imposed; that the
alleged offense for which he was expelled was that of slandering the presi-
dent of the international union, who would hear the appeal in the first
instance, and who would preside over the tribunal which would finally
review the correctness of his own decision; and that the court in which the
appeal would be heard was located in a city several hundred miles distant
from the residence of the expelled member. CORREGAN v. HAY.. ...

2. Insolvent savings and loan association — foreclosure of a mortgage by its
receiver - credit for dues or premium paid by the mortgagee.] In an action by
the receiver of an insolvent savings and loan association to foreclose a mort-
gage executed to the association by a shareholder who had assigned his shares
to the association as security for the performance of the conditions of the
mortgage, the shareholder is not entitled to be credited upon the mortgage
in the foreclosure action with the amount of dues paid by him to the asso-
ciation or with the amount of the monthly premium which he paid as a
bonus for the loan. ROBERTS v. CRONK....

3. When such credit will be given.] He will, however, upon the final
adjustment of the affairs of the association, be entitled to credit for such
payments, the amount of such credit depending upon the amount of the net
assets of the association. Id.

4.

Saving clause in the foreclosure.] What provision in the judgment
rendered in the foreclosure action fully protects the shareholder's rights in
this respect, considered. Id.

For mutual benefit insurance.
See INSURANCE.

ASSUMPTION OF RISK :

See NEGLIGENCE.

ATTORNEY AND CLIENT -Action to recover money collected by an
attorney for three tenants in common, brought by one of them.] When it is
improper to dismiss the complaint in an action brought by one of three
persons entitled, as tenants in common, to certain moneys which the defend-
ant, an attorney, had collected for them, to recover her portion of such
moneys, the shares of the other two tenants in common having been paid
to them, considered. JACKSON v. MOORE.

...

Subpoena issued out of a court in another State to an attorney in the
State of New York - what questions, as to the persons represented in the
action by the attorney, are incompetent as involving confidential communica-
tions. MATTER OF SHAWMUT MINING CO.......
See PROCESS.

BAILMENT - Pawnbroker in New York city - he cannot apply the sur-
plus arising on a sale under one pledge to the payment of a deficiency arising
on a sale under another. STEPHENS . SIMPSON.

See PLEDGE.

BANKING - Duty of a depositor to examine an entry made in his pass book.]
In an action in which the issue involved was whether the plaintiff deposited
with the defendant bank on a certain date a $1,000 greenback, as claimed by
him, or a $100 gold certificate, as claimed by the bank, witnesses sworn on
APP. DIV - VOL. XCIV. 40

71

171

504

156

298

BANKING- Continued.

PAGE.

behalf of the plaintiff testified that an hour and a half before the deposit the
plaintiff received in a business transaction a $500 bill and a $1,000 bill.

It further appeared that at the time of making the deposit the plaintiff was
given a bank book containing a credit of $100, and that he did not discover
the alleged error until eleven days thereafter.

The defendant asked the court to charge, "That it was the duty of the
plaintiff to look at his pass book when he received it, or within reasonable
time thereafter, and if the defendant's position was prejudiced by the
plaintiff's neglect in that respect then the plaintiff cannot recover," and the
court replied, "I decline to charge that; I leave that to the jury to determine."
Held, that the ruling was correct, as the plaintiff owed no duty to the bank
to examine his bank book for the purpose of ascertaining whether the
bank cashier had correctly counted the money deposited, and for the further
reason that it did not appear that the bank had been prejudiced by the
plaintiff's failure to examine his bank book.

KEMBLE. NATIONAL BANK OF RONDOUT..

Limited partnership-liability of a bank, in which the amount con-
tributed by the special partner is deposited the day before the certificate is
filed, and is on that day withdrawn by one of the general partners, to pay a
debt of a firm whose assets are taken over by the limited partnership-it is
not a misappropriation of the fund - who may sue therefor.

LA MONTAGNE v. BANK OF NEW YORK...

See PARTNERSHIP.

Check the title passes, subject to equities, by delivery without
indorsement by the payee the certification thereof is the acceptance of a
bill of exchange. a certification by the bank for the holder operates to

-

release the drawer. MEUER v. PHENIX NATIONAL BANK.

See BILLS AND NOTES.

BANKRUPTCY - The giving of an order for the payment of money to a
materialman and a letter agreeing to collect the order for him create a fidu-
ciary relation - -a failure to pay over money thus collected is not discharged by
the Bankruptcy Law.] 1. A building contractor, in consideration of the sale
and delivery to him of materials for use in performing a contract, delivered
to the materialman the following order addressed to the individual for
whom he was doing the work:

"To H. H. LANDON,

"19 East 53rd Street:

"Please pay to The J. L. Mott Iron Works, New York, Eighty-three &
25/100 dollars for materials to be furnished by them for your building or
buildings and charge the same to me or us.

