INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and to 47 (N.Y.App.Div.) Foreign corporation's receiver, to which corporation assigned claim after action was brought, held entitled be joined as plaintiff.-Buck Ridge Coal Mining Co. v. Rosoff Engineering Co., 214 N. Y. S. 60. V. DEATH OF PARTY AND REVIVAL OF ACTION. (B) Continuance or Revival of Action. 72 (2) (N.Y.Sup.) Foreign executor of nonresident testatrix, who paid New York transfer tax and water rates, held entitled to have ejectment action commenced by testatrix revived in his name.-Motheral v. Perchment, 214 N. Y. S. 495. ACCOUNT. II. PROCEEDINGS AND RELIEF. 18 (N.Y.) Accounting party has burden of justifying charges, where apparent duplication exists.-Vernon Metal & Produce Co. v. Joseph Joseph & Bros. Co., 241 N. Y. 544, 150 N. E. 547. ACTION. See Abatement and Revival; Dismissal and Nonsuit. I. GROUNDS AND CONDITIONS PRE CEDENT. III. JOINDER, SPLITTING, CONSOLIDATION, AND SEVERANCE. 50 (6) (N.Y.App.Div.) Joinder of cause of action for failure safely to deliver goods with similar cause of action relating to subsequent shipment held improper, where bills of lading were issued by different defendants (Civil Practice Act, art. 24).-William C. Will Co. v. Canadian Nat. Ry. Co., 214 N. Y. S. 513. 57(2) (N.Y.App.Div.) Actions by owners and passengers of colliding automobiles for damages to automobiles and personal injuries held properly consolidated (Civil Practice Act, § 96).-Gibbs v. Sokol, 214 N. Y. S. 533. Under Civil Practice Act, § 96, actions may be consolidated, though they are between different parties.-Id. 58 (N.Y.App.Div.) Actions may be consolidated before issues are fully defined by pleadings, where court can plainly see what issues are to be (Civil Practice Act, § 96).-Gibbs v. Sokol, 214 N. Y. S. 533. Motion for consolidation of plaintiffs' actions with actions by defendants growing out of same automobile collision, before defendants' actions were at issue, held not premature.-Id. Parties moving for consolidation of actions waive right to open and close, and rights of parties opposing motion may be preserved by designating them as plaintiffs in consolidation order (Civil Practice Act, § 96).-Id. Infant's right to preference as sole plaintiff or defendant may be substantially preserved on consolidating actions, by order allowing_preference (Civil Practice Act, § 138, subds. 7, 20). -Id. IV. COMMENCEMENT, PROSECUTION, 69 (N.Y.Sup.) When action will be stayed stated.-Burke v. Betts, 214 N. Y. S. 208. Mere priority in action is insufficient to entitle plaintiff to stay subsequent action against him.-Id. ADJOINING LANDOWNERS. See Boundaries; Party Walls. ADMINISTRATION. 6 (N.Y.) Court had jurisdiction to deter- See Executors and Administrators. mine respective rights of all parties under lease.-Leibowitz v. Bickford's Lunch System, 241 N. Y. 489, 150 N. E. 525. 214 N.Y.S.-69 See Shipping. ADMIRALTY. (1) Admiralty 214 NEW YORK SUPPLEMENT 1. JURISDICTION. XVI. REVIEW. (E) Presumptions. 20 (N.Y.Sup.) Injury to stevedore held maritime tort, not subject to Workmen's Com-927(3) (N.Y.App.Div.) On appeal from pensation Law.-Argentino v. F. Jarka Co., 214 nonsuit, plaintiff is entitled to most favorable N. Y. S. 218. inferences from evidence.-Ciaramella v. Orr, 214 N. Y. S. 713. 25 (N.Y.App.Div.) Action in state court to recover for personal injuries from maritime tort under maritime law cannot be ousted by voluntary agreement to substitute proceeding under Workmen's Compensation Law (Const. U. S. art. 1, § 8, art. 3, § 2; Judicial Code, §§ 24, 256, as amended [U. S. Comp. St. Ann. Supp. 1923, §§ 991(3), 1233]; Workmen's Compensation Law [Laws 1922, c. 615] § 113). -Christensen v. Morse Dry Dock & Repair Co., 214 N. Y. S. 732. 25 (N.Y.Sup.) Stevedore did not waive rights under maritime law by failing to give written notice of election not to be subject to Workmen's Compensation Law.