tive damages must be reduced.-Kelmenson v. Metropolitan Opera Co., 152 N. Y. S. 1002. (D) Reversal. properly be directed.-In re St. John's Guild, 152 N. Y. S. 685. ARGUMENT OF COUNSEL. ARREST. 170 (N.Y.) Failure in any duty of the Trial Term to make findings supporting its de- See Criminal Law, 707–730. cision of the issues under the counterclaim does not authorize the Appellate Division to reverse and decide the issues the other way.-City of See Municipal Corporations, 747. New York v. Matthews, 108 N. E. 80, 213 N. Y. 563. 1175 (N.Y.) Prior to the amendment of Code Civ. Proc. § 1346 (Laws 1914, c. 351), the Court of Appeals could not reinstate a judg ment for plaintiff upon a verdict which had been erroneously reversed by the Appellate Division on a question of law, but must remand the case to the Appellate Division.-Junker: mann v. Tilyou Realty Co., 108 N. E. 190, 213 N. Y. 404. I. IN CIVIL ACTIONS. 35 (N.Y.) Under Code Civ. Proc. § 549, subd. 4, authorizing arrest in an action on contract on allegations of fraud in contracting the liability, held, that such allegation in action for damages for wrongful discharge did not authorize arrest.-Novotny v. Kosloff, 108 N. E. 189, 214 N. Y. 12. ASSAULT AND BATTERY. Since the amendment of Code Civ. Proc. § 1346 (Laws 1914, c. 351), the Court of Appeals See Municipal Corporations, ~747. need not remand, to the Appellate Division for its consideration of the facts, a case in which the Appellate Division erroneously reversed a judgment for plaintiff rendered upon a verdict of a jury.-Id. 175 (N.Y.Sup.) Where the complaint should have been dismissed below,, the appellate court, on reversal, may dismiss the action.-Cannon v. Fargo, 152 N. Y. S. 834. 1177 (N.Y.) On appeal from a judgment of reversal and dismissal of complaint by the Appellate Division before amendment of Code Civ. Proc. § 1346, by Laws 1914, c. 351, there being evidence for the jury, and exceptions requiring a new trial, new trial will be granted.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499. ASSESSMENT. See Insurance, 719; Municipal Corporations, 408-513; Taxation, 310-496. ASSETS. See Partnership, 187. ASSIGNMENTS. See Attorney and Client, 132; Bankruptcy, 1177 (N.Y.) Where the Appellate Division reverses a judgment for plaintiff in a personal injury action, because plaintiff was negligent, (A) Property, Estates, and Rights Assign able. as a matter of law, it need not direct a new trial, but can dismiss the complaint.-Peterson V. Ocean Electric Ry. Co., 108 N. E. 199, 21424 (N.Y.Sup.) A complaint on an assigned N. Y. 43; Id., 108 N. E. 200. 28 (N.Y.Sup.) Under Code Civ. Proc. 8 2369, where arbitrators were not sworn, waiver of oath not having been made, the objection was fatal.-In re St. John's Guild, 152 N. Y. S. 685. III. AWARD. 71 (N.Y.Sup.) Under Code Civ. Proc. $ 2374, where the only objection to the award is that the arbitrators were not sworn, the time set by the submission not having expired. a rehearing before the same arbitrators may claim for malicious prosecution held properly (B) Mode and Sufficiency of Assignment. 31 (N.Y.Sup.) An agreement held not an assignment by an officer and attorney of a savings bank of his salary.-Gibbs v. Knickerbocker Savings & Loan Co., 152 N. Y. S. 4. 57 (N.Y.Sup.) Notice to a debtor of the assignment of a debt is unnecessary.-Doughty v. Weston, 152 N. Y. S. 1035. IV. ACTIONS. 131 (N.Y.Sup.) A complaint on a claim assigned by a receiver, merely alleging assignment to plaintiff, without alleging the action or proceeding wherein the receiver was appointed, or order or judgment in which his title to the cause of action could be legally deduced or presumed, is defective.-Assets Collecting Co. v. Myers, 152 N. Y. S. 930. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER 256 (N.Y.Sup.) A trustee, under an assignment to collect claims and apply the proceeds to the payment of creditors of the assignor, may sue on a claim.