validated by an honest mistake of the person
verifying it.-Ringle v. Wallis Iron Works,
(Sup.) 24 N. Y. S. 757, 4 Misc. Rep. 15.
no evidence was introduced in support of such
allegation. Held, that the evidence did not
show defendant guilty of such gross negligence
as would render him liable for the goods.-
Xiques v. Bradstreet Co., (Sup.) 24 N. Y. S.
48.
4. Defendant, who had a contract to do
certain work, half of the price to be paid
when the materials were shipped, and the bal-
ance on completion of the work, subcontracted
with plaintiffs for part of the work. Plain-
tiff was to be paid when defendant should
receive payment under its contract. Held, that
plaintiffs' claim was due on completion of the
subcontract, so as to entitle them to file their
lien then, though it was not payable until
defendant had fully performed. - Ringle v.
Wallis Iron Works, (Sup.) 24 N. Y. S. 757, 4 See, also, "Chattel Mortgages."
Penalty for using cans of another, see "Trade-
Marks and Trade-Names," 5.
5. A fund was held by S., to be paid out,
as directed by defendant, in erecting buildings
on defendant's land. Two orders drawn on the
fund were presented to S., but before they
were paid a sum exceeding the entire amount
of the fund was paid out on other orders, and
defendant thereupon gave S. a mortgage on the
land to secure past and future advances by
him. After the mortgage was recorded, F.
filed a notice of lien for materials, and later S.
paid the two orders theretofore presented.
Held, that these orders, being assignments of
the fund pro tanto at the time they were pre-
sented, should be deducted from the fund as
of that time, and therefore the whole amount
paid by S. in excess of the fund was advanced
by him before notice of F.'s lien, and to that
extent the mortgage was superior. Hirshfield
v. Ludwig, (Sup.) 24 N. Y. S. 634.
Action on bond given to release lien
6. In an action on a bond given by the
owner under section 24 of the lien law (Laws
1885. c. 342) to release the premises from liens,
conditioned for the payment of any judgment
that might be rendered against the premises in
any proceeding to enforce the lien, while the
bondsmen are not necessary parties, the pur-
chaser of the lot is a necessary party, for the
purpose of establishing the lien. Garland v.
Van Rensselaer, (Sup.) 24 N. Y. S. 781.
MERCANTILE AGENCIES.
Error in report-Liabilities.
Plaintiff and defendant entered into a
contract whereby defendant agreed to furnish
plaintiff the business standing of a certain num-
ber of men for one year. The contract provid-
ed that defendant should not be liable for any
loss caused by the neglect or other act of any
officer or agent of the company in procuring
and communicating the information. Plaintiff
inquired as to one B., "grocer, 63 Grand River
Ave., Detroit, Mich." Defendant reported as
to one B., "grocer and saloon, 573 Russell, cor.
Ohio, Detroit, Mich." The report contained a
provision that the correctness of the same was
not guarantied. Plaintiff, without further in-
quiry, filled an order for goods to 63 Grand
River avenue. The goods were never paid for,
and plaintiff sued defendant for their value, al-
leging that defendant did not make proper in-
quiries of its correspondents at Detroit; but
Agreement by person assuming mortgage to in-
demnify grantor, see "Contracts," 3.
Limitation of action to reform, see "Limitation
of Actions," 1.
Of land bounded by water, see "Riparian
Rights," 1.
Priorities, see "Mechanics' Liens," 5.
To indemnify cosurety, see "Indemnity," 8.
What constitutes.
1. Plaintiff conveyed to defendant land in-
cumbered to the amount of $6,000, for an
expressed consideration of $500, though noth-
ing was in fact paid. Defendant gave plain-
tiff back a written agreement that, whenever
plaintiff should pay him the amount of the
claims against the place, he would reconvey.
Held a mortgage, and not a gift on condition.-
Draper v. Draper, (Sup.) 24 N. Y. S. 1127.
Equitable mortgage.
2. Where a landowner agrees to give a
mortgage upon all his land, but, by mistake of
the scrivener, a parcel is omitted, the agree-'
ment will not be considered an equitable mort-
gage on all the land, so as to avoid the neces-
sity of a reformation of the mortgage deed.-
Sprague v. Cochran, (Sup.) 24 N. Y. S. 369.
Consideration.
3. A mortgage given in good faith for an
existing debt is valid as against a mortgage
subsequently given for value parted with at
the time. Korneman v. Fred Hower Brewing
Co., (City Ct. Brook.) 24 N. Y. S. 103, 4 Misc.
Rep. 299.
Lien-Priorities.
