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RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,-continued.

pay the amount of the mortgage, is not sufficient evidence of the inadequacy of the security to justify the appointment of a receiver.

Sickles v. Canary, 8 App. Div. 308; 75 St. Rep. 347; 40 Supp. 948.

d. Relative right of senior and junior mortgagee.

A junior mortgagee is entitled to the appointment of a receiver where he has a superior equity, and no part of the principal or interest of his mortgage has been paid nor interest for a number of years upon the prior mortgage, taxes have been permitted to accumulate upon the property, and the security is quite precarious and likely to prove inadequate.

Ross v. Vernam, 6 App. Div. 246; 39 Supp. 1031.

The first mortgagee may have a receiver appointed where there is doubt as to the mortgaged premises being adequate security for the first mortgage, although the second mortgagee is in possession, is perfectly responsible, and his mortgage debt remains unsatisfied.

N. Y. Life Insurance Co. v. Glass, 50 How. Pr. 88.

A receiver should be appointed on the application of the holder of a second mortgage where it is very doubtful whether the premises upon the sale will bring more than enough to pay the first mortgage and the taxes. Browning v. Stacey, 99 St. Rep. 203; 65 Supp. 203.

A second mortgagee is entitled to a receiver where his mortgage contains the provision that, on default, he should be entitled to the appointment of a receiver, without regard to the value of the property, or the solvency of the mortgagor, and the premises, on foreclosure sale, will not sell for the amount of the first mortgage which is due and about to be foreclosed, and the mortgagor refuses to apply the rents to discharge the accruing interest and taxes.

Browning v. Sire, 101 St. Rep. 798; 67 Supp. 798.

A receiver will be appointed on the application of the second mortgagee, where the mortgage contains a stipulation for such appointment in case of default, and it further appears that the parties in possession of the premises receive the rents, but refuse to apply them for the benefit of the property, and that the interest on the first mortgage, and the taxes and assessments on the property, are unpaid.

Keogh Mfg. Co. v. Whiston, 26 Abb. N. C. 358; 14 Supp. 344.

e. Of property of corporation.

A receiver of the property of a corporation can be appointed only by the court, and in one of the following cases:

2. An action brought for the foreclosure of a mortgage upon the property, of which the receiver is appointed, where the mortgage debt, or the interest thereupon, has remained unpaid, at least thirty days after it was payable, and after payment thereof was duly demanded of the proper officers of the

RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,—continued.

corporation; and where either the income of the property is specifically mortgaged, or the property itself in probably insufficient to pay the mort gage debt.

§ 1810 Code of Civil Procedure.

Upon an application for the appointment of a receiver of the property of a corporation, a verified complaint alleging upon information and belief default in the payment of the interest coupons and an election by the bond holders under the terms of the mortgage to declare the whole principal due, when not met or denied either by answer or affidavits, fully establishes the facts and authorizes the appointment of a receiver.

Holland Trust Co. v. Consolidated Gas & Electric Co., 85 Hun, 454; 66 St. Rep. 291; 32 Supp. 830.

Where there has been a default in the payment of interest, a receiver should be appointed upon the foreclosure of a paramount mortgage, although a general receiver has previously been appointed of the property of such corporation in the foreclosure of a junior mortgage.

Holland Trust Co. v. Consolidated Gas & Electric Co., 85 Hun, 454; 66 St Rep. 291; 32 Supp. 830.

SMITH v. VILLAGE OF HENDERSON.

[54 App. Div. 26; 100 St. Rep. 347; 66 Supp. 347.]

(Supreme Court, Appcllate Division, Fourth Department. September 25, 1900.)

HIGHWAYS-BICYCLES-GUARD-RAIL-NEGLIGENCE.

Plaintiff, riding along the middle of the street in the afternoon, lost control of her bicycle by the slipping of her foot from one pedal. The

NOTE.-MAINTENANCE OF HIGHWAYS IN SAFE CONDITION FOR BICYCLISTS

a. In general.

b. Measure of duty of municipality.

a. In general.

"Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town."

§ 16, Highway Law (L. 1890, chap. 568.)

Smith v. Village of Henderson.

bicycle turned diagonally to the right, ran across the sidewalk, and dropped with the plaintiff five or six feet to the ground below. At the point where the plaintiff lost her pedal, the street was 42 feet wide, and sloped down from the middle 2 feet to the sidewalk on the right. She was familiar with the locality, and the street was smooth. Held, that the failure to maintain a guard-rail at this point was not such negligence as would entitle plaintiff to recover for her injuries from the vil lage, since the authorities were not bound to anticipate such an accident.

Appeal from trial term, Jefferson county.

Action by Lillian Smith against the village of Henderson. From a judgment in favor of plaintiff, defendant appeals. Reversed.

MAINTENANCE OF HIGHWAYS IN SAFE CONDITION FOR BICYCLISTS,-Continued.

A bicycle is a carriage and entitled to same rights as any other pleasure carriage.

§ 162-3, Highway Law (L. 1890, chap. 568.)

Although the primary responsibility for injuries to person or property resulting from defects in the highways is transferred by statute from commissioners of highways to the town, the negligence of the commissioner is still the basis of the liability.

