Second Department, May, 1921. [Vol. 197 App. Div.]

ELECTRIC MOTOR and Repair COMPANY V. DAVID S. GREY.- Application denied, with ten dollars costs, and stay vacated. Order signed. Present · Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

NACHMAN KIRSNER V. THE STATE BANK.- Application denied, with ten dollars costs, and stay vacated. Order signed. Present― Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

Philip Kronfeld v. MEYER NATELSON.- Application denied, with ten dollars costs. Order signed. Present-Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

CHARLES GREENBERG V. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD.— Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ISRAEL SHAPIRO and Others v. ABRAHAM EPSTEIN and Others.- Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. Rocco CARNAVALLE.Motion granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of MORRIS DANGLER, an Attorney.- Reference ordered to Hon. Henry A. Gildersleeve, official referee. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of RUFUS L. SCOTT, JR., an Attorney.- Reference ordered to Hon. John W. Goff, official referee. Settle order on notice. Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

Present

SECOND DEPARTMENT, MAY, 1921.*

THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY HIRSCHBERG, Relator, v. BOARD OF SUPERVISORS OF ORANGE COUNTY, Respondent.Motion granted and order signed. Present - Blackmar, P. J., Mills, Putnam, Kelly and Jaycox, JJ.

*For other decisions of this term see 196 App. Div. p. 970.- [REP.

INDEX.

ACCIDENT INSURANCE.
See INSURANCE, 1.

ACCOMPLICE.

See CRIMES, 2.

ACCOUNTING.

See CORPORATIONS, 2; EQUITY. 4, 6; EXECUTORS AND ADMINISTRA-
tors, 5; JudgMENTS; PARTNERSHIP; TRUsts, 6.

ACCOUNT STATED.

DEFINITION.

An account stated may consist of a single item for services rendered,
but failure of client to reply to bill for services of attorney does not make
it an account stated. Cooper v. Conklin, 205.

ACCRETION.

See DEEDS, 1.

ACCUMULATIONS.

See TRUSTS, 2.

ACTIONS.

NATURE AND FORUM.

An action is one in rem where it affects specific personal property
within jurisdiction and control of court. Mc Kennall v. Payne, 340.
ADJOINING LANDOWNERS.

See DEEDS, 1.

ADMIRALTY.

See SHIPS AND SHIPPING, 1, 3.

ADMISSIONS AND DECLARATIONS.
See CONTRACTS, 10; EVIDENCE, 2.

ADOPTION.

ANNULMENT.

Order adopting child will not be annulled at instance of its parent
who signed formal certificate consenting to adoption in absence of proof
that he was induced to sign consent or that he refrained from reading
it by any misrepresentation of fact facts not shown to justify annul-
ment second adoption will not be annulled for fraud practiced on
parent subsequent to first adoption. Myers v. Myers, 1.

ADVERSE POSSESSION.

-

See PARTITION, 3; PUBLIC LANDS.

AGENCY.

See PRINCIPAL AND AGENT.

ALIMONY.

See HUSBAND AND WIFE, 2-4, 6, 7.

AMENDMENT.

See INDICTMEnt and INFORMATION; PLEADINGS, 1, 14.

ANNULMENT.

See ADOPTION; HUSBAND AND Wife, 1.

ANSWER.

See PLEADINGS, 7-13, 16.

APPEAL.

See, also, COSTS AND FEES, 2; EXECUTORS AND ADMINISTRATORS, 3;
LIBEL, 3; PARTITION, 1; VILLAGES; WILLS, 2.

RAISING QUESTION BELOW.

1. Waiver objection to computation of damages by court cannot
be taken on appeal where no objection was made or exception taken at
trial. Standard Casing Co., Inc., v. California Casing Co., Inc., 187.

2. Exception to refusal to dismiss complaint at close of plaintiff's
action to recover on acceptance of time draft given for purchase of
goods to be delivered is not available on appeal where motion is not
renewed at close of evidence. Liondale Mercantile Co., Inc., V.
Gerber, 345.

HEARING AND DETERMINATION.

