NEGOTIABLE INSTRUMENTS.

Payment of checks by bank after payment thereof stopped by
drawer in absence of ratification of such payment bank is liable
therefor to the drawer.

See BILLS, NOTES AND CHECKS.

NEW YORK (CITY OF).

When officers and men of fire department not exempt from limitations
in respect of speed-action against fire commissioner for injuries
from automobile in which he was being driven by fireman-com-
missioner not exonerated as of course.

See NEGLIGENCE, 1, 2.

Streets and sidewalks requirement of charter that notice of
intention to bring action for injuries, caused by negligence of the city,
must be filed with the corporation counsel when letters detailing
accident and making claim for damages mailed to finance department
and by it delivered to corporation counsel constitute sufficient notice
and filing thereof.

-

Streets and sidewalks New York (city of) requirement of
charter that notice of intention to bring action for injuries, caused by
negligence of the city, must be filed with the corporation counsel
when letters detailing accident and making claim for damages mailed
to finance department and by it delivered to corporation counsel
constitute sufficient notice and filing thereof.

See NEGLIGENCE, 12.

NUISANCE.

See Riverdale Realty Co. v. City of New York (Mem.), 683.
OFFICERS.

Village officers

-

when attorney employed by village at annual
salary an employee of the village and not a public officer thereof
when entitled to compensation although all officers of village discharged
when it became incorporated as a city.

See CONTRACT, 5.

PARENT AND CHILD.

When

1. Right of parent to recover for loss of services of infant child ·
contributory negligence of child no defense. The right of a parent to
recover for loss of services of an infant child has long been recognized
at common law, and while it is a general rule that damages will not be
permitted if the evidence shows that the child's negligence was the
efficient cause of the injury, yet if the conduct of the defendant in such
a case was so deliberate, persistent and intentional as to be equivalent
in law to positive and willful injury the contributory negligence of the
child is not a defense. Tidd v. Skinner.

422

2. When mother may recover against druggist who sold heroin to her
son whereby his health was ruined and his services lost. This action is
brought by a widow to recover damages for loss of the services of her
son, which she alleges were caused by the defendants by the sale to
him of heroin which is a poison within the provisions of the Public
Health Law (Cons. Laws, ch. 45, § 238) as it existed prior to the
amendment by chapter 502 of the Laws of 1915. The statute also
prohibits the delivery of the poison by the seller without satisfying
himself that the purchaser is aware of its poisonous character and

A violation

The

that the poison is to be used for a legitimate purpose.
of this provision is a misdemeanor. (Penal Law, § 1743.)
defendants failed to obey these statutes by selling the drug to plain-
tiff's son in large quantities, knowing that heroin, except as a medicine
used in very small quantities and under the direction of a physician,
is a poison dangerous to human life. The facts alleged in the com-
plaint and which the jury might have found from the evidence justify
a verdict for the plaintiff.

Id.

3. Exceptions to charge and to refusals to charge. As to several excep-
tions to the charge, refusals to charge and modifications of defendants'
requests to charge, they must be read with all that was said by the
court in connection therewith and with the facts necessarily found by
the jury. As so read no question of controlling importance is
presented.

Id.

4. Compensatory damages only may be recovered. The court directed
the jury that in case they found a verdict for the plaintiff they should
find separately as to the compensatory damages and as to the punitive
damages. The defendants raised the question that punitive damages
could not be awarded. Held, that the weight of reason and authority
is in favor of confining the damages to be recovered in an action by a
third party to compensation for the pecuniary injury actually sus-
tained. Hence, the judgment is modified by reducing the amount of
the recovery to the amount found for compensatory damages.

PENAL LAW.

§ 1275 Penalty for violation of Labor Law.

See CRIMES, 1, 3.

§§ 2175, 2177

roboration.

Id.

Seduction under promise of marriage cor-

See CRIMES, 8, 9.

PERSONAL PROPERTY LAW.

Implied warranty as to wholesomeness of food.

See FOOD, 1.

PLEADING.

