LIST OF DECISIONS-NO OPINIONS.
SUPREME COURT, APPELLATE TERM, MARCH, 1902.
Before FREEDMAN, P. J., GIEGERICH and GREENBAUM, JJ.
Robert Friedman, Respondent, v. Peter J. Herter et al., Appellants.-- Appeal from a judgment of the City Court of the city of New York. entered upon an order of the General Term of said court, affirming a
judgment entered upon the report of a referee. J. F. Coffin, for Appellants; A. S. Shapiro, for Respondent. Judgment affirmed, with costs. No opinion.
CITY COURT OF NEW YORK, GENERAL TERM, JANUARY, 1902.
Before FITZSIMONS, Ch. J., CONLAN and O'Dwyer, JJ.
Meyer Elinsky, Respondent, v. The Stuyvesant Insurance Company of the City of New York Appellant.- Appeal from a judg ment enter-d on the verdict of a Ju, and from an order denying Defendant's motion
for a new trial. Maxwell Hall Elliott, for Appellant; Alexander Rosenthal, for Respondent. Judgment affirmed with costs. No opinion.
CITY COURT OF NEW YORK, GENERAL TERM, FEBRUARY, 1902.
Before CONLAN and O'DWYER, JJ.
Oscar Schmidt, Appellant, v. Eugene Schulz, Charles H. Klinge aud Anna B. Klinge Respondents. Appeal from an order of, the Special Term, requiring the Plaintiff to give security for costs as a non-resident
Plaintiff. Powe.i & Cady, for Appellant: Olney & Comstock, for Respondents. Judgment reversed on the argument. No opinion.
Surrogate's Court — Legatee's right to compel an accounting — Code C. P., §§ 2727, 2728.-A legatee under a will may compel an executor of it to account but there can be no distribution of the fund until all the parties in interest have been cited and given an opportunity to be heard. It is only where it appears from the executor's account, or otherwise, that there is a surplus distributable to creditors or persons interested, that they are to be cited, and in such case it is discretionary with the surrogate to cite them. If the executor apprehends that there may be a necessity for two trials of the same issues, contested in regard to his account, he may apply voluntarily to account and have the latter proceeding consolidated with the compulsory one. Matter of Rainforth, 660.
See Executors and Administrators; Guardians.
1. Equity-When a wife may reach, for arrears of alimony and counsel fee in her action for a separation, a surplus of income of a trust fund created for her husband's benefit.-Where a husband goes beyond the jurisdiction after his wife, without resources and having children, has obtained against him an order, for alimony during the pendency of her action for a separation from him as well as for a counsel fee, and he has no property within the jurisdiction which. can be taken on execution or by sequestration, she may as his creditor maintain an equitable action against him and his father's executors to reach a surplus of a beneficial income given him by his father's will and apply it to arrears of the alimony and counsel fee, to the end that she may have support during the prosecution of and may prosecute her action for a separation. McGlynn v. McGlynn, 12.
2. Misjoinder of causes of —The agent and his undisclosed principal may be sued in the same action but there can be only one satisfaction. There is no misjoinder of causes of action where shippers of goods sue, in the same action, agents (of carriers) as well as their undisclosed but subsequently discovered principals, for delivering the goods in a damaged condition contrary to the terms of the bills of lading as, although there can be but a single satisfaction for the breach, the shippers may proceed against both agent and principal until they have obtained satisfaction from one of them. American Trading Co. v. Wilson Sons & Co., 76.
3. Practice. Conduct of a representative action when committed to a plaintiff added after suit begun.-A person who has brought a representative action has a right to continue, discontinue, or compromise it until a person similarly situated has become a party plaintiff but thereafter he can do nothing in derogation of the rights of the latter. Accordingly where the original plaintiff unreasonably delayed trying the action the court committed its conduct to a party, added after suit begun, upon his giving a bond to the original plaintiff to secure payment to him of a ratable share of the entire expense of the action, whenever that should be determined. Manning v. Mercantile Trust Co., 215. See Attorneys; Executors and Administrators; Judgment; Negotiable Instruments; Partnership; Tort.
1. Judicial settlement - When not delayed at the instance of an alleged creditor. Where executors have recovered judgment against a woman, now objecting to their accounts as an alleged creditor, and the judgment has been paid by her and affirmed by the Appellate Division and no appeal has been taken by her to the Court of Appeals, the surrogate will not, although the time to take the latter appeal has not expired, postpone the judicial settlement of the executors and permit her to review in his court the validity of the judg ment against her. The surrogate has no power to adjudicate that she is entitled to the money she paid or to direct the executors to pay it back to her, and the matter is not within Code C. P., § 2745. Matter of Truslow, 189.
2. Review in Special Sessions and Police Courts · Code Crim. Pro., § 515.- The provisions of section 515, in part IV of the Code of Criminal Procedure, abolishing a review by writ of certiorari of a judgment or order in a criminal proceeding and confining a review to an appeal, apply now to part V of said Code relative to proceedings in courts of Special Sessions and Police Courts. People ex rel. Edwards v. Warden, 639.