3. Estoppel question of exclusion of testimony not covered by bill
of particulars cannot be passed on where bill of particulars is not in
printed case. Orben v. State Investing Co., 658.

COURT OF APPEALS.

4. Permission to appeal to Court of Appeals granted where doubt
prevails as to identity of master. Lipshitz v. Fitzpatrick, Inc., 929.

5. Appeal as of right under section 1336 of Code of Civil Procedure,
where final judgment is rendered in court below after refusal by Appellate
Division of new trial upon application made in first instance at term
thereof, party aggrieved may appeal directly from final judgment to
Court of Appeals. Final determination by Appellate Division herein
being in effect modification of judgment directed by trial court, such
appeal may be taken as of right. (Code Civ. Proc. § 190, subd. 1.)
United States Trust Co. v. Blake, 935.

APPELLATE DIVISION.

See COSTS AND FEES, 2; EXECUTORS AND ADMINISTRATORS, 3.

APPRAISAL.

See TAXATION, 5.

ARGUMENTS OF COUNSEL.
See TRIAL, 2.

ASSESSMENT.

See TAXATION, 1.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

See TRUSTS, 1.

ASSIGNMENTS.

See, also, Mortgages, 5; TrIAL, 4.

SUFFICIENCY OF ASSIGNMENT.

Evidence examined in action to establish equitable assignment of
portion of fund and held sufficient to establish cause.

919.

ATTACHMENT.

See, also, Insurance, 3.

DISCHARGE OF WARRANT.

Keefe v. Parker,

1. Undertaking in order to obtain discharge of attachment after
final judgment, defendant must file same undertaking as where applica-
tion is made before final judgment and in addition, he must give security
required to perfect appeal to Court of Appeals from final judgment.
Hadjopoulos v. Manousso, No. 2, 56.

VACATING WARRANT.

2. On motion by junior attaching creditor to vacate prior attachment,
papers on which prior attachment granted are not so closely scrutinized
as when motion is made by owner of property attached. American
Merchant Marine Ins. Co. v. Forsikrings-Aktieselskabet "N," 63.

3. Question presented, in absence of fraud or collusion, where junior
attaching creditor is moving to vacate prior attachment, is, are there
such jurisdictional defects as to render prior attachment proceedings a

ATTACHMENT - Continued.

nullity? American Merchant Marine Ins. Co. v. Forsikrings-Aktiesel-
skabet N," 63.

66

4. Right of junior attaching creditor to vacate prior attachment
depends on his having valid lien upon attached property-moving
papers defective which do not contain copy of junior warrant -com-
plaint or affidavits upon which it was issued. American Merchant
Marine Ins. Co. v. Forsikrings-Aktieselskabet N," 63.

5. Motion to vacate warrant of attachment denied in action by buyer
to recover portion of purchase price because of shortage of goods at time
of delivery where plaintiff's complaint and affidavit shows existence of
cause of action. Willits & Patterson v. Abekobei & Co., Ltd., 528.

ATTORNEY AND CLIENT.

COMPENSATION.

1. It is misconduct for an attorney to obtain a fee, the retention of
which is contingent upon success. Matter of Kelly, 41.

2. Judiciary Law, section 474, applies only to contracts that are made
before services of attorney are entered into and not to those made
during relationship of attorney and client it is incumbent upon an
attorney to show that provisions of contract made between attorney
and client subsequent to employment, beneficial to attorney, are fair
and reasonable and were understood by client-rule applicable to
contract which is result of implied acceptance by client of account
rendered by attorney for services. Cooper v. Conklin, 205.

3. An attorney is entitled to compensation for service rendered to
corporation in purchasing, with another with consent of clients who
were stockholders, controlling interest in corporation while acting for
clients. Moller v. Pickard, 333.

4. Action to foreclose attorney's lien arising under New Jersey statute
for contingent fee in negligence action - defendant upon settlement of
negligence action is conclusively presumed to have retained sufficient
to cover attorney's fee publication jurisdiction is acquired of non-
resident client, against whom no personal claim is made, by service by
publication. Mc Kennell v. Payne, 340.