-Vandyke v. Webb, 152 N. Y. S. 50S. Where an assignor for creditors refused to aid the trustee in collecting claims assigned, the trustee held entitled to compensation for expenses incurred in attempting to collect claims. -Id. Where a trustee for benefit of creditors made advancements to the assignor, to be repaid out of receipts on claims assigned, but the claims were not collected because of the assignor's misconduct, the advances were chargeable against the estate.-Id. 268 (N.Y.Sup.) A trustee, under an assignment to collect claims and apply the proceeds to the payment of creditors of the assignor, suing on a claim, the expenses incurred are chargeable against the estate.-Vandyke v. Webb, 152 N. Y. S. 508. V. RIGHTS AND REMEDIES OF CREDITORS. another as attorney of record.-Vandyke v. Webb, 152 N. Y. S. 508. Where an assignor for creditors refused to aid the trustee in collecting claims assigned, the trustee held entitled to compensation for serv ices in attempting to collect claims.-Id. Interest held not allowed on compensation for services under an assignment for benefit of creditors.-Id. 39! (N.Y.Sup.) Where a trustee for beneft of creditors settled claims due the assignor on the refusal of the latter to assist in enforcing the full amount due, the trustee could only recover the usual commissions on the amount collected. -Vandyke v. Webb, 152 N. Y. S. 508. ATTACHMENT. See Assignments for Benefit of Creditors, 343; Bankruptcy, 315, 423; Execution, 29; Pleading, 380. I. NATURE AND GROUNDS. (B) Grounds of Attachment. 25 (N.Y.Sup.) Evidence of nonresidence of defendants held sufficient to justify attachment. under Code Civ. Proc. § 636.-Gotham Nat. Bank of New York v. Martin, 152 N. Y. S. 654. III. PROCEEDINGS TO PROCURE. (B) Affidavits. 97 (N.Y.Sup.) Allegation in affidavit for attachment made by principal in the transac upon knowledge and sufficient to sustain the attion as to nonresidence held presumptively made tachment.-Miller v. Jones, 152 N. Y. S. 739. 102 (N.Y.Sup.) In action for goods sold and delivered, affidavit held sufficient to sustain attachment.-Miller v. Jones, 152 N. Y. S. 789. ATTORNEY AND CLIENT. (B) Presentation, Proof, and Payment of See Assignments for Benefit of Creditors, Claims. 306 (N.Y.Sup.) A trustee for the benefit of creditors need not, for the benefit of the estate of the assignor, plead limitations against a claim of an attorney for services.-Vandyke v. Webb, 152 N. Y. S. 508. 318 (N.Y.Sup.) Compensation of attorney employed by a trustee for benefit of creditors to prosecute a claim involving a difficult question of law cannot be based on the fact of a difficult question, where the court made the principal research.-Vandyke v. Webb, 152 N. Y. S. 508. 318, 390; Corporations, 377; Criminal Law, 641, 707–730; Divorce, ←2236; Executors and Administrators, 336: Injunction, 186: Judgment, 17, 138, 143, 818: New Trial, 29; Pleading. ✪ 238; Principal and Agent, 8: Stipulations, 13; Witnesses, 202, 206. I. THE OFFICE OF ATTORNEY. 4 (N.Y.) "Science" on which Court of Ap peals Rules 4 (48 N. E. vi), regulating admis sion to the bar, requires a preliminary examination of law students, not college graduates, is physics, and not any science, as botany.-In re Grout, 108 N. E. 83, 214 N. Y. 39. vi), rezulating admission to the bar, requiring Under Court of Appeals Rules 4 (48 N. E a preliminary examination of law students and clerks, not college graduates, in history, one cannot be required in economics.—Id. 4 (N.Y.Sup.) Work in a law office during law school vacations will not make up the continuous year of clerkship required by the rules for admission to the bar.-In re McGarey, 152 N. Y. S. 324. Work in a law office during the last year in law school is not a compliance with the rules of court, requiring a year's clerkship at practical office work during the usual business hours. Id. II. RETAINER AND AUTHORITY. 