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ORDINANCES.

them for partition of the land should proceed as one for dissolution of the partnership and

See Municipal Corporations, §§ 293, 601, 633, sale of its assets in connection with the sale of 753, 919.

PARENT AND CHILD.

See Bastards; Guardian and Ward; Infants;
Trusts, § 372.

§3 (N.Y.Sup.) A parent's duty to support his children terminates on their becoming 21 years of age.-Skidmore v. Skidmore, 145 N. Y. S. 939.

PAROL EVIDENCE.

See Evidence, §§ 397-444.

PARTIES.

the land, even if the land has not become partnership property.-Bogardus v. Reed, 145 N. Y. S. 597.

nership, the venue is determined by the resi$320 (N.Y.Sup.) In a suit to dissolve a partdence of parties, and not by the locality of the firm assets, even when such assets include real estate; and hence the initial proceedings for the dissolution of a partnership and the appointment of a receiver should be had in the place of the partners' domicile.-Williams v. Williams, 145 N. Y. S. 564.

PART PAYMENT.

See Limitation of Actions, §§ 155, 163.

PASSENGERS.

See Assignments, $$ 94, 109; Contracts, § 187;
Corporations, § 320; Counties, § 796; Courts,
§ 189; Gaming, § 20; Guardian and Ward, See Carriers, §§ 276-381.
$ 182 Habeas Corpus, § 113; Insurance, §
624; Mandamus, § 151; Pleading, § 204;
Wills, § 411.

PARTITION.

See Justices of the Peace, §§ 189, 190.

PARTNERSHIP.

See Courts, § 188; Injunction, §§ 33, 56; Money Received, § 9; Receivers, § 142.

I. THE RELATION.

(A) Creation and Requisites. $5 (N.Y.Sup.) Persons, owning as heirs, devisees, and legatees, a ferry franchise, a ferryboat, and the ferry docks and the lands on which they were built, having suffered the ferry business, conducted by their ancestors and testators, to continue, each receiving his share of the profits from year to year, a partnership relation exists between them.-Bogardus V. Reed, 145 N. Y. S. 597.

PATENTS.

See Fraud, § 47; Waters and Water Courses, $$ 89, 155.

PAYMENT.

See Accord and Satisfaction; Costs, § 277; Divorce, 218; Eminent Domain, §§ 153-158; Evidence, 441; Executors and Administrators, § 274; Infants, § 57; Limitation of Actions, §§ 155, 163; Money Lent, $ 7; Mortgages,199; Taxation, §§ 533, 537.

V. RECOVERY OF PAYMENTS. $85 (N.Y.Sup.) Where an indorser on a note, who had been discharged by failure of the holder to protest the note on nonpayment, paid the note a month after maturity, both he and the purchaser being mistaken as to the date of maturity, the indorser could recover his payment.-Isaacs v. Kobre, 145 N. Y. S. 919. PENAL LAW.

$25 (N.Y.Sup.) Where a person purchases a half interest in defendant's carpenter business through false representations as to indebtedness See Gaming; Monopolies, §§ 10, 29, 31.

and on discovery offers to release defendant and
demands a return of the money paid, he may
rescind and recover back his contribution.
Troster v. Dann, 145 N. Y. S. 56.

III. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES OF PARTNERS.
(C) Actions Between Partners.

PENALTIES.

See Carriers, § 20; Municipal Corporations, 633; Telegraphs and Telephones, § 45.

PERCOLATING WATERS.

See Waters and Water Courses, § 100.

PERJURY.

§ 108 (N.Y.Sup.) In absence of an account-
ing between partners and a balance struck and
a-promise made to pay, a common-law action See Appeal, § 994.
between them will not lie.-Lasky v. Coverdale,
'145 N. Y. S. 994.

VII. DISSOLUTION, SETTLEMENT,
AND ACCOUNTING.

(D) Actions for Dissolution and Account-
ing.

8313 (N.Y.Sup.) Partners in a ferry business together owning the franchise, boat, and lands, with the docks thereon, an action by one of

PERSONAL INJURIES.

See Appeal, §§ 1064, 1066; Arrest, § 4; Bridges, §§ 39, 44; Carriers, §§ 276-381; Damages, § 197; Evidence, §§ 37, 471; Indemnity, § 15; Master and Servant, §§ 86-332; Municipal Corporations, §§ 763-821; Negligence; Pleading, § 248; Railroads, §§ 333, 351; Seamen, § 29; Street Railroads; Trial, §§ 57, 127.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

Personal Property Law 145 NEW YORK SUPPLEMENT

PERSONAL PROPERTY LAW.
See Charities, § 21; Sales, §§ 126, 161, 178, 473.
PETITION.