-Argentino v. F. Jarka Co., 214 N. Y. S. 218. AGENCY. See Principal and Agent. AGREED CASE. See Submission of Controversy. ALTERATION OF INSTRUMENTS. 8 (N.Y.App.Div.) Erasure of corporation's name from letter guaranteeing its notes after letter was delivered would invalidate writing. Hauswald v. Katz, 214 N. Y. S. 705. ANIMALS. 70 (N.Y.Mun.Ct.) Owner's knowledge of vicious propensities of domestic animal must be shown, to recover for injuries on such ground. -Koffler v. American Ry. Express Co., 214 N. Y. S. 787. Where owner of domestic animal is negligent, animal's vicious propensities need not be proved, to entitle injured person to recover.-Id: ANTI-TRUST LAWS. See Monopolies, 25. APPEAL. See Criminal Law, 1073-1186. 927 (3) (N.Y.Sup.) On appeal from judgment of dismissal at end of plaintiff's case, plaintiff's evidence must be accepted as true, and inferences therefrom most favorable to plaintiff drawn.-Wechsler v. United Produce Dealers' Ass'n, 214 N. Y. S. 136. 930 (4) (N. Y. App. Div.) Where appellate court cannot determine on which of two possible theories, one of which would be error, verdict was based, judgment must be reversed.Madden v. Chalmers, 214 N. Y. S. 268. not 931 (3) (N.Y.) Appellate court may supply finding based on inference, where court which might have drawn inference chose not to do so.-A. B. Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455, 150 N. E. 514. (F) Discretion of Lower Court. 973 (N.Y.App.Div.) Denial of motion to dismiss complaint for failure to state any cause of action may be reconsidered on appeal.-Watkins v. Commercial Stevedoring Co., 214 N. Y. S. 634. (G) Questions of Fact, Verdicts, and Findings. 1002 (N.Y.) Verdict on conflicting evidence raises question of fact which cannot be disturbed.-Metzroth v. City of New York, 241 N. Y. 470, 150 N. E. 519. (H) Harmless Error. 1030 (N.Y.App.Div.) Litigation of counterclaim on retrial, after it had been dismissed on first trial, held to require reversal of judgment. Vanderbilt Amusement Co. v. Royce, 214 N. Y. S. 659. 1074(1) (N.Y.App.Div.) Denial of motion to vacate orders erroneously amending summons and complaint will be affirmed; proper procedure being by appeal from orders amending process.-Gray v. H. H. Vought & Co., 214 N. Y. S. 765. (J) Decisions of Intermediate Courts. 1082 (2) (N.Y.) Defense held not available when first asserted on appeal.-Kottler v. New York Bargain House, 242 N. Y. 28, 150 N. E. 591. 1083 (3) (N.Y.) The construction of writFor review of rulings in particular actions or ings, uncontradicted except by incompetent eviproceedings, see also the various specific top-dence, is a question of law for the Court of Ap peals, which survives unanimous affirmance by Appellate Division.-Newburger v. American Surety Co., 242 N. Y. 134, 151 N. E. 155. 1089(5) (N.Y.) Court of Appeals held not justified in interfering with determination of Appellate Division denying arbitration without opinion possibly supported by valid grounds.Nagy v. Arcas Brass & Iron Co., 242 N. Y. 97, 150 N. E. 614. 1091 (1) (N.Y.) Court of Appeals must presume that decision unanimously affirmed by Appellate Division is supported by evidence.Roman v. Lobe, 241 N. Y. 514, 150 N. E. 535. 1094 (3) (N.Y.) Determination of question of fact affirmed by Appellate Division not interfered with by Court of Appeals.-Seaside Home for Crippled Children v. Atlantic Beach Associates, 241 N. Y. 550, 150 N. E. 550. 1094 (3) (N.Y.) Court of Appeals cannot, on appeal from unanimous affirmance by Appellate Division of verdict, consider whether INDEX-DIGEST Automobiles II. ON CRIMINAL CHARGES. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 63(4) (N.Y.Sup.) Wholesale arrest of oc- 1094(3) (N.Y.) Effect of contract found by N. E. 152. 1094 (3) (N.Y.) Court of Appeals is pre- 1095 (N.Y.) Court of Appeals in civil case XVII. DETERMINATION AND DISPO- (A) Decision in General. 