App. Div.]

Second Department, December, 1911.

dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Chandler A. Oakes, Respondent, v. Cadillac Hotel Company and Others, Appellants. Interlocutory judgment modified by providing that upon failure to answer, final judgment shall be granted for such relief as plaintiff is entitled to upon the facts set forth in the complaint, and as so modified affirmed, without costs, and with leave to defendants to withdraw demurrer and answer over within twenty days after service of a copy of the order. No opinion. Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ., concurred.

The People of the State of New York ex rel. James C. Young, Relator, v. Rhinelander Waldo, as Fire Commissioner of the Fire Department of The City of New York, Respondent.- Determination confirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Mary Thomas, Appellant, v. The Newburgh Savings Bank and Others, Respondents.- Judgment affirmed, with costs, on the opinion of Mr. Justice Tompkins at Special Term. (Reported in 73 Misc. Rep. 308.) Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Hirschberg, J., taking no part.

Theodore F. Tompkins, Appellant, v. Howard P. Barnes, Respondent.— Judgment and order of the County Court of Westchester county unanimously affirmed on reargument, with costs. No opinion. PresentJenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

INDEX.

ABATEMENT.
When plea lies.

See ANIMAL.

ACCOUNTING.

Executor-profit made by discounting legacy.
See DECEDENT'S ESTATE, 5.

ACKNOWLEDGMENT.

Defective acknowledgment of deed-recording.
See REAL PROPERTY, 6.

AGENCY.

See PRINCIPAL AND AGENT.

ANIMAL.

Tort-dog is property-nominal damages - abatement — erroneous
nonsuit. The complaint in an action wherein the plaintiff seeks to recover
damages because the defendant came upon his lands and killed his dog
should not be dismissed because of the failure of the plaintiff to prove the
value of the dog. A dog is property, and hence its destruction without
justification entitled the plaintiff to nominal damages, and even if the
dog were valueless the trespass upon the plaintiff's lands entitled the
plaintiff to a recovery.

The rule that a judgment will not be reversed in order to afford the appel-
lant an opportunity to recover nominal damages does not apply where
the failure of the appellant to show more than nominal damages was not
inherent in his cause of action, but was due to his temporary inability
to produce witnesses as to damages.

The pendency of two actions cannot be pleaded in abatement unless they
were begun simultaneously; if begun at different times, the pendency of
the former action may be pleaded in abatement of the latter action.
Rowan v. Sussdorff, 673.

Misrepresentations on exchange of horses.

-

Warranty as to condition of horses sold — breach of contract.

See SALE, 2.

APPEAL.

1. Prior decision establishing law of case. There is nothing for the
Appellate Division to review on an appeal from a judgment rendered on a
second trial where the law applied is in accordance with that laid down by
the Court of Appeals on a prior appeal, and the appellant cannot point out
any ruling or error justifying a reversal. Barnes v. Midland Railroad
Terminal Co., 89.

2. Order denying motion to quash indictment. An independent appeal
does not lie from an order denying a motion to quash an indictment.
People v. Lazersohn, 227.

3. Failure to except. The Appellate Division may, notwithstanding the
absence of an exception, review, on an appeal from a judgment entered
on a verdict, and from an order denying a new trial on the minutes, a
ruling of the trial judge submitting a particular question to the jury.
Caciatore v. Transit Construction Co., 676.

Appellate court considers only the record.

Archer v. Archer, 929.

Reserving exception for appeal — tender of payment on note.

See BILLS AND NOTES, 1.

-

APPEAL - Continued.

Failure to except to evidence.

See CONVERSION.

Case - comments of trial court.

See COURT, 1.

Order confirming report of commissioners in condemnation proceedings.
See EMINENT DOMAIN, 3.

1ication of judgment - trespass.

See LANDLORD AND TENANT, 1, 3.

Order setting aside verdict conditionally
reduction of verdict.

See NEW TRIAL, 2.

Judgment roll- answer of codefendant.
See PRACTICE, 5.

Effect of affirmance without opinion.
See PRINCIPAL AND AGENT, 2.

Saving objection until appeal.

See RAILROAD, 11.

failure to exercise option for

Failure to object to erroneous charge- when error available.

See SALE, 2.

ASSAULT.

Bill of particulars.

See PLEADING, 4.

ASSIGNMENT.

-

Assignment of mortgage to secure firm debt- - when creditor obligated
to realize on prior security.

See BAILMENT.

Assignment of deposit in failed bank-rights of assignee - offset of
bank against deposit.

See BANKING, 1.

Assignment of wages-power of attorney to resident of another state.

See CONTRACT, 1.

