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— Architect's building plans — after they have been filed with a building department and the architect has been paid for 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 specifications 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 . EISLE..........
Injury of a servant through negligence. See NEGLIGENCE.
MECHANIC'S LIEN: See LIEN.
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 v. MCARDLE............. See EQUITY.
Real property fraudulently purchased with 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 v. POLLEY.
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 recover such money from the third person. See CURTIS v. ALBEE...
Contract void under the Statute of Frauds — remedy where it has been partially performed.
MORTGAGE - Purchase-money mortgage· it has not priority over a subse- quent mortgage, first recorded, given to a creditor who, in consideration thereof, extends the time of payment 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
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.
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.
6. When the mortgage is not void as to a 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- under-machinery placed in a mill property by a devisee thereof to replace other machinery therein held to be realty.
RICHMOND V. FREEMAN'S NATIONAL BANK......
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...
MOTION AND ORDER - Continued.
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 v. GAVETTE...
Pleading-striking out allegations therefrom—not encouraged—not done, where they are averments of evidence it is discretionary.
- Pleading — matter not stricken out as irrelevant or redundant, where any reasonable doubt exists as to its being so.
See JOHN CHURCH Co. v. PARKINSON. Motion for a new trial.
MUNICIPAL CORPORATION - Assessment 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 now 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.
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 has 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...
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, a written order made by the engineer pursuant to this provision of the contract, directing the contractor to sheath a 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 compensation in case he does so. Id.
MUNICIPAL CORPORATION- Continued.
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 the 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.
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....
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.....
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...
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.....
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.
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. Erection of telephone poles in a street- an injunction pendente lite to prevent it refused. WEEKS. NEW YORK & N. J. TELEPHONE Co.......
A city is not obliged to establish rules respecting the work to be done in its water department. SULLIVAN 2. CITY OF ROME.....
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 — Bursting of a gas receiving tank — when both the gas com pany and the contractor are liable to a person in ured 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
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 tending to show that by direction of the chief engineer of the gas 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 thereof 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 negligence 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.....
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