1114 (N.Y.) Evidence sustaining claim for demeanor, not committed or attempted in pres- lowed as matter of law, held to require rein-235 (N.Y.Mun.Ct.) Assignee for benefit of Appellate Division's reversal of judgment for creditors, who entered possession of premises ASSOCIATIONS. 1122(1) (N.Y.) Finding that husband de-2 (N.Y.) Statute, requiring associations to (B) Affirmance. 1144 (N.Y.) Whether to remand equitable (D) Reversal. 1177(6) (N.Y.Sup.) Bank held entitled to APPEARANCE. 9(3) (N.Y.Sup.) Defendant's appearance ARREST. I. IN CIVIL ACTIONS. 4 (N.Y.Sup.) Civil Practice Act, § 826, file documents with secretary of state, held not ASSUMPTION OF RISK. See Master and Servant, 218. ATTORNEY AND CLIENT. I. THE OFFICE OF ATTORNEY. 56 (N.Y.App.Div.) Failure of suspended IV. COMPENSATION AND LIEN OF ATTORNEY. (A) Fees and Other Remuneration. AUTOMOBILES. I. CONTROL, REGULATION, AND USE IN 5(1) (N.Y.Mun.Ct.) Statute making owner Automobiles 214 NEW YORK SUPPLEMENT (B) Actions. with owner's permission held not retroactive.James Butler, Inc., v. Jackson, 214 N. Y. S. 23.243 (7) (N.Y.App.Div.) Testimony automo III. PUBLIC SERVICE VEHICLES. (B) License and Registration. bile was traveling 40 to 50 miles per hour 600 yards from intersection held competent to show speed at time of collision.-Owen v. Gruntz, 214 N. Y. S. 543. to 107 (N.Y.App.Div.) Operation of motor bus without authority held concurring cause of col-244(1) (N.Y.App.Div.) Evidence held lision with street car precluding recovery for show pedestrian struck by motor bus was stepdamages to bus (Public Service Commission ping from curb.-Wood v. Woodlawn Improvement Ass'n Transp. Corporation, 214 N. Y. Law, 53; Transportation Corporations Law, S. 398. $$ 25, 26; Greater New York Charter [Laws244 (2) (N. Y. Mun. Ct.) Evidence held to 1901, c. 466] §§ 74, 1458).-Klinkenstein v. show negligence in driving truck colliding with Third Ave. Ry. Co., 214 N. Y. S. 725. automobile at intersection.-Devuono v. Muller, 214 N. Y. S. 557. Motor bus, operated without lawful authority, held "public nuisance," precluding recovery for collision with street car (Public Service Commissions Law, § 53; Transportation Corporations Law, §§ 25, 26; Greater New York Charter [Laws 1901, c. 466] §§ 74, 1458; Penal Law, § 1530).—Id. truck striking child crossing street was negli244(3) (N.Y.App.Div.) Finding driver of gent in making left turn and continuing near left curb of intersecting street held warranted (General Highway Traffic Law, § 2, section 11, subd. 2, section 12, subd. 6; Highway Law, § 286, subd. 9).-Conrow v. Snyder, 214 N. Y. S. V. INJURIES FROM OPERATION, OR USE 410. 244 (4) (N. Y. App. Div.) Evidence held insufficient to show automobile dealer consented to use of car by third person, to whom borrower intrusted it (Highway Law, § 282-e).Owen v. Gruntz, 214 N. Y. S. 543. (A) Nature and Grounds of Liability. 160(3) (N.Y.App.Div.) Motor bus driver held within rights in drawing near curb, but bound to be watchful to avoid injuring persons 244(4) (N. Y. Mun. Ct.) Evidence held to crossing street.-Wood v. Woodlawn Improve- show automobile was operated with owner's imment Ass'n Transp. Corporation, 214 N. Y. S. plied permission, rendering owner liable for operator's negligence (Highway Law, § 282-e). 160(4) (N.Y.App.Div.) Motor vehicle driv-Brooks v. McNutt Auto Delivery Co., 214 er may assume pedestrian will use care before N. Y. S. 562. crossing street.-Wood v. Woodlawn Improvement Ass'n Transp. Corporation, 214 N. Y. S. 398. 398. 186 (N.Y.Mun.Ct.) Truck owner, though employed on per diem basis for services in operating and for use of truck, held liable for his negligence.-Devuono v. Muller, 214 N. Y. S. 557. 244 (10) (N. Y. Mun. Ct.) Evidence held to show automobile driver's negligent operation of car on left side of street was sole cause of injury to pedestrian at intersection.-Brooks v. McNutt Auto Delivery Co., 214 N. Y. S. 562. 