BUILDING CODE.

[For table containing all sections of Building Code of City of New York, see
ante, p. lxxvi.]

See, also, GAS AND ELECTRICITY, 2.
PROCEEDINGS AND DETERMINATION.

Common-law writ to review assessment of damages for sheep killed by
dogs to be heard in first instance by Appellate Division - determination
remitted for further consideration because of erroneous rule of damages
damages should be based on actual value of sheep. People ex rel. Dawley
v. Wilson, 537.

[For table containing all sections cited and construed in this volume, see
ante, p. lxxiii.]

CIVIL SERVICE.

TRANSFER OF EMPLOYEES.

1. Peremptory mandamus to compel State Civil Service Commission to
permit transfer of petitioner from general clerk in office of county clerk to
position of attendant upon Supreme Court as facts in petition are denied,
alternative writ only should issue - petition did not show clear, legal right
to transfer two positions not in same class - duties of two positions dif-
ferent court will not interfere with State Civil Service Commission except
for abuse of discretion. Matter of O'Connell v. Clark, 606.
PREFERRED EMPLOYEES.

2. Petitioner, honorably-discharged soldier of Spanish-American War,
discharged as factory inspector in Department of Labor on ground that
position had been abolished as authorized by Labor Law of 1921, § 18-
petitioner entitled to be reinstated where there were several similar positions
filled by men not entitled to preference. Matter of Devins v. Sayer, 669.
ABOLITION OF POSITION.

3. Petitioner, factory inspector in Department of Labor, legally suspended
without pay on abolition of position under Labor Law of 1921, § 18 - Civil
Service Law, § 22a, requiring suspension in inverse order of employment,
not applicable petitioner not entitled to be reinstated. Matter of Meehan
v. Sayer, 674.

CLOUD ON TITLE.

See LIMITATION OF ACTIONS.

CODE OF CIVIL PROCEDURE.

[For table containing all sections cited and construed in this volume, see
ante, p. lxxii.]

CODE OF CRIMINAL PROCEDURE.

[For table containing all sections cited and construed in this volume, see
ante, p. lxxiv.]

CODE OF ORDINANCES.

[For table containing all sections of Code of Ordinances of City of New
York cited and construed in this volume, see ante, p. lxxvi.]

COMMERCIAL PAPER.

See BILLS AND NOTES.

COMMISSIONS.

See PARTNERSHIP, 4; PRINCIPAL AND AGEnt, 1.

COMPLAINT.

See NEGLIGENCE, 4; PLEADINGS, 1, 2.

COMPROMISE AND SETTLEMENT.
See CORPORATIONS, 5.

CONDITIONAL SALES.

See CONVERSION, 1.

CONFLICT OF LAWS.

[For tables of all statutes of States and Territories and foreign countries
cited and construed in this volume, see ante, pp. lxxv and lxxvi.]
CONSIDERATION.

See SEAL.

CONSOLIDATED LAWS.

[For table containing all chapters and sections cited and construed in this
volume, see ante, p. lxiv.]

CONSOLIDATION OF ACTIONS.

See TRIAL, 1.

CONSPIRACY.

CIVIL LIABILITY.

wrongful acts of
Moskin v. Lyden, 304.

Conspiracy to commit actionable wrong not actionable
conspirators alone give rise to cause of action.

CONSTITUTIONAL LAW.

EMERGENCY RENT LAWS.

Public control of private property is limited to necessity of occasion exer-
cise of police power function of Legislature, but whether subject-matter is
within police power is judicial question. Farnham Realty Corp. v. Posner, 827.
[For tables of the sections of the United States and New York Constitutions'
cited and construed in this volume, see ante, pp. lxi and lxiii.]
CONSTRUCTIVE NOTICE.

See EXECUTORS AND ADMINISTRATORS, 1.

CONTEMPT.

ACTS OR CONDUCT CONSTITUTING CONTEMPT OF COURT.

