See Eminent Domain. CONDITIONAL SALES. See Sales, 450-479. CONSTITUTIONAL LAW. For validity of statutes relating to particular II. CONSTRUCTION, OPERATION, 8(6) (N.Y.Sup.) The federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) is controlling in cases where it applies, and the liability imposed by it is exclusive of all other liability, as between an injured employé and his employer.-Cott v. Erie R. Co., 17948 (N.Y.Co.Ct.) Every presumption should N. Y. S. 488. II. SUBJECTS OF REGULATION. 17 (N.Y.Sup.) Where a barge with a tug is engaged in transporting cargo from New York City to New Jersey, and is actually in course of that voyage, the owner, a railroad company, was engaged in interstate commerce, and the captain of the barge was within the protection of the federal Employers' Liability Act (Act April 22, 1908 [U. S. Comp. St. $$ 8657-8665]).-Gardner v. Hines, 179 N. Y. S. 362. be indulged in favor of the constitutionality of a legislative act, and the act not declared unconstitutional, unless it is manifestly so.People v. Willi, 179 N. Y. S. 542. III. DISTRIBUTION OF GOVERN- (B) Judicial Powers and Functions. 27(1) (N.Y.Sup.) The liability of a third person, not the employer of an injured railroad employé engaged in interstate commerce, is governed by the common law, and is not affected by the federal Employers' Liability Act (C) Executive Powers and Functions. (U. S. Comp. St. §§ 8657-8665).—Cott v. Erie 80(3) (N.Y.) Greater New York Charter, R. Co.. 179 N. Y. S. 488. § 119, amended by Laws 1916, c. 517, giving certain powers to commissioner of accounts, including power to compel attendance of witnesses, is not unconstitutional as conferring judicial power.-Hirshfield v. Cook, 125 N. E. 504, 227 N. Y. 297. 27(6) (N.Y.Sup.) Where cars were loaded and they began to move, destined for an other state or country, a railroad employé assisting therein was engaged in interstate commerce, although he did not know that the cars were destined for another state or country, and although the cars had not yet received their billing; the shipper having arranged directly with another railroad, to whom the cars were being delivered, for the shipment and billing.-Cott v. Erie R. Co., 179 N. Y. S. 488. IV. POLICE POWER IN GENERAL. 81 (N.Y.Co.Ct.) The "police power," which exists in every sovereign state, is but another name for that authority to pass all laws for the internal regulation and government of For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER the state necessary for the public welfare.People v. Willi, 179 N. Y. S. 542. of federal and state governments for over 50 years, in limiting jury service to males.-In re Grilli, 179 N. Y. S. 795. XI. DUE PROCESS OF LAW. The police power cannot be arbitrarily exercised, so as to deprive the citizen of his liberty or property, but a statute enacted under the power does not work such a result merely because it imposes burdens, abridges free-277(1) (N.Y.Sup.) Judiciary Law, § 686, redom of action, regulates occupations, or subjects individuals or property to restraint in matters that affect the public interest and general welfare or the rights of others.-Id. Legislation under the police power only infringes upon the constitutional guaranties when it extends to subjects not within its scope, as that power was defined and understood when the Constitution was adopted.-Id. 123 (N.Y.) An instrument by which the state grants to another a perfect right to the use and possession of lands is a grant of an incorporeal hereditament, which is an executed contract that cannot be impaired under the Constitution.-Saratoga State Waters Corporation v. Pratt, 125 N. E. 834, 227 N. Y. 429. quiring jurors in Kings county to be male citizens, does not violate Const. U. S. Amend. 14, relative to denying due process of law, in view of the practical construction of that amendment resulting from the uniform conduct of federal and state governments for over 50 years, in limiting jury service to males.-In re Grilli, 179 N. Y. S. 795. 281 (N.Y.) Constructive notices provided by Greater New York Charter in proceedings where land is taken for street purposes are sufficient to constitute due process of law as against the owners of the land taken.-Merriman v. City of New York, 125 N. E. 500, 227 N. Y. 279. 