4. The lien of a mortgage given to secure
future advances is superior to the lien of a
prior unrecorded purchase-money mortgage as
to all sums advanced within the limits of the
amount stated in the subsequent mortgage,
without notice of such prior mortgage.-Reyn-
olds v. Webster, (Sup.) 24 N. Y. S. 1133.
5. The recording of such prior mortgage
before advances are made, but after the mort-
gage for advances was given, is not construct-
ive notice to the holder of the latter mortgage.
-Reynolds v. Webster, (Sup.) 24 N. Y. S.
1133.
Payment and release.
of goods sold to the mortgagee, and no demand
for principal or interest was made until 16
years after the mortgage was made, and when
both parties were dead. Held, that the mort-
gage was settled and paid. Taylor v. Bernard,
(Sup.) 24 NY. S. 525.
7. In an action commenced in 1891, by an
administratrix, to foreclose a mortgage for $330,
executed in 1876, to run 15 years without any
payment of either principal or interest, dece-
dent's brother testified that the mortgage was
given to secure a debt of $230 to him and $100
to decedent, that he had been fully paid, and
that decedent had admitted to him that he had
been paid. Four other witnesses testified to
similar statements by deceased. Held, that a
judgment for plaintiff was not supported by the
evidence.-Hall v. Thompson, (Sup.) 24 N. Y.
S. 86.
8. A partial failure of consideration is no
defense to an action to foreclose a mortgage,
when not pleaded as an offset or counterclaim.
-Revoir v. Barton, (Sup.) 24 N. Y. S. 985.
9. The owner of mortgaged land devised it
to his widow for life, remainder to his children,
with a proviso that, on the death of any child,
the share of the one dying should pass to his
children. Held, that the only necessary parties
to an action to foreclose the mortgage were the
widow and the children of testator living at the
commencement of the action, and it was not
necessary to join the children of a living child.
-Eschmann v. Alt, (Sup.) 24 N. Y. S. 763.
10. A plaintiff in a suit to foreclose a mort-
gage need not join as a party defendant a cor-
poration to which the land was transferred by
an unrecorded deed, of which company the
mortgagor was manager, and which knew of
the mortgage proceedings, and took no action
in relation thereto.-Hatfield v. Malcolm, (Sup.)
4. Laws 1883, c. 298, § 34, provides tha
To vacate attachment, see "Attachment," 7, 8. no by-law of the council shall be repealed or
MUNICIPAL CORPORATIONS.
See, also, "Highways."
Condemnation of, franchise of water company
by city, see "Water Companies."
Defective sidewalks, liability of abutting owner,
see "Negligence," 9.
Indemnity of city by contractors, see "Indem-
nity," 1-3.
Injunction against city council, see "Injunc-
tion," 3.
Ward supervisor, eligibility to office, see "Office
How validity of incorporation ques-
tioned.
6. Laws 1881, c. 488, § 1, provides that
any town, village, or city may, at its own ex-
pense, build a bridge over a canal within its
own limits, under the direction of the state
superintendent of public works. Section 2 pro-
vides that such superintendent shall have sole
power of appointing and removing the tenders
of hoist, lift, and swing bridges, but their
wages shall be paid by the town, village, or
city to the superintendent, to be paid by him
to them. Held, that the building of a bridge
by a city, under such law, is an acceptance of
its terms, whence arises a contract to pay the
wages of the bridge tenders, and they may sue
the city on its default in such payment. Fail-
ing v. City of Syracuse, (Co. Ct.) 24 N. Y. S.
705, 4 Misc. Rep. 50.
7. The charter of the village of Whitestone
(Laws 1869, c. 199, tit. 2, § 1) provides that
there shall be seven trustees of the village.
Section 8 provides that, in case of a vacancy
in the board, a majority of the remaining trus-
tees may call a special election to fill it, at
such time and place and in such manner as
they may prescribe. Held, that the statute is
mandatory, and mandamus will lie to compel
such trustees to call a special election to fill a
vacancy in the board. - People v. Board of
Trustees of Whitestone, (Sup.) 24 N. Y. S. 532.
8. Laws 1879, с. 145, § 2, provided that the
commissioners of excise in cities should hold
their office for three years, and until others
should be appointed in their place. Laws 1892,
c. 401, § 2, approved April 30, 1892, repealing
that act, provided that the term of office of
every commissioner of excise then in of-
fice should be the term for which he was
elected or appointed, and the term of every
commissioner appointed before the end of the
term of the mayor then in office should be
for the term then provided by law. Section
5 of this chapter provided that a commission-
er's term of office should expire with the term
of the mayor who appointed him. Section 45
provided that the repeal of a law by that act
should not affect rights already accrued under
the repealed act. Held, that persons appointed
by the mayor April 4, 1892, such appointment
to take effect May 1st, would hold office for
three years, irrespective of the fact that they
qualified under
subsequent appointment
made by the same mayor in July, and that
others were appointed to fill such office by
the succeeding mayor at the beginning of the
next year.-People v. Lahr, (Sup.) 24 N. Y. S.
