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FRAUD Continued.

sign the agreement and the conveyance aforesaid. As a matter of fact, the
profits of the business for three years, including salaries of $33,000 taken by the
defendants, amounted to $138,000. On all the evidence, held, that the agreement
was unconscionable, unjust and without consideration, and was obtained from
the plaintiffs by taking advantage of their ignorance and should be set aside.
Gugel v. Hiscox, 61.

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4. Same
conveyances between parties in fiduciary relation - burden to show
transaction was fair — estoppel-failure to tender consideration — agreement to
division of portion of estate. Wherever the relation between contracting parties
is such as to render it certain that they did not deal on terms of equality, but
where either on the one side from superior knowledge of the matters derived
from a fiduciary relation, or on the other from dependence or trust justifiably
reposed, an unfair advantage is rendered probable, the transaction is presumed
to be void. And it is incumbent upon the stronger party to show affirmatively
that no deception was practiced, and that all was open, fair and understood.

Under the circumstances aforesaid, the fact that the plaintiffs did not before
signing the agreement and deed familiarize themselves with their contents and
the effect on their rights under the will does not preclude them from attacking
their validity.

The plaintiffs are not estopped from attacking the validity of their agreement
because they did not tender a return of the consideration, for in any event
they were entitled to the amount of the consideration under the provisions of the
will.

The plaintiffs are not estopped from claiming their rights under the will
because they consented to the division of mining stock left by the testator,
as that agreement did not extend beyond the property immediately affected
thereby. Id.

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5. Deceit in sale of stock pleading-complaint -- defense ratification
demurrer waiver. Complaint in an action to recover damages for fraud and
deceit in the sale of stock examined, and held, to allege facts constituting a cause
of action.

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A separate defense to such action which alleges that after the sale plaintiff.
with full knowledge of the facts, elected to and did ratify and affirm his
purchase" and has ever since retained the stock, is demurrable.

Such allegations merely show an election to affirm the purchase and the word
"ratify" is used with reference to the contract as distinguished from the fraud
and deceit.

The rule that in actions for a rescission there must be a prompt disaffirmance
of the contract has no application to an action for damages for fraud and deceit.
The word "ratify" as used does not allege a waiver of plaintiff's right to sue
for damages for the fraud, and, if so intended, merely states a legal conclusion.
Plaintiff's right of action for the fraud survives his affirmance of the contract
and retention of the stock. Potts v. Lambie, 144.

Pleading stockbroker - con version.

Currie v. Sprague, 900.

Fraudulent representations inducing purchase of stock.
Reusens v. Morton, 886.

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Mortgage to secure antecedent debt — failure of consideration.
See DEBTOR AND CREDITOR, 2.

Annulment of marriage- false representations as to chastity.
See HUSBAND AND WIFE, 3.

Sale of land false statement as to acreage.

See VENDOR AND PURCHASER, 3.

GAS AND ELECTRICITY.

Foreclosure of mechanic's lien for electrical fixtures.

See LIEN, 5.

Death by electric shock - assumption of risk.

See MASTER AND SERVANT, 5.

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GIFT.

Gratuitous rendition of services

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- relation of parties.

See ATTORNEY AND CLIENT, 3.

GUARANTY AND SURETYSHIP.

Oral contract of guaranty. suit for specific performance does not lie. No
suit lies to compel the specific performance of an oral agreement by a lessee,
made in consideration of a surrender of the lease and his release from further
liability, to become surety for a new tenant. This, because if the guaranty
be not void under the Statute of Frauds because of performance, the promisee's
remedy at law is adequate, and if the guaranty be void under the statute no
suit lies to compel the promisor to perform specifically. Goldsmith v. Tolk, 287.
Willful dissipation of property by surety.

See CONTEMPT, 1.

Surety on bond - faithful transmission of money suit in equity.

See EQUITY, 1.

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Guaranty as to profits of partnership - Statute of Frauds.

See PARTNERSHIP, 3.

Action by surety against principal.

See PRACTICE, 3.

GUARDIAN AND WARD.

Contract between attorney and general guardian of infant attorney's lien.
See ATTORNEY AND CLIENT, 4.

HIGHWAY.

1. Town-negligence — pleading. A complaint in an action against a town to
recover for injuries caused by a defect in a highway, which fails to allege that at
the time of the accident the highway was within the jurisdiction of the town or
its highway commissioner, does not state a cause of action.

An allegation that the highway was at the time of the accident in process of
improvement by the State under chapter 115 of the Laws of 1898, as amended,
is insufficient in the absence of an allegation that the supervisors had accepted it
before the time of the accident. Scott v. Town of North Salem, 25.

2. Real property — dedication of land for use as street-municipal corporations
- power to allow private owners to use part of public street for cellarway — perma-
nent structures extending beyond building line unauthorized rights of owner of fee
as against persons encroaching upon street. A city may allow the owners of lands
abutting on streets in residential districts to use five feet of the land. within the
building line for courtyards without diverting such street from the public use to
which it was dedicated.

Although a street dedicated to the public use belongs to the public from
one side to the other, it does not follow that the way for public travel must reach
from side to side.