296(2) (N.Y.Co.Ct.) Liquor Tax Law, § 30, subd. (p), making it unlawful to possess liquor in dry territory unless prescribed by physician, is a valid exercise of police power, and does not deprive a person of liberty and property without due process of law, in violation of Const. N. Y. art. 1, § 6, or Const. U. S. Amend. 14.-People v. Willi, 179 N. Y. S. 542. 124 (N.Y.) The fact that the grant of the right to take spring waters from the land of state required the grantee to perform certain acts in the future does not change its character as an executed contract which cannot be impaired.-Saratoga State Waters Corporation See Injunction, 219-228; Discovery, 77. v. Pratt, 125 N. E. 834, 227 N. Y. 429. IX. PRIVILEGES OR IMMUNITIES, 206(1) (N.Y.Sup.) Judiciary Law, § 686, requiring jurors in Kings county to be male citizens, does not violate Const. U. S. Amend. 14, relative to abridging the privileges or immunities of citizens, in view of the practical construction of that amendment resulting from the uniform conduct of federal and state governments for over 50 years, in limiting_jury service to males.-In re Grilli, 179 N. Y. S. 795. X. EQUAL PROTECTION OF LAWS. 209 (N.Y.Co.Ct.) Since enactment of the Fourteenth Amendment to the United States Constitution, the question whether a state statute deprives one of life, liberty, or property without due process of law involves the consideration of both federal and state Constitutions, although the ground of construction and decision is identical under either instrument.— People v. Willi, 179 N. Y. S. 542. 224 (N.Y.Sup.) Judiciary Law, § 686, requiring jurors in Kings county to be male citizens, does not violate Const. U. S. Amend. 14, relative to the equal protection of the laws, in view of the practical construction of that amendment resulting from the uniform conduct See Courts, CONTEMPT. CONTINUANCE. 29 (N.Y.Sup.) Where defendant plainly was surprised when the issue of duress was presented, and the circumstances of the claimed duress, which had become the sole issue, were extraordinary, denial of adjournment held an abuse of discretion, necessitating new trial.Amendi v. Sorrento Cheese Co., 179 N. Y. S. 562. CONTRACTS. See Account, 12; Assignments; Bills and I. REQUISITES AND VALIDITY. (A) Nature and Essentials in General. 9(1) (N.Y.Sup.) The manner and form of payment is not an essential part of a contract for the payment of money.-Swedish-American Nat. Bank v. Merz, 179 N. Y. S. 600. * 10(4) (N.Y.Sup.) Letter written by defendant, stating that it had been instructed by one of its officers to enter contract of plaintiff jobber "for your requirements of special BB glue for the year 1916, price to be nine cents per pound, * * delivery to be made to you as per your orders during the year," and plaintiff's written acceptance thereof, held to evidence a contract which was not lacking in mutuality.-Oscar Schlegel Mfg. Co. v. Peter Cooper's Glue Factory, 179 N. Y. S. 271. (B) Parties, Proposals, and Acceptance. 28(3) (N.Y.Sup.) In contractor's action against tenants for repairs, based on an express promise to pay therefor, finding that such promise had been made held against weight of the evidence.-Delisky v. Leonard, 179 N. Y. S. 112. (C) Formal Requisites. 36 (N.Y.Sup.) Verbal or written, or in part verbal and in part written, a contract not attested by seal, is only in parol.-Schwartzman v. Pines Rubber Co., 179 N. Y. S. 284. (D) Consideration. being based on an illegal consideration, and having been executed for illegal purpose.Hocking Valley Ry. Co. v. Barbour, 179 N. Y. S. 810. 116(4) (N.Y.Sup.) Contract by dairymen to deliver all their milk to creamery established by them does not offend the law, as being an unreasonable restraint of trade.-Castorland Milk & Cheese Co. v. Shantz, 179 N. Y. S. 131. 118 (N.Y.Sup.) An agreement between an employé and employer, whereby the employé agrees not to engage anywhere in the United States in a like business for two years after termination of his employment, will be held valid, where it appears that failure to sustain it will work irreparable injury to the employer, in that it would have the effect of imparting trade secrets and processes to a competitor.