ACCEPTANCE- Of a check in full payment of a claim.
See DEBTOR AND CREDITOR.
See STATUTE OF FRAUDS.
ACCIDENT- Resulting from negligence.
See NEGLIGENCE.
ACCOMMODATION PAPER:
See BILLS AND NOTES.
ACCOUNT STATED-Between debtor and creditor.
See DEBTOR AND CREDITOR.
ACCOUNTING-Action simply for an accounting not maintainable in equity.
See EQUITY.
ADVERSE POSSESSION - Champerty the holding must be under a
ALTERATION OF INSTRUMENTS - Guaranty on a lease filling in
blanks in the lease after it is delivered to the lessee to give to lessor — effect on the
guarantor's liability.
APPEAL - Findings of fact and law—not reviewed on appeal in the absence
of exceptions.] 1. Where the parties appealing from a judgment fail to serve
or file exceptions to the decision of the Special Term upon which the judg
ment was entered, they are not, upon appeal, in a position to challenge the find-
ings of fact or conclusions of law of that court. MILLAR v. LARMER..
Appeal on the judgment roll alone.] Where an appeal is heard
upon a judgment roll alone, the question to be determined by the appellate
court is whether in any view of the facts found the judgment rendered was
properly ordered. KINCAID v. KINCAID..
3. When dismissed.] No appeal lies from an order sustaining a
demurrer. The appeal should be taken from the interlocutory judgment.
FIRST NAT. BANK OF CARTHAGE v. EATON....
The objection in an action brought to foreclose a mechanic's lien, that the
notice of lien contained false statements which rendered it invalid, will not be
entertained upon appeal when it has not been raised upon the trial of the action.
See RINGLE v. WALLIS IRON WORKS..
Where a party desires to review the decision of the Special Term upon the
facts and conclusions of law formed, all the findings should be annexed to the
judgment roll to enable him to do so.
Award of commissioners under chapter 14 of 1880, as amended by chapter
190 of 1892- - a direction that the taxes be deducted, stricken out.
See MATTER OF SOUTH ST. PAUL STREET.
- Objections — not first heard on appeal — new trial denied, in their absence,
unless injustice would result.
Laches not presumed on appeal — appeal on a judgment roll alone.
See FIRST NAT. BANK v. N. Y. C. & H. R. R. R. Co.
-When objections taken for the first time upon appeal are raised too late.
See SMITH v. CROSS..
- Erroneous admission of evidence, when disregarded on appeal.
See PEOPLE v. BROCKETT...
- Power of the General Term on appeal from the decree of a surrogate.
See MATTER OF HARDENBURG...
ARREST — Relief from arrest, under section 572 of the Code of Civil Pro-
cedure.] 1. Section 572 of the Code of Civil Procedure was intended to
relieve from arrest under orders of arrest in cases in which the diligence
required by statute was not used by the plaintiff in charging the defendant
by execution.
Such section has no application to executions, except in respect to such as
may be issued where a defendant has been discharged pursuant to the pro-
visions of such section, and the "mandate" referred to in such section is
the order of arrest mentioned in the beginning thereof. HEDGES V. PAYNE.. 377
2. Sureties cannot surrender their principal under section 591 of the Code
of Civil Procedure.] Under the provisions of section 591 of the Code of Civil
Procedure the sureties upon an undertaking given by a defendant to deliver
chattels sued for or pay the sum recovered have no power to surrender
their principal. Id.
ASSAULT-Conviction of assault in the third degree — statement of a witness
made before the trial, when admissible in evidence.
Assignee for the benefit of creditors—his right to the
assigned estate until he is removed.] An assignee for the benefit of creditors
is not an officer of the court, and, until he is removed from his office of
assignee in the manner prescribed by statute, he is entitled to the possession
of the assigned estate, and although he may have made propositions to a
bank in which the funds of the assigned estate were on deposit, inconsistent
with his duties as assignee, such fact does not enable the receiver of such
bank to successfully resist his application for the payment of the amount
standing on deposit to his credit as assignee.
PEOPLE . ST. NICHOLAS BANK..
when an order for the payment of a claim amounts to
an assignment pro tanto — receiver directed to pay it.
See PEOPLE v. FLOUR CITY LIFE ASSN..
By a partner of his interest in the firm — right of a special partner to
compel an accounting.
See VAN VOORHIS v. WEBSTER..
ASSOCIATION - For insurance.
For mutual aid.
See INSURANCE.
ATTACHMENT — Assignment by a partner of his interest in the firm in
fraud of creditors — when attachment should be vacated — right of a special partner
to compel an accounting.
See VAN VOORHIS v. WEBSTER.
ATTORNEY AND CLIENT
ments for his client-right of the latter to refuse to incur expenses — effect of
Authority of an attorney to make disburse-
notice of such refusal to a person seeking to recover from the client.] 1. An
attorney in the conduct and management of his client's case has authority to
make such necessary and proper disbursements as the case requires, and
this authority may be implied merely from the relation between attorney and
client, from which a request on the part of the latter will be presumed,
but it is equally true that however necessary services may be regarded by
the attorney in the client's interest, the latter has a right to refuse to incur
them, and the attorney cannot charge the client except in favor of some one
who acted, without notice of such dissent on the part of the client, upon the
presumed authority with which such attorney was clothed.