244(11) (N. Y. Mun. Ct.) Evidence held to show automobile driver's freedom from contributory negligence.-Devuono v. Muller, 214 N. Y. S. 557. 192(6) (N.Y.App.Div.) Automobile owner is not liable for negligence of third person, to 245 (2) (N.Y.App.Div.) Motor truck drivwhom borrower intrusted car without owner's er's negligence as to child playing on grass plot consent (Highway Law, § 282-e).-Owen v. in highway held for jury.-Ciaramella v. Örr, Gruntz, 214 N. Y. S. 543. 214 N. Y. S. 713. 192(6) (N.Y.Mun.Ct.) In absence of stat-245 (4) (N.Y.) Whether chauffeur was in ute, person who hires another's automobile is course of employment held for jury.-Schultze solely liable for negligent operation thereof.v. McGuire, 241 N. Y. 460, 150 N. E. 516. Brooks v. McNutt Auto Delivery Co., 214 N. Y. S. 562. 245(13) (N.Y.App.Div.) Negligence of 81⁄2 year old child, struck by truck while crossing street, held for jury.-Conrow v. Snyder, 214 N. 193(8) (N.Y.) Employer liable for negligence of chauffeur deviating from directions.-Y. S. 410. Schultze v. McGuire, 241 N. Y. 460, 150 N. E. 516. 193(8) (N.Y.App.Div.) Chauffeur, permitting plaintiff's intestate to ride, held acting for master's interest.-Gross v. Mertz, 214 N. Y. S. 198. 193(10) (N.Y.) Employer not liable for negligence of chauffeur in own business. Schultze v. McGuire, 241 N. Y. 460, 150 N. E. 516. VI. INJURIES FROM DEFECTS OR OB- (A) Nature and Grounds of Liability. 278 (N.Y.Ct.CI.) State held not negligent in failing to maintain barrier at curve in highway across intersecting town road.-Reuther v. State, 214 N. Y. S. 783. 197(2) (N.Y.Mun.Ct.) Defendant employ-279 (N.Y.App.Div.) Road contractors, placing truck owner on per diem basis for operating signs on barrier across road and near ining and for use of truck held liable as employ- tersecting road, and red flags along latter, held er for collision, if defendant exercised control not negligent as to traveler in automobile.of truck and owner.-Devuono v. Muller, 214 Mroczek v. Smolenski, 214 N. Y. S. 668. N. Y. S. 557. Defendant's deduction of $1 per day from per diem paid to truck owner, for operating and for use of truck, held sufficient control to make defendant liable for collision.-Id. must 217(5) (N.Y.App.Div.) Pedestrian look before crossing street at intersection.Wood v. Woodlawn Improvement Ass'n Transp. Corporation, 214 N. Y. S. 398. See Pledges. BAILMENT. 30 (N.Y.Sup.) In action for conversion of coat stored with defendant, evidence that coat was stolen held admissible under general denial-Mohr v. Feldman, 214 N. Y. S. 90. BANKRUPTCY. Pedestrian crossing street at intersection without looking for vehicles held negligent.-Id. See Assignments for Benefit of Creditors. INDEX-DIGEST Bills and Notes For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER IV. COMPOSITION. person receiving payment.-Miller v. Chatham & Phoenix Nat. Bank of City of New York, 214 N. Y. S. 76. 376 (N.Y.App.Div.) Notes given by each of two indorsers for one-half of balance due on bankrupt's note to holder, who signed composition, held supported by consideration, and giving thereof was not fraud on other creditors.178 (N.Y.Sur.) Instrument held promissory Pacific Bank v. Michaelson, 214 N. Y. S. 715. 387 (N.Y.App.Div.) Liability of accommodation indorser on note is not released by holder's assent to maker's composition (Bankruptcy Act, § 16 [U. S. Comp. St. § 9600]).-Pacific Bank v. Michaelson, 214 N. Y. S. 715. V. RIGHTS, REMEDIES, AND DISCHARGE OF BANKRUPT. 428 (N.Y.App.Div.) Liability of accommodation indorser on note is not released by maker's discharge in bankruptcy (Bankruptcy Act, § 16 [U. S. Comp. St. $ 9600]).-Pacific Bank v. Michaelson, 214 N. Y. S. 715. BANKS AND BANKING. I. CONTROL AND REGULATION IN 3 (N.Y.Sup.) "Banking" is a business affected with public interest, having peculiar obligations and correlative restrictions on its management (Banking Law, §§ 124, 131; General Corporation Law, § 26).