PLEADING Continued.

for such periods of time as might be shown by the certificate issued
in connection with the policy. There were delivered with the policy
two certificates or binding slips, duly countersigned, stating the same
rate, premium and amount and duration of insurance, one to run from
August 30, 1913, to September 30, 1913, the other from September
30, 1913, to October 30, 1913. The only question litigated upon
the trial of an action based upon the second certificate was whether
the automobile was stolen, though defendant made a motion to
dismiss the complaint on the ground that it did not state a cause
of action. This motion was denied and, upon an appeal from the
judgment entered in favor of plaintiff on a verdict, the real ground
of the motion to dismiss the complaint was stated. The Court of
Appeals reversed the unanimous affirmance of the judgment on the
ground that the alleged theft did not take place during the life of
the certificate as alleged in the complaint and granted a new trial
with leave to amend the complaint. The Special Term allowed the
amendment upon the theory that as it alleged a cause of action
upon the same policy of insurance, based upon the first certificate
continuing the insurance in force at the time of the alleged theft,
it did not bring in a new cause of action. Held, that the error,
if any, in allowing the amendment on that theory might be corrected
only on appeal from the order granting the amendment and not on
the hearing of a demurrer to separate defenses pleaded in the
amended answer. That the amended complaint stated a good cause
of action. The allegations of facts set forth in the separate
defenses considered, and held, that for the purpose of the demurrer
they were not insufficient in law and the demurrer should be over-
ruled. Troy Automobile Exchange v. Home Ins. Co., 331.

Demurrer - Automobiles

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5. Allegations of complaint ·
- Con-
tracts - Actions · Personal Property Law. Nothing in the Per-
sonal Property Law forbids a notice of a sale of property retaken
by a conditional vendor being given prior to the expiration of
the thirty days for redemption provided the time of sale is fixed
subsequently thereto. Where a complaint alleges that defendant
sold to plaintiff an automobile upon a conditional contract of sale
under which the title was to remain in the vendor until full
payment of the purchase price; that on the 7th day of September,
1917, plaintiff was in default in his payments under said contract
and that the defendant in the exercise of his rights seized the
machine and on the eleventh day of September served notice and
advertised the car for sale on the 11th day of October, 1917, to
satisfy the unpaid balance due on the purchase price, with interest,
insurance charges and storage, a demurrer to the complaint for
legal insufficiency of the allegations to constitute a cause of action
will be sustained, and plaintiff's motion for judgment on the plead-
ings will be denied, and the complaint dismissed, with costs of the
motion. Freeman v. Engel, 472.

See Accounting; Actions; Carriers; Contracts; Counterclaims;
Insurance (Fire); Lease; Promise; Set-off; Statute of Frauds.

POOR.

See Actions.

POWER OF ATTORNEY.

See Deeds.

PROCESS.

-

When

Service of, upon foreign corporation Corporations
service upon secretary of state set aside Motions and orders.-
Where the designated agent for the service of process upon a
foreign corporation authorized to do business in this state dies, and
the corporation designates no other person in his place, the service
of the summons upon the secretary of state in an action against
said corporation upon a liability arising without this state is futile,
where the defendant is not shown to have property in this state,
and on motion will be set aside. Eastern Products Corporation v.
Tennessee Coal, Iron & R. R. Co., 557.

PROHIBITION.

-

Application for writ of, when denied Contracts Public
Service Commission Statutes City of Rochester.-Upon the
hearing of an application by the city of Rochester for a writ of
prohibition to prevent the defendant railway company from apply-
ing to the public service commission for permission to increase its
rate of fare and to prevent the commission from hearing the appli-
cation, it appeared that the city, by a contract with one of
defendant's predecessors more than twenty years before, had agreed
never to charge more than a five cent fare for one continuous ride
on its road. Held, that as said contract had been judically deter-
mined invalid in the "North Shore" case (175 App. Div. 869)
a contention that the public service commission was without juris-
diction on the ground that said contract was valid and binding was
untenable and the application for the writ will be denied. The
provision of section 173 of the Railroad Law that: "Nothing
herein contained shall be construed as
modifying or

affecting the terms of " the contract in question is nothing more
than a legislative declaration that said contract was not interfered
with and cannot be construed as a ratification thereof, particularly
as by section 181 of the Railroad Law the legislature reserved
to itself and to the public service commission the right to change
the rate of fare on any railroad including that of defendant.
Matter of Quinby v. Public Service Commission, 357.