Hence, one who under such municipal authority to maintain a courtyard builds
a fence about it for protection does not, as against the owner of the fee of the
street who dedicated it to the public, violate the easement created for street pur-
poses, as the fence may be regarded as appurtenant to the courtyard.

It seems, that if such abutting owner should build a wall around the courtyard,
not merely to protect it, but so as to hem in the lands as if they were his own
domain, the appropriation would be illegal.

But such municipal permit to use a portion of the street within the building
line for a courtyard does not authorize an abutting owner to place projections
on his house, such as towers and steps, which extend beyond the building line,
and by so doing trespass upon the rights of one who dedicated the land for
street purposes but retained the fee.

By dedicating land for a public street the owner merely parts with his right
to possession, not with his title to the land, and he may maintain an action of
ejectment against a private person who appropriates a portion of the street to
his own use. Linton v. Coupe, 518.

Street opening assessment, city of New York.

Matter of City of New York, 903.

Street paving. New York city — extra work.

See CONTRACT, 5.

HIGHWAY- Continued.

Street opening, city of New York condemnation of fee burdened with

easements.

See EMINENT DOMAIN, 1.

Street opening, city of New York - damages.

See EMINENT DOMAIN, 2.

Change of street grade, New York city-award.

See MUNICIPAL CORPORATION, 2.

Change of street grade — right of abutting owners to compensation.

See MUNICIPAL CORPORATION, 3.

Negligence fall on city sidewalk - question for jury.

See MUNICIPAL CORPORATION, 5.

Injury to private sidewalk - damages.
See MUNICIPAL CORPORATION, 9.

Negligence snow and ice.

See MUNICIPAL CORPORATION, 11.

Use of street by licensed peddler.
See NEGLIGENCE, 4.

Encroachments -duty of park board.
See NEW YORK CITY, 6.

Street closing-petition for damages by abutting owner.
See NEW YORK CITY, 8.

Grade crossings- public safety paramount.

See PUBLIC SERVICE COMMISSION, 2.

HUSBAND AND WIFE.

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1. Divorce-foreign decree - conflict of laws — injunction — suit to enjoin action
in foreign State to vacate decree of divorce. The prosecution of an action brought
in a foreign State by a woman to procure a judgment setting aside a judgment
of divorce obtained by her against her husband in that State will not be enjoined
in a suit brought in this State by a woman whom the divorced husband subse-
quently married, where she was not a party to the foreign action for divorce, and
is not a party to the action sought to be enjoined.

It seems, that if she have any interest in the subject-matter of the foreign
action to set aside the divorce, she should ask leave of the foreign tribunal to
intervene.

Where a foreign court has jurisdiction of an action for divorce and the defend-
ant, resident of this State, personally appears in the action, the decree is con-
clusive and binding upon the courts of this State so long as it remains in force.
It cannot be attacked collaterally here.

It seems, that if the wife who procured the foreign divorce be entitled under
the laws of our State to have it set aside, she must ask that relief in the State
in which the judgment was rendered. Guggenheim v. Wahl, 269.

2. Practice-divorce reference - refusal to confirm report - -new referee should
be appointel-motion for new trial. Where the court refuses to confirm the
report of a referee appointed in an action for divorce and orders another refer-
ence it should be before another referee. The court on refusing to confirm the
report, and sending the matter back, in effect grants a new trial.

Where the court having refused to confirm the report of a referee in an action
for divorce refers the case to the same referee, the aggrieved party should not
appeal from the order denying the motion to confirm, but should move for a
new trial before another referee. White v. White, 272.

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3. Annulment of marriage-fraud - false representations as to chastity.
marriage although consummated will be annulled for fraud where the woman
on inquiry of her intended husband stated that she had been the wife of a
man then deceased, and that he was the father of her child, when in truth she
had been his mistress and the child was a bastard, if the plaintiff did not
cohabit with her after the discovery of the fraud.
61

APP. DIV.- VOL. CXXXVIII.

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It is true that such misrepresentation does not go to the essentialia of the mar
riage contract, as prior chastity is not a necessary qualification for marriage,
but chastity, if insisted upon, may be made an essential qualification.

Authorities on misrepresentation as to previous chastity collated and discussed,
per JENKS, J.

Such misrepresentation may be grounds for an annulment of the marriage for
fraud because, as a matter of law, it may be material upon the question of
consent, which is essential to the contract of marriage. Domschke v. Domschke,
454.

4. Divorce-errors in and omissions from final judgment — power to correct judg-
ment. Where the decision of the court in an action for divorce found the date
of the marriage and that the plaintiff was entitled to the custody of her child,
but through clerical error the date of the marriage was misstated in the interlocu-
tory decree, and by inadvertence no provision awarding the child to the plain-
tiff was inserted, the court in its inherent power may correct a final judgment
entered in conformity with the interlocutory judgment so as to state the cor-
rect date of the marriage and award the child to the plaintiff. Martin v. Martin,

758.

INCOMPETENT PERSON.