-

Criminal contempt in civil action - finding of guilty justified punishment
in discretion of court discretion not abused order affirmed without costs
- civil and criminal contempt distinguished disobeying injunction may be
either civil or criminal contempt in either case proceeding to punish is
proceeding in civil action proper practice in proceeding to punish for con-
tempt for disobeying court order discussed appeal review of contempt
proceedings in civil action is by appeal only costs not allowed because of
decision. of Court of Appeals. Eastern C. S. Co. v. B. & M. P. I. U.,
Local No. 45, 714.

CONTRACTS.

See, also, ARBITRATION, 2; HUSBAND AND WIFE, 3; SALES; SEAL.
REQUISITES AND VALIDITY.

1. Statute of Frauds action for purchase price of carload of feed
memorandum slip made by plaintiff's agent in duplicate containing all terms
of contract and copy delivered to but not signed by defendant's representative
parol evidence admissible to identify memorandum slip and to prove cir-
cumstances under which it was made and delivered subsequent letters
signed by defendant sufficient with memorandum slip to satisfy statute.
Delaware Mills, Inc., v. Carpenter Bros., Inc., 324.

-

2. Action to recover for services under contract with husband of defendant
to perform work on defendant's real property contract made without defend-
ant's knowledge - contract provided for payment of two per cent on sale
price of property as sold in lots agency of husband or ratification by
defendant not shown. Pope v. Hoyt, 475.

3. Mutuality-authorization by defendant to plaintiff to place certain
advertising cards - acceptance of offer without agreement to comply with

CONTRACTS - Continued.

terms does not complete contract.
536.

Railroad Service & Advertising Co. v. Lazell,

4. An agreement is no agreement at all where any part is left to future
negotiations. Mandel v. Guardian Holding Co., Inc., 767.
CONSTRUCTION AND OPERATION.

5. Custom cannot be introduced to make definite and certain contract
that is indefinite. Mutual Chemical Co. v. Marden, Orth & Hastings Co.,
Inc., 121.

6. Agreement, not called lease, providing for a storage space and services
for a period of one year -party holding over liable for consideration men-
tioned in agreement for entire second year-principle of yearly hiring appli-
cable to all contracts of hiring and service. Canton Steel Ceiling Co. v. Duffy
Malt Whiskey Co., 306.

7. Provisions in assignment of lease designating foreign courts for litigation
not applicable to contracts between parties to assignment relative to conduct
of business. Kent v. Universal Film Mfg. Co., 539.

8. Contract that is uncertain or ambiguous to be construed against party
drawing it. Shubert Theatrical Co. v. Gallagher, 596.

9. Action on alleged written contract with individuals - recovery cannot
be had where proof shows contract executed by corporation — trial — error
to charge, in absence of appropriate allegation, that if defendants held them-
selves out as representing non-existing corporation they are liable — general
motion to conform pleadings to proof properly denied recovery cannot
be had on theory of fraud in absence of appropriate allegations in complaint.
Gordon v. Anderson, 616.

10. Agreement for purchase of stock-provision for return of stock and
refund of purchase price within certain period - right lost by failure to make
tender within said period no waiver by failure to state ground for refusal
of tender. Dauber v. Reznik, 650.

11. Action to recover money loaned and to impress lien on certain corporate
stock held by third person as trustee - money loaned to one T. and secured
by agreement of holding corporation to deliver bonds to defendant C. in
exchange for stock in another corporation part only of stock held by
defendant C. belonged to him personally agreement between holding
corporation and other corporations not consummated and stock transferred
by defendant C. to holding corporation turned over to third person in trust
loan paid to defendant C. who retained sixty per cent, turning over forty
per cent to T.- judgment secured against T., maker of note, and execution
returned unsatisfied — existence of adequate remedy at law as defense must
be alleged affirmatively where complaint alleges no adequate remedy at law —
usury not found plaintiff having full knowledge of transaction has no
lien on stock held by defendant C. belonging to others- plaintiff has lien
on defendant C.'s stock held in trust defendant C. liable only to extent of
loan actually retained by him. Farrington v. Steel Company of America,

803.