See Bankruptcy, § 114; Pleading.

PHYSICIANS AND SURGEONS.

See Appeal, §§ 837, 1056; Bastards, § 16; Witnesses, § 159.

$13 (N.Y.Mun.Ct.) Where a person became suddenly sick and fell unconscious, a physician summoned by a stranger could, under an implied contract, recover the reasonable value of his services from the estate of deceased.Schoenberg v. Rose, 145 N. Y. S. 831.

$23 (N.Y.Mun.Ct.) Where, in an action by a physician against the estate of a deceased for medical services rendered the deceased in an emergency after he had suddenly fallen unconscious, the evidence showed that the physician in the usual way worked with deceased 15 or 20 minutes, $15 held reasonable compensation.Schoenberg v. Rose, 145 N. Y. S. 831.

§ 24 (N.Y.Mun.Ct.) In an action by a physician against the estate of a deceased to recover for medical services rendered in an emergency after deceased had suddenly fallen unconscious, evidence as to the value of the estate was properly admitted.-Schoenberg v. Rose, 145 N. Y. S. 831.

PLEA.

See Pleading, §§ 85-204.

PLEADING.

See Appeal. §§ 916, 1201; Attorney and Client, § 112; Bills and Notes, §§ 462-476; Corporations, § 211; Courts. §§ 188, 189; Divorce, § 209; Eminent Domain, §§ 191, 194; Evidence, § 37; Fraud, § 47; Indictment and Information; Injunction, § 137; Insurance, § 539; Judgment, §§ 106, 176, 952; Landlord and Tenant, § 161; Libel and Slander, § 86; Master and Servant, §§ 262, 289; Mechanics' Liens, § 271; Mortgages, § 283; Municipal Corporations, § 220; Replevin, § 58; Wills, §

847.

1204

intendments in favor of the pleader.-Ruder-
man v. Bloch, 145 N. Y. S. 913.

III. PLEA OR ANSWER, CROSS-COM-
PLAINT, AND AFFIDAVIT
OF DEFENSE.

(A) Defenses in General.

$85 (N.Y.Sup.) That an ex parte order extending defendants' time to answer was technically incorrect was immaterial, where the answer was served within the time which should have been provided in the order.-Levin v. Greenberg, 145 N. Y. S. 922.

(C) Traverses or Denials and Admissions. § 122 (N.Y.Sup.) A defendant may not deny on information and belief allegations of the complaint as to facts which must be within his actual knowledge.-Sharp v. Sharp, 145 N. Y. S. 386.

In an action on a note, a denial on informa

tion and belief that the amount of the note was due and owing to plaintiff was not frivolous. -Id.

(E) Set-Off, Counterclaim, and Cross-Complaint.

§ 142 (N.Y.Sup.) The nature of new matter pleaded in an answer being that of a counterclaim, though designated as a partial defense, it constituted a counterclaim; use of the word counterclaim" not being necessary, "by way of set-off" being equivalent thereto.-Nelson Co. v. Silver, 145 N. Ÿ. S. 124.

V. DEMURRER OR EXCEPTION. § 193 (N.Y.Sup.) If the facts alleged in the complaint show plaintiffs to be entitled to any relief, whether that asked or not, it is not demurrable.-Tuomey v. Walsh, 145 N. Y. S. 722. § 204 (N.Y.Sup.) A general demurrer for insufficiency will not lie to a complaint containing several causes of action, where any of the causes are good.-Mosher v. City of Elmira, 145 N. Y. S. 964.

§ 204 (N.Y.Sup.) Where a wife and daughter of a deceased surety, parties defendant to an action to enforce his liability, joined in a demurrer to the complaint which stated a cause of action against the surviving widow, the demurrer must be overruled.-Duck v. McGrath,

I. FORM AND ALLEGATIONS IN GEN- 145 N. Y. S. 1033.
ERAL.

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(N.Y.Sup.) The purpose of a pleading is to define the issues.-Ruderman v. Bloch, 145 N. Y. S. 913.

street

§ 8 (N.Y.Sup.) An allegation that a was a lawful highway is a conclusion of law.— In re Olinger, 145 N. Y. S. 173.

§ 8 (N.Y.Sup.) An answer, alleging "that this court has not jurisdiction of the person of the defendant," without stating the facts establishing want of jurisdiction, is demurrable.-Bushansky v. Lantinberg, 145 N. Y. S. 898.