-Eastman Kodak Co. v. Powers Film Products, 179 N. Y. S. 325. In protection of its valuable trade secrets, an employer has the right to require of one being employed, as a part of the consideration of his employment, such reasonable and contractual engagement upon his part as will reasonably insure the preservation to it of its trade secrets. -Id. 123(1) (N.Y.Sup.) An agreement to pay 54(1) (N.Y.Sup.) Where a volunteer prom-commissions on government orders is not ise is made, which expressly or impliedly re- against public policy, and therefore is not void.quests the doing of some act on the strength Schwartzman v. Pines Rubber Co., 179 N. Y. of the promise, if such act is performed, it is S. 284. a sufficient consideration to uphold the prom-127(2) (N.Y.) Parties cannot undertake by ise.-Castorland Milk & Cheese Co. v. Shantz, an independent provision of a contract to pro179 N. Y. S. 131. vide for adjustment of differences arising in its 78 (N.Y.Sup.) An agreement by plaintiff to performance by arbitration to the exclusion of give defendant control of a railroad company, the courts.-Saratoga State Waters Corporawhich plaintiff carried out by execution and tion v. Pratt, 125 N. E. 834, 227 N. Y. 429. delivery of a proxy for her shares, held a suffi-133 (N.Y.Sup.) A contract between citicient consideration to support defendant's promise to pay plaintiff the sum fixed.-Edwards v. Tennis, 179 N. Y. S. 807. 88 (N.Y.Sup.) There is no presumption that a service mentioned in a writing whereby defendant agreed to pay plaintiff a stated sum, which service was rendered without express request, was rendered at the implied request of defendant, and so it is not a sufficient consideration to support the agreement.-Edwards v. Tennis, 179 N. Y. S. 807. (E) Validity of Assent. zens of the United States, made in 1916, for the purchase of German war bonds, valid when made, was not destroyed by the severance of peaceful relations between this country and Germany, so as to give the purchaser a right to recover the amount paid for bonds not delivered, as money had and received.-Erdreich v. Zimmermann, 179 N. Y. S. 829. Where a purchase of German war bonds was made in 1916, but the sale was not consummated by delivery, the subsequent outbreak of war between the United States and Germany operated to suspend the transaction, which after declaration of peace may be completed by delivery of the bonds.-Id. 93(2) (N.Y.) Ignorance through negligence or inexcusable trustfulness will not relieve party of his contract obligations.-Metzger v.137(1) (N.Y.) The provision in the grant of Etna Ins. Co., 125 N. E. 814, 227 N. Y. 411. One who signs or accepts a written contract in the absence of fraud or other wrongful act on the part of another contracting party is conclusively presumed to know its contents, and to assent to them, and there can be no evidence for the jury as to his understanding of its terms.-Id. (F) Legality of Object and of Consideration. the right to bottle and sell the surplus waters of the Saratoga springs that, if any of the clauses are held invalid, they shall not vitiate the whole instrument, does not itself render the instrument invalid.-Saratoga State Waters Corporation v. Pratt, 125 N. E. 834, 227 N. Y. 429. 137(3) (N.Y.) If the provision in the grant of the right to bottle and sell the waters of the Saratoga springs for conclusive arbitration of differences is unenforceable, it is not so connected with the rest of the instrument as to render it all invalid.-Saratoga State Waters Corporation v. Pratt, 125 N. E. 834, 227 N. 429. 113(4) (N.Y.Sup.) Buyer's bond to indemnify seller against liability for damages to third party, to whom seller had previously contracted to sell the goods, held unenforceable, hav-Y. ing been executed as an inducement to seller to break contract with third party, and therefore 141 (1) (N.Y.Sup.) Evidence held insufficient to warrant holding that a contract, be For cases in Dec.Dig. & Am.Dig. Key-No.Series & indexes see same topic and KEY-NUMBER tween corporations involved in the litigation, [ festly made of materials superior to that furproviding for dissolution of a third corporation nished by defendant for the work, it was not formed by them to bid upon and perform sub- a criterion of the quality of the skins contained way contracts, either was the result of mis- in the completed work, but was a sample of the take or was in violation of any laws of New form and workmanship required of plaintiff.York having reference to the rights of stock- Weiner v. H. Jaeckel & Sons, 179 N. Y. S. holders.