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MALICIOUS PROSECUTION - Continued.
ciously and without probable cause, the plaintiff is not entitled to introduce
such articles in evidence, as the effect thereof is to enable the plaintiff to
pl. ce his version of the transaction before the jury witohut subjecting
himself to the test of cross-examination. Id.

3. — Proof as to the pecuniary condition of the defendant.] In such an
action it is improper to allow the plaintiff, over the defendant's objection,
to make proof as to the pecuniary circumstances of the defendant. Id.
MASTER AND SERVANT- Architects building plans after they have
been filed with a building department and the architect has been paid før his
services he has no further property rights therein.] An architect who prepares
for a client plans and specifications for the construction of a house, files such
plans and specitications with the building department of the city in which
the house is to be constructed, superintends the construction of the house
and receives from his client compensation for his services, has no further
property in the plans, and if such plans and specifications are, without his
consent, used in the construction of another house, he is not entitled to
recover the value of the plans from the owner of such other house.
WRIGHT 0. EISLE....

356
Injury of a servant through negligence.

See NEGLIGENCE.
MECHANIC'S LIEN:

See LIEN.
MEMORANDUM · Admissibility of, in evidence.

See EVIDENCE.
In writing required by Statute of Frauds.

See STATUTE OF FRAUDS.
MILEAGE BOOK:

See RAILROAD.
MISTAKE — Action to have a bill of sale absolute in form adjudged to
have been given as security only - what proof is required to sustain it.
fraud or mistake need not be established. DONNELLY 0. MCARDLE.

33
See Equity.
MONEY RECEIVED Real property fraudulently purchased wi'h trust
funds and conveyed by the trustee - money received by the trustee in bankruptcy
of such trustee on the compromise of a creditor's suit brought for its recovery -
the money is not recoverable by the beneficiary of the trust fund.
See WELCH 0. POLLEY.

260
Money collected by an attorney on a claim and paid over by him to a
third person, to whom the client had assigned the claim - the client cannot
recotes such money from the third person.
See CURTIS V. ALBEE.

145
Contract vid under the Statute of Frauds remedy where it has been
partially periormed.
See SEYMOUR O. WARREN,

403
MORTGAGE — Purchase-money mortgage -- it has not priority over a subse-
quent mortgage, first recorded, given to a creditor who, in consideration thereof,
erlends the time of payınent of a pre-existing debt.] 1. A purchase-money
mortgage, given upon the sale of real estate, is a prior lien to a mortgage sub-
sequently executed by the grantee for the sole purpose of securing an
antecedent debt, although the last-mentioned mortgage is recorded prior to
the purchase-money mortgage.

In such a case the holder of the mortgage given to secure the antecedent
debt is not a purchaser for a valuable consideration within the meaning of
the Recording Act (Laws of 1896, chap. 547. $ 241).

Where, however, the mortgage given to the creditor was not given for the
sole purpose of securing the antecedent indebtedness, but in consideration

App. Div.-Vol. LXXXVI. 43

MORTGAGE - Continued.

of an express, unequivocal agreement on the part of the creditor to extend
for one month the time for the payment of such indebtedness, the holder of
such mortgage is a subsequent purchaser for a valuable consideration within
the meaning of the Recording Act, and his mortgage constitutes a lien prior
to that of the purchase-money mortgage. O'Brien v. FleckenSTEIN. (No. 3.) 140

2. Such priority is not affected by the institution of bankruptcy pro-
ceedings against the mortgagor within four months.] The fact that the mort-
gagor was insolvent at the time he executed the mortgage to the creditor,
and that he was adjudged a bankrupt within four months after executing
such mortgage and that subdivision f of section 67 of the Bankruptcy Act
provides that liens obtained against an insolvent person within four months
prior to the time when he is declared a bankrupt shall be void, does not
affect the creditor's right to priority, it appearing that none of the parties
knew that the mortgagor was insolvent at the time he executed the mort-
gage and there being no suggestion that the mortgage was given in contem-
plation of bankruptcy. Id.