ACTION FOR BREACH.

-

-

12. Action for breach of contract to deliver milk to factory - contract
signed by several parties each agreeing to furnish milk from number of cows
set opposite signatures- complaint against one of parties states cause of
action at law measure of damages is loss of profits - loss of depreciation
on plant not element of damages loss of future profits allowable - party
cannot object to reference as to damages where he acquiesced at trial in state-
ment by court that parties had agreed to refer question of damages — order
of reference directing referee to take and report evidence as to damages with
recommendation improper direction to report on damages accruing from
violation of contract by other parties improper. Sayer v. Wilstrop, 364.
13. Damages plaintiff entitled to special damages for loss under contract
with third party caused by defendant's breach of contract with plaintiff.
Simmons & Co., Inc., v. Phillips & Sons Co., 303.

14. Contract to sell going concern and assign lease-action by purchaser
for breach waiver by defendants of tender of performance before time there-
for instructions not error to refuse to charge that existing capacity to
perform was element of waiver. Rosen v. Greenwald, 499.

15. Action for breach of loan agreement resulting in forced sale of plain-
tiff's equity in property upon which loan was to be made — judgment for plain-

-

tiff based on rule of damages very favorable to defendant affirmed damages
- proper measure of damages value of equity less amount realized on sale.
Hopewell Building Co., Inc., v. Callan, 588.

CONTRIBUTORY NEGLIGENCE.

See MOTOR VEHICLES, 3; RAILROADS, 3.

CONVERSION.

See, also, EXECUTORS AND Administrators, 1; Partnership, 5; PRINCI-
PAL AND AGENT, 2.

TITLE TO MAINTAIN CONVERSION.

1. Motor truck sold to plaintiff by defendant on conditional sale contract
truck returned to defendant's shop for repairs - redelivery refused by
defendant till last payment made on truck verdict in favor of plaintiff
against weight of evidence. Shyne v. Mack, Inc., 318.

CONVERSION OF STOCK.

2. Action against brokers for conversion of stock of customer - defense
that customer had not paid his account with brokers dispute as to claim of
brokers that they had purchased certain other stock which transaction cus-
tomer claimed he repudiated — instructions court should have charged
that repudiation nearly one year after customer had knowledge of broker's
claim was not, as matter of law, within reasonable time. Schmid v. DuVall,
514.

CORPORATIONS.

See, also, CONTRACTS, 11; Courts, 2.

CAPITAL STOCK.

---

1. Creditors entitled to share equally in distribution of corporate assets.
Abbott v. National Gravure Circuit, Inc., 47.

-

2. Action to compel defendant corporation to issue stock to which plain-
tiffs' assignor was at one time entitled to subscribe complaint should have
been dismissed assignor living abroad stock sold to third person after
expiration of time within which assignor could exercise her rights - complaint
drawn on theory that defendant had agreed to hold stock until return of assign-
ment of rights by assignor no proof of such assignment assignor was alien
enemy at all times mentioned in complaint and assignment was void under
Trading with Enemy Act-recovery cannot be had on theory that defendant
owed duty to notify Alien Property Custodian before disposing of stock
defendant had no knowledge that assignor was enemy alien and had made
all inquiries that could be required such issue outside pleadings - finding
that defendant owed such duty not justified in any event assignor, by delay,
waived rights to subscribe - defendant complied strictly with statute. Noble
v. Great American Insurance Co., 773.

TRANSFER OF Shares.

3. Action to compel transfer of stock of Delaware corporation on books
of corporation - stock delivered in this State by corporation to brokers for
sale brokers wrongfully used it in Massachusetts as their own collateral -
plaintiff purchased without notice of claim of corporation by-law that
stock could be transferred only on books of company plaintiff entitled to
have stock transferred to him on books- estoppel-corporation estopped
from claiming as against plaintiff that stock was delivered conditionally to
brokers judicial notice not taken of statutes of another State-transfer
may be enforced in this State. Hale v. West Porto Rico Sugar Co., 577.
CORPORATE POWERS AND LIABILITIES.