92 (N.Y.Sup.) While a client is represented by his attorney, the refusal of such attorney to try a case before a judge having the right to hear it is as binding upon the client as any other act of the attorney at the trial. -Kugelman v. Katz, 152 N. Y. S. 365. III. DUTIES AND LIABILITIES OF ATTORNEY TO CLIENT. 112 (N.Y.Sup.) Where an infant plaintiff failed to sign papers for the appointment of a guardian ad litem, held, that attorneys were not liable for delay in instituting suit.-Zeitlin v. Morrison, 152 N. Y. S. 1000. 117 (N.Y.Sup.) Plaintiff corporation, practicing law in violation of Penal Code, $ 280, held not thereby precluded from recovering on an accounting against defendant attorney, retained by it to conduct the litigation for moneys received by him in his employment.-United States Title Guaranty Co. v. Brown, 152 N. Y. S. 470. IV. COMPENSATION AND LIEN OF ATTORNEY. (A) Fees and Other Remuneration. 132 (N.Y.) Under Code Cr. Proc. $308, providing for assignment of counsel to one arraigned without counsel, held that relators were not entitled to allowance of counsel fee. People ex rel. Van Doren v. Prendergast, 108 N. E. 183, 214 N. Y. 16. 140 (N.Y.Sup.) Allowance of third of any sum recovered by plaintiff to his attorney, on substitution of attorney, held not excessive. Restivo v. Bradley Contracting Co., 152 N. Y. S. 326. 150 (N.Y.) An attorney whose client discontinues the litigation, for the conduct of which the attorney was to receive a contingent fee, can recover only for the value of services already rendered.-Andrewes v. Haas, 108 N. E. 423, 214 N. Y. 255. (B) Lien. (B) Assignment, and Title, Rights, and Remedies of Trustee in General. 140 (N.Y.Sup.) Where the assignee of a contract for the purchase of an article on installments became bankrupt, the trustee succeeded to all the rights of the assignee, subject to the seller's right to retake the article for nonpayment.-Breakstone v. Buffalo Foundry & Machine Co., 152 N. Y. S. 394. 140 (N.Y.Sup.) Property conveyed to holder of legal title by the wife of an insolvent, such wife having held in trust for her grantee, held not subject to trust in favor of such insolvent's creditors after his adjudication in bankruptcy.Arbury v. De Niord, 152 N. Y. S. 763. (C) Preferences and Transfers by Bankrupt, and Attachments and Other Liens. 161 (N.Y.Sup.) Property conveyed by wife of an insolvent to its beneficial owner, held not to be impressed with trust for benefit of insolvent's creditors under the national Bankruptcy Act, where he had worked a preference by putting his funds into such property more than four months before his adjudication as a bankrupt.-Arbury v. De Niord, 152 N. Y. S. 763. (E) Actions by or Against Trustee. 296 (N.Y.Sup.) Where a receiver is appointed in a suit by a trustee in bankruptcy therein should not be appropriated by the trusto set aside conveyances, the money recovered tee, but paid first to the receiver.-Hull v. Fifty-Second St. Storage House, 152 N. Y. S. 363. Under Bankruptcy Act, as amended, state and federal courts have concurrent jurisdiction of a suit by a trustee to set aside conveyances by the bankrupt.-Id. (F) Claims Against and Estate. Distribution of 174 (N.Y.) Under common-law rule and Ju-315 (N.Y.Sup.) Judgment against city mardiciary Law, § 475, an attorney employed at an shal for paying attached rents to attaching credannual salary has no lien for unpaid salary on itor with notice of assignee's claim held provproceeds of a judgment procured by him after able in bankruptcy.-Ulner v. Doran, 152 Ñ. Y. his general employment.-In re Heinsheimer, S. 655. 108 N. E. 636, 214 N. Y. 361. AUTHORITY. See Principal and Agent, 115, 119. AUTOMOBILES. See Master and Servant, 330; Corporations, 703; Trial, AWARD. See Arbitration and Award, 71. Municipal 140. 326 (N.Y.Sup.) A trustee in bankruptcy, substituted as defendant for bankrupt in replevin by plaintiff, claiming under a transfer from the bankrupt, could under Code Civ. Proc. § 501, set up as counterclaim his right to avoid the transfer under the Bankruptcy Act.