-National Liberty Ins. Co. of America v. Bank of America, 214 N. Y. S. 643. (E) Loans and Discounts. note, and not receipt, and transaction was loan, and not deposit (Negotiable Instruments Law, § 22, subd. 2).-In re Nellis' Will, 214 N. Y. 378. Though "loan" and deposit both create relation of debtor and creditor, actual contract is not the same.-Id. Usually a note evidences a loan, rather than a deposit.-Id. VI, LOAN, TRUST, AND INVESTMENT 315(2) (N.Y.Mun.Ct.) Investment company held liable for misrepresentations by its salesman inducing plaintiff to purchase bond.-Hotaling v. A. B. Leach & Co., 214 N. Y. S. 452. BILLS AND NOTES. I. REQUISITES AND VALIDITY. (B) Form and Contents of Promissory Notes and Duebills. 30 (N.Y.Sur.) Recital that one has borrowed specified sum payable on demand held to II. BANKING CORPORATIONS AND ASSO- import promise to pay. In re Nellis' Will, 214 N. Y. S. 378. CIATIONS. (C) Stockholders. 44 (N.Y.Sup.) Deposit of bank stock in voting trust held invalid after statutory authority to form voting trusts was withdrawn from banking corporations (Laws 1925, C. 120. amending Stock Corporation Law, § 50).-National Liberty Ins. Co. of America v. Bank of America, 214 N. Y. S. 643. 442 (N.Y.Sup.) Directors are "officers" of bank within General Corporation Law, § 26, prohibiting bank officers from acting as proxies for stockholders at meetings of corporation. -National Liberty Ins. Co. of America v. Bank of America, 214 N. Y. S. 643. Voting trust agreement, authorizing voting trustees of bank stock to consent to merger or consolidation of bank held invalid (Stock Corporation Law, § 50).-Id. Voting trust agreement, negativing requirement of statute that new certificates be issued to trustees of bank stock with indorsement II. CONSTRUCTION AND OPERATION. 116 (N.Y.Sur.) Every word of alleged note must be given such effect as will harmonize whole writing, if possible.-In re Nellis' Will, 214 N. Y. S. 378. 120 (N. Y. Sup.) Negotiable Instruments Law has not changed common-law rule that note reciting, "We promise to pay," signed by two makers, is presumed to be joint obligation only.-First Nat. Bank v. Knickerbocker, 214 N. Y. S. 465. Presumption that note signed by two makers is joint only is rebuttable.-Id. 129 (3) (N.Y.Sur.) Demand note, though nonnegotiable, was due at once.-In re Nellis' Will, 214 N. Y. S. 378. IV. NEGOTIABILITY AND TRANSFER. (A) Instruments Negotiable. within two classes; showing nature of agreement, held invalid 144 (N.Y.) Negotiable instruments Voting trust agreement, invalid because trustees were officers and directors of bank, held not validated by substitution of alternates who were not bank officers or directors (Stock Corp. Law, § 50, as amended by Laws 1925, c. 120); "inability."-Id. Desire to defeat plan to purchase bank stock to prevent consolidation with another bank held not to justify creation of illegal voting trust to officers and directors of bank.-Id. III. FUNCTIONS AND DEALINGS. 142 (N.Y.Sup.) Where bank by mistake paid check on which payment was stopped, transaction was closed as between bank and are in property, and the other being promissory one representing interest and executory.-President and Directors of Manhattan Co. v. Morgan, 242 N. Y. 38, 150 N. E. 594. Instruments not otherwise negotiable may become so by estoppel.-Id. 146 (N.Y.) Law merchant cannot make intion of statute that they are not.-President struments negotiable against express prohibiand Directors of Manhattan Co. v. Morgan, 242 N. Y. 38, 150 N. E. 594. Law merchant, in view of Negotiable Instruments Act, is competent to fill gaps in statutory rules.-Id. Right conferred by statute to holder of negotiable instrument not lost under law merchant.-Id. 147 (N.Y.Sur.) Negotiable promissory note need not contain word "promise," but must contain, in legal effect, an unconditional promise.-In re Nellis' Will, 214 N. Y. S. 378. |