1020.
Officers and agents-Authority to incur
expense in litigation.
10. City aldermen, who have been convicted
of contempt in disobeying an injunction, which
conviction stands unreversed, cannot, by reso-
lution, make the city liable for the expense of
defending the contempt proceedings.-West v.
City of Utica, (Sup.) 24 N. Y. S. 1075.
Implied contracts.
11. Where water is supplied to a village
which has power to make contracts for water
for public use, but no contract was in fact
made, an agreement to pay will be implied.--
Port Jervis Water-Works Co. v. Village of
Port Jervis, (Sup.) 24 N. Y. S. 497.
12. The fact that a sewer system was con-
structed by water commissioners, free from any
control by the city, does not exempt the city
from liability for an accident happening 15
years thereafter, as a result of the cover of a
sewer basin in the street having become worn
and out of repair from protracted use. Cassidy
v. City of Poughkeepsie, (Sup.) 24 N. Y. S. 523.
13. In an action against a village for in-
juries from a fall on an icy sidewalk, it ap-
peared that, during a month prior to the in-
jury, snow accumulated on the walk while
the temperature was such that the same
might have been removed, and that two or
three days before the injury the walk was
covered with sleet, and so remained while the
temperature was constantly below the freez-
ing point. Held, that plaintiff could not re-
cover without showing that the injury resulted
from the previous accumulation of snow, as
defendant would not be liable for the existence
of the sleet on the walk while the tempera-
ture was such that it could not be removed.-
Durr v. Village of Green Island, (Sup.) 24 N.
Y. S. 1014.
for the jury.-Dale v. City of Syracuse, (Sup.) | county from submitting to the court an action
24 N. Y. S. 968.
Deposit of sewage in private pond.
17. Where the sewage of a village is col-
lected and emptied through its sewers and gut-
ters into plaintiff's pond, polluting the water,
and causing a large deposit of offensive mat-
ter, plaintiff is entitled to a perpetual injunc-
tion, and to at least nominal damages.-
Schriver v. Village of Johnstown, (Sup.) 24
N. Y. S. 1083.
Actions against-Conditions precedent.
18. Laws 1884, c. 308, provides that the
officers of a village created by special charter
shall have the same "powers" as are prescribed
in any general act for the incorporation of
villages, except as such special charter may be
in conflict with the general acts. Held, that
Laws 1889, providing that no action
shall be maintained against a village for in-
juries caused by its negligence, unless notice
of the time and place at which such injuries
were received shall have been given the village
within one year after the injury, applies to a
village created by special charter, though the
latter required no such notice.-Freligh v. Di-
rectors of Saugerties, (Sup.) 24 N. Y. S. 182.
19. It is not a compliance with the statute
requiring such notice, where it is served on
defendant's officers the same day, though be
fore, the action for the injury, is commenced,
since the purpose of the law is to give such
officers an opportunity to investigate the facts
and settle the claim, if just, without litigation.
-Freligh v. Directors of Saugerties, (Sup.) 24
N. Y. S. 182.
by the town against the county on an agreed
ratement of facts because such statement
does not contain all the facts material to the
county's defense, in the absence of fraud and
collusion on the part of defendants, unless the
acts of the board of supervisors in the matter
were beyond their authority, and void.-New
York Cent. & H. R. R. Co. v. Maine, (Sup.)
24 N. Y. S. 962.
Illegal disbursements.
24. Under Code Civil Proc. § 1925, provid-
ing that a resident taxpayer may bring an
action "to obtain a judgment preventing waste
of or injury to the estate, funds or other prop-
erty" of the city, such person may obtain
an injunction to restrain aldermen and other
city officers from illegally paying out city funds
for the defense of some of their number in
contempt proceedings, in pursuance of a pre-
vious resolution authorizing the employment
of counsel for the purpose.-West v. City of
Utica, (Sup.) 24 N. Y. S. 1075.
What officers to defend actions.
25. Laws 1866, с. 220, provides for the in-
corporation of the village of Saratoga Springs.
vesting in the board of trustees power of suing
and defending "in all courts and places what-
soever." Laws 1890, c. 470, provides for the
appointment of a board of street commissioners
to exercise all the powers in relation to the pub-
lic streets of said village theretofore vested in
the trustees. By Laws 1884, c. 308. the trus-
tees of villages created by special charter are
given the same powers as are prescribed in
any general act for the incorporation of vil-
lages; and by Laws 1870, c. 291, tit. 3, $3,
subd. 5, boards of trustees are authorized "to
employ an attorney or attorneys for the trans-
action of any matter requiring legal skill."