"JOHN TOUMEY & SON.”

He also delivered to the materialman at the same time the following
letter:

"GENTLEMEN.-I or we hereby agree to collect the above order for you
and turn the money over to you immediately after having been collected by

me or us.

"As soon as you make delivery of the materials, I or we shall proceed
with the work with all due despatch, so that I or we believe that the collec-
tion can be made within 30 or 60 days after delivery.

"Should I or we not be able to make the collection within that time I or
we shall report to you the reason why, and continue to keep you posted from
time to time at short intervals.
Yours truly,
"JOHN TOUMEY & SON."

Held, that the parties intended that the money represented by the order
should become the property of the materialman when collected by the con-
tractor, and that the failure of the contractor to turn over such money to the
materialman constituted a misappropriation or defalcation by the contractor
when acting in a fiduciary capacity, which is excepted from the effect of a

544

219

331

BANKRUPTCY — Continued.

-

PAGE.

discharge in bankruptcy by subdivision 4 of section 17 of the Bankruptcy
Law. MOTT IRON WORKS v. TOUMEY... . . .

2. Preference to a bank when not established.] A bank discounted for
a firm a note for $1,000 which matured March 12, 1900. February 15, 1900,
the firm's place of business was destroyed by fire. Subsequent to the fire,
one of the members of the firm called on the president of the bank and stated
that his insurance policies had been adjusted at the sum of $3,875, but that
he could not then get the money from the insurance company; that he needed
the money as the firm was going to continue its business. In reliance upon
these statements, the bank, on March 6, 1900, purchased the insurance poli-
cies, paying therefor the sum of $2,875 in cash, with the understanding that
what the bank collected from the insurance companies in excess of the $2,875
it was to apply to the payment of the note.

The bank collected from the insurance companies $2,601.65, and also
obtained a judgment for $1,000 against one of the insurance companies
which it was unable to collect owing to the insolvency of the judgment
debtor.

The firm was adjudged bankrupt in proceedings instituted March 9, 1900.
In an action brought by the firm's trustee in bankruptcy to recover from
the bank the sum of $1,000, which it was alleged to have received from the
firm in payment of an existing indebtedness in violation of the provisions
of the Bankruptcy Law relating to unlawful preferences, it was

Held, that the trustee was not entitled to recover, for the following reasons,
viz.:

That it had been expressly adjudicated in a prior action brought by the
trustee in bankruptcy against the bank that the bank was entitled to retain
the money received by it;

That it did not appear that at the time the bank purchased the insurance
policies it knew or had cause to suspect that the firm was insolvent;

That, as the bank had not obtained from the insurance companies any.
thing in excess of the amount of the cash payment which it made at the
time of the transaction, it could not be said that the effect of the transfer
was to enable the bank to obtain a greater percentage of its debt than other
creditors of the same class, and that it, therefore, constituted an unlawful
preference within section 60a of the Bankruptcy Law.

ENGEL v. UNION SQUARE BANK

3. Discharge in bankruptcy. — a judgment will be discharged of record
although the notice required by the Bankruptcy Law was addressed to the judg-
ment creditor, who died prior to the proceedings in bankruptcy, and her name
appeared in the schedule of creditors.] Adelaide V. Lent, who, on May 28,
1898, recovered a judgment against William H. Farnsworth, died in Novem-
ber, 1898, leaving a last will and testament, in which she named her mother,
Sarah J. Lent, sole legatee, devisee and executrix. The will was admitted to
probate in September, 1903. March 4, 1899, Farnsworth was adjudged a
bankrupt and on May 9, 1899, he was discharged from his debts. In the
schedule of creditors accompanying the petition in bankruptcy the name
of the owner of the judgment was given as Adelaide V. Lent and her resi-
dence as Niagara Falls, N. Y., which was the place where she resided at
the time of her death and where Sarah J. Lent resided. The notices
required by the Bankruptcy Law were mailed to Adelaide V. Lent at that
residence. Sarah J. Lent claimed that she never received the notices sent
to Adelaide V. Lent and had no actual knowledge of the bankruptcy
proceeding.

Upon a motion made by Farnsworth, in 1903, under section 1268 of the
Code of Civil Procedure, to have the judgment discharged of record, it
appeared that the failure to mail the statutory notices to Sarah J. Lent was
not due to any fraudulent purpose on the part of the bankrupt and that no
injury had resulted to her or to any one therefrom.

Held, that, under the circumstances, the mailing of the notices addressed
to Adelaide V. Lent was a sufficient compliance with the law and that the
bankrupt was entitled to have the judgment discharged of record.

LENT v. FARNSWORTH

Insolvent savings and loan association foreclosure of a mortgage
by its receiver-credit for dues or premium paid by the mortgagee-it

216

244

99