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3. Chattel mortgage — provision authorizing the 'sale of the mortgaged
chattels by the mortgagor and the use of the proceeds to pay the debt or buy other
goods ] A chattel mortgage authorizing the mortgagor to sell goods covered
by the mortgage and to use the proceeds of the sale to pay the mortgage
indebtedness or to purchase goods to replace those sold, the goods so pur-
chased to be subject to the lien of the mortgage, and which expressly nega-
tives the right of the mortgagor to use the proceeds of the sale for his own
benefit, is not, as a matter of law, fraudulent and void as to the mortgagor's
creditors. SKILTON v. CODINGTON........

4.

Effect of a failure to file the mortgage when it is not accompanied by a
change of possession.] A chattel mortgage, not filed until five years after its
execution, is only void as to those creditors of the mortgagor whose debts
existed before the chattel mortgage was filed. The instrument is valid from
the date of its filing as against the creditors of the mortgagor whose claims
accrued subsequent to such filing.

A chattel mortgage, not accompanied by an actual and immediate change
of possession of the goods covered thereby, or not filed as required by the
statute, or one allowing the mortgagor to deal with the mortgaged property,
is valid as between the parties and as against creditors at large. Id.

5. What creditor can attack the mortgage.] A creditor of the mortgagor
cannot successfully attack or resist a mortgage affected by these vices until
he has obtained, by judgment and execution or other process, a specific
lien and claim against the property mortgaged. Id.

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6. - When the mortgage is not void as to trustee in bankruptcy of the
mortgagor.] Subdivisions a and b of section 67 of the National Bankruptcy
Act and section 70 thereof, do not confer on the trustee in bankruptcy of a
person who has executed a chattel mortgage affected by the vices before
mentioned, any greater right to attack the mortgage than is possessed by
the creditors whom he represents, and where he does not represent any cred-
itor, who, at the time of the adjudication in bankruptcy, had obtained a
judgment or other specific lien upon the mortgaged property, the trustee's
attack must fail. Id.

Proceedings for the sale of a decedent's real property for the pay-
ment of debts-a mortgage given by a devisee pending such proceedings
to which he, but not the mortgagee, is a party is cut off by a sale there-
der-machinery placed in a mill property by a devisee thereof to replace
other machinery therein held to be realty.

RICHMOND . FREEMAN'S NATIONAL BANK............

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MOTION AND ORDER — A complaint containing two causes of action, to
each of which a counterclaim is interposed—an order setting aside a verdict as
to one cause of action and granting a new trial involves a new trial of both
causes of action and of the counterclaim right thereto, not waived by not
moving to resettle an improper order.

See VERNON v. O'BANNON Co.....

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166

152

374

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MOTION AND ORDER - Continued.

PAGE.
Order extent of relief granted when the order is made on default, and
where it is made after a hearing of both parties defect in an affidavit of
merits not available for the first time upon appeal.
See HEADDINGS 0. GAVETTE...

592

Pleading striking out allegations therefrom not encouraged not
done, where they are averments of evidence - it is discretionary.
See Vogt o. Vogt....

437
Pleading matter not stricken out as irrelevant or redundant, where
any reasonable doubt exists as to its being 80.
See JOHN CHURCH Co. v. PARKINSON.

163
Motion for a new trial.

See NEW TRIAL.
MUNICIPAL CORPORATION - A88e8sment for a local improvement in
Rochester - it may be enforced against the deceased owner's personal estate
although the real property assessed has been sold therefor and bid in by the city,
the title not having become absolute.] 1. Under section 206 of the charter of
the city of Rochester (Laws of 1880, chap. 14), which provides that an assess-
ment for a local improvement creates a personal obligation or liability
against the owner of the lot or parcel of land assessed to pay the city of
Rochester the amount of such assessment, for the collection of which,
together with interest, costs and expenses, said city may maintain, in its
own name, an action in any court of competent jurisdiction, in addition to
any other remedy pow provided by law for the collection thereof," where an
owner of a parcel of real property in that city dies after an assessment,
payable in annual installments, for a local improvement, has been levied
against the property, the unpaid installments coming due either before
or after his death may be enforced against his personal estate and the city
is not limited to its remedy against the land.