Lane v. Town of Hancock, 142 N. Y. 510; 37 N. E. 473.

The principle that the liability of towns is limited to the liability of the
highway commissioners does not apply in actions against a city or village.
Burns v.
City of Yonkers, 83 Hun, 211; 64 St. Rep. 354; 31 Supp. 757.

b. Measure of duty of municipality.

"Reasonable care in the construction and maintenance of highways is the measure of duty resting upon the highway commissioner of the town, and municipalities are not liable for injuries, the result of accidents which are not, by the exercise of reasonable forethought and prudence to be antici pated."

Sutphen v. Town of North Hempstead, 80 Hun, 409; 61 St. Rep. 842; 30 Supp. 128.

A larger measure of duty on the part of the commissioners of highways is not due to bicycle-riders than to persons traveling upon the road in ordinary vehicles.

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Appellate Division.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

[Sept.

A. M. Leffingwell (Watson M. Rogers, counsel) for appellant.

N. F. Breen, for respondent.

LAUGHLIN, J. The recovery in this case was for damages for personal injuries received by the plaintiff while riding a bicycle along Main street, in the village of Henderson, on the 28th day of April, 1898. The street runs east and west along a side hill which descends southerly to Stony creek. The village lots on the southerly side of the street extend to the creek. There was a 4-foot plank sidewalk on either side of the creek, leaving about 42 feet of carriageway, all of which, save a few feet near either walk, appears from the photographs to have been used by ve

MAINTENANCE OF HIGHWAYS IN SAFE CONDITION FOR BICYCLISTS,-continued.

Thompson v. Dodge, 58 Minn. 555; 60 N. W. 545.
Holland v. Bartch, 120 Ind. 46; 22 N. E. 83.

In the Sutphen case, just cited, the court recognizes that a bicycle-rider on an ordinary country road is exposed to greater dangers than a person riding in a wagon and that the great increase in the number of persons using bicycles has created a demand for better and safer roads, but holds that under the existing highway laws no distinction can be made between the bicycle and horse-drawn vehicles and that the municipality is not liable for an unusual accident and one incidental and peculiar to bicycle-riding.

"Where a street is kept in a reasonably safe and fit condition for ordinary vehicles, such as wagons and carriages, the town is not liable for injuries received by one thrown from her bicycle by reason of its defective condition." Leslie v. City of Grand Rapids, 78 N. W. (Mich.) 885.

The absence of a rail or guard between a ditch, constructed along a country highway, and the road, does not render the road unsafe for travel in ordinary vehicles and on foot, where the highway was twenty-five feet wide and in good condition, and the fact that a bicycle-rider chose to ride on a narrow foot-path near the ditch is negligence contributory to his fall into the ditch caused by the side of the ditch caving in under his weight.

Sutphen v. Town of North Hemstead, 80 Hun, 409; 61 St. Rep. 842; 30 Supp. 128.

1900]

Smith v. Village of Henderson.

hicles. At the locus in quo the southerly half of the carriageway sloped towards the south, the descent in that direction to the northerly edge of the sidewalk being between 1 foot 7 inches and 2 feet 6 inches; and there was a small hill in the road, making a descent towards the east of about 512 feet in something over 100 feet. About 6 o'clock in the afternoon of the day in question the plaintiff was returning easterly from a bicycle ride with her husband, who was riding at one side, and a little behind her. The day was warm and pleasant, and the road was dry and smooth. She was riding slowly about midway between the sidewalks, with her wheel under control, when, just as she reached the top of this hill and started down the descent, her left foot slipped backward, off the pedal, and the wheel turned diagonally to her right, and kept on in that course to and over the southerly sidewalk, where it dropped into a hollow or depression from 4 to 6 feet below the level of the walk, precipitating the plaintiff upon some broken rocks, whereby the inju

MAINTENANCE OF HIGHWAYS IN SAFE CONDITION FOR BICYCLISTS,-continued.

A line of curbing, a few inches in height and closely resembling in color the surrounding road, situated so near the entrance of a bicycle-path in Riverside park, New York city, that a person riding through it in the evening might strike the curbing, creates such a responsibility that it is the duty of defendant to provide sufficient light so that a person using the entrance at night can detect and avoid the obstruction.

Collett v. New York, 51 App. Div. 394; 98 St. Rep. 693; 64 Supp. 693.

Justice Ingraham wrote a dissenting opinion in the case last cited, holding that, while municipal corporations are at all times bound to keep ordinary public highways in a safe and proper condition for public use, an entirely different rule applies to parks of the description of Riverside park, and that the utmost obligation imposed upon municipal corporations, maintaining such parks for the benefit of the public, is to provide ordinarily safe walks and drives and to keep them in proper condition.

In the maintenance of its sidewalks a city owes the same measure of care, and no greater, to a bicyclist who pays a nominal sum for the privilege of riding thereon, that it does to a pedestrian.

Morrison v. City of Syracuse, 53 App. Div. 490; 99 St. Rep. 939; 65 Supp. 939; 45 App. Div. 421; 95 St. Rep. 313; 61 Supp. 313. Wheeler v. City of Boone, 108 Iowa, 235.

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