1. Assignment of interest in estate - Delivery to executor in escrow
Complaint alleging that executor wrongfully filed such assignment states
cause of action. The complaint alleges that plaintiff, at the_request
of a brother who was executor of their father's will, assigned to two
other brothers all of his interest in his father's estate upon the under-
standing and agreement that the assignment was not to have a legal
inception until such time as plaintiff should direct a delivery of the
same to the assignees; that in violation of such terms, without notice
to or knowledge of plaintiff, the executor filed the same together with
his final account as executor in Surrogate's Court and claimed that a
portion of the payments made by him to the two assignees was made
pursuant to the assignment. On demurrer, held, that although
insufficient to support a charge of fraud or to justify cancellation
of the instrument, the pleading states facts sufficient to constitute
a cause of action against the executor. Hull v. Hull.
342

2. When failure of assignor to raise question upon judicial settlement
a bar to the action. Under section 2472a of the Code of Civil Procedure
(in effect May 5, 1914), enlarging the jurisdiction of a Surrogate's
Court, it was clothed with jurisdiction upon a judicial settlement of the
accounts of an executor "to ascertain the title to any legacy or dis-

PLEADING - Continued.

tributive share" and "to exercise all other power legal or equitable
necessary to the complete disposition of the matter." Hence, upon the
judicial settlement of the accounts of the executor, the plaintiff, having
been made a party thereto, was at liberty to file objections to the
account presented by the executor and contest the validity of any
payments made by him under or by reason of the assignment in
question and to assert title in himself to the legacy and to have the
question of title to the same determined in that proceeding, and where
he omitted to assert his legal rights upon such settlement, the decree
of the Surrogate's Court thereon is conclusive evidence against him
that the items allowed to the executor for moneys paid to legatees were
correct and a defense setting up the decree made on the judicial settle-
ment is sufficient to constitute a bar to the maintenance of this action.
A demurrer to such defense, therefore, was properly overruled, but as
the complaint states a cause of action on contract against the executor,
the plaintiff should be permitted to withdraw his demurrer. Id.

3. When demurrers to separate defenses alleging counterclaims properly
overruled When error to grant judgment for amount of counterclaims.
A demurrer to separate defenses set up in the answer of the defendant
executor alleging counterclaims against the plaintiff in favor of said
defendant was properly overruled. The complaint alleged a con-
tractual relationship between the plaintiff and said defendant, and
a breach thereof by the latter. The counterclaim stated a cause
of action on contract existing at the commencement of the action.
It was error, however, to grant judgment in favor of such defendant
for the amount of the counterclaims. The only question presented
by the demurrer was whether or not the counterclaims were properly
alleged as such and of the character specified in section 501 of the
Code of Civil Procedure.
Id.

4. Defendant not at liberty to challenge sufficiency of complaint on
argument of demurrer to separate defense contained in answer. A
demurrer to a separate defense contained in the answer of one of
defendant assignees which stated not only a cause of action arising
out of the transaction set forth in the complaint and connected with
the subject-matter of the action, but likewise a cause of action upon
contract existing at the commencement of the action, was properly
overruled, but though the complaint fails to state a cause of action
against said defendant, the court was in error in dismissing the com-
plaint as against him and awarding him final judgment on the counter-
claim, as he was not at liberty to challenge the sufficiency of the same
on the argument of that demurrer.

Id.

5. Foreign laws are facts which must be proved, but their construction
and effect are questions for the court. Although full faith and credit
shall be given in each state of the United States to the public acts,
records and judicial proceedings of every other state (U. S. Const.
art. 4, § 1), no court is to be charged with the knowledge of foreign
laws; but they are well understood to be facts, which must, like other
facts, be proved before they can be received in a court of justice,
but when, after proof is given, the questions involved depend upon
the construction and effect of a statute or judicial opinion they are
for the court and not questions of fact at all. Hanna v. Lichtenhein.

579

6. When law of foreign state may be question for jury. On a trial
of an issue of fact when the evidence furnished is conflicting or
inconclusive the law of a foreign state may be a question for the jury
although ordinarily when the evidence is all furnished it is the function
of the judge to decide as to the law of a foreign state.

Id.

7. Allegation in pleading of law of foreign state is admitted by demurrer.
An allegation in a pleading of the law of a sister state is an allegation
of fact which is admitted by a demurrer. If the pleading sets forth
in detail the statutes and decisions relied upon by the pleader, the
question becomes one of law and should be determined as such by
the court in deciding the demurrer. A demurrer does not admit
the interpretation placed by a pleader upon the statutes and decisions
specifically referred to or incorporated in a pleading.

Id.

8. When demurrer to defense alleging foreign law should be overruled.
When the allegations of a defense are general and by such allegations
the law of foreign states named is stated to be as in the defense
alleged, and the statutes or judicial decisions upon which the allega-
tions are based are not before the court from which a conclusion of
law can be reached, the demurrer should be overruled, with leave to
plaintiff to withdraw the demurrer and leave the questions raised
upon the pleadings for determination at the Trial Term.

PLEDGE.

Id.

