CITY OF NEW YORK - Continued.
ment of commissioners of estimate and assessment in a proceeding
by the city to acquire title to parts of the street not theretofore
acquired in fee and to which no adverse claim has been made, should
be denied, where it is not seriously controverted by the petitioner
that the real purpose is to afford the city the right to erect an
elevated railroad over the street. In the city of New York, a sub-
way under the street or an elevated railroad over it serves a munici
pal use and is an added easement or burden on the street and
adjacent property which cannot be placed upon the street without
special and additional compensation to the abutting owner whether
he owns the fee to the bed of the street or not. Where the taking
of land for street purposes is lawful, the action of the commissioners
of estimate and assessment in fixing the area of assessment is not
reviewable unless the property assessed is not actually benefited
by the taking. Matter of City of New York, 320.

See Rapid Transit Act.

CIVIL RIGHTS.

Actions for penalties — Defenses. In an action against a
restaurant keeper to recover a penalty under sections 40 and 41 of
the Civil Rights Law for refusing to serve plaintiff, a colored
woman who was a citizen of the United States, a claim that de-
fendant was out of food is unbelievable, it appearing that others
were served both before and after the refusal to serve plaintiff.
and a judgment for defendant will be reversed and a new trial
ordered. Wilson v. Razzetti, 37.

CIVIL SERVICE LAW.

See Mandamus.

CODE OF CIVIL PROCEDURE.

1. Section 1391-Action against employer of judgment debtor
after refusal to pay pursuant to garnishee execution. Pleading
and proof.- Section 1391 of the Code of Civil Procedure was en-
acted for the purpose of enabling creditors to collect their judg
ments where defendants were receiving wages of more than twelve
dollars a week and is only intended to enable creditors to obtain
by compulsory process ten per cent of such wages that the employee
would not pay voluntarily. In no event can an employer be com
pelled to pay more than ten per cent of the wages actually earned
by the employee, and in all cases the amount of such wages must
be shown before plaintiff can recover in an action brought against
the employer under said section. Hubertus v. Reilly, 143.

2. Section 2748-Allowance to special guardian in proceeding
pending September 1, 1914.- Where a proceeding for the judicial
settlement of the accounts of a trustee was pending before Sep-
tember 1, 1914, a special guardian appointed therein may be granted
an allowance under section 2748 of the Code of Civil Procedure.
Matter of Union Trust Co., 456.

§ 405. People ex rel. Nolan v. Prendergast, 307.
§ 537. Hyland v. Montgomery, 295.

CODE OF CIVIL PROCEDURE-Continued.

§ 768. Frank v. Gruber, 297.

§ 814. Nies v. Fancher, 630.

§ 822. Junk v. Moore, 551.

§ 872 (1-5). Frank v. Gruber, 297.

§ 1209. People ex rel. Nolan v. Prendergast, 307.
§ 1638. People v. Firth, 217.

§§ 1638, 1639. Dime Savings Bank v. Butler, 698.

§ 1903. Matter of Marble, 339.

§ 1903. Matter of Huth, 458.

§ 1919.

Garside v. Hollywood, 311.

§ 2231 (1). Shufelt v. Boyles, 133.

$ 2472a. Fribourg v. Emigrant Industrial Savings Bank, 282.
§§ 2537, 2538. Matter of Iovinella, 224.

§ 2538. Matter of Scovill, 364.

§ 2615.

Matter of Zitzlsperger, 386.

§ 2650.

Matter of Hirshfeld, 399.

Matter of Littmann, 403.

§ 2653.

§ 2653a. Evans v. Trimble, 667.
§ 2719. Matter of Baker, 347.

Matter of Hirshfeld, 399.
Matter of O'Day, 408.

§ 2739.

§ 2748.

§ 2748.

§ 2771.

Matter of Union Trust Co., 456.
Matter of Scovill, 364.

§ 2942.

Hepp v. Tyler, 121.

§ 3228 (5). Post v. Levitan, 334.

§ 3347 (4). Junk v. Moore, 551.

CODE OF CRIMINAL PROCEDURE.

$$ 843, 844. People ex rel. Savey v. Finnell, 129.

COMPLAINT.

See Pleading.

COMPROMISE.

