Held, it not appearing that there were New York creditors whose claims
would otherwise be lost, that the New York administrator was not entitled
to maintain an action against the bank to recover the amount of the deposit.
MAAS v. GERMAN SAVINGS BANK....
2. Liability of stockholders in insolvent national banks- the determina-
tion of the Comptroller fixes it definitely.] Where the Comptroller of the
Currency of the United States fixes the personal liability of the stockholders
of a defunct national bank at a certain sum per share, and makes a requisi-
tion upon the stockholders for that amount, such liability becomes a definite,
liquidated claim against the stockholders. WALDRON . ALLING.......
3. It may be assigned by the receiver.] Section 5234 of the United
States Revised Statutes, which provides that the receiver "may, if neces-
sary to pay the debts of such association, enforce the individual liability of
the stockholders," does not impose a personal trust and duty upon the receiver
of the bank, which will prevent him from selling and transferring the claim
against a stockholder. Id.
4. A stipulation, construed to state that an assignment was authorized.]
A stipulation, made in an action brought against the executrix of a deceased
stockholder, to enforce the statutory personal liability of her testator, to the
effect that the claim was "sold and transferred by said Philip Tillinghast
as Receiver
*
*
to the plaintiff *
who is now the owner
and holder thereof," imports that the transfer was a legal one which vested
in the plaintiff the ownership of the claim, and that whatever formal steps
were necessary to make the transfer valid and effective were taken. Id.
5. A party subscribing for stock presumed to have acquired it.] Where
the stipulation states that the defendant's testator subscribed for two shares
of stock in said bank, it will be presumed, in the absence of evidence to the
contrary, that he secured the stock for which he subscribed, and continued
to hold it. Id.
BANKRUPTCY — Trustee in bankruptcy — security for costs may be required
of him in an action on a claim existing prior to his appointment.] A trustee in
bankruptcy of a corporation, who brings an action against a director of the
corporation, alleged in the complaint to have, prior to the appointment of
the plaintiff, wrongfully acquired money and property belonging to the
corporation, may, in the discretion of the court, be required to give security
for costs, as such a case is within the precise language of subdivision 4 of
section 3268 of the Code of Civil Procedure, which provides that the defend-
ant may require security for costs to be given where the action is brought by
"the official assignee or official trustee of a debtor; or an assignee in bank-
ruptcy, where the action is brought upon a cause of action, arising before
the assignment, the appointment of the trustee, or the adjudication in bank-
ruptcy.' JOSEPH v. MAKLEY..
BILL OF LADING — For transportation by land.
BILLS AND NOTES- Guaranty of a note payable on demand with interest
— consideration therefor whether laches exist in its collection is to be determined
by the circumstances of the particular case — · acquiescence in a delay on the
part of the executors of a deceased guarantor.] 1. The Banking Department
having criticised the action of the Union Bank of Rochester in holding an
excessive amount of real estate, the president and a number of stockholders
of the bank organized a corporation known as the Union Investment Com-
pany, which took over the real estate of the bank and paid the bank therefor
$10,000 in money and the balance in promissory notes. Subsequently the
Banking Department insisted that the notes of the investment company should
either be paid or secured, whereupon, on February 11, 1895, the president
of the bank and two of his associates executed an instrument by which they
severally and jointly guaranteed the bank "against any loss whatever by rea-
BILLS AND NOTES - Continued.
son of any advances now made by it, or which may hereafter be made by
it, to the Union Investment Company, or by reason of any paper now dis-
counted, or which may hereafter be discounted, by said bank for said
company."
Thereafter, under date of March 25, 1895, the investment company executed
to the bank a note for $50,000, payable on demand, with interest, and shortly
thereafter the president of the bank died, his will being admitted to probate
April 12, 1895. May 25, 1896, the bank served upon the executors of the
deceased president a proof of claim, including the note in question, and on two
occasions, one in 1897 and the other in 1898, one of the executors of the
deceased president made an examination of the affairs of the bank and saw
the note and guaranty.
October 26, 1899, after $5,000 had been paid upon the principal of the
note, the Union Bank sold and assigned the note and guaranty to the Central
Bank of Rochester. Interest upon the note was paid semi-annually down
to July, 1900. No demand for the payment of the note was ever made until
shortly prior to January, 1901, at which time the Central Bank brought an
action to recover upon the note. In that action a judgment was obtained
against the investment company and an execution issued thereon, which was
returned unsatisfied.
In an action thereafter brought by the Central Bank to recover upon the
guaranty it appeared that, when the investment company was organized,
it was understood that it "was to have all the time necessary to dispose of
the real estate to the best advantage, and after it was disposed of the proceeds
were to be applied upon these notes held by the bank; that is, the Invest-
ment Company was to pay its indebtedness to the bank." There was no
evidence that the guarantors had suffered any actual damage from the failure
to proceed sooner against the investment company upon the note.
