$177 (N.Y.Sup.) Notice of defects in a note given to plaintiff's agent, accepting the note See Appearance; Courts, § 190. and paying the consideration, was binding on plaintiff.-Baruch v. Buckley, 151 N. Y. S.

§ 57 (N.Y.Sup.) A club, obtaining a license to hold boxing exhibitions and giving a bond under Laws 1911, c. 779, held bound to pay the premium for the bond and to indemnify the surety. See Libel and Slander, § 25. National Surety Co. v. St. Nicholas Rink Athletic Club, 151 N. Y. S. 636.

An applicant for a bond under Laws 1911, c. 779, for a year, held not liable for a continua- See Navigable Waters, § 37. tion of the bond, which the surety gave against the applicant's protest.-Id.

1205

QUIETING TITLE.

INDEX-DIGEST

I. RIGHT OF ACTION AND DEFENSES. § 2 (N.Y.Sup.) The equitable remedy to remove a cloud on title is not limited to real estate.-De Kalb Holding Co. v. Madison Theater Co., 151 N. Y. S. 85.

§7 (N.Y.Sup.) The lessee of a theater, after a covenant as to the price it should charge for admission had become inoperative, held entitled to maintain an action to cancel the covenant as a cloud on its title.-De Kalb Holding Co. v. Madison Theater Co., 151 N. Y. S. 85.

§ 19 (N.Y.Sup.) An action to compel determination of a claim to realty was properly brought under Code Civ. Proc. § 1638, where it appeared that the forest, fish, and game commission was in possession for the statutory period.-People v. Firth, 151 N. Y. S. 705.

Records

such consolidation, contrary to Railroad Law, § 141, and Public Service Commissions Law, 55.-Continental Securities Co. v. New York Cent. & H. R. R. Co., 151 N. Y. S. 534.

The fact that a railroad consolidation will be tion of the consent to consolidation, contrary beneficial does not render legal the capitalizaCommissions Law, § 55.-Id. to Railroad Law, 141, and Public Service

X. OPERATION.

(A) Duty to Operate.

1897 for switch built at shipper's expense, that $216 (N.Y.Sup.) Reservation, in agreement in road might remove it on notice and payment, held not made ineffectual by Public Service Commission Law, § 27, or by Interstate Commerce Act, § 1, as amended in 1906.-Adikes v. Long Island R. Co., 151 N. Y. S. 49.

RAPE.

§ 23 (N.Y.Sup.) Action to determine claims to real property under Code Civ. Proc. § 1638, held not maintainable by person in possession as tenant of defendants.-O'Brien v. Gill, 151 II. PROSECUTION AND PUNISHMENT. N. Y. S. 682.

§ 23 (N.Y.Sup.) An action under Code Civ. Proc. 1638, to compel determination of a claim to realty, may be brought by one who has the legal title and constructive possession, though he is not in actual possession.-People v. Firth, 151 N. Y. S. 705.

(C) Trial and Review.

859 (N.Y.Sup.) Under Pen. Code, § 283, refusal to charge that the fact that prosecutrix was left alone with defendant was not corroborative of her testimony held error.-People v. Kingslee, 151 N. Y. S. 980.

RATIFICATION.

REAL ACTIONS.

II. PROCEEDINGS AND RELIEF. $30 (N.Y.Sup.) Under the express provisions See Principal and Agent, §§ 166–171. of Code Civ. Proc. § 1638, it is improper to make any person a party defendant to an action to compel determination of a claim to realty, other than persons claiming title to the property.-People v. Firth, 151 N. Y. S. 705.

See Ejectment; Partition; Quieting Title.

RECEIVERS.

§ 52 (N.Y.Sup.) Judgment determining claims See Execution, §§ 407, 409. to real property in action under Code Civ. Proc. $8 1638-1650, if warranted by the facts, held proper, though complaint contains unnecessary allegations and prayer for relief inappropriate in part.-O'Brien v. Gill, 151 N. Y. S. 682.

RAILROADS.

See Appeal, § 1177; Carriers; Commerce, 27; Electricity, § 17; Eminent Domain,' § 191, 203, 231; Master and Servant, § 198; Navigable Waters, § 20; Street Railroads. VI. CONSTRUCTION, MAINTENANCE, AND EQUIPMENT.

§ 99 (N.Y.Sup.) Abutting owners held not entitled to compensation for a change of railroad grade on its own right of way incident to the abolition of a grade crossing.-In re Grade Crossing Com'rs of City of Buffalo, 151 N. Y. S. 146, 148.

