ROBBERY - First degree-what degree of violence necessary to constitute.
See MAHONEY . PEOPLE.
RULES-Rule 41-duty of referee on settlement of case, as to allowance or dis-
allowance of proposed findings.
See EXCELSIOR PETROLEUM Co. v. LACEY...
Rule 77-what claims constitute liens under.
See ATLANTIC SAVINGS BANK v. HILER..
Rule 77-Power of court over referee's report as to distribution of sur-
See MUTUAL LIFE INS. Co. v. SALEM
SALE-Distinction between a bailment and a sale.
SCHOOLS- Public schools in New York City-power of trustees to remove
teachers-Appeal to board of education from decision of trustees — practice on.
See PEOPLE v. BOARD OF EDUCATION
SCIENTER- How may be proved-False pretenses.
See BIELSCHOFSKY V. PEOPLE.
SELF DEFENSE - When weapon may be used in-duty of person assailed
to seek protection of public authorities.
SENTENCE- Cumulative sentences
See PEOPLE EX REL. TWEED v. LISCOMB.
SERVICES — Extra compensation for when supervisors have no power to
allow, to salaried officers.] 1. This action was brought by the plaintiff, a salaried
clerk and assistant in the Marine Court of the city of New York, to recover
compensation for extra work performed by him in furnishing naturalization
papers and indexing naturalization books in the said court. After the ser-
vices were performed, a resolution was passed by the board of supervisors
directing the comptroller to pay him $1,000 for such services. Held (1), that
the plaintiff had no legal claim against the county for such services, as the
law imposed them upon the clerk as part of his duties; (2), that, as the board
of supervisors were forbidden by law from auditing any not legal claims,
they had no authority to direct the payment of the plaintiff's claim, and that
the resolution was unauthorized and void. COWAN . THE MAYOR..
2. - Judicial notice of duties of officer.] This court is bound to take judi-
cial notice that furnishing naturalization papers by the clerk of a court, and
indexing naturalization books when necessary, are a part of the duties devolv-
ing upon the clerk by law.
Legal claim — what is.] A legal claim is one which the party assert-
ing it may enforce by action, or some proceeding at law or in equity. Id.
When promise to pay for, will not be implied where parties are related.
See VAN KUREN v. SAXTON.
SET-OFF-When may be interposed by defendant in foreclosure suit.] The
defendant in a mortgage foreclosure suit, who is personally liable for the
debt, or whose land is bound by the lien of the mortgage, may introduce a
set-off to reduce or extinguish the plaintiff's claim, and may show that the
plaintiff has received only a colorable and fraudulent assignment of the
mortgage, and holds it for the benefit of one against whom such set-off
exists. LATHROP v. GODFREY...
SHIPS AND VESSELS-A canal boat is a vessel within meaning of chap.
482, 1862, providing for collection of demands against ships and vessels.
SIDEWALKS - Adjacent owner - liability of, for injuries occasioned by defect
in-duty of, to repair.] When a person is injured, in consequence of a side-
walk being out of repair, no action can be maintained against the owner of
the adjacent premises, to recover damages therefor, unless the duty of keep-
ing the sidewalk in repair has been imposed upon such owner by some
statute or contract. Sidewalks are a part of the highway, and the owner
of the adjoining land has no greater duty in regard to keeping them in
repair, than he has in regard to any other part of the highway.
VILLAGE OF FULTON v. TUCKER....
Liability of city for dangerous condition of, though caused by railroad
See WILSON v. CITY OF WATERTOWN...
Liability of corporation for injuries resulting from defects in — Intoxica-
tion-Contributory negligence.
SOCIETY FOR REFORMATION OF JUVENILE DELINQUENTS –
Chap. 836, 1872, requiring proceeds of licenses of places of public amusement to
be paid to- Constitutionality of.
SPECIAL SESSIONS — Jurisdiction of — how waived.] 1. From the return
to the writ of certiorari granted in this case, it appeared that the relators
were originally brought before a committing magistrate and that they then
elected to be tried before the Court of Special Sessions. Held, that by so
doing they waived all objections to the jurisdiction of that court.
2. Appeal from.] Quere whether there is any appeal from the Court
of Special Sessions except that provided by article 4, title 3, part 4, chapter 2
of the Revised Statutes.
Jurisdiction of, of misdemeanors.
See PEOPLE EX REL. TWEED v. LISCOMB
SPECIAL TERM-Jurisdiction of, in proceedings for partition ·
issues of fact to jury for settlement..
STATUTE OF FRAUDS-When agreement not within.] A verbal agree-
ment between W. and F., whereby W., for a valuable consideration, agrees to
pay a claim due from F. to C., is not within the statute of frauds, and may be
enforced by C. Cox v. WELLER...