4. Two corporations owned and controlled by same people one corpora-
tion organized to avoid restrictions imposed upon land which would be opera-
tive against the other corporation organized for such purpose treated in
equity as though it were the other corporation. Rubel Bros., Inc., v. Dumont
Coal & Ice Co., Inc., 135.
DISSOLUTION.

5. Voluntary dissolution-judgment creditor holding claim for rent
accrued after dissolution has interest in surplus assets and may sue directors,
who became liquidators, for accounting — directors as liquidators liable for
waste committed - plaintiff may question illegal dividends declared and
distributed before dissolution - alleged loan to corporation properly paid

---

CORPORATIONS - Continued.

when directors to whom leases transferred accountable for profits

payment

of small sum in settlement of large claim not improper. City Investing Co.
v. Gerken, 503.

FOREIGN CORPORATIONS.

6. Service of summons on president of defendant temporarily sojourning
here set aside though contract made here and defendant purchased goods
here on two occasions. Meyer v. Sachs Manufacturing Co., Inc., 458.

COUNSEL FEES.

See ATTORNEY AND CLIENT, 4; WILLS, 5.

COUNTERCLAIM.

See BILLS AND NOTES, 6; PLEADINGS, 8, 9; SALES, 6.

COUNTIES.

See ATTORNEY AND CLIENT, 4.

COURT OF APPEALS.

See CRIMES, 1.

COURT OF CLAIMS.

TRIAL.

Proceedings to determine compensation to be paid for land taken by State
stipulation that court may hear evidence and determine interest of respec-
tive claimants before hearing evidence of damages not improper stipulation
did not authorize entry of interlocutory judgment determining interest of
parties dismissal of claim of city of New York as to part of land erroneous
unauthorized interlocutory judgment did not render proceedings before court
nugatory city of New York should have been permitted to amend its claim
and introduce further evidence stipulations-city cannot arbitrarily
withdraw from stipulations made by corporation counsel - judgment reversed

and proceedings remitted. Rockaway Pacific Corporation v. State of New
York, 172.

COURTS.

JURISDICTION.

Objection to jurisdiction on ground that defendant is foreign government
may be raised by answer without waiving objection — general appearance
does not waive objection to jurisdiction where no jurisdiction could be obtained
by serving summons in this State distinction between sovereignty of
foreign nation and quasi sovereignty of State of United States - foreign
government cannot be sued in our courts without its consent. Desimone v.
Transportes Maritimos Do Estado, 82.

2. Domestic corporations subject to jurisdiction of courts of this State —
cannot contract to oust courts of this State of jurisdiction. Kent v. Uni-
versal Film Mfg. Co., 539.

COVENANTS.

See ARBITRATION, 1; DEEDS; LANDLORD AND TENANT, 2.

CRIMES.

See, also, ATTORNEY AND Client, 4.

PRELIMINARY PROCEEDINGS.

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64

1. Supreme Court has inherent power to order return of books, etc., ille-
gally seized or detained by persons charged with administration of criminal
law Appellate Division has power to order return of books where they are
detained by Supreme Court justice sitting as magistrate information charg-
ing unknown persons with crime not sufficient to give jurisdiction to issue
subpoena for production of books if person charged with crime is known,
information concealing his identity under name of John Doe" is insuffi-
cient to confer jurisdiction - justice of Supreme Court holding term attended
by grand jury cannot institute John Doe proceedings to secure evidence to
send to grand jury permission to appeal to Court of Appeals granted -
stay of proceedings denied for failure to comply with request of court for
copy of information on which subpoena issued. Matter of Both, 423.
PUBLIC NUISANCE.

2. Treasurer and manager of corporation maintaining nuisance may be
held personally liable abatement court cannot on conviction for main-