-O'Rourke Engineering Const. Co. v. 629. Booth & Flinn, 179 N. Y. S. 623. II. CONSTRUCTION AND OPERATION. VI. ACTIONS FOR BREACH. * ~328(1) (N.Y.Sup.) In action by creamery against dairyman for breach of his agreement to deliver milk, defendant's claim of excess dumpage charge deducted from defendant's creamery dividends is without merit, where the total of such excess is conceded to be only $2.28, and it appeared that plaintiff's officers offered to refund such excess, and defendant refused it, be155 (N.Y.Sup.) Where defendant made a cause it was such a small amount; the principle written statement of his obligation to pay plain- "de minimis" applying.-Castorland Milk & tiff a sum of money, the writing is to be conCheese Co. v. Shantz, 179 N. Y. S. 131. strued most strongly against defendant.-Ed-332(3) (N.Y.Sup.) The final clause of a wards v. Tennis, 179 N. Y. S. 807. contract, "In witness whereof the parties hereto have signed, ** subject only to the approval of the surrogate of the county of New York, or, if necessary, the approval of a jus* and the tice of the Supreme Court, clause in a supplemental agreement, "that the various accounts between the different companies and business mentioned in said agreement and in the agreement of the 12th day of December, 1917, be adjusted as of the day upon which the surrogate or other judge shall approve of the agreement, *required the plaintiff, in an action to enforce the contract, to plead that the contract had been approved by the court, or such other facts as would show plaintiff entitled to sue upon the contract; the condition that the court approve the contract being a condition precedent.-Gatchell v. Gatchell, 179 N. Y. S. 291. 167 (N.Y.Mun.Ct.) All contracts are presumed to be made with regard to existing laws and regulations, and with respect to such as may be subsequently enacted, affecting the subject-matter of the contract, which laws and regulations are presumed to have been within the knowledge of the parties, and contemplated and intended as part of the agreement itself.-Pross v. Excelsior Cleaning & Dyeing Co., 179 N. Y. S. 176. 168 (N.Y.Sup.) Terms implied by legal presumption need not be expressly stated. Swedish-American Nat. Bank v. Merz, 179 N. Y. S. 600. 176(6) (N.Y.Sup.) Where a contract is evi denced by correspondence, and different infer: ences may be drawn therefrom, the intention of the parties becomes a question of fact for the jury.-Hausman v. Buchman, 179 N. Y. S. 26. (C) Subject-Matter. 190 (N.Y.Sup.) Defendant contractor's CONVERSION. CONVICTS. agreement with plaintiff for construction of See Trover and Conversion. CORPORATIONS. See Appeal, 162; Banks and Banking; Car- 174; Release, 36; Street Railroads; Taxation, 526, 533; Telegraphs and Telephones. form by the partnership.-Shuttleworth, Keiller & Co. v. Marchiony Bros., 179 N. Y. S. 586. IV. CAPITAL, STOCK, AND DIVI- (B) Subscription to Stock. 81 (N.Y.Sup.) Where subscriber had no information that entire amount named in the subscription agreement, procuration of which was a condition to subscription, had not been obtained when he and other stockholders adopted a resolution for the delivery of stock to the several subscribers according to the amount actually paid at its par value, he did not waive, by assent to such resolution, his right to recover the amount of his subscription actually paid to the company, if the stipulated amount of stock was not subscribed.-Stuart v. New York Community Mausoleum Const. Co., 179 N. Y. S. 73. (D) Transfer of Shares. sence of a showing of bad faith.-Castorland Milk & Cheese Co. v. Shantz, 179 N. Y. S. 131. V. MEMBERS AND STOCKHOLDERS. (A) Rights and Liabilities as to Corporation. 189(12) (N.Y.Sup.) Where a stockholder of a corporation paid obligations of the corporation, the burden rested upon the corporation, in an action by the legal representatives of such stockholder, to affirmatively establish payment; corporation claiming that stockholder had been repaid.