Of actions -Action by administratrix to recover for death of
intestate Code Civ. Pro., § 1903.—Where in 1914, and after the
reversal of three successive verdicts in favor of plaintiff in an
action commenced in 1908 by an administratrix to recover for the
death of her intestate by defendant's wrongful act, the action was
compromised and settled, the amount received in excess of attorneys'
fees and expenses must be distributed as provided by section 1903
of the Code of Civil Procedure as it stood prior to the amendment
of 1911. So held on a contention of the administratrix that under
said amendment she took the whole amount to the exclusion of
decedent's next of kin, two brothers and two sisters. Matter of
Marble, 339.

CONDEMNATION PROCEEDINGS.

See City of New York.

CONFESSION.

See Judgments.

CONSTITUTIONAL LAW.

1. Adoption of new remedies for collection of taxes Exaction of
penalty. The state may adopt new remedies for the collection of
taxes and apply those remedies to taxes already delinquent without
any violation of the Federal Constitution which prohibits any state
from passing an ex post facto law. A statute which declares that
taxes which have become delinquent shall bear interest from the
time such delinquency commenced is not unconstitutional and is
not the exaction of a penalty. People v. Park Row Realty Co., 254.
2. Power of legislature-When special guardian may not be
granted allowance for services · Code Civ. Pro., § 2748.- The
legislature having no power to take away vested rights cannot
legally authorize a surrogate to grant an allowance to one party
out of the private property of other parties. Where an accounting
proceeding is uncontested, a special guardian whose infants have
no present interest in the estate in the hands of the accountants
may not be granted an allowance for services out of the principal
of the estate which belongs to others. The new section 2748 of the
Code of Civil Procedure which provides: "A special guardian for
an infant or incompetent shall receive a reasonable compensation
for his services to be fixed by the surrogate, payable from the
estate or fund, or from the interest of the ward therein, or from
both, as the surrogate may direct," considered, and its constitu-
tionality doubted. Matter of O'Day, 408.

CONTRACTS.

1. Term of Oral agreement to change Ratification of —Ac-
tion for breach of lease-Evidence as to damage - Landlord and
tenant. Where an agreement between plaintiff as lessor and "Isaac
L. Adelman of the Grolier Society
was signed by him in the
same terms, and, in the recital of the attestation clause that the
lessee had caused these presents to be signed by its "representative,"
the latter word was written by him, it is sufficiently indicated that
it was intended to bind the defendant society. Where defendant's
officers after the agreement was shown to them orally agreed to
change a stand provided for the exhibition intended to be given by
plaintiff and did so, there was a ratification of Adelman's author-
ity. In an action for the lessee's breach of the lease, the consid-
eration recited therein of "$375 in books, etc.," was sufficient prima
facie proof of damage in the amount named. Bronx Hospital v.
Grolier Society, 3.

2. Undertaking in writing —Agreement to pay to an amount not
exceeding in the aggregate $500 —When limitation relates to extent
of liability. Where by an original and primary undertaking in
writing defendant in consideration of the sale and delivery of mer-
chandise by plaintiff to D agreed to pay therefor to an amount
not to exceed in the aggregate $500, the limitation relates to the
extent of defendant's liability to pay and does not restrict the
amount of merchandise which plaintiff might deliver to D, and
defendant's liability to the extent agreed continues until notice of
its withdrawal, notwithstanding plaintiff delivered to D more than
$500 worth of merchandise that had been paid for. Steinhardt
Bros. & Co. v. Marx, 26.

CONTRACTS- Continued.

3. Requisites - Excavation work-Absence of acceptance-What
is a binding contract.-A proposed agreement to do certain excavat-
ing work for defendant specifically stating that a contract "along
these lines" would be prepared if the arrangement was satisfactory
and if defendant accepted the suggestions proposed is not, in the
absence of such acceptance, a binding contract even if approved by
defendant's engineer, it not appearing that he was authorized to
bind defendant. Guarantee Construction Co. v. Rickert-Finlay
Realty Co., 73.

4. Action for goods sold and delivered-When order denying
motion to set aside verdict and for new trial reversed.- Where
plaintiff's claim in an action for goods sold and delivered was ad-
mitted and the reply denied defendant's counterclaim and the evi-
dence failed to show that the agreement upon which it was based
was made with defendant, a judgment in favor of defendant and
an order denying plaintiff's motion to set aside the verdict and for
a new trial will be reversed as against the weight of and contrary
to the evidence. Brulatour v. Comet Film Co., 83.