-Gleason v. Bush, 152 N. Y. S. 54. V. RIGHTS, REMEDIES, AND DIS- 423 (N.Y.Sup.) Judgment against city marshal for paying attached rents to attaching creditor with notice of assignee's claim held prov For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER able in bankruptcy and released by the discharge.-Ulner v. Doran, 152 N. Y. S. 655. slips and the ledger of the bank.-Jennings 1. Lincoln Nat. Bank, 152 N. Y. S. 1. (D) Collections. 433 (N.Y.Sup.) Under Code Civ. Proc. § 1391, execution against wages held not a lien on wages subsequently becoming due after debt-175 (N.Y.Sup.) In an action against a bank or's discharge in bankruptcy.-Ulner v. Doran, for negligence in having failed to present a ne 152 N. Y. S. 655. for payment, so as to charge the indorser, evidence held improperly excluded.-Gilpin v. Co lumbia Nat. Bank, 152 N. Y. S. 619. Under Code Civ. Proc. § 1391, upon debtor's discharge in bankruptcy, execution against wages should be modified; but, until modified, moneys collected are properly payable to the judgment creditor.-Id. BANKS AND BANKING. See Appeal, 1050; Bills and Notes, ~92; Dismissal and Nonsuit, 36; Judgment, 735; Set-Off and Counterclaim, 36. Such indorser's insolvency held matter of de fense, with the burden of proving it upon de fendant bank.-Id. Costs taxed against holder of note in bis na successful action against such indorser held not recoverable against the bank.-Id. (E) Loans and Discounts. 181 (N.Y.Sup.) Under Banking Law. § 74. in a suit on a note for $80, carrying usuriens interest, taken by plaintiff, a private bank plaintiff was entitled to judgment for the amount of the note, with legal interest; Barking Law, § 314, having no application.-Clarke v. Taylor, 152 N. Y. S. 664. IV. NATIONAL BANKS. 235 (N.Y.City Ct.) The Comptroller of the Currency must take notice of and be governed by the decisions of the courts.-Willians v. Frank Levy, Inc., 152 N. Y. S. 454. V. SAVINGS BANKS. 290 (N.Y.Sup.) Plaintiff, having rendered legal services to a savings bank, held entitled to recover the difference between the actual operating expenses and the statutory lizit placed on such expenses, where the amount be was to receive brought the total beyond the limit.-Gibbs v. Knickerbocker Savings & Loan Co., 152 N. Y. S. 4. 135 (N.Y.Sup.) Under Code Civ. Proc. $306 (N.Y.Sup.) Evidence held insufficient pa 501, subd. 2, an indorser, liable to an insolvent bank after protest and notice, was entitled to set off the balance due from the bank upon his deposit.-Carnegie Trust Co. v. Kistler, 152 N. Y. S. 240. In action by receiver of insolvent bank upon note held by bank, held, that set-off of bank's indebtedness to defendant on a deposit did not violate state Banking Law or the National Banking Act as to preferences.-Id. 139 (N.Y.Sur.) A bank, which pays checks after the death of the drawer with no knowledge of his death, is not liable for the amount thereof. In re Stacey's Estate, 152 N. Y. S. 717. Death of drawer of check held to revoke payee's authority to receive the money thereon, and the money remained the property of the estate.-Id. 140 (N.Y.Sur.) The giving of a check does not operate to transfer the amount thereof from the depositor to the holder of the check until it has been accepted by the bank.-In re Stacey's Estate, 152 N. Y. S. 717. 154 (N.Y.Sup.) In an action by a depositor against a bank, evidence held insufficient to sustain a verdict that the depositor had made only one deposit of a certain amount, and not two, as appeared in her passbook and duplicate' justify a finding for defendant savings bank. an action against it for payment of plaints funds on a forged order.-Robesteien v. Franklin Savings Bank, 152 N. Y. S. 227. 