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MY DEAR MR. CHENEY:

SUPREME COURT CHAMBERS,

WATERTOWN, N. Y., May 21, 1913.

I greatly regret that I shall not be able to attend the memorial meeting of the Onondaga County Bar Association on Saturday afternoon in honor of the late Justice Peter B. McLennan.

I should be glad to join with your association in paying respects to the memory of a distinguished jurist, but unfortunately I am called away from home and shall not return until early next week.

Judge McLennan was in many respects a unique personality. He was possessed of a masterful mind, but, better than all else, he was endowed with a strong and sturdy common sense which was manifest in nearly all of his judicial work. He has left an impress upon the jurisprudence of our State which marks him as one of the foremost jurists of his day.

But aside from his work upon the Bench, he was possessed of a most pleasing and attractive personality and address, always cordial and gracious and always mindful of the necessities of others. In fact it always seemed a greater pleasure for him to add to the comfort of others than to look after his own personal interests.

His sad and untimely death is a great loss to the Bar and Bench and to the community at large, and it is very appropriate that your association, of which he was a member and in which he took such a pride, should meet and do honor to his memory as a jurist, a lawyer, a neighbor and a friend.

Kindly present to the association my sincere regrets at not being able to be with them and believe me to be,

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GENTLMEN.— I regret that an imperative engagement for May 24th will make it impossible for me to be present at the memorial services in honor of the Honorable Peter B. McLennan.

I cannot let the occasion pass, however, without recording my sincere admiration of the courage, fairness, ability, integrity and industry which he manifested in the discharge of his official duties. It was delightful to witness his kindly consideration for the younger or more inexperienced members of the Bar. He was a warm-hearted, genial, faithful friend. He was not perfect, because he was a man, but he had maniy virtues in such large measure that any imperfection is forgotten in the memory of his many strong and good qualities.

Sincerely yours,

ADELBERT MOOT.

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UTICA, N. Y., May 21, 1913.

TO SECRETARY,

ONONDAGA COUNTY BAR ASSOCIATION,

Syracuse, N. Y.:

MY DEAR SIR. — Acknowledging the receipt of the invitation to be present at the memorial services in honor of Justice McLennan, I write to say that nothing but absence prevents my accepting the invitation. It is necessary for me to be out of town on the appointed day, which I exceedingly regret. I should deem it an honor to be present to pay respect to our late esteemed fellow member of the Bar and eminent jurist. Yours very truly,

H. J. COOKINGHAM.

LITTLE FALLS, N. Y., May 21, 1913.

ONONDAGA COUNTY BAR ASSOCIATION,

Syracuse, N. Y.:

DEAR SIRS.-As it will be impossible for me to attend the memorial services in honor of the Hon. Peter B. McLennan, who passed away under such unfortunate circumstances, I wish to express my great grief at the loss that the courts, the Bar and all the people have sustained by his death.

He was, indeed, one of nature's noblemen, and has in his time accomplished much good, and his unfortunate end must be regretted by all. Very respectfully,

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Mrs. Sulzer and I are shocked and deeply grieved at the tragic death of your distinguished husband. In your bereavement we extend to you and the members of the family our heartfelt sympathy. Have ordered the flags on all State buildings placed at half-mast.

WM. SULZER.

SUPREME COURT CHAMBERS,

WASHINGTON, D. C., May 10, 1913.

COLIN W. MCLENNAN,

Syracuse, N. Y.:

I am inexpressibly shocked to learn of the death of Judge McLennan. I greatly regret it will be impossible for me to attend the funeral services. Mrs. Hughes and I send our deepest sympathy.

CHARLES E. HUGHES.

WASHINGTON, D. C., May 10, 1913.

COLIN W. MCLENNAN,

Syracuse, N. Y.:

I am shocked and grieved by the sad death of my old and highly valued friend, Judge McLennan. I beg to express my deep sympathy with his family. The untimely end of his distinguished and useful career is a very great loss to all the people of Syracuse and of the whole State.

ELIHU ROOT.

MRS. PETER B. MCLENNAN,

COURT OF APPEALS,

ALBANY, N. Y., May 9, 1913.

Syracuse, N. Y.:

I extend my deep sympathy in the great loss you and the people of the State sustain by the death of your husband and my friend, Presiding Justice McLennan.

EDGAR M. CULLEN.

ONONDAGA COUNTY BAR ASSOCIATION:

ALBANY, N. Y., May 24, 1913.