VII. SALES, LEASES, TRAFFIC CON-
TRACTS, AND CONSOLIDATION.
$ 142 (N. Y. Sup.) An agreement to
issue
bonds bearing an increased interest to secure
the consent of bondholders to a railroad con-
solidation is a capitalization of the consent to

IV. MANAGEMENT AND DISPOSI-
TION OF PROPERTY.

(C) Receiver's Certificates.
§ 128 (N.Y.Sup.) Claims against receiver of
insolvent company having a contract with the
city for administrative expenses in completing
the contract held prior to receiver's certificates
issued for money borrowed by the receivers to
finance the undertaking.-Horton v. Thomas
McNally Co., 151 N. Y. S. 674.

RECORDS.

See Divorce, § 184; Mortgages, § 93.

Law as amended held not to render the exam§9 (N.Y.) Section 385 of the Real Property iner's certificate of title in a suit for the registitle itself.-Barkenthien v. People, 107 N. E. tration of title to land presumptive evidence of 1034, 213 N. Y. 554.

suits for the registration of land titles, plaintiffs Under Real Property Law, $$ 370-435, in must make out their titles as reasonably free from doubt, as required by section 391.-Id.

In proceedings to register title, complaint, certificate of title, and abstract, held not to show a prima facie title in plaintiff.-Id.

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

§ 9 (N.Y.Sup.) In determining whether property can be registered under the Torrens Act, the court must examine the certificate, the abstract, and affidavits, and determine whether all parties interested are defendants.-Eldert v. Cross Country R. Co., 151 N. Y. S. 441. Where the examiner's certificate showed defects in the title without showing that they had been cured, the court was without jurisdiction of an action to register title under the Torrens Act.-Id.

$9 (N.Y.Sup.) The purpose of the Torrens Land Title Registration Law is to register good

REMAINDERS.

titles and not to cure bad ones.-Meighan v. See Taxation, § 893; Trusts, § 61; Wills, §§ Rohe, 151 N. Y. S. 785.

A good title, which may be registered under the Torrens Land Title Registration Law, is a marketable one, which equity would compel an unwilling purchaser to accept.-Id.

The Attorney General may object to the registration of a defective title in a proceeding under the Torrens Land Title Registration Act. -Id.

634-636.

REMOVAL.

See Executors and Administrators, § 35; Trusts, § 166.

REMOVAL OF CLOUD.

See Quieting Title.

RENEWAL.

A certificate of the official examiner held not to comply with Real Property Law, § 380, as amended by Laws 1910, c. 627, so as to furnish a basis for an order for substituted service. See Mortgages, § 213.

-Id.

Evidence in a proceeding for registration held insufficient to show that plaintiff's ancestor had advanced any of the purchase money for the land.-Id.

RENT.

See Landlord and Tenant, §§ 184-231; Mortgages, $199.

REPAIRS.

Official examiners of titles are public officers, and their certificates should state only See Landlord and Tenant, §§ 150, 172. those facts which are clearly established.-Id.

REDEMPTION.

See Mortgages, §§ 611, 614.

REFERENCE.

I. NATURE, GROUNDS, AND ORDER
OF REFERENCE.

§ 24 (N.Y.Sur.) A stipulation held not a con

REPEAL.

See Statutes, § 361.

REPLEVIN.

See Carriers, § 115; Election of Remedies, § 9; Indians, § 27.

RESCISSION.

sent, under Code Civ. Proc. § 1822, but a suffi- See Contracts, §§ 266, 324; Insurance, § 232.

cient "agreement in writing," within section 2718, to give the referee jurisdiction, and, with

RESIDENCE.

the surrogate's approval, to bring the matter See Divorce, § 62; Domicile.
within the latter section.-In re Holland, 151
N. Y. S. 239.

I. REQUISITES AND VALIDITY. § 24 (N.Y.Sup.) Plaintiff may avoid for fraud a release for which defendant paid part of the See Appeal, 88 1170-1177. debt, without offering to return the money paid by defendant.-Defries v. Finelite, 151 N. Y. S. 665.

An action at law will lie to recover the amount due on a contract, without a release therefore fraudulently procured having first been set aside in equity.-Id.

REVIEW.

See Appeal; Municipal Corporations, § 321.

REVOCATION.

See Intoxicating Liquors, § 106.