Hld, that, as between the bank and the deceased president, there was a
valid consideration for the guaranty;
That, while no formal demand of payment was necessary to make the note
due as against the maker, and it could not be regarded as having lain without
dishonor until a formal demand was made in 1901, the failure of the plaintiff
to proceed upon the note until 1901 did not constitute such laches as would
render the guaranty unenforcible against the estate of the deceased president;
That the failure of the executors of the deceased guarantor to request the
holder of the note to sue thereon indicated an acquiescence in the policy
adopted by the bank with reference thereto.
CENTRAL BANK OF ROCHESTER v. KIMBALL.
Note for the amount of a mortgage, given under an agreement that
if the note were enforced the mortgage should be assigned to the maker — a tender
of the mortgage is not necessary when a demand is made on the note.] Where
the husband of a mortgagor, in consideration of the agreement of the
mortgagee to reduce the rate of interest payable upon the mortgage, exe-
cutes to the mortgagee a demand note for the amount of the mortgage, and
contemporaneously therewith the mortgagee verbally agrees that if the
mortgagor's husband should ever be called upon to pay the note the mort-
gagee would, as a condition precedent to such payment, assign the bond
and mortgage to him, the failure of the mortgagee to tender an assign-
ment of the bond and mortgage, when making a demand for the payment
of the note, is not a defense to the maker of the note in an action brought
by the mortgagee to recover upon the note. STORZ v. KINZLER..
3. Tender of payment of the note.] Semble, that if the maker of the
note had tendered payment and demanded the assignment of the bond and
mortgage, and had kept the tender good by paying the money into court,
such tender would be a valid defense to the action. Id.
4. -
A transfer of stock is subject to equities therein.] The rule respect-
ing commercial paper, in the hands of third persons, not chargeable with
notice of equities existing between the original parties, does not apply to
certificates of stock even if indorsed in blank. TREADWELL v. CLARK...... 473
BOARD OF HEALTH:
See HEALTH BOARD.
BOILER-Certificate of qualification of an engineer operating a steam boiler
used in removing a ledge of rock in the East river.
See MUNICIPAL CORPORATION.
BONA FIDE PURCHASER- Of negotiable paper
BOND-Conditioned to pay for materials used in the execution of a city con
coal used in generating steam, held to be covered by it.] Coal consumed
in boilers used in generating steam power, which was essential to the per-
formance of a contract to do certain city work in the construction of a
retaining wall, is material furnished "in or about the execution of such con-
tract." within the meaning of a bond given to secure the faithful perform-
ance thereof, which was conditioned that the contractor should well and
truly pay for all material used and services rendered in the execution of such
contract," and that any person "furnishing material or rendering services in
or about the execution of such contract may maintain an action to recover
for the same against the obligors
as though such person were
* named therein." ZIPP v. FIDELITY & DEPOSIT Co......
BOOK MAKING AND POOL SELLING - It is punishable criminally
and by a penalty in a civil action - Penal Code, § 351, is constitutional.
See PEOPLE EX REL, CLIFTON V. DE BRAGGA.
BOOKS AND PAPERS - Inspection of.
BOUNDARY — Cases involving the construction of, in deeds.
BRIDGE TENDER- In the city of New York- appointment of.
BUFFALO - The name of a resident assessed for taxation must appear on the
rolls — distinction between resident and non-resident land, how far abolished –
enforcement of the lien of the tax.
CERTIORARI-Motion to dismiss a writ of certiorari before a return.] A
motion to dismiss a writ of certiorari, issued to review the action of the com-
missioner of public safety of a city of the second class in removing a mem-
ber of the police force, on the ground that the decision was not reviewable,
may be made and determined before any return is made to the writ.
PEOPLE EX REL. MILLER v. PECK...
CHILDREN - Destitute and dependent children -case of, in New York city.
See MUNICIPAL CORPORATION.
CIVIL SERVICE - An assistant sergeant-at-arms of the New York board of
aldermen occupies a strictly confidential relation to it- - an assistant sergeant-
at-arms of the council will not be transferred to that position.] 1. An assistant
sergeant-at-arms of the council of the city of New York, appointed pursuant
to the Greater New York charter (Laws of 1897, chap. 378), was not entitled,
when by chapter 466 of the Laws of 1901 the council was abolished and the
legislative powers of the city were vested in the board of aldermen, to be
transferred to a similar position in such board of aldermen under section 21 of
the Civil Service Law (Laws of 1899, chap. 370), as an assistant sergeant-at-
arms of the board of aldermen holds "a strictly confidential relation to the
appointing officer." and consequently comes within that clause of section 21
of the Civil Service Law which provides: "Nothing in this section shall be
construed to apply to the position of private secretary or deputy of any
official or department or to any other person holding a strictly confidential
relation to the appointing officer." MATTER OF SHAUGHNESSY v. FORNES... 462
2. — Removal of policemen in cities of the second class — the decision of the
commissioner is not reviewable.] The office of policeman, being a legislative
and not a constitutional office, it was competent for the Legislature to provide
in section 184 of the charter of cities of the second class (Laws of 1898, chap.
182) that the decision of the commissioner of public safety in a city of the
second class, dismissing a member of the police force, upon charges pre-
ferred against him, should be "final and conclusive and not subject to review
by any court." PEOPLE EX REL. MILLER . PECK.....