3. Surrogate's Court - Decree not opened to correct errors of substance Code C. P., § 2481, subd. 6.-A surrogate cannot open or modify his decree in order to correct errors of substance alleged against it, as the remedy of the party aggrieved is by appeal and not by motion. Accordingly, such a motion was denied where its purpose was to review a decision of the surrogate refusing to charge an accounting executor with certain interest, allowing a payment made him for preparation of his account, giving him commissions and making an allowance to his counsel. Matter of Walrath, 696.
Order of — Right of action on the undertaking where the order has been vacated Measure of damages· Payments by the principal obligor.- Under an undertaking affording indemnity jointly and severally to several defendants upon an order of arrest granted in a civil action for an injury to property, one of them who has been imprisoned under the order may upon its being vacated as to him sue at once upon the undertaking without joining the other indemnitees either as plaintiffs or defendants. No demand is necessary before commencing the action. The measure of damages is indemnity against necessary time lost and costs and expenses incurred by the party arrested in relieving himself from the order, but he can recover nothing for injury to his person. Any payments made by the principal in the undertaking for motion costs on the vacation of the order enure to the benefit of the sureties and lessen pro tanto their lia- bility. Krause v. Rutherford, 382.
See Criminal Law; Warrant.
See Executors and Administrators; Guaranty; Legacy; Will.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
See New York Stock Exchange.
Injunction dependent on the subject of the action Right of members of an unincorporated association to restrain other members from violating the agreement of organization — Demurrers.—The Supreme Court has jurisdiction, under Code C. P., § 603, of the subject of an action brought by certain base ball clubs, members of a voluntary unincorporated association known as the National
League and formed under an agreement executed by the plaintiffs and certain other base ball clubs defendant, to prevent the latter from violating the agree ment, to avoid an alleged illegal election by them of still another defendant as president-secretary-treasurer of the League, to restrain him from acting as such as well as from taking possession of the funds of the League and to prevent its alleged legal president from surrendering them to him, to the injury of the plaintiffs. A demurrer to jurisdiction of the subject of the action must be over- ruled, no matter how numerous the defendants may be, if the complaint states against the demurrant a cause of action of which the court has jurisdiction. An incorporated ball club, foreign or domestic, has as right to sue, and unless it appears, on the face of the complaint, that it has a corporation a not such right a demurrer will not lie upon that ground. An unincorporated association is not a partnership, and therefore the rule that one partner cannot sue another to prevent him from exercising his rights concerning firm property or affairs does not apply to an action like the present. The action is properly brought by the plaintiffs alone where they allege that the defendant base ball clubs are aiding and abetting the alleged illegally elected president-secretary- treasurer in his acts, to their injury, and where the plaintiffs seek to restrain such aiding and abetting. The National League is not a necessary party de- fendant, no relief being asked against it. The action is not one to determine the title to an office and therefore is not within Code C. P., §§ 1940, 1984, de- claring that such an action shall be brought by the People, nor are those sec- tions applicable to an unincorporated association. Boston Base Ball Assn.
v. Brooklyn Base Ball Club, 521.
Necessity for serving the summons within thirty days - An attachment must be vacated where service of the summons, made without Code C. P., § 638.- the State of New York within thirty days after the granting of the attach- ment, has been set aside by an order and an appeal has been taken therefrom and no stay has been granted and no other service of the summons has been made or begun within said thirty days. Martin v. Smith, 425.
1. Complaint upon his negligence in regard to a loan on mortgage-Effect of a bond existing - Damages - Tender to the client.-A complaint, alleging that the defendant, an attorney at law, negligently advised and permitted the plaintiff, as general guardian, to loan money on a mortgage on real estate without disclosing the existence of a first mortgage thereon, that the latter mortgage was foreclosed and the plaintiff's mortgage thereby cut off, and that by reason of the defendant's negligence the plaintiff has been damaged in the amount of the loan and interest, is not demurrable as failing to state a cause of action but may be upheld as sufficiently alleging the retainer of the defend- ant and his negligence, either in omitting to discover or disclose to the plaintiff the existence of the first mortgage or in failing to advise him that he could not invest on second mortgage security. The contention of the defendant that, there being a bond, the primary security, the plaintiff cannot sue presently because he does not allege that the obligors of the bond are irresponsible, is not tenable as he may sue at once for all damages he is likely to sustain. He need not, in his complaint, offer to assign the bond and mortgage to the defendant as a tender of an assignment of them, made upon the trial, would probably be sufficient. Gardner v. Wood, 93.
2. Client when entitled to summary relief against — Reference when or- dered. Where the employment of an attorney is so connected with his pro- fessional character as to afford a presumption that it formed the ground of his employment the court will interfere in a summary way to compel him to execute the trust reposed in him, but where he is employed in a matter wholly unconnected with his professional character the court will remit the party, who alleges that he has been damaged, to his action. Where the petitioner alleged that the attorney had offered his services as attorney and it appeared
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