PROMISE.

1. What is an unconditional, personal promise to pay_note
Negotiable instruments. A corporation of which defendant was
treasurer was indebted to plaintiff on a demand note dated June 28,
1909, and in response to urgent appeals for payment, though no
suit was threatened, defendant on January 12, 1910, wrote a letter
in his own name to plaintiff which contained the following: "I
will agree to pay One hundred (100) Dollars per month until the
bill is settled or until I can make arrangements to settle the full
amount which I am in hopes of doing soon." Held, that the letter
was defendant's personal promise to pay the note. Where im-
mediately upon the receipt of said letter plaintiff desisted from
further appeals until February 28, 1910, and then merely wrote to
remind defendant of the delayed though promised payment of
the second $100 installment, the first having been paid, the letter

PROMISE-Continued.

of January 12, 1910, construed in the light of the circumstances,
clearly imported that the consideration for defendant's promise to
pay $100 a month was to be plaintiff's forbearance to proceed
against the maker of the note; such consideration was fairly infer-
able from the language of said letter, was sufficient to support
defendant's promise and the letter was a memorandum sufficient
to meet the requirements of the Statute of Frauds. Quaker Oats
Co. v. North, 108.

2. Exchange of Consideration Pleading Contracts.-
Where the complaint alleged that on or about a certain date plain-
tiff and defendant "entered into an agreement wherein and
whereby defendant employed plaintiff as a milliner for one year
at a stated weekly salary commencing on a certain date and termi-
nating on another, the dismissal of the complaint on the ground
of the absence of an allegation of a promise by plaintiff to enter
and continue in defendant's employ, that there was a lack of
mutuality and, therefore, of consideration for defendant's alleged
promise, is reversible error, the complaint in effect alleging that
the plaintiff and the defendant "entered into an exchange of
promises (agreement)," and mutual promises being alleged there
was no lack of consideration. Davis v. Frank, 683.

See Statute of Frauds.

PUBLIC HEALTH LAW.

See Contracts; Physicians.

PUBLIC SERVICE COMMISSIONS LAW.

§ 65
Right of public service commission to make regulations
for supply of natural gas to consumers in the city of Buffalo
Mandamus. The duty of a company engaged in the business of
distributing natural gas to serve all equally within its power and
to make connections, in the absence of any restraining order, rests
upon the common-law duty arising out of its franchise and the
statutory duty imposed by section 65 of the Public Service Com-
mission Law; the law does not require the impossible and if gas
cannot be obtained the company is excused from supplying it.
While the public service commission has the right to make regu-
lations for the supply of gas, a restriction or classification which is
unreasonable or arbitrary is invalid and may be attacked collater-
ally. The franchise under which respondent is distributing natural
gas to consumers in the city of Buffalo contains the following:
"The company will furnish natural gas to all consumers on the
line of the streets, avenues, alleys, lanes and public squares in
which the pipes are laid as long as said pipes shall be in use for
the purpose of supplying natural gas." Houses on either side of
a house built by relator with the necessary appliances for the use of
natural gas are being served therewith by means of the main in the
street and relator when about to start to construct its house applied
to respondent for connection which was not made before the
granting of an order by the public service commission and since
the same was made and because thereof respondent has refused to
make the connection or furnish natural gas to relator. The
public service commission in a proceeding before it in relation to

PUBLIC SERVICE COMMISSIONS LAW - Continued.

the natural gas supply of the city made an order that the respondent
herein should not "connect or allow its mains to be connected
with any building or structure with which connection is not now
had" and should not furnish gas to any one who was not at the
time of the receipt of said order by the respondent a customer or
user of gas furnished by it. Upon granting a peremptory writ
of mandamus to make the connection asked for by relator with
respondent's gas mains, held, that as there was no manufactured
gas on the street on which relator's house was located and consider-
ing the deficiency of coal and the short duration of periods of
insufficient gas supply, the order of the public service commission
so far as it concerns relator's house was unreasonable and abso-
lutely void. Matter of Park Abbott Realty Co. v. Iroquois Natural
Gas Co., 266.