Patent rights corporation to be formed

defenses.

See CONTRACT, 6.

specific performance

Transfer of property in fraud of creditors - conflicting evidence.
See DEBTOR AND CREDITOR, 1.

Action to recover expenses of foreclosure.

See MORTGAGE, 3.

ATTORNEY AND CLIENT.

1. Authority to compromise case — -effect of compromise. The authority
of an attorney at law extends to the management of the case in all the
exigencies which arise during its progress, and, in the absence of fraud,
his authority cannot be questioned by his client because of want of
specific authority to do the act done or consented to.

Thus, where a rail. ad company is sued for the conversion of a portion
of a shipment of rails, its attorneys may compromise the action by per-
mitting the plaintiff, a receiver, to take judgment upon the coudition
that a claim be filed with the plaintiff for the value of the whole
shipment.

Such compromise and the judgment in favor of the plaintiff entered
thereon does not destroy the claim of the railroad company for the value
of rails alleged to have been delivered to the company of which the
plaintiff is receiver. Clinton v. New York Central & H. R. R. R. Co., 468.
2. Contract of retainer- agreement to establish interest in estate
for contingent fee — contract not unconscionable Suit by an attorney
at law to obtain a decree adjudging an assignment of a portion of his
client's interest in an estate, which was made collateral to a contract
of retainer under which the attorney was to receive a contingent fee

ATTORNEY AND CLIENT - Continued.

of twenty-five per cent for establishing his client's interest in the estate.
There was no proof of fraud, misrepresentation or concealment practiced
by the attorney upon his client, but, on the contrary, it appeared that
the conditions actually existing with respect to her claim upon the
estate were fully disclosed, and that, having independent means to
employ an attorney if she so desired, she was satisfied with the agree-
ment for a contingent fee. It further appeared that the client did not
repudiate the contract until her claim upon the estate had been suc-
cessfully established, and that upon her objection to the contract the
attorney voluntarily reduced his claim to twenty per centum. On all
the evidence, held, that, under the circumstances, the amount to which
the attorney was entitled under his retainer was not unconscionable,
and that he was entitled to the relief sought.

Notwithstanding that the statute provides that an agreement with an
attorney for services is not restrained by law, the court has power to
inquire into the good faith of an agreement between attorney and client,
even if reduced to writing. But where the parties are free to contract,
their agreement will not be set aside unless fraud be perpetrated, undue
influence exerted, or material facts misrepresented or suppressed, or
unless the attorney by reason of his position obtains an unconscionable
advantage over his client.

Contracts of retainer between attorney and client discussed, per
DOWLING, J. Ransom v. Ransom, 835.

BAILMENT.

-

Pledge — assignment of mortgage as security for firm debt — when no
guaranty of payment · obligation of creditor to realize on prior security
cancellation of assignment denied. Where on the dissolution of a
partnership and an assumption of the firm debts by one of the partners,
the wife of the other partner assigned mortgages to a creditor of the
firm as collateral security for the payment of the firm debts, to be used,
however, only after other collateral deposited by the firm itself with the
creditor and the firm assets had been exhausted, the mortgages to be
only security to the extent of $10,000, there was not a guaranty of col-
lection of the firm debt, but merely additional security for the pre-
existing debt already overdue.

Under the circumstances the only obligation of the creditor was to use
due and reasonable diligence to realize on the prior collateral.

Hence, where the pledgor lost nothing by the negligence of the creditor
in failing to use due diligence in realizing on the prior collateral by reason
of the fact that, if it had done so, there would still remain due more than
the amount for which the additional security was held, the pledgor is not
entitled to a judgment canceling the assignment of the mortgages. Ryan
v. Edwards, 711.

--

Transportation of goods — failure to furnish proper car.

See CARRIER, 2.

Wrongful pledge of bonds belonging to estate- - notice to pledgee.

See CONVERSION.

Suit against stockbrokers to recover pledged securities.

See RECEIVER.

Pledge of chattel held under conditional sale.

See SALE, 4.

BANKING.

-

1. Receivership — assignment of deposit-rights of assignee — offset
against debt to bank - alleged lien on fund in favor of bank — burden of
proof. Where a bank deposit is assigned while the bank is in the hands
of a receiver, the assignee has no right to have the deposit applied on a
note of his held by the bank pending the receivership. But where the
bank resumes business and the deposit remains intact, it becomes the
property of the assignee subject to any right the bank may have to apply
the same to any indebtedness owed to it by the assignor.

Where in an action by the bank to recover on a promissory note of the
assignee the defendant counterclaims the amount of the assigned deposit