was a unanimous vote of only eight members
of the council, all that were present, the whole
number being ten.-Bussing v. City of Mt. Ver-
non (Sup.) 195.

*The value of property not taken for a street
must be determined in assessing benefits under
New York City Charter, Laws 1901, p. 411, c.
466, § 980, on the basis of what it is worth
with the street extended. In re Avenue D in
City of New York (Sup.) 889.

residence, evidence held to show that the locus
in quo was a city street in a thickly populated
territory.-Gannett v. Independent Telephone
Co. of Syracuse (Sup.) 3.

Lessee of subway in the city of New York
held not entitled to use any of the ducts for the
sale and transmission of electric currents to
third parties.-City of New York v. Interbor-
ough Rapid Transit Co. (Sup.) 296.

Ordinance City of New York, c. 12, and Rules
of the Road, § 454, regulating the speed of mo-
tor vehicles in New York City, held not to su-
persede Laws 1904, pp. 1314, 1316, 1319. c. 538,
re§ 3, subd. 1, section 4, subd. 3, and section 6.
subd. 1.-People v. Keeper of Prison of Seventh
Dist. Magistrate's Court (Sup.) 314.

*Where commissioners of estimate and assess-
ment certify in their report that they have com-
plied with the law, it is sufficient, where there
is nothing to the contrary in the record. In
Avenue D in City of New York (Sup.) 889.
In a street opening proceeding, under New
York City Charter, tit. 4, c. 17, Laws 1901, p.
405, c. 466, held under the evidence that the
court could assume that the commissioners took
into consideration the increased value due to
the street extension.-In re Avenue D in City
of New York (Sup.) 889.

In action to recover amount paid by city to
contractor for erection of sidewalk, held, no
fraud was shown on the part of the contractor.
-City of Jamestown v. Arter (Co. Ct.) 1027.

*A city paying a contractor for the building
of a sidewalk on the approval of the work by
the sidewalk committee and the street commis-
sioner, on certificate of the street commissioner,
held bound thereby in the absence of fraud.-
City of Jamestown v. Arter (Co. Ct.) 1027.

*City held estopped by collecting assessment
of benefits by erection of sidewalk to recover
amount paid contractor for the building of the
same.-City of Jamestown v. Arter (Co. Ct.)

1027.

$ 5.

Police power and regulations.
Sanitary Code, § 96, punishing persons suf-
fering smoke to escape from buildings, constru-
ed, and held not to render one liable for per-
mitting smoke to escape from a building, which
does not annoy people living in the vicinity.-
People v. Sturgis (Sup.) 61.

An employé held not liable for a violation of
Sanitary Code, § 96, relating to equipping fur-
naces with smoke consumers.-People v. Sturgis
(Sup.) 61.

After the passage by a city of an ordinance
limiting the speed of vehicles in the public high-
ways under Motor Vehicle Law, Laws 1904, p.
1311, c. 538, it supersedes the state law within
the city limits, and complaint charging a viola-
tion of the state law and not a violation of the
ordinance cannot be maintained.-People v.
Keeper of Prison of Seventh Dist. Magistrates'
Court of City of New York (Sup.) 960.

A city may maintain an ash receiving sta-
tion within the city in disposing of the ashes
of household and street sweepings and rubbish,
if the method adopted does not create a nui-
sance.-Saal v. South Brooklyn Ry. Co. (Sup.)
996.

§ 6. Use and regulation of public pla-
ces, property, and works.

In a suit to restrain the erection of a tele-
phone pole in the street opposite plaintiff's

The burden of proof to establish the validity
of an ordinance held to be on the party claiming
the benefit thereof.-People v. Keeper of Prison
of Seventh Dist. Magistrate's Court (Sup.) 314.

*The Legislature may grant to a corporation
a franchise to use the streets of the city. with-
out requiring the corporation to obtain the
consent of the local authorities.-In re Con-
solidated Gas Co. of New York (Sup.) 407.

construction of street surface railroad by a cor-
Franchise granted by city to individual for
poration to be thereafter organized held_valid.
-Village of Phoenix v. Gannon (Sup.) 927.

*Cities may pass ordinances limiting speed of
vehicles in the highways under Motor Vehicle
Law, Laws 1904, p. 1316, c. 538, § 4, subd. 3;
the penalties prescribed therein superseding
those specified in section 6 (page 1319) of the
act.-People v. Keeper of Prison of Seventh
Dist. Magistrates' Court of City of New York
(Sup.) 960.

§ 7. Torts.

A city acquiring a pier under Laws 1894, p.
1903, c. 758, as amended by Laws 1895, p. 1946,
c. 921, held bound to keep it in a reasonably
safe condition for public use.-Birch v. City of
New York (Sup.) 104.

*In an action for personal injuries alleged
to have been caused by the defective condition
of a sidewalk, evidence to show repairs shortly
after the accident held inadmissible.-Mackey
v. City of New York (Sup.) 114.

*One injured by stepping in the trench from
which street curbs had been removed held guil-
ty of contributory negligence.-McHugh v. In-
ter-State Pav. Co. (Sup.) 165.