Right to notice of trial of issue as to incompetency - due process of law — juris-
diction — acts interfering with defense of incompetent. While the provisions of the
Code of Civil Procedure regulating the trial of an issue as to alleged incom-
petency before a jury do not in terms require notice to be given to the alleged
incompetent, except where he is confined in a State institution, such notice
must, nevertheless, be given before the trial of the issue, as, otherwise, the
incompetent is deprived of his constitutional right to notice of a hearing affecting
his property.

It seems, that preliminary notice to the incompetent is not necessary to the
jurisdiction of the court, and that notice may be given at any time before pro-
ceeding to try the question of competency.

In such proceeding the Special Term is not confined to matters set forth in the
petition and affidavits in reply, but should determine the question of presump-
tive incompetency from all the papers before it at the time of the hearing,
including those urged against the application as well as those in favor of it.
Where notice of such proceeding was given to the incompetent as directed
by the court, but her son, the petitioner, took the notice, refused to deliver it to
the attorney of the alleged incompetent and prevented him from consulting with
her, it is irregular for the Special Term, although it has jurisdiction, to order
the issues to be tried before a jury, as the incompetent has not had an unre-
stricted opportunity to present her defense. Matter of Fox, 43.

Commitment of insane criminal-transfer.

See CRIME, 1.

INFANT.

Crime - necessity for presence of parent-commitment — habeas corpus. It is
not necessary that the parent, guardian or custodian of a child under sixteen
years of age accused of petit larceny have notice of or be present when he was
examined before the magistrate or committed to the State Agricultural and
Industrial School. People ex rel. Mengione v. Briggs, 386.

INJUNCTION.

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1. Jurisdiction of equity to grant temporary injunction — power wholly statutory
testamentary trust motion to compel trustees to vote on stock made in proceeding
to remove them. A court of equity has now no inherent power to grant inter-
locutory injunctions. They can only issue when authorized by statute. Under
the Code they are authorized only in actions; they cannot issue in a special
proceeding, save in the few cases where expressly authorized by statute.

Hence, in a special proceeding to remove testamentary trustees the court has no
power to issue a mandatory injunction requiring them to vote in a certain way
on stock held by them as part of the trust estate.

It seems, that there may be instances where in special proceedings brought for s
particular purpose the court in its general powers may issue a temporary stay-
ing order to insure the efficient execution of its final determination.

INJUNCTION - Continued.

The nature of a motion depends on the nature of the action or proceeding in
which it is made, and hence such motion for a mandatory injunction running
against testamentary trustees cannot be granted on the theory that no injunc-
tion is asked, but simply a direction of the court as to the method of executing
the trust. Matter of Dietz, 283.

2. Unlawful use of trade name-use of prefix "Dr." by one not licensed as
physician scope of injunction. One not a physician who markets proprietary
medicines under his own name with the prefix "Dr." perpetrates a fraud upon
the public, by leading them to believe that his remedies are compounded by a
licensed physician.

While one may use his own name in his own business, even though he thereby
interferes with and injures the business of another rightfully using that name,
the right is subject to the limitation that he shall not resort to artifice to induce a
belief that his business is identical with that of the other person, or do anything
calculated to induce the public to believe that his products are the same as those
produced by the other.

A corporation which, as assignee of a duly licensed physician named Pierce,
has for many years sold and extensively advertised proprietary remedies under
that name purporting to cure female complaints, is entitled to an injunction
restraining another person named Pierce from marketing similar remedies
under that name, if a comparison of the trade labels and advertisements used by
the respective parties shows that they are calculated to mislead the public into a
belief that the remedies offered by the defendant are those manufactured by the
plaintiff.

The defendant is not entitled to have the injunction contain a provision that
nothing therein is to be construed as preventing him from using his own name
in advertisements, signs or placards where the injunction does not purport to
restrain him from an honest use of his own name.. World's Dispensary Medical
Association v. Pierce, 401.

Appeal from order denying temporary injunction what will be decided.
See APPEAL, 1.

Restraining underwriters from doing business

See APPEAL, 3.

Enjoining legal actions.

See EQUITY, 1.

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- person not aggrieved.

Suit to enjoin action in foreign State to vacate foreign decree of divorce.
See HUSBAND AND WIFE, 1.

Trespass on town lands - power of town board to authorize action.

See MUNICIPAL CORPORATION, 8.

Sale of partnership interest and good will-right to carry on competing
business.

See PARTNERSHIP, 2.

INNKEEPER.

Injury to guest by fall of ceiling.

See NEGLIGENCE, 2.

INSURANCE.

Restraining underwriters from transacting business. person not aggrieved.
See APPEAL, 3.

Foreign corporation - service of summons upon Superintendent of Insurance.
See PROCESS, 3.

JUDGMENT.

Justice's Court — foreign judgment— transcript - evidence must be within plead
ings. In order that a transcript of a judgment rendered by a Justice's Court in
another State may be competent evidence here, it must be subscribed or authen-
ticated as prescribed in the Code of Civil Procedure or the Federal statutes.

Under the Federal statute (U. S. R. S. § 905) prescribing by whom judi-
cial records in State courts shall be authenticated, the presiding judge or mag-
istrate alone can certify the record.

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