I regret I cannot attend the memorial services of the Onondaga County Bar in honor of Judge McLennan, and in person pay to his memory the sincere tribute of my affection and regard. He was a great man as well as a great judge, and gave to the State the inspiration of a rugged and splendid character and to the Bench a learned, honest and practical conception of the law. His knowledge of public affairs was accurate, his views upon them wholesome and his opinions and conduct fearless. He was a tower of strength in sustaining the dignity and probity of the Bench and drawing to it the admiration of lawyers and the confidence of citizens. To me he was a valued friend and wise counselor. In common with all who knew him, I deeply lament his untimely death.

THOMAS CARMODY.

CATO, N. Y., May 24, 1913.

TO THE PRESIDENT OF THE ONONDAGA BAR ASSN.,

Syracuse, N. Y.:

As one of Justice McLennan's associates in the Court which he honored as Judge, may I say to you that he was esteemed by all as an able, vigorous, conscientious, and fearless judge, and that he will be greatly missed by his friends in the Appellate Division of the various Departments; by the Bar, and especially the young practitioners, with whom he was so considerate, and by the State who loses one of its best friends. My absence from the meeting of the Association this morning is unavoidable. ADELBERT P. RICH.

APP. DIV.- VOL. CLIX. 62

MRS. PETER B. MCLENNAN,

NEW YORK, May 9, 1913.

Syracuse, N. Y.:

I am requested by the Trial and Special Term Justices of the First Department to convey to you and your children their profound sympathy in your affliction. Justice McLennan had the respect and affection of his brother Justices and we mourn his loss as that of a great judge and an honored associate.

PETER A. HENDRICK.

ALFRED UNIVERSITY, ALFRED, N. Y. Alfred mourns with you the death of Judge McLennan. He was a man of great talents and a great heart. He was a truly loved and highly honored alumnus and trustee, a loyal and tireless worker. His death crushes with a deep sense of loss.

BOOTH C. DAVIS.

INDEX.

ACCOUNT STATED.

Action for money had and received.
See DURESS.

ACCOUNTING.

Broker and customer.

See PRINCIPAL AND AGENT, 3.

AGENCY.

See PRINCIPAL AND AGENT.

APPEAL.

1. Lis pendens-when cancellation not authorized under section 1323
of the Code of Civil Procedure. In order to authorize the cancellation of
a lis pendens under section 1323 of the Code of Civil Procedure it must
appear that the appeal is from a judgment in favor of the owner of real
estate, and the judgment must have been rendered in an action to set
aside a conveyance of real estate or in an action to compel the specific per-
formance of a contract for the sale thereof.

Hence, on an appeal from a judgment in an action by a receiver appointed
in supplementary proceedings brought against a purchaser at a fore-
closure sale to charge real property with a lien sufficient to pay judgments
represented by the plaintiff the defendant is not entitled to an order can-
celing the lis pendens. Faber v. Hanbury, 59.

2. Reversal of interlocutory judgment overruling demurrer - when
appeal does not lie directly to Court of Appeals-power of courts to
allow amendment to notice of appeal. Where the Appellate Division
reverses an interlocutory judgment overruling a demurrer to a complaint
with leave to amend, but the plaintiff does not amend and suffers judg-
ment dismissing the complaint, he cannot appeal to the Court of Appeals
until after a further appeal to the Appellate Division.

But if the final judgment had followed an affirmance by the Appellate
Division, an appeal could have been taken directly to the Court of
Appeals.

Section 1303 of the Code of Civil Procedure, which authorized the court
"in or to which the appeal is taken" to permit an amendment of a
notice of appeal, confers authority to allow such amendment by two
courts, namely, the court of review and the court whose action is under
review.

Hence, where by inadvertence and mistake of law, an appellant under
the circumstances aforesaid has appealed to the Court of Appeals
instead of to the Appellate Division, the Special Term which granted
the final judgment from which the appeal is taken has power to amend
the notice of appeal so as to make it an appeal to the Appeliate Division.
Such amendment of the notice of appeal may be allowed by the Special
Term, although the time to appeal from the final judgment has expired,
for the mistake is a mere irregularity, not jurisdictional. Vose v. Conkling,

201.

3. Court of Special Sessions-correction of record-facts happening
subsequent to appeal. Where a return on an appeal from a decision of the
Court of Special Sessions in bastardy proceedings has been filed in the
Appellate Division, it is for the latter court to correct the record if it be
improper, and an order of the Court of Special Sessions assuming to cor-
rect the record is ineffective for any purpose.

The appeal must be heard on the record as it exists at the time the
appeal was taken, and if subsequent to the appeal a fact appears which
may be a ground for dismissal, the plaintiff must submit an affidavit to
the Appellate Division setting forth that fact. Drummond v. Siano, 311.
4. Preparation of case — when respondent entitled to amendment insert-
ing evidence. Where the defendant excepts to a large number of findings
made upon a trial before the court upon the ground that there is no

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