§ 16 (N.Y.Sup.) That, only, may be regarded as frivolous which is made to appear so incontrovertibly by a bare statement and without argument.-Sharp v. Sharp, 145 N. Y. S. 386.

§ 34 (N.Y.Sup.) A pleading to which a demurrer has been interposed must be read with all

VI. AMENDED AND SUPPLEMENTAL
PLEADINGS AND REPLEADER.

$ 239 (N.Y.Sup.) Where an affirmative defense is stricken on motion, leave to amend can be granted only on condition that defendant pay plaintiff's costs and disbursements to date, including costs of the motion.-Sharp v. Sharp,, 145 N. Y. S. 386.

§ 248 (N.Y.Sup.) Where, in an employe's action for injuries, the result of allowing an amendment to the complaint will not only substantially change plaintiff's claim but will create a material variance between the claim alleged in the complaint and that stated in the notice served on defendant under the provisions of the Employers' Liability Act, the motion to amend will be denied.-Porter v. City of New York, 145 N. Y. S. 938.

§ 259 (N.Y.Sup.) Where an affirmative defense alleges on information and belief matters which must be within defendant's knowledge, but which if properly pleaded are neither improper nor immaterial, the court in striking the defense should permit defendant at his election to amend his answer.-Sharp v. Sharp, 145 N. Y. S. 386.

VIII. PROFERT, OYER, AND EX-
HIBITS.

$56 (N.Y.Sup.) Where personal property was sold, but defendant retained the goods as security for the performance of certain conditions of the contract, held, that upon plaintiff's default defendant could sell the property so held as security.-Sanitary Carpet Cleaner v. Reed Mfg. Co., 145 N. Y. S. 218.

POLICE.

See Injunction, § 105; Municipal Corporations,
$ 185.
POLICE POWER.

§ 312 (N.Y.Sup.) Where the contract sued on is made a part of the complaint, the rights of the party should be determined by the con- See Municipal Corporations, §§ 601, 633. tract rather than the allegations of the complaint as to its effect.-Lasky v. Coverdale, 145 N. Y. S. 994.

IX. BILL OF PARTICULARS AND COPY OF ACCOUNT. $317 (N.Y.Sup.) In action for accounting, defendant held not entitled to bill of particulars as to amounts collected and not paid over; it appearing that plaintiff had no knowledge or information and was seeking an accounting to acquire information known to defendant and necessarily unknown to plaintiff.-United States Title Guaranty Co. v. Brown, 145 N. Y. S. 1014.

XI. MOTIONS.

See Insurance.

POLICY.

POLITICAL RIGHTS.

See Elections.

POSSESSION.

See Chattel Mortgages, § 161; Courts, § 189;
Landlord and Tenant, § 296.

PRACTICE.

For practice in particular actions and proceedings, see the various specific topics.

PREJUDICE.

§ 343 (N.Y.Sup.) An issue of law raised by demurrer to a complaint which goes to the whole cause of action may be decided upon motion by See Appeal, §§ 1039–1066. defendant for judgment on the pleadings.Hudson Iron Co. v. Clark, 145 N. Y. S. 789. Defendant's demurrer to the complaint was

PRELIMINARY INJUNCTION.

not an election of remedy so as to preclude him See Injunction, §§ 136, 137.

from moving for judgment on the pleadings under Code Civ. Proc. § 547, which permits such a motion only after issue joined.-Id.

PRESCRIPTION.

$350 (N.Y.Sup.) A defendant by moving for See Easements, § 7; Limitation of Actions. judgment on the pleadings admits the truth of the facts alleged in the complaint.-Morey v. Schuster, 145 N. Y. S. 258.

§ 362 (N.Y.Sup.) Where an affirmative defense alleges on information and belief facts which are not only presumptively, but must actually be, within defendant's knowledge, the proper remedy is by motion to strike.-Sharp v. Sharp, 145 N. Y. S. 386.

XII. ISSUES, PROOF, AND VARIANCE. •§ 380 (N.Y.Sup.) Where the allegations and proof proceeded on the theory of an action on a note, held that the action could not be maintained as on a promise in an assignment of a bank deposit as collateral security to pay any deficiency. Security Bank of New York Finkelstein, 145 N. Y. S. 5.

PLEDGES.

V.

See Banks and Banking, § 47; Railroads, § 147. § 53 (N.Y.Sup.) Agreements for the forfeiture of collateral securities are void, where only one party has parted with value and taken collateral to secure its payment.-West v. Guaranty Trust Co. of New York, 145 N. Y. S. 634.

PRESUMPTIONS.

See Appeal, §§ 916, 927; Evidence, §§ 73, 80.
PRIMARY ELECTIONS.