-Morrison v. Griffin Corners Water Co., 179 N. Y. S. 333. In an action by the representatives of a stockholder, who had paid an obligation of the corporation, a finding that the corporation had not repaid plaintiff's decedent held not against the weight of the evidence.-Id. (C) Suing or Defending on Behalf of Corporation. 206(1) (N.Y.Sup.) A stockholder of a corporation may sue to recover for the company any of its assets, which have been improperly diverted from its treasury, provided the corporation refuses to sue.-Kennedy v. Lownes, 179 N. Y. S. 806. (D) Liability for Corporate Debts and Acts. 116 (N.Y.Sup.) Where plaintiff called to defendant's attention a railroad which her deceased husband had started to finance, and defendant took over the project, plaintiff giving him control of the corporation by executing a proxy to her stock, held, that the written agreement whereby defendant agreed to make payments to plaintiff did not obligate her to transfer her shares to defendant as consideration for reasonable payments.-Edwards v. Ten-265(1) (N.Y.Sup.) Where a stockholder, by a fraudulent use of his stock, applied the funds nis, 179 N. Y. S. 807. of the corporation to his personal debts, the cause of action lies primarily with the corporation, and secondarily only with the stockholder, and in no case does a cause of action for wasting the funds of a corporation lie with a creditor.-Hilgers v. Gosselin, 179 N. Y. S. 703. 117 (N.Y.Sup.) If stock was bought only through defendant, as a mere broker, a sale cannot be rescinded by a tender to him.-Levy v. Horsfall, 179 N. Y. S. 564. VII. CORPORATE POWERS AND LIABILITIES. 121(4) (N.Y.Sup.) A stockholder, whose complaint to set aside for fraud an executed contract by which he sold his shares and agreed not to re-engage in the tobacco business to other stockholders, who then sold all the stock at a profit to a third party, etc., held to state no grounds for equitable relief, since it is not shown that a damage action at law is inade-448(2) (N.Y.Sup.) Agreements made on bequate, and, if plaintiff is sued upon agreement half of a corporation by a promoter before its not to re-engage in business, he can set up de- incorporation are binding on the corporation fense that contract was secured by fraud.-Falk when organized, if adopted by it.-Castorland Milk & Cheese Co. v. Shantz, 179 N. Y. S. 131. v. Hoffman, 179 N. Y. S. 428. (D) Contracts and Indebtedness. 121(5) (N.Y.Sup.) In action to recover448(2) (N.Y.Sup.) A corporation for which, as undisclosed principal, a contract was made, amount paid for stock on ground of false representations inducing purchase, evidence held not being organized at the time, could not be not to justify finding that purchase was made held on it, unless, after organization, it ratifrom defendant broker and not, as complaint fied it.-International Agricultural Corporation alleged, through him.-Levy v. Horsfall, 179 N. v. Carpenter, 179 N. Y. S. 819. Y. S. 564. (E) Interest, Dividends, and New Stock. 152 (N.Y.Sup.) A clause in agreement between dairymen farmers, establishing a creamery, that the creamery stock "shall be entitled to receive dividends at the rate of 5 per cent. per annum," must be read in connection with Stock Corporation Law, § 28, forbidding dividends except from surplus profits.-Castorland Milk & Cheese Co. v. Shantz, 179 N. Y. S. 131. 155(5) (N.Y.Sup.) An action never lies to recover a dividend until it has been duly declared, for courts cannot by suit control the actions of corporation trustees, at least in the ab Though the contract made with plaintiff by defendant as agent of an undisclosed principal was not binding on such principal, it being a corporation not then organized, yet, after it was organized, the agent acting for it, and with authority so to do, having asked for a modification of the contract, which was granted, the modified contract was binding on it, though a paper contract embodying it, direct with the corporation, and sent to it and signed by its president, was not binding on it, because not returned to plaintiff.-Id. 448(3) (N.Y.Sup.) Where, pursuant to written agreement by dairymen farmers to subscribe for stock in creamery to be established and deliver their milk to it, the creamery was incorpo |