Forclosure

· receiver provision
for appointment.-A covenant in a
mortgage extending the lien thereof
to the rents and profits, and provid-
ing for the appointment of a receiver
in case of foreclosure, will not entitle
the mortgagee to the appointment of
a receiver, where it appears that the
taxes upon the property have been
fully paid, that the interest was met
when last due, that the persons li-
able for the debt are solvent, and
that the premises are adequate se-
curity for the mortgage debt. United
States Life Ins. Co. v. Ettinger, 110
NOTE. RIGHT TO RECEIVER IN
FORECLOSURE..

MORTGAGE

...

110-116

Under receiver's clause.

c. When security inadequate or
mortgagor insolveni.

d. Relative right of senior and
junior mortgagee.

e. Of property of corporation.
Notice of sale.--Where notice of
appearance was given by defendants
in foreclosure, thereby entitling
them, under Code Civ. Pro. § 422.
to notice of subsequent proceedings,
the judgment and sale cannot be set
aside merely because plaintiff's at-
torney failed to serve notice of sale
on defendants' attorney, as, the ref-
eree appointed to conduct the sale
having given notice thereof by pub-
lication, as required by sections 1434
and 1678, no other or further notice
was required.

On appeal the appellate division,
fourth department, rendered the fol-
lowing decision, March 19, 1901:

"Order reversed without costs of
this appeal, and a resale ordered in
each case, upon condition that the ap-
pellant, within twenty days, gives a
bond in the penalty of $250, to be
approved upon notice, by the county
judge of Erie county, conditioned
that the amount realized upon such
resale shall be sufficient to pay the
expenses thereof and at least six
hundred dollars in addition thereto;
and in the event that such bond is
not given the order in each case is
affirmed, with costs. Order to be
settled upon two days' notice by
Justice Spring. All concur; Laugh-
lin, J., concurs in result, and favors
absolute reversal of orders and a re-
sale, upon the ground that the ap-
pellant's attorney was entitled to
service of notice of sale." Collins v.
McArthur, 357

istered, as required by Laws 1893, c.
661, providing that no person shall
practice medicine "unless previously
registered and legally authorized, or
unless licensed by the regents," and
declaring that any person who vio-
lates the provisions of the act shall
be guilty of a misdemeanor. Wood-
ward, J., dissenting. Accetta
Zupa, 190.

NOTE. REGISTRY OF PHYSICIAN
AS PREREQUISITE TO COMPEN-

SATION.

a. The statutes.
b. Decisions.

.190-196

a

imperfect registration—valida-
tion retroaction. Laws 1880, c.
513, § 4, provides that a person who
holds a medical diploma from
school in another state may be regis-
tered to practice in this state on se-
curing the approval of his diploma
by the faculty of an incorporated
medical school of this state and fur-
nishing such other qualifications as
they may require, and section 3
makes a violation of the act a mis-
demeanor. Laws 1893, c. 661, § 148,
declares that a registration which is
not legal because of some uninten-
tional omission may be validated by
obtaining from the regents of the
state university a certificate of vali-
dation. Plaintiff's registration in
1886 was imperfect because his di-
ploma was not approved by any med-
ical faculty, and in 1899 the board
of regents of the state university is-
sued a certificate validating such
registration. Held, that plaintiff
could not recover for medical ser-
vices rendered in 1894, since at that
time he had no license, and to give a
retroactive effect to section 148
would allow a recovery for services
which constituted a misdemeanor at
the time they were rendered.
Adams, P. J., and Laughlin, J., dis-
senting. Ottaway v. Lowden, 301.

ma-

Supplemental complaint
teriality new cause of action.
Plaintiff sued to foreclose a second
chattel mortgage against the mort-
gagor and a prior mortgagee who
had held in pledge some of the
mortgaged property, alleging a cer-
tain amount due, and that the de-
fendant mortgagee had disposed of
the property without receiving full
value, and prayed for judgment
charging such mortgagee with the
value of the property. After de-
fendants had put in issue the amount
due the plaintiff, he agreed with the
mortgagor as to the amount due, and
also obtained transfers of all the
mortgagor's interest. Held, that a