See Elections.

PRINCIPAL AND AGENT.

See Attorney and Client; Brokers; Corporations, §§ 291-320, 413, 429; Evidence, §§ 241251; Insurance, § 84; Limitation of Actions, § 155; Municipal Corporations, §§ 214-220.

I. THE RELATION.

(B) Termination.

$ 33 (N.Y.City Ct.) Where a person is employed for an indefinite time to sell goods on commission, the employer may terminate the agency at any time.-Jackson v. Olin J. Stephens, 145 N. Y. S. 827.

II. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.

(B) Compensation and Lien of Agent.
§ 81 (N.Y.City Ct.) Where a person is engag-
ed to sell goods on a commission, the termina-

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

tion of his contract of employment, although wrongful, terminates all rights he may have to commissions for orders thereafter placed with this employer by customers whom he first secured, and his only right of redress is an action for wrongful discharge.-Jackson v. Olin J. Stephens, 145 N. Y. S. 827.

$85 (N.Y.Sup.) An agent held to have acted with such care and prudence in the foreclosure of a chattel mortgage and a sale thereunder as to be entitled to recover of the principal the costs of defending a suit by the purchaser.Herrman v. Leland, 145 N. Y. S. 972.

Where a principal retained benefits of his agent's negligent foreclosure of a chattel mortgage, he could not repudiate the agent's claim for expenses in defending an action in which the buyer recovered his money back.-Id.

§ 89 (N.Y.City Ct.) In a suit by one employed to sell coal on commission, evidence held sufficient to support a finding that the contract had been terminated before the time of the accrual of the alleged commission.-Jackson v. Olin J. Stephens, 145 N. Y. S. 827.

III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.

(A) Powers of Agent.

§ 100 (N.Y.Sup.) That an agent acting within the scope of her authority was, by reason of her principal's illness, unable to consult her as to the renewal of a lease, could not relieve the principal from liability for rent pursuant to a renewal of the lease by such agent.-Dessar v. Hirsch, 145 N. Y. S. 51.

§ 101 (N.Y.Sup.) An architect employed by an individual owner for the erection of a building has not, by virtue of his employment, the authority to consent to a change or substitution of materials. People ex rel. R. T. Ford Co. v. Lewis, 145 N. Y. S. 862.

§ 103 (N.Y.Sup.) No authority of a sales agent to sell his samples is shown by the phrase, added to the testimony of his employer that they were delivered to him to be returned intact, "If a number be missing he was to pay for it." -Cleveland Knitting Mills Co. v. Shaff, 145 N. Y. S. 109.

One purchasing from a sales agent his samples is put on inquiry as to his authority to sell them, and this though the agent represents that he is the owner of them.-Id.

§ 105 (N.Y.Sup.) Plaintiff, having delivered a stock certificate to S. for sale, created him her agent; and, in the absence of instructions to the contrary, defendants, to whom S. delivered the certificate, were authorized as against her to pay him the proceeds of such sale.-Mitchell v. Boyer, 145 N. Y. S. 715.

other may assume that the latter is an undisclosed principal and liable as such.-Clarke v. Watt, 145 N. Y. S. 145.

Plaintiff, by inserting in his magazine advertising matter for the benefit of defendant pursuant to a contract made by plaintiff and an agency, held not to have given credit exclusively to the agency, so that he could recover from defendant.-Id.

$145 (N.Y.Sup.) That a buyer's agent signs the memorandum of the contract of sale merely with his own name does not render the contract unenforceable against his principal, where the agent has apparent authority to bind the principal and the principal's relation to the transaction is understood by the seller.-Hager v. Henneberger, 145 N. Y. S. 152.

§ 146 (N.Y.Sup.) One concealing the fact that he is agent and pretending to be principal cannot, after incurring liability, as principal, discharge himself therefrom by giving notice that he is only an agent.-Strauch Co. v. Landeker, 145 N. Y. S. 43.

§ 146 (N.Y.Sup.) Where a principal makes a contract through his agent with one who knows that the principal is the real party interested though the contract is made in the name of the agent, the principal alone is liable, unless credit is given exclusively to the agent.-Clarke v. Watt, 145 N. Y. S. 145.

PRINCIPAL AND SURETY.

See Bonds; Contracts, § 316; Guardian and
Ward, § 182; Indemnity; Insane Persons, §
45; Mechanics' Liens, § 227; Wills, § 847.
II. NATURE AND EXTENT OF LIA-
BILITY OF SURETY.

dition of a bond are ambiguous, they must not § 59 (N.Y.Sup.) Where the words of the conbe construed to impose a greater liability than the recitals of the bond indicate the parties intended the surety to assume.-McKeefrey v. Cugley, 145 N. Y. S. 102.

