IV. RESCISSION AND ABANDON-
MENT.

8266 (N.Y.Sup.) A party rescinding a contract for fraud and seeking to recover the consideration paid must first restore or offer to restore the thing received by him.-Hedges v. Pioneer Iron Works, 151 N. Y. S. 495.

CONVERSION.

See Trover and Conversion.

CONVEYANCES.

See Assignments for Benefit of Creditors; Husband and Wife, §§ 492, 52; Mortgages; Vendor and Purchaser.

V. PERFORMANCE OR BREACH. § 303 (N.Y.Sup.) Refusal of defendants to pay for the drawing of logs under contract authorizes the plaintiff to refuse to proceed fur- See Evidence, § 185. ther with the contract and to recover for the drawing of the logs.-Sturdevant v. Mittelstaedt, 151 N. Y. S. 298.

$314 (N.Y.Sup.) A contract that plaintiff will, in consideration of a commission, do certain work for defendants, impliedly covenants that he shall have opportunity to do it, and so it is breached where they deprive him thereof.Zadek v. Olds, Wortman & King, 151 N. Y. S. 634.

§319 (N.Y.Sup.) A contractor, failing to complete the work of installing a boiler, held entitled to recover at most the difference between the reasonable cost to the owner of completing the work and the balance due under the contract. Olney & Warren v. Daniel Birdsall & Co., 151 N. Y. S. 907.

§321 (N.Y.Sup.) Defendants depriving plaintiff of opportunity to complete his contract for architectural work on commission, he may recover the value of that done, or damages for the breach.-Zadek v. Olds, Wortman & King, 151 N. Y. S. 634.

§ 322 (N.Y.Sup.) Evidence held sufficient to show that defendant was justified in terminating plaintiff's painting contract for imperfect performance.-Richman v. City of New York, 151 N. Y. S. 744.

§ 323 (N.Y.Sup.) Whether the architect's certificate delivered to the owner was a final certificate under a building contract, or only a memorandum, held under the evidence for the jury.-H. P. Sickles Co. v. McCurdy & Norwell Co., 151 N. Y. S. 906.

VI. ACTIONS FOR BREACH.

§ 324 (N.Y.Sup.) Where fraud is perpetrated in procuring the execution of a contract, party defrauded held entitled to rescind, or to continue to perform and sue for damages.-Driggs v. Hendrickson, 151 N. Y. S. 858.

$335 (N.Y.Sup.) Under Code Civ. Proc. § 533, complaint neither pleading the facts of performance by plaintiff nor that he had "duly" performed the contract sued on held defective. -Hedges v. Pioneer Iron Works, 151 N. Y. S.

495.

$337 (N.Y.Sup.) Action by copartner against defendant, agreeing as attorney in fact to settle the partnership affairs according to a certain balance sheet, for breach of such agreement, held to state no cause of action.-Blumenfeld v. Cohen, 151 N. Y. S. 926.

CONTRADICTION.

See Witnesses, §§ 345-380.

COPY.

CORPORATIONS.

See Assignments, §§ 23, 137; Banks and Banking; Carriers; Counties, § 122; False Pretenses, §§ 42, 49; Fraud, § 11; Municipal Corporations; Patents, § 195; Railroads; Specific Performance, § 105; Street Railroads; Taxation, §§ 103, 122; Trade-Marks and Trade-Names, § 35.

I. INCORPORATION AND ORGAN

IZATION.

$30 (N.Y.Sup.) In litigation between persons jointly interested in organizing a number of corporations, held, that the corporate entities could not be disregarded, and their rights determined as participants in a joint venture, and not as stockholders in a corporation.-Conklin v. United Construction & Supply Co., 151 N. Y. S. 624.

IV. CAPITAL, STOCK, AND DIVI-
DENDS.

(B) Subscription to Stock.
stock of a sufficient amount not in excess of
$76 (N.Y.Sup.) A contract to subscribe for
$19,000, to provide a corporation with suffi
cient working funds and capital, is not too in-
definite for enforcement.-Sanders v. Barnaby,
151 N. Y. S. 580.