1. Stock pledged to secure payment therefor When dividends declared
on stock are cash and should be applied on the indebtedness · Sale of
pledged stock with accumulated dividends thereon unlawful· Rights
and remedies of pledgor. Under ordinary circumstances it is the right
of a pledgee of stock to collect dividends declared thereon and it is
his duty to apply them to the reduction of the indebtedness for
which the stock is held as security. He represents not only his own
interests as pledgee but also holds a duty to the pledgor. Where
dividends have been declared on stock but have not yet become
payable a proper sale of the stock would necessarily be made with
the forthcoming dividend still on it. But where dividends declared
have been paid and have passed into the possession of the pledgee
they are not a subject of sale. Plaintiff's assignor subscribed for
shares of the capital stock of the corporation of which defendant
was president. He did not pay for the stock which was issued to
him and in his name, but instead gave his notes to the corporation
therefor and the stock was left with and held by the corporation as
security for the payment of the notes. The corporation declared
dividends upon this stock, and these dividends were for a time either
paid to plaintiff's assignor or applied on his indebtedness. Thereafter
dividends declared on the stock, and which were represented by
checks, were placed by the corporation in a special account and the
checks held by it without application to such indebtedness until the
dividends amounted to a considerable sum. Disagreements having
arisen, plaintiff's assignor was discharged from defendant's employ
and defendant by a notice signed in the name of the corporation
notified the assignor that at a given time and place there would be
sold the stock theretofore pledged together with the rights to
uncollected dividends" from a given date. Applying the dividends
at their full amount and value the stock was sold for less than it was
worth. Plaintiff's rights were based upon an assignment to her by
the pledgor subsequent to this sale. Held, that the defendant was
guilty of conversion. These dividends had been detached from the
stock and had become cash or the equivalent of cash which could
not lawfully be sold. His misconduct infected the sale of the pledged
stock, which under proper conditions might have been sold. Inasmuch
as part of the entire transaction was unlawful the whole of it neces-
sarily becomes so. Defendant was chargeable with knowledge of the
law which condemned the step which he was about to take and the
pledgor did no act which enticed him to believe that the act was
lawful or that his conduct would be accepted and acquiesced in.

PLEDGE Continued.
Neither was there any such delay of action by the pledgor or the
plaintiff as to sustain a conclusion of law that there was acquiescence
in what had been done and a waiver of rights which might have
existed: Brightson v. Claflin.
469

2. Measure of damages. The real damages as the case now stands
are those which the pledgor suffered by reason of an improper and
unlawful sale as the result of which there was realized a smaller sum
than should have been realized for application on his indebtedness
or for restoration to him in case there was a surplus over and above
the indebtedness.
Id.

POISONS.

Sale of heroin to infant in violation of statute - when mother
dependent upon earnings of minor son can maintain action against
druggists who sold heroin to him whereby his health was ruined and
his services lost- compensatory damages, only, can be recovered -
punitive damages not allowed in common-law action by third person.
See PARENT AND CHILD, 1–4.

PRACTICE.

1. Amendments Judgments Costs Clerical errors or omissions
in judgments or mistakes in entry thereof may be corrected — Court may
not by amendment correct errors in substance affecting a judgment · Το
withhold or award costs is a substantive part of a judgment in equity.
A trial court has no revisory or appellate jurisdiction to correct by
amendment error in substance affecting a judgment. It cannot,
by amendment, change a judgment in matter of substance for error
committed on the trial or in the decision, or limit the legal effect of
it to meet some supposed equity subsequently called to its attention
or subsequently arising. It cannot correct judicial errors either
of commission or omission. Those errors are, under our system of
procedure, to be corrected either by the vacating of the judgment
or by an appeal. This rule is not in conflict with the provisions of
sections 723 and 724 of the Code of Civil Procedure. Those pro-
visions are not intended to affect the substantial rights of parties.
Clerical errors or a mistake in the entry of the judgment or the
omission of a right or relief to which a party is entitled as a matter
of course may alone be corrected by the trial court through an
amendment. A provision withholding or awarding costs is a sub-
stantive part of a judgment in an action in equity and cannot be
amended. Herpe v. Herpe.
323

2. Special appearance Demand for copy of the complaint in an
action is not an appearance, either general or special — Motion to dis-
miss complaint for failure to serve denied. A defendant may appear
specially in an action only for the purpose of raising the question
whether the court has obtained jurisdiction over him personally or
through his property. A demand for a copy of the complaint is not
an appearance, either general or special. Defendant's general appear-
ance can be made only in the manner indicated in section 421 of the
Code of Civil Procedure. A defendant who has appeared specially
for the purpose of obtaining a copy of the complaint is not in a
position to move to dismiss the complaint if no complaint is served.
(§§ 479, 480.) Muslusky v. Lehigh Valley Coal Co.

584

Assignment of interest in estate delivery to executor in escrow
-complaint alleging that executor wrongfully filed such assignment
states cause of action when failure of assignor to raise question