*A hole in a sidewalk held not one from

which danger could be reasonably anticipated,
so as to make the city liable for injury there-
from.-Powers v. City of New York (Sup.) 166.
An obstruction held not within the rule that a
municipality is not liable for slight, temporary
defects.-Corr v. City of New York (Sup.) 280.
*The liability of a municipal corporation for
personal injuries held for the jury.-Corr v.
City of New York (Sup.) 280.

Notice of intent to sue the city of New York
for injuries caused by defective sidewalk held
a compliance with Laws 1886, p. 801, c. 572;
*Point annotated. See syllabus.

and 140 New York State Reporter

See "Trade-Marks and Trade-Names."
Negligent omission by clerk from his return of
a judgment against a person of a certain
name, see "Clerks of Court."

Of partnerships, see "Partnership," § 1.

Liability of husband for necessaries furnished
wife, see "Husband and Wife," §§ 1, 2.

In an action for the death of plaintiff's in-
testate, held, that under the evidence it was a
question for the jury whether defendant was
*Point annotated. See syllabus.

Ground for new trial in criminal prosecution, For office, see "Elections," §§ 1, 2.
see "Criminal Law," § 5.

The action of a railroad in permitting sur-
face water from one side of its track to escape
*Point annotated. See syllabus.

and 140 New York State Reporter

OPENING.

to the other side alongside of the highway held |
not ground for an action for nuisance.-Town-
send v. New York Cent. & H. R. R. Co. (Sup.) Judgment, see "Judgment," § 1.

381.

*The occupation of a part of a sidewalk used
by passers-by and those seeking entrance to
plaintiff's premises with a structure of iron-

OPINION EVIDENCE.

work and glass held to be a private nuisance In civil actions, see “Evidence,” § 5.
which plaintiff may enjoin.-Levy v. Murray
(Sup.) 689.

NUNC PRO TUNC.

Amendment of pleading nunc pro tunc, see
"Pleading," § 5.

OBJECTIONS.

Jurisdiction of court after change of venue, see
"Criminal Law," § 1.

To reception of evidence, see "Trial," § 2.

OBLIGATION OF CONTRACT.

Laws impairing, see "Constitutional Law," § 2.

OBSTRUCTIONS.

Of easements, see "Easements," § 1.

OPINIONS.

Of courts, see "Courts," § 2.

OPTIONS.

To renew lease, see "Landlord and Tenant," § 2.

ORDERS.

Of court, see "Motions."

Orders of court.

Dismissal of action, see "Dismissal and Non-
suit," § 1.

Examination of parties before trial, see "Dis-
covery," § 1.

Examination on supplementary proceedings, see
"Execution," § 3.

Of sidewalks, see "Municipal Corporations," § 7. Foreclosure sale, see "Mortgages," § 3.

OFFICERS.

Authority of Secretary of State to file articles
of incorporation, see "Corporations," § 1.
Bribery, see "Bribery."

Jurisdiction of court of officers of foreign cor-
porations residing in another state,
"Courts," & 1.

see

Larceny by, see "Larceny," §§ 1, 2.
Mandamus, see "Mandamus," § 1.
Preference for trial of action to test title to
office, see "Trial," § 1.

Relevancy of evidence in proceeding against po-
lice officer, see "Evidence," § 3.
Right of county officer to appeal, see "Appeal,"
$ 3.

Particular classes of officers.

See "Attorney General"; "Clerks of Courts";
"Coroners"; "Justices of the Peace"; "Re-
ceivers"; "Sheriffs and Constables."

Review of appealable orders, see "Appeal."

ORDINANCES.

Municipal ordinances, see "Municipal Corpora-
tions," §§ 4-6.

PARENT AND CHILD.

See "Bastards."

Children as employés, see "Master and Serv-
ant," §§ 2, 10, 11.

PAROL EVIDENCE.

In civil actions, see "Evidence," § 4.

PARTICULARS.

Corporate officers, see "Corporations," §§ 3, 6. Bill of, see "Pleading," § 7.
County officers, see "Counties," §§ 1, 3.
Court officers, see "Courts," § 2.

Municipal officers, see "Municipal Corpora-
tions," § 3.

Of trust company, see "Banks and Banking,"
$ 3.
Superintendents of the poor, see "Paupers," § 1.
Tax assessors, see "Taxation," § 2.
Transfer tax officers, see "Taxation," § 5.

§ 1. Rights, powers, duties, and liabil-
ities.

*The term "prescribed by law." as used in
Const. 1846, art. 5, § 6. and subsequent Con-
stitutions, defined.-People V. Santa Clara
Lumber Co. (Sup.) 624.

In particular actions or proceedings.
See "Partition," § 1.

For breach of contract, see "Contracts," § 6.
For services rendered by intestate, see "Execu-
tors and Administrators," § 5.
On subscription, see "Subscriptions."
*Point annotated. See syllabus.

Contempt by referee in partition, see "Con- if she wrongfully neglects or refuses to do so,
tempt," § 1.

*Point annotated. See syllabus.