The fact that the city has sold the property for the unpaid installments
which became due before the owner's death, and has bid it in upon the
sale, does not, where the title acquired by the city has not become absolute,
preclude it from seeking to enforce payment of such installments and of the
installments which have not yet become due from the personal estate of the
deceased owner.
MATTER OF ELSNER......

207
2. City contract appeal, from the engineer's decision, to other city offi-
cers what delay in the action of such other officers justifies the contractor in
bringing suit.] Where a city contract provides that in case of a dispute
between the contractor and the engineer in charge of the work as to the
amount due to the contractor, the matter may be referred to the superintend-
ent of the water works of the city, whose decision shall be final and conclu-
sive, subject to revision by the board of water commissioners of the city,
the failure of the board of water commissioners to act on the decision of the
superintendent of the water works for more than three months after the
matter bas been referred to such board, constitutes an unreasonable delay
and justifies the contractor in bringing an action to recover the amount
which he claims to be due him under the contract.
JOHNSON v. CITY OF ALBANY..

567
3. Written order for extra work.] When the contract contains a pro-
vision that no extra work shall be paid for unless such work be done upon
the written order of the engineer, å written order made by the engineer
pursuant to this provision of the contract, directing the contractor to sheath
å trench, entitles the contractor to recover extra compensation for additional
excavation and concreting which the sheathing of the trench rendered
necessary. Id.

4. Alterations in the work when the contractor cannot recover therefor.)
Where the contract provides that the contractor shall “perform all the work
contracted for as specified in this contract, but any alteration in the form,
dimensions, location or manner of doing the work ordered in writing by the
engineer, shall be made as directed,” the contractor, in the absence of a
written order from the engincer, is not bound to alter the manner of doing
the work nor can he recover extra compensution in case he does so. Id.

MUNICIPAL CORPORATION - Continued.

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5. Compensation for damages suffered without the contractor's fault.]
The contractor is not entitled to recover extra compensation for repairing
damages resulting from the excavation being flooded, without fault on his
part, by a freshet in the Hudson river, where the contract contained a pro-
vision requiring th contractor to keep the excavation clear of water from
whatever source, and also required the contractor to repair, at his cost, any
damages which the materials or work might sustain from any source or
cause whatever before its acceptance. Id.

6.

Waiver of a provision that claims for extra work shall not be allowed
unless filed.] Quare, where the contract contains a provision that no claim
for extra work shall be allowed unless such claim be filed within a certain
time after the extra work is performed, whether, if the engineer specifically
allows a claim for extra work which has not been filed as required by the
contract, the city will be deemed to have waived the provision as to filing.
Id.

New York city magistrate-jurisdiction of disorderly conduct-
legislative power to make certain conduct an offense in New York city but
not elsewhere. PEOPLE EX REL. SMITH V. VAN DE CARR....

See CRIME.

PAGE.

Tax sale of property in the city of Rochester - meaning of words
"subject, however, to all the claims which the people of this State may have
thereon for taxes." CITY OF ROCHESTER v. KAPELL............

See TAX.

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New York city - evidence insufficient to establish desertion of a wife
by her husband - proof that the wife is likely to become a public charge.
PEOPLE v. CROUSE....
See HUSBAND AND WIFE.

Change of a railroad grade crossing the remedy of a property
owner injured thereby is by action and not by proceedings under the Vil-
lage Law. MATTER OF TORGE....

See RAILROAD.

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Election the appointment of election officials by the mayor of a
city cannot be reviewed by a justice under section 11 of the Primary Election
Law. MATTER OF MCSHANE v. MURPHY.
See ELECTION.

--

A city is not obliged to establish rules respecting the work to be done
in its water department. SULLIVAN v. CITY OF ROME...

See NEGLIGENCE.

Application of civil service rules to officers and employees of.
See CIVIL SERVICE.

- Injury by a railroad to one using a city street.
See NEGLIGENCE.

Negligence what neglect of a city to keep a sidewalk free from ice
requires the submission of a case to the jury. KLAUS v. CITY of Buffalo.. 221
See NEGLIGENCE.

224

Erection of telephone poles in a street- an injunction pendente lite to
prevent it refused. WEEKS v. NEW YORK & N. J. TELEPHONE Co.......
See EQUITY.