$59 (N.Y.Sup.) The liability of a surety is strictissimi juris and cannot be extended by construction.-Thayer v. Erie County Savings

Bank, 145 N. Y. S. 808.

IV. REMEDIES OF CREDITORS. $149 (N.Y.Sup.) A provision in a bond, securing the performance of a contract requiring suits against the surety to be instituted within six months after the completion of the work, would not apply to an action for damages for failure to perform the contract, though a second contract was entered into with the same contractor for completion of the work.-Comey v. United Surety Co., 145 N. Y. S. 674.

PRIORITIES.

§ 123 (N.Y.Sup.) Evidence, in an action for damages for a buyer's breach of a contract made by his agent for the sale of eggs, held to sustain a finding that the contract was made See Mortgages, § 532. by his agent for his benefit with his apparent authority.-Hager v. Henneberger, 145 N. Y. S.

152.

(B) Undisclosed Agency.

PRIVATE NUISANCE.

See Nuisance, § 3.

PRIVATE ROADS.

§ 145 (N.Y.Sup.) A party to a contract bearing on its face evidence that the other party is only an agent contracting for the benefit of an- See Easements.

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PUBLICATION.

See Appeal, §§ 412, 425; Arrest; Courts, See Process, § 98; Wills, § 133.
189; Execution; Injunction; Jury, § 28;
Mandamus; Master and Servant, § 262; Re-
plevin.

II. SERVICE.

(B) Substituted Service.

$70 (N.Y.Sup.) Where substituted service is
desired, a substantial compliance with the Code
is sufficient.-Dennin v. Duffy, 145 N. Y. S.
354.

PUBLIC BUILDING LAW.

See States, § 107.

PUBLIC DEBT.

See Counties, § 196; Municipal Corporations,
§§ 868-935.

PUBLIC IMPROVEMENTS.

$ 74 (N.Y.Sup.) Affidavits made part of the
moving papers for constructive service and filed
with the clerk of the court are constructively See Municipal Corporations, §§ 293–439.
before the justice granting the order for sub-
stituted service.-Dennin v. Duffy, 145 N. Y.
S. 354.

once

$75 (N.Y.Sup.) When jurisdiction is
obtained, orders providing for constructive serv-
ice may be amended so as to cure mere irregu-
larities.-Dennin v. Duffy, 145 N. Y. S. 354.

(C) Publication or Other Notice.
§ 98 (N.Y.Sup.) Under Code Civ. Proc. §§
438, 439, 440, an order of publication is not
invalid because the affidavit did not allege de-
fendant's correct street number, and the order
did not direct the mailing of copies of the sum-
mons and complaint to the correct number.-
Dennin v. Duffy, 145 N. Y. S. 354.

(D) Privileges and Exemptions.

§ 118 (N.Y.Sup.) A nonresident creditor com-
ing into the state to attend a creditors' meeting
before the referee in bankruptcy is exempt from
civil process.-Powell v. Pangborn, 145 N. Y.
S. 1073.

Officers of a bankrupt corporation who come
into the state to attend the first creditors' meet-
ing, although they are not in the custody of
the law, not having been subpoenaed, are ex-
empt from civil process.-Id.

PUBLIC LANDS.

See Navigable Waters.

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§ 188 (N.Y.Sup.) A grant made by the Eng-
lish crown must be construed under the com-
mon law of England, where for over 60 years
before the grant no other sovereignty had ex-
ercised any dominion in that territory.-Lewis
v. City of Utica, 145 N. Y. S. 346.

PUBLIC SCHOOLS.

See Schools and School Districts.

PUBLIC SERVICE COMMISSION.
See Carriers, § 10; Telegraphs and Telephones,
§ 33.

PUBLIC SERVICE CORPORATIONS.
See Carriers; Railroads; Street Railroads;
Telegraphs and Telephones.
PUBLIC USE.

§ 120 (N.Y.Sup.) Officers of a bankrupt cor-
poration who come from a foreign state into the See Dedication; Eminent Domain.
state of the forum for the purpose of attending
a creditors' meeting held mere volunteers under
Bankr. Act, § 7, where they have not been

PUNISHMENT.

subpoenaed or paid witness fees, including mile- See Injunction, § 219.
age.-Powell v. Pangborn, 145 N. Y. S. 1073.

PROMISSORY NOTES.

See Bills and Notes.

QUANTUM MERUIT.

See Physicians and Surgeons, § 13; Work and
Labor.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

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