307 (N.Y.Sup.) Where stock of a savings bank was surrendered and canceled, so as to i crease its assets, a merger agreement, approved by the superintendent of banks, who understood the way the assets were increased, is not invalid, as the result of fraud or conspiracyGibbs v. Knickerbocker Savings & Loan Co 152 N. Y. S. 4. VI. LOAN, TRUST, AND INVESTMENT ment for it to receive a deposit and expend the IV. NEGOTIABILITY AND TRANSFER. same in acquiring named stocks.-Id. (A) Instruments Negotiable. That checks for funds received by a trust company on certain trusts were transferred to 155 (N.Y.Sup.) A note due 90 days aftone of its directors does not change its lia-er date held nonnegotiable, because of the stipubility.-Id. lation that payment shall not be made until the Post Office Department accepts the maker's building.-Devine v. Price, 152 N. Y. S. 321. 317 (N.Y.Sup.) Under Laws 1892, c. 689, $156, 158, and Banking Law, § 190, the bene: ficiary of a private trust held not to have a preference over general creditors of a trust company. Madison Trust Co. v. Carnegie Trust Co., 152 N. Y. S. 517. In equity the beneficiaries of a trust fund held not entitled to any preference over the general creditors of a trust company.-Id. I. ILLEGITIMACY IN GENERAL. III. PROCEEDINGS UNDER BAS- 65 (N.Y.Sup.) In bastardy proceedings, evidence held sufficient to show that defendant was father of plaintiff's illegitimate child.Commissioner of Public Charities of City of New York v. Vassie, 152 N. Y. S. 496. In bastardy proceedings, there is no necessity that the testimony of the plaintiff be corroborated.-Id. BILLS AND NOTES. See Banks and Banking, 127, 175, 181; Chattel Mortgages, 242; Dismissal and Nonsuit, 36; Executors and Administrators, 124; Judgment, 735; Payment, 19-73; Pleading, 8; Principal and Surety, 194. I. REQUISITES AND VALIDITY. (E) Consideration. 92 (N.Y.) A note given by stockholders and irectors to a bank, so as to protect its surlus, held supported by a valuable consideration. -Union Bank of Brooklyn v. Sullivan, 108 N. 2. 558. 214 N. Y. 332. (B) Transfer by Indorsement. 198 (N.Y.Sup.) Where a check was indorsed by the writing of the payee's name on the back, title passed to the indorsee.-People v. Fowler, 152 N. Y. S. 672. V. RIGHTS AND LIABILITIES ON IN- (A) Indorsement Before Delivery to or 245 (N.Y.Sup.) After a note was protested and notice given to the indorser, he became liable, not as a surety, but independently of the Kistler, 152 N. Y. S. 240. liability of the maker.-Carnegie Trust Co. v. 256 (N.Y.) Where a note signed and indorsed by several was canceled, except as to one indorser, the cancellation which was unauthorized did not affect the validity of the remaining indorsement.-Union Bank of Brooklyn v. Sullivan. 108 N. E. 558, 214 N. Y. 332. 266 (N.Y.Sup.) Whether three indorsers became joint sureties for the maker of the note, or liable as successive indorsers, one paying the note at maturity became entitled to contribution from her coindorsers.-Strasburger v. Myer Strasburger & Co., 152 N. Y. S. 757. (B) Indorsement for Transfer. 273 (N.Y.CityCt.) Under Negotiable Instrument Law, §§ 39, 74, an indorsement on a note signed by a church, bearing the names of the finance committee, held not to make the members of the committee personally liable.-Chelsea Exch. Bank V. First United Presbyterian Church, 152 N. Y. S. 201. (C) Assignment or Sale. 315 (N.Y.Sup.) The assignee of notes takes them subject to any defense or counterclaim good as against the assignor.-Smith v. Hedges, 152 N. Y. S. 95. VI. PRESENTMENT, DEMAND, NO- Law, $$ 130, 140, presentment of note for pay- 332. 396 (N.Y.City Ct.) Under Negotiable Instruments Law, § 167, assistant treasurer of Corporation, signing its note as such, and indorsing it, and who by his own act had actual knowledge of its dishonor by nonpayment, held liable as an indorser without formal written notice of dishonor.-Wm. S. Merrell Chemical Co. v. Root, 152 N. Y. S. 368. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |