and 122 New York State Reporter

tention held not sustained because of failure to ' prove a demand.-Hall v. Bassler (Sup.) 1039. | 2. Pleading and evidence.

SALES.

Conclusiveness of judgment in action for price of goods sold, see "Judgment," § 7. In replevin for a chattel, allegation in complaint held not sufficient statement of title, un-of corporate property, see "Corporations," § 5. Of check, see "Bills and Notes," § 3. der Code Civ. Proc. § 1720.-Burdick v. Chese- of intoxicating liquors, see "Intoxicating Liqbrough (Sup.) 13.

Evidence introduced by defendants in replevin held incompetent for general impeachment, or in support of the defense.-Gumberg v. Goodstein (Sup.) 423.

REPORT.

On reference, see "Reference," § 3.

REQUESTS.

uors."

Of property of decedent under order of court.
see "Executors and Administrators," § 5.
Of realty, see "Vendor and Purchaser."
Of trust property, see "Trusts," § 1.
On foreclosure of mortgage, see "Mortgages,"
§ 4.

Receiver's sales, see "Receivers," § 1.

1. Requisites and validity of contract.

An instrument executed by owners of corporate stock held not an agreement, but a mere mann (Sup.) 76.

For instructions in civil actions, see "Trial," offer to sell the same.-Worthington v. Herr§ 5.

RESCISSION.

Cancellation of written instrument, see "Can

cellation of Instruments."

Of contract for sale of land, see "Vendor and
Purchaser," § 2.

RES GESTÆ.

In civil actions, see "Evidence," § 3.

RES JUDICATA.

See "Judgment," §§ 6, 7.

REVENUE.

See "Taxation."

REVIEW.

See "Appeal."

REVOCATION.

§ 2. Construction of contract.

Tender of goods on June 1st is not a delivery within the terms of a contract providing for delivery in May, in the absence of proof that delivery was prevented by some act or omission on the part of the buyer.-Morel v. Stearns (Sup.) 416.

The mere arrival of goods at a wharf within the limits of a city, where delivery was to be made at a place therein to be designated by the buyers, held not to constitute a delivery to the buyers.-Morel v. Stearns (Sup.) 416.

Under a contract for the sale of tobacco, the buyer held not entitled to receive the amount recovered by the seller as having been illegally exacted as duty.-M. & E. Solomon Tobacco Co. v. Cohen (Sup.) 641.

Where a memorandum of sale contained only the amount and the price, plaintiff was entitled to demand cash on delivery and payment of other bills.-Bauer v. Blaha (Sup.) 933.

Acceptance, after inspection by buyer, of sausages delivered under contract of sale, held to estop buyer from relying on a breach of Of vault privileges in streets, see "Municipal warranty.-James v. Libby, McNeil & Libby Corporations," § 3.

An option for the purchase of corporate stock

Assumed by employé; see "Master and Serv- held not to have contained a warranty as to the ant," §§ 6, 7.

See "Highways."

ROADS.

indebtedness of the corporation on a certain date.-Worthington v. Herrmann (Sup.) 76. Recital, in an option given by the owners of corporate stock for the purchase thereof, held resentation.-Worthington v. Herrmann (Sup.)

Streets in cities, see "Municipal Corporations," not merely descriptive, but to amount to a rep§§ 3, 4.

RULES OF COURT.

Orders, see "Motions."

76.

Option for the purchase of corporate stock held not to have contained a warranty.-Worthington v. Herrmann (Sup.) 76.

Where a warranty attends an executed present sale, the right to damages for breach of warranty survives acceptance of the thing sold, and an offer to return on account of breach is neither necessary nor permissible.-Billson v. Hall & Grant Const. Co. (Sup.) 245.

In an action for the price of fruit sold to defendant, held, that there was an implied warranty that the fruit sold was all grape fruit.-Abel v. Murphy (Sup.) 256.

A seller of machinery, to be shipped to the buyer's customer and paid for on the arrival of the price from such customer, held not entitled to recover, without proof that the machinery had arrived at destination and had been paid for.-Machale v. Leber (Sup.) 958.

In the absence of proof of an agreement to pay a specific price for supplies sued for, their fair market value must be proved.-Meyer v. Jewell (Sup.) 972.

In an action for the price of fruit, purchaser Evidence held insufficient to sustain a finding held not precluded from maintaining a counter- that a purchaser did not give the seller shipclaim on a breach of warranty by reason of ping directions, nor order the goods shipped by lack of diligence in examining the fruit.-Abel | a particular carrier.-Goldstein v. Nathan (Sup.) v. Murphy (Sup.) 256. 980.

In an action for the price of goods which defendant refused to accept after delivery, evidence held to show by a preponderance thereof that the sale was on approval, and not an absolute sale.-Leiffer v. Post (Sup.) 1007. § 6. Remedies of buyer.

In an action for the price of a lot of fruit, held, that the doctrine of caveat emptor had no application.-Abel v. Murphy (Sup.) 256. Purchaser of goods, on discovering breach of warranty, held to have made a sufficient offer to return goods.-Abel v. Murphy (Sup.) 256. Where it was agreed, on the sale of a horse, In an action for the price of goods sold to that he might be returned within two weeks, defendant, where the defense was breach of if not all right, but no place for return was warranty, held error to instruct that the only specified, a return to the barn where the pur-question was whether plaintiff sold the goods chase had been made was good.-Cornell v. with intent to deceive defendant.-Abel v. Fox (Sup.) 482. Murphy (Sup.) 256.