-

5. When contract made by board of supervisors illegal-When
public officer guilty of misdemeanor Penal Law, § 1868.-A con-
tract made by a board of supervisors for the necessary purchase
of Mazda lamps, at their fair market value, with relator, a corpo-
ration of which a member of the board of supervisors is a stock-
holder, officer and director, is clearly illegal under section 1868 of
the Penal Law which provides that a public officer authorized to
make any contract in his official capacity, or to take part in making
any such contract, who voluntarily becomes interested individually
in such contract, directly or indirectly, is guilty of a misdemeanor;
such contract is unenforcible because the said member of the board
of supervisors had some, though not necessarily a money, interest
in conflict with his duty as a public officer. Matter of Schenectady
Illuminating Co. v. Supervisors of County of Schenectady, 226.

6. Labor Law, § 14-When preference given to citizens of state
of New York-Rapid Transit Act.- The provision of section 14
of the Labor Law that "In the construction of public works by
the state or a municipality, or by persons contracting with the state
or such municipality, only citizens of the United States shall be
employed; and in all cases where laborers are employed on any
public works, preference shall be given citizens of the state of New
York," is not unconstitutional, nor does it violate any treaty rights
of aliens. An objection that said statute is not enforcible against
contractors for the building of new subways for the city of New
York because the provisions of the Rapid Transit Act of 1892, and
the amendments thereto permitting the making of such contracts
with two corporations whereby they contributed toward the build-
ing of the subway made them contracts for construction by private
corporations, is untenable, the contract providing that the con-
tractor should comply with the requirements of section 14 of the
Labor Law and on his failure so to do the contract should be void.
Heim v. McCall, 291.

7. Construction and interpretation - Matters regulated by law
of place of performance.-All matters bearing upon the construe-
tion, interpretation and validity of a contract must be determined
by the law of the place where it was made, while all matters con-
nected with its performance are regulated by the law of place of
performance. A foreign fraternal insurance association upon ob-
taining permission to execute contracts of insurance in the state of
New York submits to our laws and agrees to obey the same and
to conform to the public policy of the state. McClement v. Supreme
Court Ind. Order Foresters, 475.

8. Action on Provision of -When motion for dismissal of
complaint denied - Prevention of performance.-A provision of a
written contract by which defendant engaged plaintiff to perform
services as an actor for a period of eleven weeks in a special pro-
duction at a specified weekly salary that should be paid each and
every week that he publicly performed must be read in connection
with subsequent provisions of the contract enumerating the par-
ticular occasions when his compensation would be withheld. Where
in an action on the contract it appears that after plaintiff had
performed for two weeks and his salary had been paid his further
performance was prevented by defendant whose president informed
plaintiff that he would pay him while he was idle rather than risk
the high reputation enjoyed by him as an artist by continuing in
the play in which he was first engaged to the detriment of both
plaintiff and defendant, a motion to set aside a verdict in favor
of plaintiff and for a dismissal of the complaint will be denied.
Dixey v. Woods Productions Co., 506.

9. Action by principal to recover purchase price-When defend-
ant entitled to show fact of agreement · Sales. On a sale of goods
by the agent of an undisclosed principal, his agreement to allow
the amount of an account against him as an offset against the pur-
chase price binds his principal, and in an action by the principal
to recover the purchase price defendant under a general denial is
entitled to show the fact of such agreement. A defendant under a
denial of an allegation of a complaint that a certain contract was
made may prove that the contract made was different from the
one alleged in the complaint. Feinstein v. Ritter, 559.

10. Member of board of supervisors officer of public service cor-
poration furnishing electric current to county- Transportation
Corporations Law, § 62.- Where a public service corporation in
compliance with a demand under section 62 of the Transportation
Corporations Law, made on behalf of a board of supervisors, fur-
nishes electric current to the county at regular rates, the fact that
a member of the board of supervisors was also a director of the
corporation and its secretary and treasurer, without compensation
in either capacity, and it does not appear that he had knowledge
that the corporation was furnishing electric current, nor that he
participated in the audit of the bill therefor, or even knew of it,
he cannot be charged with a violation of section 1868 of the Penal
Law and the county is liable for the value of the current used.