$79 (N.Y.Sup.) Where plaintiff contracted with defendant to organize a corporation, incorporators to take the stock, the defendant alone to furnish money by subscribing for $19,000 worth of stock, there was a valid contract enforceable by the corporation when formed or the plaintiff as its assignee.-Sanders v. Barnaby, 151 N. Y. S. 580.

(C) Issue of Certificates.

$99 (N.Y.Sup.) Deposit of worthless stock with corporation, as attempted justification for representations that entire capital stock was fully paid in, held not such a payment as gave one of the two stockholders an equal interest in the corporation, notwithstanding his refusal to pay for his share of the unissued stock.Conklin v. United Construction & Supply Co.,

151 N. Y. S. 624.

§ 110 (N.Y.Sup.) One of two organizers of corporation, who, when it was embarrassed, refused to take any part of unissued stock, held not entitled, after it became prosperous, to have stock taken by the other organizer canceled, in order that he might be equally interested in the corporation.-Conklin v. United Construction & Supply Co., 151 N. Y. S. 624.

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

VII. CORPORATE POWERS AND

LIABILITIES.

(A) Extent and Exercise of Powers in

General.

CORROBORATION.

See Witnesses, §§ 345-380.

CORRUPT PRACTICES.

§ 395 (N.Y.Sup.) A corporation cannot defeat the rights of creditors to know who its stock- See Elections, §§ 316, 329. holders are by failing to keep a stockbook.Moore v. Institute of Educational Travel, 151 N. Y. S. 929.

$396 (N.Y.Sup.) Stock Corporation Law, 8 32, is highly penal, and will be construed strictly against the judgment creditor, and recovery of the penalty will not be allowed, unless refusal to allow inspection of its stockbook was willful.-Moore v. Institute of Educational Travel, 151 N. Y. S. 929.

A corporation that had issued no certificates of stock, and which consequently had no stockbook, could not willfully refuse to exhibit such book to its judgment creditor.-Id.

The right of action for the penalty for failing to keep a stockbook is in the state.-Id.

(B) Representation of Corporation by Officers and Agents.

§ 406 (N.Y.Sup.) A contract by the president of a corporation on its behalf to furnish its employés suits of clothes held ultra vires on the

part of the officer.-Wolford v. Soter Co., 151

N. Y. S. 516.

COSTS.

See Appeal, §§ 163, 936; Attorney and Client,
§ 182; Partition, § 114.

I. NATURE, GROUNDS, AND EXTENT
OF RIGHT IN GENERAL.
§18 (N.Y.City Ct.) Under Municipal Court
Act, § 1, subd. 14, plaintiffs' suit for damages
for injury to real property held one that might
have been brought in the Municipal Court, so
that he was not entitled to costs under Code
Civ. Proc. 3228, subd. 5, despite Municipal
Court Act, § 2.-Post v. Levitan, 151 N. Y. S.

947.

§ 32 (N.Y.Sup.) Where plaintiff succeeded in establishing a material and controverted cause of action against defendant, an award of costs in his favor is proper.-Shoemaker v. Buffalo Steam Roller Co., 151 N. Y. S. 207.

Municipal Court Act, § 248, be dismissed, with § 44 (N.Y.Sup.) A complaint cannot, under § 407 (N.Y.Sup.) A contract of employment selves.-Sheeks v. Sample, 151 N. Y. S. 884. costs, where the parties settle the case themheld that of a shareholder, and not of the corporation, so that it was not liable thereon.ed and awarded to appellant were principally § 69 (N.Y.Sup.) Where the disbursements taxShankland v. Crane Oxygen Works & Ambu- for printing the record, a great part of which lance Co., 151 N. Y. S. 899. was taken up by appellant's unsuccessful attempt to show a certain fact, costs and disbursements will be directed to abide the event. Barnes v. Roosevelt, 151 N. Y. S. 322.

§ 432 (N.Y.Sup.) In corporation's action to recover proceeds of checks deposited by president in his personal account, evidence as to transactions claimed to have extinguished the corporation's claim against the president held erroneously excluded.-E. Moch Co. v. Security Bank of New York, 151 N. Y. S. 756.

(D) Contracts and Indebtedness.

§ 482 (N.Y.) Bonds secured by a trust mortgage on the stock of another corporation, though duly issued and certified by the trustee, held not entitled to participate in the proceeds at foreclosure, having been retained in the treasury of defendant, which succeeded the original mortgagor.-Trust Co. of America v. United Boxboard Co., 107 N. E. 574, 213 N. Y. 334.

(G) Crimes and Criminal Prosecutions. § 529 (N.Y.Sup.) In view of Penal Law, §§ 580, 1932, and General Construction Law, 1-37, declaring "person" to include corporations, a corporation may be convicted of conspiracy, in which specific intent is a necessary element.People v. Dunbar Contracting Co., 151 N. Y. S. 164.

XII. FOREIGN CORPORATIONS.

§ 662 (N.Y.Sup.) Under Code Civ. Proc. § 1780, subd. 4, as amended by Laws 1913, c. 60, a foreign corporation doing business in the state cannot sue another foreign corporation not doing business in the state.-United States Asphalt Refining Co. v. Comptoir National D'Escompte De Paris, 151 N. Y. S. 604.

IV. SECURITY FOR PAYMENT. $110 (N.Y.Co.Ct.) The right of a defendant to security for costs in actions in the county court by non residents, conferred by Code Civ. Proc. § 3268, subd. 1, is absolute, though it may be lost by laches.-Tedeschi v. Bacigalupo, 151 N. Y. S. 649.

$112 (N.Y.Co.Ct.) Defendant's right to demand security for costs held not waived because motion was not made until after issue was joined.-Tedeschi v. Bacigalupo, 151 N. Y. S. 649. The court may in its discretion, upon a reasonable excuse for the delay, require security for costs after defendant has served his answer. -Id.

$136 (N.Y.Sup.) The right to require plaintiff to give security for costs is waived by answer before motion for such security.-W. A. Ives Mfg. Co. v. Smith & Hemenway Co., 151 N. Y. S. 275.

VII. ON APPEAL OR ERROR, AND
ON NEW TRIAL OR MOTION
THEREFOR.

$250 (N.Y.Sup.) Where respondent moved to dismiss an appeal, though he was equally in default with appellant, appellant, filing opposing affidavits, was entitled to costs on denial of motion.-In re Fred, 151 N. Y. S. 229.

A party, required to file opposing affidavits on motion for reargument of a motion previous

ly denied, held entitled to costs on denial of their rights under the contract.-Engel v. Shusecond motion. Id.

IX. IN CRIMINAL PROSECUTIONS. § 294 (N.Y.Sup.) Under Code Cr. Proc. § 308, the allowance to each of two counsel, appointed by the court to defend accused, charged with murder in the first degree, of $250 for successfully demurring to the indictment, held proper. -People ex rel. Van Doren v. Prendergast, 151 N. Y. S. 674.

COUNCIL.

See Municipal Corporations, § 60.

COUNTERCLAIM.

See Set-Off and Counterclaim.

COUNTIES.

See Execution, §§ 332, 448; Highways; Mandamus, §§ 73, 101.

III. PROPERTY, CONTRACTS, AND

LIABILITIES.

(B) Contracts.

§ 122 (N.Y.Suo.) Where a public service corporation, of which a county supervisor was an officer was required by the other supervisors to furnish electric current to the county, the supervisor did not violate Penal Law, § 1868, prohibiting public officials from becoming indi vidually interested in contracts.-Schenectady Illuminating Co. v. Board of Sup'rs of Schenectady County, 151 N. Y. S. 425.

Where a corporation furnished a county with electric current in accordance with Transportation Corporation Law, § 62, the county could not defeat compensation, because a member of the board of supervisors was a corporate officer.-Id.

bert Theatrical Co., 151 N. Y. S. 593.

Agreement in contract to submit in case of dispute to jurisdiction of foreign courts held not to prevent action in the courts of this state, even if valid.-Id.

§ 24 (N.Y.Sup.) Consent of the parties cannot confer on a court jurisdiction of the subject-matter of an action beyond its jurisdiction.-Herpe v. Herpe, 151 N. Y. S. 503.

§ 37 (N.Y.Sup.) Jurisdiction as to the subject-matter may be inquired into at any stage of the proceeding and is not waived by defendant's demurrer to the complaint.-Eldert v. Cross Country R. Co., 151 N. Y. S. 441.

II. ESTABLISHMENT, ORGANIZA-
TION, AND PROCEDURE IN

GENERAL.

(D) Rules of Decision, Adjudications, Opinions, and Records.

land

§ 89 (N.Y.) Earlier cases construing grants are of great weight as precedents, even though plaintiff was not a party to the action. -People v. Santa Clara Lumber Co., 107 N. E. 495, 213 N. Y. 226.

$93 (N.Y.Sup.) Prior decisions, that damages were allowable for injuries to abutting property from change of railroad grade on its own right of way incident to elimination of grade crossings, held not a rule of property.-In re Grade Crossing Com'rs of City of Buffalo, 151 N. Y. S. 146, 148.

$95 (N.Y.City Ct.) In construing a provision of the uniform Negotiable Instruments Act, decisions in other states which have adopted the act should be given the same authority as decisions in New York.-Century Bank of City of New York v. Breitbart, 151 N. Y. S. 588.

III. COURTS OF GENERAL ORIGINAL
JURISDICTION.

(B) Courts of Particular States.

§122 (N.Y.Sup.) A contract by supervisors with a corporation of which a member of the board was a stockholder and officer, being illegal under Penal Law, § 1868, was unenforceable.-risdiction of an action brought under Tax Law, § 148 (N.Y.Sup.) The Supreme Court has juSchenectady Illuminating Co. v. Board of Sup'rs 265, 266, to enforce payment of a mortgage of Schenectady County, 151 N. Y. S. 830. tax.-People v. Park Row Realty Co., 151 N. Y. S. 804.

§ 122 (N.Y.Sup.) A sale by a corporation to county supervisors was void, because a member of the board was a shareholder and officer of the corporation, regardless of whether there was a misdemeanor, within Penal Law, § 1868.-People ex rel. Schenectady Illuminating Co. v. Board of Sup'rs of Schenectady County, 151 N.

Y. S. 1012.

COURTS.

See Appeal, 88 84, 1194, 1195; Appearance; Constitutional Law, § 45; Divorce, §§ 62, 326; Judgment, § 640; Justices of the Peace; Municipal Corporations, § 408; Trial, §§ 388395.

I. NATURE, EXTENT, AND EXERCISE
OF JURISDICTION IN GENERAL.
$23 (N.Y.Sup.) Provision of eontract for sub-
mission to jurisdiction of foreign courts, held
not to prevent action in this state for false
representations, whereby plaintiffs released

IV. COURTS OF LIMITED OR INFERI-
OR JURISDICTION.

§ 188 (N.Y.Sup.) Under Municipal Court Act, § 139, and Personal Property Law, § 65, held, that buyer's action to recover amounts paid, where goods are retaken under a contract of conditional sale, was not within the jurisdiction of the court.-Edelson v. Wagman, 151 N. Y. S. 40.

§ 188 (N.Y.Sup.) The Municipal Court is a court of limited jurisdiction and possesses no powers except those conferred by the statute.Junk v. Moore, 151 N. Y. S. 63.

§ 188 (N.Y.Sup.) The Municipal Court of the city of New York has no jurisdiction of an equitable action.-Herpe v. Herpe, 151 N. Y. S. 503.

8188 (N.Y.City Ct.) Under Municipal Court Act, § 1, subd. 14, plaintiffs' suit for damages

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

$ 190 (N.Y.Sup.) Under Municipal Court Act, § 311, a defendant, not served with summons, may appeal from a default judgment in the Municipal Court.-Canelli Wine Co. v. Tassi, 151 See Witnesses, §§ 345-380. N. Y. S. 46.

On appeal from a default judgment in the Municipal Court, on the ground that no process was served on defendant, the question of service may be determined on affidavits filed in the appellate court, under Code Civ. Proc. § 3057. -Id.

$ 190 (N.Y.Sup.) Where the papers on appeal to the Appellate Term have been served and filed, but neither side notices the case for argument, the appeal could not be dismissed on respondent's motion. In re Fred, 151 N. Y. S. 229.

$ 190 (N.Y.Sup.) County court held to have properly refused to interfere with city court's determination of question of fact on conflicting evidence. Temple v. Brooks, 151 N. Y. S. 490.