See Brokers, §§ 31, 53; Counties, § 122; Es-
toppel, § 102; Evidence, § 452; Partition, §
103; Taxation, § 674; Vendor and Purchaser.

I. REQUISITES AND VALIDITY OF
CONTRACT.

§ 4 (N.Y.Sup.) A customer, receiving from a
merchant several pieces of jewelry from which
to select one, held merely a bailee of the ar-
ticles remaining after the selection of one for
which the price was paid.-Litzenberg v. Cole,
151 N. Y. S. 687.

V. OPERATION AND EFFECT.
(A) Transfer of Title ns Between Parties.
§ 205 (N.Y.Sup.) Title to goods, purchased
under agreement that vendor would receive back
goods not sold, passed on delivery.-Capuano v.
Italian Importing Co. of New York, 151 N. Y.
S. 994.

VII. REMEDIES OF SELLER.

(B) Lien.

price. Atlanta Mach. Works v. Felthousen, 151
N. Y. S. 922.

(D) Actions and Counterclaims for Breach
of Warranty.

$442 (N.Y.Sup.) Where a buyer retains the
article, he can recover, by counterclaim for
breach of warranty, only the proved difference
between the value of the article as warranted
and as it actually is.-Detroit Steel Products
Co. v. Bernheimer & Schwartz Pilsener Brew-
ing Co., 151 N. Y. S. 876.

SCHOOLS AND SCHOOL DISTRICTS.

II. PUBLIC SCHOOLS.

(C) Government, Officers, and District
Meetings.

§ 63 (N.Y.Sup.) The board of education of
the city of New York not only has the power
to abolish unnecessary positions, but it is its
duty to do so.-People ex rel. Kaufman v.
Board of Education of City of New York, 151
N. Y. S. 585.

Where the board of education of the city of
New York has the power under the particular
facts to discharge relator, the question of mal-
ice or bad faith on part of his superiors is im-
material.-Id.

By statute and its own rules the board of ed-
ucation of the city of New York has power to
act in abolishing a civil service position,
through its regular committee.--Id.
(H) Pupils, and Conduct and Discipline

of Schools.

§ 158 (N.Y.Co.Ct.) Personal notification by
the trustees of a school district that the vac-
cination laws would be enforced held a compli-
ance with Public Health Law, § 310.-People
v. McIlwain, 151 N. Y. S. 366.

In view of section 311, Public Health Law, §
310, requiring vaccination of school children,
is mandatory, and a father cannot justify his
failure to have his children vaccinated, so
that they could attend school, because thei
health would be affected.-ld.

$173 (N.Y.Co.Ct.) Where children were ex-
cluded from school because not vaccinated, as
required by Public Health Law, § 310, their
parents or guardians cannot, under Education
Law, §§ 621, 624, excuse a failure to send the
children to school or furnish instruction by
showing they were excluded.-People v. Mc-
Ilwain, 151 N. Y. S. 366.

$300 (N.Y.Sup.) Defendant, purchasing goods,
held, on the seller's refusal to take back goods
not sold as agreed, entitled, under Sales Act,
134, to a vendor's lien.-Capuano v. Italian
Importing Co. of New York, 151 N. Y. S. 994.
$313 (N.Y.Sup.) Purchaser of goods on con-
dition that the seller would receive back those
not sold held not to have waived, or to be
estopped from asserting, a lien on the seller's
refusal, by statement that goods were at sell- See Evidence, § 185.
er's disposal.-Capuano v. Italian Importing
Co. of New York, 151 N. Y. S. 994.

SECONDARY EVIDENCE.

SECURITIES.

Nor, under Sales Act, § 137, by suing seller See Costs, §§ 110, 112, 136.
for contract price.-Id.

VIII. REMEDIES OF BUYER.
(C) Actions for Breach of Contract.
§ 420 (N.Y.Sup.) In an action for damages
for breach of a contract of sale, held error to
direct verdict for defendant for the contract

SELF-INCRIMINATION.

See Witnesses, §§ 293, 305.

SERVICES.

See Work and Labor.

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

§ 84 (N.Y.Sup.) Where a longshoreman, with See Appeal, § 1; Navigable Waters, § 37.
knowledge that the after part of a hatch had
been left open, protected only by a tarpaulin,
through forgetfulness attempted to walk across
the hatch and fell into the hold, he was guilty
of contributory negligence as a matter of law.
-Brown v. Associated Operating Co., 151 N.
Y. S. 531.