612
STATUTE OF LIMITATIONS- Credit of interest.] A credit for interest
on a sum of money is a sufficient admission of indebtedness to take the entire
sum out of the statute of limitations. RICH v. NIAGARA CO. SAVINGS BANK.. 481
2. Running of, not stopped as to one joint debtor by commencement of action
against the other-Code, § 99.] On the 31st of May, 1851, a judgment was
recovered against the defendants herein, as surviving partners of a firm; in
March, 1870, an action was commenced thereon against the defendant Scott
alone; in June, 1871, an order was made, by consent of Scott's attorney,
directing that the complaint be amended by inserting the name of Hoyt as
a defendant; in June, 18.2, Hoyt appeared and set up the statute of limita-
tions. Held (1), that, as when the action was commenced, Hoyt was not
named as a defendant therein, the running of the statute of limitations was
not stopped as to him by the service of the summons and complaint on Scott;
(2), that, as the order of June, 1871, was made without the consent of, or
notice to, Hoyt, he was not thereby deprived of the defense which had already
accrued under the statute. MERRITT o. SCOTT..
Assessments—when payment instead of the statute should be pleaded.
See FISHER v. THE MAYOR..
STATUTES — Construction of — legislature cannot direct.] 1. Semble, that the
legislature cannot require the courts to construe a statute according to
its directions. It is the province of the courts to construe statutes according
to the rules of construction established by them for their interpretation; the
legislature may declare the purpose it intended to attain by the act, and it is
the duty of the courts to so construe it as to effect the object intended, if it
can be done consistently with the language used; but beyond this the
legislature cannot go. PEOPLE . WILSON
2. Technical words -- construction of] Where technical words occur
in a statute they are to be taken in a technical sense, unless it appears that
they were intended to be applied differently from their ordinary or legal
acceptation. PEOPLE EX REL. TWEED . LISCOMB
3. Prescribing penalty to be recovered in civil action.] A statute prescrib-
ing a penalty to be recovered in a civil action for a simple refusal or neglect
to perform a duty, does not prescribe the punishment on conviction, in a
criminal proceeding for a willful neglect of duty by a public officer. Id.
4. ——— In pari materia — construction of.] Statutes are in pari materia
which relate to the same person or thing, or to the same class of persons
and things, and are to be considered, construed and enforced together.
MULLALY. MAYOR....
Failure to comply with terms of, may be inquired into collaterally.
See BROWN v. MAYOR...
Act of Congress of 1864, chup. 106, § 30 — when has no application to
contracts of national banks in this State.
See HINTERMISTER v. FIRST NATIONAL BANK.....
2 R. S., 278, § 12 - Contempt — reference to take testimony as to-
See PEOPLE v. ALEXANDER.....
2 R. S., 534-of proceedings for contempts, etc. when reference ordered
without requiring interrogatories to be first filed.
See PEOPLE v. ALEXANDER.
2 Revised Statutes, 673, § 33- Forgery-account against county for
services is subject of
2 R. S., chap. 7, art. 4, § 54; chap. 210, 1861; chap. 409, 1870; chap.
- summoning of talesmen when unauthorized.
See SHIELDS . NIAGARA CO. SAVINGS BANK......
2 R. S. (5th ed.), 903 — Bond given by disorderly person, conditioned for
the support of his wife — nature of, and liability upon.
See PEOPLE v. PETTIT.
-3 R. S. (5th ed.), 175, § 37 — surrogate has power to hear and determine claims
of executors, whether contested or not.
See KYLE v. Kyle
3 R. S. (5th ed.), 944, § 8 — Indictment under, need not allege that assault
"with a deadly weapon."
3 R. S. (5th ed.), 1032, § 13- relative to sentence of imprisonment in
county jail when applicable to case where sentence and commitment are for
imprisonment in penitentiary in New York City.
See PEOPLE EX REL. TWEED . LISCOMB...
1813, 1852, 1859, 1861, 1867 - Streets change of grade of, by Comrs. of
Central Park-Assessment of damages for.
1847, chap. 390-Precept for collection of costs — when may direct impris-
1853, chap. 238-- Jurisdiction of Special Term in action of partition
brought under — issues of fact to be tried by jury.
See HEWLETT v. WOOD...
1855, chap. 337, § 5- Jurisdiction of Special Sessions of New York of
misdemeanors.
See PEOPLE EX REL. TWEED v. LISCOMB.
See BURNS v. THE MAYOR...
1857, chap. 446, § 38 — repairs of wells and pumps in City of New York
- certificate of necessity of work necessary.
1857, chap. 628; 1869, chap. 856; 1870, chap. 175- Excise laws-con-
1859, chap. 311-When gas company authorized to cut off supply of gas
from customer.
See FORD v. BROOKLYN GAS-LIGHT Co.......
1860, chap. 348 - not affected by chap. 600, 1874 - Bond must be approved
and filed before title passes to assignee.
See HEDGES v. BUNGAY..
Mechanic's lien in Kings and Queens counties - who is
owner within meaning of.
See RILEY v. WATSON
1863, chap. 108, authorizing supervisors of New York county to supply
deficiency in product of certain taxes which were based on erroneous assessments
construction of.