257

352

MUTUAL AID ASSOCIATION:

See INSURANCE.

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NEGLIGENCE- Bursting of a gas receiving tank - when both the gas com-
pany and the contractor are liable to a person inured thereby - where a com
plaint is framed and a trial is conducted on the theory of negligence the action
will not, on appeal, be considered as based on trespass-doctrine of res ipsa
loquitur-error in charge as to liability for the injury.] 1. In an action
brought against the Consolidated Gas Company, William J. Logan and
Frank J. Logan, to recover damages for personal injuries sustained, in con-
sequence of their alleged negligence, by the plaintiff, it appeared that the
defendant gas company, through its engineering department, prepared plans

211

566

107

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NEGLIGENCE - Continued.
for the erection, on premises owned or leased by it, of a gas holder, guide
frame and steel tank; that it contracted with the defendants Logan for the
construction thereof pursuant to the plans and specifications and under the
direction of the chief engineer of the owner.”

The specifications provided that the tank should not "be accepted until it
has been proven watertight, after being filled with water to its full height
and has so remained for thirty days.

The tank was one hundred and seventy-eight feet in diameter and was
forty two deep, twelve feet thereof being below the ground. Its capacity
was 1,000,000 cubic feet of water weighing over 60,000,000 pounds.

Upon the completion of the tank the gas company, at the request of the
defendant contractors, filled the tank with water for the purposes of the
test. A few hours after the process of filling the tank had been completed,
it burst, and the plaintiff, who was employed in an adjacent factory, was
injured by the rush of water.

The material of which the tank was constructed was suitable for the pur-
pose, and if the plans and specifications had been followed, the tank would
have been able to withstand three times the pressure under which it collapsed.

The specifications for the tank provided that the rivet holes in the plates
constituting the lower portion of the tank should be drilled. The plaintiff
gave evidence tendinų to show that by direction of the chief engineer of the
gns company these holes were punched instead of being drilled; that on
account of the thickness of the plates in question it was improper to punch
the rivet holes therein; that the effect thtreof was to diminish the resisting
power of the tank to such an extent that it was unable to withstand the
weight of the water,

There was no evidence of any external violence to the tank, nor of any
fact tending to account for the accident, except unskillful and improper
construction.

Upon an appeal from a judgment in favor of the plaintiff against all
of the defendants,

Held, that, as the complaint had been framed and the action tried upon
the theory of negligence, the question whether the defendants were liable
upon the theory of a trespass should not be determined;

That the evidence was sufficient to justify a finding that both the gas com-
pany and the defendant contractors were guilty of negligence;

That the fact that the gas company had committed the work of construct-
ing the tank to reputable and independent contractors did not, under the
circumstances disclosed by the evidence, relieve the gas company from
liability;

That the fact that the contractors had built the tank in accordance with
the specifications of the gas company, as modified by the latter's chief
engineer, did not relieve them from liability as they had held themselves out
to be competent builders of work of such character and would, therefore, be
presumed to know the effect of punching the rivet holes instead of drilling
them;

That the court properly charged the jury that the doctrine of res ipsa
loquitur was applicable to both the gas company and the contractors; that it
was applicable to the gas company on account of its ownership, its posses-
sion of the premises and its supervision of the work, and that it was
applicable to the contractors because they constructed the tank, participated
in filling it with water and were in charge of the work;

That the court erred in charging, “The jury may take into consideration
the fact that experience teaches that water tanks, if properly constructed, do
not break without adequate cause. If the jury find that there is no evidence
of external violence or other adequate cause, the fair presumption is that
the breaking of the tank occurs through some serious defect in its condition,
which could scarcely have escaped the observation of the persons in control
thereof, and the jury may infer negligence on their part," as the effect of
the charge was to instruct the jury that the presumption of neoligence on
the part of the defendants was conclusive notwithstanding the evidence
offered by the defendants to show proper workmanship and inspection; that
the charge was also erroneous in its statement that the defect “could
scarcely have escaped the observation of the persons in control thereof."

DUERR v. CONSOLIDATED Gas Co.....

14

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