RAILROAD LAW.

See Injunctions.

RECEIVERS.

Foreclosure-When not bound to make return to treasury depart-
ment of United States government.-A receiver of the rents and
profits in foreclosure is not liable for any federal income tax upon
moneys received and paid out during the course of his receivership,
and, therefore, he is not in duty bound to make any return to the
treasury department of the United States government.
Lathers v.
Hamlin, 563.

REFEREES.

Motion to confirm report of - Condemnation proceedings-
Award. That a motion to confirm the report of a referee
appointed, in a condemnation proceeding instituted against the
executors of the former owner of the property who had purchased
it for themselves and not for the estate, to take the proof in regard
to the right, title and claim of various defendants to the award, in
favor of the state, upon the theory that the former owner of the
property condemned, from which the fund arose, died intestate as
to the property, without heirs capable of taking by descent, and
for that reason the property escheated to the state and that the
award should go to it will be denied. New York Central & H. R.
R. R. Co. v. Cottle, 30.

RESIDENCE.

See Naturalization.

RULES.

See Arbitration and Award.

SECURITY FOR COSTS.

Who required to give Costs.-Where by a decree judicially
settling the accounts of the executor of decedent the comptroller
of another state, who had filed certain objections to the account,
was directed to pay certain costs and disbursements, but did not,
an application by the administratrix de bonis non that said comp-
troller give security for any costs that may be awarded against

SECURITY FOR COSTS - Continued.

him in a proceeding to determine the validity of the same claim
presented by the objections which he again filed will be granted.
Matter of Kopp, 506.

SERVICE.

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By mail of notice of trial Jurisdiction · Municipal Court of
city of New York.- Service by mail of a notice of trial in the
Municipal Court of the city of New York must be made eight days
before the date fixed for the trial, and the court has not jurisdiction
to enter a default judgment against the defendant where the notice
of trial was so served in less time. Rethy v. Orszag, 540.

See Process.

SERVICES.

Stipulated price for Contracts - Evidence - Damages. Where
plaintiff employed by defendant to audit and supervise its books
was permitted so to do until the expiration of the contract of
employment his claim for the agreed compensation cannot be
defeated, even though he performs the work unskillfully, except
by allegation and proof of damages equal to the stipulated price
for his services. Weill v. Goodman, Shirt Waists, 524.

See Accounting; Contracts; Physicians.

SET-OFF.

Upon valid claim Pleading - Contracts-Damages-Evidence
Bankruptcy.- In an action to recover damages for breach of a
contract to deliver certain goods the answer pleaded a set-off for
the balance due for goods delivered under the contract to plaintiff's
assignor, and a reply thereto alleged, as an affirmative defense,
that, prior to the assignment of the contract to plaintiff in bank-
ruptcy proceedings against plaintiff's assignor, the claim referred
to in defendant's set-off had been proved and allowed for the full
amount and paid in part. Held, that, as at the time of the assign-
ment of the contract to plaintiff the subject-matter of defendant's
set-off was a valid claim against the estate in bankruptcy of plain-
tiff's assignor, the reply pleaded no legal defense, and a demurrer
thereto should have been sustained, it affirmatively appearing that
the bankrupt had not received his discharge in bankruptcy at the
time the reply was served. Wolins v. Wilmerding, 667.
See Contracts.

SHIPS AND SHIPPING.

See Negligence.

SOLDIERS AND SAILORS.

See Election Law.

SPECIFIC PERFORMANCE.

When action to compel, will not lie - Contracts · Adoption
Marriage. An action to compel the specific performance of an
agreement to adopt children born of a marriage between the parties
while defendant had a wife living will not lie. Erlanger v. Erlan-
ger, 236.

See Contracts.