3. Right to a pension in the city of Syracuse is not a vested right.]
Such provision of the charter of second class cities is not unconstitutional as
to a member of the police force of the city of Syracuse, in that it deprives
him of rights in a certain pension fund which he had secured by virtue
of his appointment under the former charter of the city of Syracuse, as
under such former charter his position was subject to a broader power of
removal than that contained in section 184 and as his appointment upon the
police force did not give him any vested rights in such pension fund. Id.
4. Motion to dismiss a writ of certiorari before a return.] A motion to
dismiss a writ of certiorari, issued to review the action of the commissioner
of public safety of a city of the second class in removing a member of the
police force, made on the ground that the decision was not reviewable,
may be made and determined before any return is made to the writ. Id.
5.- Remedy in case of dismissal in bad faith.] Semble, that if the com-
missioner of public safety should attempt to dismiss a member of the police
force in bad faith or from improper motives and without any evidence justi-
fying his action, the courts would entertain a proceeding to review the
removal. Id.
6. Words "district" and "locality" in section 17 of chapter 370 of 1899
defined.] The words district" and "locality," contained in section 17 of
the Civil Service Law (Laws of 1899, chap. 370), which provides that "where
the labor service of any department or institution extends to separate
localities, the commissions may provide separate registration lists for each
district, or locality," refer to some political division of the State created by
legislative act and existing at the time the registration lists are furnished.
PEOPLE EX REL. MELLEDY v. SHEA (No. 1)...
7. One of the boroughs of New York cannot be divided into several dis-
tricts.] Such section does not authorize the civil service commission of the
city of New York, for the purpose of the appointment of bridge tenders,
to divide one of the boroughs of that city into four districts and to main-
tain separate lists for each one of such districts and to provide that a person
upon the list in one district shall not be eligible for appointment in any of
the other districts. Id.
8. A separate list for appointment as bridge tender may be made for each
borough in the city of New York.] Under section 17 of the Civil Service
Law (Laws of 1899, chap. 370) the civil service commission of the city of
New York may, for the purpose of the appointment of bridge tenders,
make a separate list in each one of the four boroughs into which the city
is divided and provide that vacancies existing in one borough shall be filled
from the eligible list for that borough. PEOPLE EX REL. COYNE v. SHEA... 239
CLAIM
Against a decedent's estate.
See EXECUTOR AND ADMINISTRATOR.
CODE OF CIVIL PROCEDURE — § 6- Magistrates' Courts in New York
city may exercise their ordinary functions on Sunday.
See PEOPLE EX REL. PRICE v. WARDEN, ETC....
SS 427, 428- Guardian ad litem-he is not a party to the action — his
See BEHLEN v. BEHLEN....
§ 488, subd. 8-When a pleading may be declared frivolous-
See VLASTO v. VARELOPOULOS.
§ 723-Amendment of a complaint substituting the defendant in his
representative, for him in his individual, capacity.
723- An amendment after verdict, substituting a party in a represen-
tative, for such party in his individual capacity, is improper.
See UNITED PRESS v. ABELL CO.......
§ 836-Who may waive the objection to a physician's testimony.
See MATTER OF HOPKINS....
999-What compromise verdict in a negligence case requires a new
trial-review of, on a motion for a new trial.
See WIEGAND v. FEE BROTHERS CO......
See BENNETT v. AMERICAN SURETY CO......
§ 1326-Undertaking on appeal to the Court of Appeals it covers
only the costs of that appeal.
1757-Action for divorce costs may be awarded against a co-respond-
ent who appears.
See BILLINGS v. BILLINGS......
§ 1835, 1836— Costs—in an action against an administratrix on a
claim against her intestate in which $6.42 is recovered — when neither party is
entitled thereto.
See GERMAN-AM. PROVISION Co. v. GARRONE..
§ 1836-Costs—against an executor on a reference of a disputed claim
- a certificate under Code of Civil Procedure, § 1836, is necessary.
See DARDE v. CONKLIN.....
§ 1904 — Action to recover damages, under the Pennsylvania statute, for
a husband's death — interest on the verdict cannot be added by the clerk.
See FROUNFELKER . DELAWARE, L. & W. R. R. Co..
§ 2100-Where a final order refuses a writ of prohibition the court can-
not be further restrained from acting.
See PEOPLE EX REL. PATRICK v. FITZGERALD.
§ 2268- Contempt proceedings for non-payment of alimony — a recital
of a demand therefor in the order of commitment must be sustained by proof
thereof.
on which the case was tried.
$ 3063 A justice's judgment sustained on a theory different from that
See JACKSON. HELMER.....
§ 3268, subd. 4- Trustee in bankruptcy-security for costs may be
required of him in an action on a claim existing prior to his appointment.
See JOSEPH . MAKLEY....
[See table of sections of the Code of Civil Procedure cited, ante, in this
volume.]
CODE OF CRIMINAL PROCEDURES 185- Arrest, by a private per-
son, of one committing a misdemeanor· -the person arrested must be taken before
a magistrate without delay.
[See table of sections of the Code of Criminal Procedure cited, ante, in this
volume.]
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