See MERCHANTS' NAT. BANK v. Board OF SUPERVISORS..
1865, chap. 321, providing for construction of sewers — construction of.
See MATTER OF WILLIAMSON
1869, chap. 876, § 11-" New office" within meaning of - Power of
common council to appoint clerk.
New York city-1870, chap. 137, § 115, prohibiting officers from being
interested in any contract with city, not repealed by § 1, chap. 574, 1871.
See MULLALY v. MAYOR
- 1870, chap. 190, § 7--power of supervisors to audit claims — what is a legal
claim.
See COWAN . THE MAYOR
1871, chap. 583-when court will compel board of apportionment to issue
the bonds therein provided for.
See PEOPLE v. BOARD OF APPORTIONMENT....
1871, chap. 859, § 8- when district attorney is authorized to act as
See HOLMES v. SMITH
- 1872, chap. 273, declaring Otter creek public highway — riparian owners —
rights of.
See PARTRIDGE v. EATON...
1872, chap. 299, and 1874, chap. 545, providing for transfer of actions to
Marine Court, are unconstitutional - Order directing such transfer appealable.
1872, chap. 475; 1873, chap. 427, relative to selection of jury, are constitu-
See PEOPLE EX REL. TWEED v. LISCOMB....
1872, chap. 482, providing for collection of demands against ships and
vessels - Canal boat is a vessel within meaning of.
See EMMONS v. WHEELER
1872, chap. 570, § 6, providing that no vote shall be received, unless name
of person offering it be registered, is constitutional.
1872, chap. 580-failure of commissioners to comply with statute in
giving certificate, may be shown in action on contract certified by them.
1872, chap. 580—“omission" within meaning of § 7.
See MATTER OF WILLIAMSON
1872, chap. 836, requiring licensing of places of public amusement, and
payment of proceeds to Society for Reformation of Juvenile Delinquents - consti-
tutionality of
See WALLACK v. THE MAYOR......
1873, Chap. 549, § 4- Board of excise -powers and duties of, in pro-
ceedings to revoke license — licensee not entitled to jury trial.
STAY OF PROCEEDINGS — When not ordered on ground that attorney was
unauthorized to commence action.] Plaintiff's proceedings will not be stayed,
on the application of the defendant, on the ground that the attorney had no
authority to bring the action, except in cases in which there is an actual
fraud on the court where an attorney, without the knowledge or consent
of the plaintiff, is using his name in a wrongful manner.
Where an action is brought in the name of a town, and it appears that the
pendency of the action was known to the inhabitants of the town, and had
been reported to the town at a town meeting, without opposition or objec-
tion by any one, the plaintiff's proceedings will not be stayed on the ground
that the attorney had no authority to bring the action.
TOWN OF DELHI v. GRAHAM...
STIPULATION - Power of court at trial to set aside.] The court, at the
trial, cannot set aside a stipulation entered into by the parties to the action,
on the ground that statements contained in the affidavits, allowed to be read as
evidence under its provisions, are untrue; this can only be done upon a
motion to be made at the Special Term. FRISBEE v. FITZSIMONS..........
STOCK-R. R. stock belonging to town agreement for sale of, by commission-
ers of toon-payment of money by purchaser to discharge lien on-right to
recover it from town, upon rescission of agreement.
See GOULD v. TOWN OF ONEONTA.....
STOCKHOLDER- Right of, to maintain action against corporation for frauds
of directors.] 1. A stockholder in a corporation, on behalf of himself and
other stockholders similarly situated, may maintain an action against such
corporation and its directors to set aside and enjoin transactions done by such
directors in the name of the corporation for their own personal gain and
benefit, and in fraud of the rights of the plaintiffs and other bona fide stock-
holders, when the directors have been requested to bring such action and
have refused. GRAY v. N. Y. AND VA. STEAMSHIP Co...
2. Fraudulent purchaser of property of corporation, properly made party
without offering to return purchase-price.] In such action it is proper to
make the purchaser of the corporate property a party (alleging him to be a
co-conspirator with the directors), without offering to return to such pur-
chaser the money paid for such property. Id.
3. - A principal who adopts a fraud of an agent, by taking its fruits,
has no standing to maintain an action to set aside the fraudulent act; but
when the party implicated has aided an agent in committing the fraud upon
a principal, and was, in fact, a party to it, he cannot make this point when
the fruits of the transaction have not come into the hands of the princi-
pal. Id.
When need not be made party to an action against foreign corporation.
See REDMOND v. HOGE
- Assessment of damages for change of grade of - Mandamus
when issued to enforce confirmation of.
See PEOPLE v. GREEN...
When amount of assessments may be deducted from damages awarded for
lands taken for public streets.
See FISHER V. THE MAYOR..
Sidewalks are part of the highway, and adjacent owner is not bound to
keep them in repair, unless duty to do so is imposed by statute or contract.
See VILLAGE OF FULTON v. TUCKER..
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