Where, however, the person seeking to recover upon the implied or pre-
sumed authority which grows out of the client's relation to the attorney,
is notified that the attorney has no right to incur the expense, he cannot
hold the client responsible. PACKARD v. STEPHANI..
2. Substitution of attorneys the attorney's compensation secured to
him, except in case of his misconduct.] Upon an application by a party to an
action, for the substitution of another attorney in place of his attorney of
record, ordinarily the court will see that the original attorney is protected
as to his fees; but where the attorney's conduct has been improper and
neglectful, the court will deny its protection and direct an unconditional sub-
stitution, leaving the attorney to his action for his fees.
Apart from the question of misconduct or bad faith, a client, subject only
to the payment of the attorney's fees in a proper case or the securing of them,
if they cannot then be fixed and determined, has the right, without assigning
any cause, at any point in a suit or proceeding, to change his attorney.
MATTER OF PROSPECT AVENUE
Want of capacity to sue, how raised.] A defendant is not in a
position to raise the question that the plaintiff has not capacity to sue, unless
his answer or demurrer contains allegations to that effect. PEOPLE . LAMB. 171
An attorney's authority, when to be questioned.] The question as
to the right of the attorney, appearing for the plaintiff in an action, to
appear and bring the suit, must, as a general rule, be raised by a motion
before the trial, and is not an issue to be disposed of at the trial. Id.
5. A retainer presumed.] When a party appears by an attorney a
retainer will, as a general rule, be presumed. Id.
Common council of a city — when members thereof are not disqualified
from acting — proceedings thereof relating to the removal of an officer of such city
-duty of attorneys-stipulation, when a proceeding in an action
attorney may be removed for malfeasance and misfeasance in office -
in the reception and rejection of evidence will be disregarded under section 2140 of
the Code of Civil Procedure-injury presumed by reason of an attorney's wrong-
ful act.
See PEOPLE EX REL. BURBY . COMMON COUNCIL.
Compromise of a judgment by an attorney.
See LOWMAN . ELMIRA, C. & N. R. R. Co..........
BANKING —“Exhibiting false books” — conviction thereof — circumstantial
evidence-judge's charge.
BANKRUPTCY - Insolvency — release from the obligation of a contract.
See PACIFIC STEAMSHIP Co. v. PANAMA R. R. Co...
BENEFICIARY - Societies for purposes of insurance.
See INSURANCE.
BILL OF LADING:
See CARRIER.
BILL OF PARTICULARS:
See PLEADINGS.
BILLS AND NOTES-Payment of a draft-subrogation to the rights of
the payee.] 1. Upon the advancement by one bank to another of the amount
of a draft of which the latter bank is the payee, made at the request of
the drawee, the bank making such advancement is subrogated to the right
of the payee named in the draft.
FIRST NAT. BANK v. N. Y. C. & H. R. R. R. Co...................
2. Delivery of a bill of lading — effects a legal change of possession of
the property.] The discount of a draft drawn by a consignor upon his
consignee, which is accompanied by the delivery of a bill of lading to
the party making the advance, not only passes to such party the legal title
to such property, but, in the eye of the law, the transfer of the bill of lading
is regarded as an actual delivery and an actual change of possession of the
property described therein, and the fact that the bill of lading is drawn to
order does not prevent its transfer by delivery to a third person without any
indorsement.
Any act of the drawer after the delivery of the bill of lading and discount
of the draft does not affect the rights of the person discounting the same,
and it is immaterial, as between the carrier of the property mentioned in the
bill of lading and the person discounting the draft, that prior to such person
making an advance thereon, the carrier had improperly parted with the
control of the property, as the improper delivery thereof by it would not
relieve it from its liability in the premises. Id.
3. Laches not presumed on appeal.] Where the fact of laches or con-
sequent injury is not found upon the trial of an action, the existence of
laches or injury will not be presumed upon appeal simply from delay, nor
will it be assumed, without any finding on the subject by the trial court, that
by reason of delay and the failure of the consignees of goods delivered by the
defendant, it, the defendant, has lost any remedy it might have had. Id.
Appeal on a judgment roll alone.] Where an appeal is heard
upon a judgment roll alone the question to be determined is whether in
any view of the facts found a proper judgment was ordered. Id.
5. Bona fide holder for value-surrender of a promissory note and the
taking of another in lieu thereof.] The surrender to a party of his own
promissory note, and the taking in lieu thereof a negotiable note made by
a third party before its maturity, makes the party receiving such latter note
a bona fide holder for value, provided that the note surrendered was a valid
obligation, of which fact its existence constitutes prima facie evidence which
may be overborne, however, by proof that it was void for want of considera-
tion. HAND . DININNY..
Accommodation note· - the obligation of the maker is that of a surety-
luches-effect of on the holder — profits realized by a judgment creditor from a
purchase of real estate - extra allorances.
Agent's porter to indorse a check in the principal's name - good faith of
the indorser.
See JACOBY & Co. v. PAYSON..
Promissory note, how far subject to oral proof.
See SCHRAM v. WERNER.
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