5. Where an executor, who is also a lawyer, seeks to charge for legal
services in addition to his fees as executor, such services and the value
thereof should be shown by clear and convincing evidence. Matter of
Fidelity Trust Co., 926.

DISCIPLINARY PROCEEDINGS.

6. Repayment of excessive fee pending investigation is not defense
purpose of disciplinary proceedings is to inquire into character and
conduct of attorney to see whether or not it comports with standard
required. Matter of Kelly, 41.

7. Courts are vested with supervisory control of attorney and are
empowered to investigate dealings between attorneys and clients relat-
ing to professional services. Matter of Levinson, 46.

SUSPENSION.

8. Attorney suspended for one year for procuring excessive fee by
false representations and for paying client sum of money to induce him
to withdraw charges while investigation was being made by grievance
committee. Matter of Kelly, 41.

9. Attorney suspended for six months for failure to render substantial
service under contract of retainer and to repay clients amount agreed,
if unsuccessful. Matter of Levinson, 46.

age

10. Attorney suspended from practice for one year for omitting to
inform clients of collections and converting same to his own use
and previous good character of attorney considered. Matter of O'Brian,
50.

11. Attorney suspended from practice for using funds of client, an
administrator, in his personal business - consent of father of decedent
and acquiescence of administrator is no excuse. Matter of Mc Kee, 192.
12. Attorney is properly suspended from practice for six months for
failure to pay over money to client received in settlement of action.
Matter of Rose, 365.

BANKRUPTCY.

See PARTIES.

BANKS AND BANKING.

See, also, Contracts, 2.

DEPOSITS.

-

Bank may rely on certificate of secretary of corporation that president
was also treasurer and had authority to draw checks checks of cor-
poration signed by third person as treasurer and deposited to credit of
president's account in defendant bank was not notice of lack of authority
in president failure of corporation to show that it was damaged by
alleged unauthorized deposit and to explain delay of four years before it
notified bank of irregular account fatal in action to recover money
deposited in corporation's name - issuance of certificate by secretary
of corporation as to official authority of president estopped corporation
from denying truth of representation of its secretary. Moch v. Bryant
Park Bank, 78.

BILL OF PARTICULARS.

See APPEAL, 3; Landlord AND TENANT, 4; PLEADINGs, 15.

BILLS AND NOTES.

ACTIONS.

1. A lender of money may sue upon an original loan or upon a note if
one is given. Maas v. Malevinsky, 99.

2. Evidence examined in action by accommodation maker to recover
from comaker on theory of contract of indemnity and held that it was
error for court to direct verdict for plaintiff where contract was not
shown as matter of law. Logan v. Turner, 493.

3. Evidence · erroneous direction of verdict in action by assignee
against accommodation indorser where there is evidence of fraud of
maker in procuring indorsements by defendant and of interest of plain-
tiff's assignors who are witnesses in result of action burden of proof
to show that plaintiff's assignors were bona fide holders question for
jury where credibility of witness is suspicious new trial on ground of
newly-discovered evidence. Vogel v. Pyne, 633.

BILLS OF LADING.

See SALES, 12.

BOUNDARIES.

See COSTS AND FEES, 3; DEEDS, 1; NEGLIGENCE, 1.

BRIDGES.

See HIGHWAYS, 1; RAILROADS, 2.

BUFFALO, CITY OF.

See MUNICIPAL CORPORATIONS, 3, 7.

BURDEN OF PROOF.

See BILLS AND NOTES, 3.

CARRIERS.

See SHIPS AND SHIPPING, 2.

CERTIORARI.

See MUNICIPAL CORPORATIONS, 3; TAXATION, 1.

CHARITABLE CORPORATIONS.

CITIES.

See WORKMEN'S COMPENSATION LAW, 2

See MUNICIPAL CORPORATIONS.

CLAIMS AGAINST STATE.

See COURT OF CLAIMS; HIGHWAYS, 1; STATE.

CODE OF CIVIL PROCEDURE.

[For table containing all sections cited and construed in this volume,
see ante, p. lxviii.]