Mileage books due process of
law.-Laws 1895, chap. 1027, sub-
jecting railroad companies to a pen-
alty for refusal to issue mileage
books to passengers at two cents per
mile, is not enforceable against a
railroad company organized before
the passage of such statute, the char-
ter of which authorized it to charge
2 fare of three cents per mile, as the
statute deprives such company of
property without due process of law,
within the prohibition of the fifth

See Vendor and Purchaser.
Covenants between adjoining
landowners construction build-
ing restrictions. A covenant be-
tween adjoining landowners that
one should not erect a house within
13 feet of the line, but might extend
a porch to within 3 feet, is violated
by the extension of a gable of the
second story of the house over a por-
tion of the 13 feet, notwithstanding
the erection of a porch beneath it;
and the other party is entitled to re-
cover at least nominal damages for
the breach. Skinner v. Allison, 155.
location.

Boundaries-practical

Where a lot was conveyed by a
deed conveying a frontage of 40 feet
and houses of 20 feet frontage were
built thereon, and one house and lot
described as 20 feet in width was
sold and conveyed to plaintiff, who
entered into possession, there was a
practical location of the property
conveyed, which established the
boundaries of the lot, although the
boundaries had not been established
20 years; and the plaintiff could not
recover a strip of land 2 inches wide
adjacent thereto, of which he did not
have visible possession, by showing
a mistake in the standard of meas-
urements by which his lot was locat-
ed, it being actually 20 feet in width.
Whan v. Steingotter, 162.

.263n

303

303

202

.206

.252n

.28

.28

.31

25n

262n

1882, chap. 410, § 1103.
1887, chap. 647 .
1890, chap. 500, § 2.
1890, chap. 566, § 65.
1890, chap. 566, § 66.
1892, chap. 685, § 3.
1892, chap. 686, § 110.
1892, chap. 686, § 111.
1892, chap. 686, § 112.
1892, chap. 686, § 116.

1892, chap. 687, §§ 15, 16.
1893, chap. 661..

196, 303

a. In General.

b. Agreement.

c. Acquiescence.
d. Estoppel.

N. Y. A. C.

.162-175

33

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SUMMONS.

nonresident

-

Service
enticing
into state-opportunity to leave.
The president of a foreign corpora
tion went to the city of New York
at the invitation of a creditor of the
corporation to confer with the latter
concerning a settlement of a personal
matter in dispute. While the two
were discussing the matter on their
first meeting, a process server
stepped up and served a summons on
such president in the creditor's ac-
tion on the claim against the corpo
ration. Held, that, even if the cir-
cumstances did not indicate that the
creditor had fraudulently enticed
such president into the state for the
purpose of obtaining service on the
corporation, the service should be set
aside, as the creditor was bound to
give such president a reasonable op-
portunity to leave the state after the
termination of the conference. Olean
St. Ry. Co. v. Fairmount Const. Co.,
404.

NOTE.-SERVICE OF PROCESS BY

ARTIFICE ON NONRESIDENT OF
TERRITORIAL JURISDICTION OF
COURT...
404-412

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Substituted service infants.
The provisions of laws of 1853, chap-
ter 511 (Code of Civ. Pro. §§ 435-
437), for substituted service on "any
defendant" residing in the state, who
cannot be found, or, if found, evades
service, applies to infants as well as
adults. Steinhardt v. Baker, 13.

-prevention of service by mother.
The act of a mother in preventing
service of process on her infant chil-
dren residing with her constitutes
an evasion of service and warrants
an order for substituted service cn
the infants. Steinhardt v. Baker,

13.

Dog tax-locality. Under Laws
1992, c. 686, §§ 110, 111, providing
that there shall be levied and col-
lected annually a certain tax on dogs,
and that, if payment of such tax can-
not be enforced, it shall be the duty
of the collector to kill the dog, such
tax is collectible in the town where
the dog is kept, and not necessarily
at the place of residence of the own-
er. Arnold v. Ford, 24.

-refusal to furnish description-
liability-extent. Under Law's 1892,
c. 686, § 112, providing that the own
er of every dog shall be liable to a
tax, and that, whenever required by
any assessor, he shall furnish a
written description of every dog
owned by him, and on neglect or re-
fusal to do so he shall forfeit $5, a
judgment for $80 against an owner
who possesses 16 dogs, for one re-
fusal to furnish such description,
was erroneous, since the penalty is $5