Where, on the sale of a chattel, it was agreed that, if defective, it might be returned within two weeks, a return between 9 and 10 p. m. on the last day of the fortnight was sufficient. -Cornell v. Fox (Sup.) 482.

Where it was agreed on the sale of a chattel that it might be returned within a specified time, if unsatisfactory, but the seller declared he would not receive it back, an actual production of the chattel, with an offer to return, was waived.-Cornell v. Fox (Sup.) 482.

Contract made by seller and buyer, on delivery of sausages, held to be one of indemnity. James v. Libby, McNeil & Libby (Sup.) 812.

Where the seller of a horse with warranty of title is notified by his purchaser of an action against him and refuses to have anything to do with it, the refusal excuses a formal demand. -Schnurmacher v. Kennedy (Sup.) 943.

5. Remedies of seller.

In action for value of fire escapes, where giving of order therefor was in issue, evidence as to whether plaintiff kept order book held competent.-Oltarsh v. Lewis (Sup.) 127.

Where the purchaser of goods refused to receive the same on delivery, the seller, in an action for damages, was entitled to the difference between the contract price and the sum for which the goods afterwards sold.-Falkenberg v. O'Neill (Sup.) 378.

Where no counterclaim was interposed, defendant held properly refused an instruction that he was entitled to have furnished him materials of good substantial character.-Kertscher v. Picken (Sup.) 384.

Evidence in an action for the purchase price of goods held insufficient to show that the purchase was made on approval.-Chester Gas Light Co. v. Baker (Sup.) 389.

The measure of damages for breach of warranty in the sale of a horse is the difference between its value at the time of sale, if it had corresponded with the warranty, and its value as it was.-McQuade v. Newman (Sup.) 363.

Where the seller failed to deliver the goods, the measure of the buyer's damages was the difference between the contract price and the market value.-Falkenberg v. O'Neill (Sup.) 378.

In an action for damages for defendant's failure to deliver goods sold to plaintiff, held, that the verdict entered was erroneous as against the evidence.-Falkenberg v. O'Neill (Sup.) 378.

Seller of goods with false warranty of title held not liable for counsel fees of the purchaser in an action brought against him. Schnurmacher v. Kennedy (Sup.) 943.

A seller of goods with false warranty of title held liable for costs of an action against his purchaser.-Schnurmacher v. Kennedy (Sup.)

943.

Where the seller of a horse with warranty of title is afforded an opportunity to defend an action against his purchaser, he is bound by the result so far as concerns the value of the horse, -Schnurmacher v. Kennedy (Sup.) 943.

§ 7. Conditional sales.

Evidence held insufficient to sustain judgment for plaintiff in action to foreclose lien on sewing machine loaned to defendant.-Singer Mfg. Co. v. Horowitz (Sup.) 349.

SATISFACTION.

See "Accord and Satisfaction"; "Payment"; "Release."

Of judgment, see "Judgment," § 8.

and 122 New York State Reporter

SCHOOLS AND SCHOOL DISTRICTS.

SIGNATURES.

Signing case on appeal, see "Appeal,” § 3.
SLEEPING CARS.

§ 1. Private schools and academies.
Trustees of a private academy held entitled
to an injunction restraining breach of contract
by village board of education.-Trustees of
Washington Academy v. Cruikshank (Sup.) 330. See "Carriers," § 6.

2. Public schools.

A contract between trustees of a private academy and a village board of education held not ultra vires.-Trustees of Washington Acad-§ emy v. Cruikshank (Sup.) 330.

A village board of education held estopped from contending that a contract between it and the trustees of a private academy was ultra vires.-Trustees of Washington Academy v. Cruikshank (Sup.) 330.

SERVICE.

Of pleading, see "Pleading," § 7.

SERVICES.

SPECIFIC PERFORMANCE.

1. Contracts enforceable.

An oral agreement to convey lands will not be enforced in equity, unless the failure to enforce it will work a fraud on plaintiff.-Jayne v. Brown (Sup.) 589.

2. Good faith and diligence.

Plaintiff, seeking specific performance of a contract to convey land, held not entitled to a decree. Sokolski v. Buttenwieser (Sup.) 973.

3. Proceedings and relief.

In a suit to enforce an alleged agreement whereby defendant was to convey lands to plaintiff, held, that under the apparent equities of the cause a dismissal of the bill was proper.

See "Master and Servant," § 2; "Work and Jayne v. Brown (Sup.) 589.
Labor."

In an action to compel defendant to execute and deliver a deed to plaintiff for an undivided one-half of certain property and to account for rents, evidence examined, and held insufficient to sustain a finding that defendant purchased the property under an agreement that the parties should own it in common.-Davis v. Davis (Sup.) 998.

ited partnership, see "Partnership." § 3.
is assumed by servant," see "Master and
rvant," § 6.

ute of frauds, see "Frauds, Statute of."

Enactment, requisites, and validity in general.

while not superseded by laws passed at the same session, held superseded and repealed by County Law, Laws 1892, p. 1749. c. 686, § 19, as amended by Laws 1900, p. 933, c. 400.In re Troy Press Co. (Sup.) 115.

Under County Law, Laws 1892, p. 1749, c. 686, § 19, as amended by Laws 1900, p. 933, c. 400, held, that a designation by county supervisors of a paper to publish Session Laws may not be for more than a year.-In re Troy Press Co. (Sup.) 115.

Laws 1903, p. 1065, c. 459, § 4, relating to child labor during term time, held a germane amendment to Consolidated School Law, Laws aws 1892, p. 1470, c. 715, § 3. as to desig-1894, c. 556.-City of New York v. Chelsea on of newspapers to publish Session Laws, Jute Mills (Mun. Ct.) 1085.