recovery claim in New York

1985(Matter of Serrano, 75 Misc 2d 1037; Leon v Walker, 1 Misc 2d 219, 220 .) The recovery on the claim for wrongful death created a fund exclusively to compensate the persons, including Gregory, for their pecuniary loss arising from the death of a person upon whom the law imposed the burden of their support.

1985(Matter of Serrano, 75 Misc 2d 1037; Leon v Walker, 1 Misc 2d 219, 220 .) The recovery on the claim for wrongful death created a fund exclusively to compensate the persons, including Gregory, for their pecuniary loss arising from the death of a person upon whom the law imposed the burden of their support.

1937(Goodell v. Hurlbut, 5 App. Div. 77 .) When the plaintiff alleges that he was hired to “ adjust ” or “ negotiate ” a settlement, he was in paraphrase “ representing a claimant in the pursuit of a civil remedy for the recovery of a claim ” within the prohibition of the statute.

1931(Matter of Mason, 134 Misc. 902, 915 .) No authority has been cited granting a preference in payment of a general legacy to a creditor where the relinquishment of the debt was not expressly made a condition of the legacy.

1931(See Matter of Fairchild, 138 Misc. 363 , and cases cited.) It is, of course, possible that if a claim for services rendered were made against the estate and it appeared that testator had agreed to recompense by will only, the recovery on such claim would be reduced to the extent that benefits were conferred by the will.

1927Though not necessary to the decision the opinion per Gbay, J., states: ' As to all cases, which might arise thereafter, I assume that it [the amendatory act of 1901 (Laws of 1901, chap. 354)] prescribes a new rule of liability under which the remedy available to a creditor is intended to be by way of an equitable action, or proceeding; wherein all the stockholders of the corporation should be made equally and ratably responsible for the payment of corporate debts.’ ” The case of Lang v. Lutz ( 180 N. Y. 254 ) sustained the right of a creditor to sue one or more stockholders at law for the reco

1915(See Matter of Camp, 126 N. Y. 377 ; Matter of McDougall, 141 N. Y. 21 .) It is for the court to make proper provision for the protection of the rights of remaindermen., The wrongdoer is only concerned in being protected from a second suit, and we are of the opinion that it must be held, as a necessary corollary to- the proposition that the life tenant may recover all the damages, that such a recovery will bar an action by the remaindermen.

1915(See Matter of Camp, 126 N. Y. 377 ; Matter of McDougall, 141 N. Y. 21 .) It is for the court to make proper provision for the protection of the rights of remaindermen., The wrongdoer is only concerned in being protected from a second suit, and we are of the opinion that it must be held, as a necessary corollary to- the proposition that the life tenant may recover all the damages, that such a recovery will bar an action by the remaindermen.

1902(Wilkins v. Ellett, supra; Equitable Life Assurance Society v. Vogel’s Executrix, supra.) The Code of Civil Procedure provides for the issue of ancillary letters of administration in the case of a non-resident where letters have been issued at his domicile and it is discretionary with the •court whether to require the payment of local creditors or to require security to insure their payment by the foreign administrator.

1902(Wilkins v. Ellett, supra; Equitable Life Assurance Society v. Vogel’s Executrix, supra.) The Code of Civil Procedure provides for the issue of ancillary letters of administration in the case of a non-resident where letters have been issued at his domicile and it is discretionary with the •court whether to require the payment of local creditors or to require security to insure their payment by the foreign administrator.

1902Co., 156 N. Y. 196, 201 .) If the foreign debtor be found within the jurisdiction of the courts of the decedent’s domicile, an action may be maintained there by the domiciliary administrator and a recovery thus had will bar an action by an administrator even if already appointed in the State where the debtor resides.

1899If this be not in effect reformation, then it must be conceded to be a recovery upon a cause of action not pleaded, and we may say as was said by Andrews, J., in Reed v. McConnell, 133 N. Y. 425, 433 , “ This recovery was in violation of the rule that no judgment can be sustained in favor of a plaintiff on a cause of action not alleged in the complaint, unless the defendant, by his silence or conduct, acquiesced in the trial of the new and different cause of action, upon which the judgment proceeded.” This the defendant did not do.

1894For this reason this court held, in an action brought by the relator’s firm against the city for the recovery of this claim, that it is illegal and not enforceable, which judgment has not been appealed from, but remains in full force. 31 N. Y.

1890O' Dougherty v. Paper Co., 81 N. Y. 496, 500 .

1887Secor v. Sturgis, supra, 554 ; Campbell v Butts, 3 N Y, 173; Griffin v. Long Island R.

1886Howard v. Daly ( 61 N. Y., 362 ), where this was held to be the law; and that the damages were prima faoie the entire amount of the compensation- agreed to be paid by the defendant, and that a recovery on that principle was justiñed after the end of the stipulated term of service, was further held in Everson v. Powers ( 89 N. Y., 527 ).

1886Howard v. Daly ( 61 N. Y., 362 ), where this was held to be the law; and that the damages were prima faoie the entire amount of the compensation- agreed to be paid by the defendant, and that a recovery on that principle was justiñed after the end of the stipulated term of service, was further held in Everson v. Powers ( 89 N. Y., 527 ).

1883The object of a bill of particulars, whether required of the plaintiff or of the defendant, is that the other party shall not be taken by surprise from the general^ of the pleadings and come to the trial unprepared as to the nature of the claim made by the plaintiff or the nature of the defense set up to it; and the effect of the bill, therefore, is to restrict the proof and limit the recovery or defense to what is stated in it, unless the variance between it and the proof offered could not have misled the other party (Nair v. Gilbert, 3 Wend. 346 ; Brown v. Williams, 7 Cowen 316; Bowman v. Ea

1883But if a party fully knows what .his adversary means to rely on for his cause of action or defense, he is not entitled to a bill of particulars of it ( Willis v. Wiley, 19 Johns. 268 ; Wigand v. De Jonge, 18 Hun 405 ); and this was the case here.

1868In Caldwell v. Murphy ( 1 Duer, 233 , affirmed, 11 N. Y.

1860Requa, the assignee, if this suit was, in fact, prosecuted for his benefit. ( Foster v. Beals, 21 N.Y., 247 , and cases there cited.) On that assumption, this was a suit prosecuted by him and for his immediate benefit, for the recovery of a claim duly assigned and owned by him.