Held that, in proceedings for the appointment
of commissioners to appraise the damages to
property in said village by a change in the
grade of a street, under Laws 1883, с. 113, as
amended by Laws 1884, c. 281, providing that
notice thereof shall be served on the person
or persons having complete authority to make
such change, the board of trustees alone is au-
thorized to defend therein, and the attorneys
employed by it may act without the presence or
consent of the board of street commissioners.-
Collins v. Village of Saratoga Springs, (Sup.)
24 N. Y. S. 234.
Mutual Benefit Insurance.
See "Insurance," 14, 15.
NAVIGABLE WATERS.
Control of lands under navigable wa-
ters.
The state holds title to the land under
navigable waters as trustee for the public, and
has no power to grant to a railroad company a
strip of land adjoining the shore of a river, so
as to cut off a riparian owner's right of access
to the waters thereof. 23 N. Y. S. 927, af-
firmed.- Saunders v. New York Cent. & H. В.
R. Co., (Sup.) 24 N. Y. S. 659.
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1. In an action for damages caused by a
dam washing away, where there was no waste
weir to the dam, or flagging over the dirt fill-
ing between the walls of the dam, and an
expert testified that it was not safe to build
a dam without a waste weir, and a witness
called by defendant testified that he would not
build such a dam without a waste weir, the
question of defendant's negligence in its con-
struction was properly for the jury. Cottrell
v. Marshall Infirmary, (Sup.) 24 N. Y. S. 381.
2. The owner of a dam is not liable for
damages caused by its washing away by a
phenomenal flood, that no one could expect.-
Cottrell v. Marshall Infirmary, (Sup.) 24 Ν. Υ.
S. 381.
3. Where a railroad company delivers a car
load of lumber to the owner, it owes no duty
to an employe of his contractor to provide
against the danger of accident by the falling
of the lumber while such employe is engaged,
by direction of his employer, in unloading it
from the car. Hulse v. New York, O. & W. R.
Co., (Sup.) 24 N. Y. S. 512.
4. A railroad company is not guilty of neg-
ligence because a car load of lumber is not so
piled on the car in loading that it will not fall
over at the sides while being unloaded, on re-
moval of the stakes and cross-ties which held
it securely while being transported.-Hulse v.
New York, O. & W. R. Co., (Sup.) 24 N. Y. S.
512.
5. In an action for personal injuries result-
ing from plaintiff's team becoming frightened
at refuse timber left by defendant railroad
company on its right of way, by the side of
the highway, the question whether the timber
thus situated was calculated to frighten horses
of ordinary gentleness is for the jury. Tinker
v. New York, O. & W. R. Co., (Sup.) 24 Ν. Υ.
S. 977.
6. In an action against a railroad com-
pany for injuries to plaintiff from slipping on
ice which had accumulated on the sidewalk
from water dripping from the spout of defend-
ant's water tank, it was for the jury to say
whether defendant was negligent, and whether
its negligence caused or contributed to plain-
tiff's injury.-Thuringer v. New York Cent.
& H. R. R. Co., (Sup.) 24 N. Y. S. 1087.
the driver was talking with a passenger, and
he did not know that he had run over any one
until the conductor pointed to the body lying
on the track. There was no obstruction of the
view of the track at the time of the accident.
Held, that the evidence of negligence on the
part of the driver was sufficient to justify the
submission of that question to the jury.-Mason
v. Atlantic Ave. R. Co., (City Ct. Brook.) 24
N. Y. S. 139, 4 Misc. Rep. 291.
Liability for acts of independent con-
8. Where the owner of premises, whose
duty it is to keep the same in repair, contracts
with a third person to make necessary repairs,
and he fails to make them, the
is liable for injuries resulting from the de-
fective condition of the premises, though such
third person was an independent contractor.-
Brennan v. Ellis, (Sup.) 24 N. Y. S. 426.
Defective sidewalks-Liability of abut-
ting owners.
9. In an action against a railroad com-
pany for injuries to plaintiff from slipping on
ice which had accumulated on the sidewalk
from water dripping from the spout of defend-
ant's water tank, defendant could not defeat
a recovery on the ground that, the obstruction
being on the sidewalk, the city only was liable.
-Thuringer v. New York Cent. & H. R. R. Co.,
(Sup.) 24 N. Y. S. 1087.
Contributory negligence.
10. Where persons engaged in unloading a
car of lumber remove the stakes and cross-
ties which support the piles of lumber on the
car, so that it falls, and kills one of them, de-
ceased is guilty of contributory negligence.-
Hulse v. New York, O. & W. R. Co., (Sup.) 24
N. Y. S. 512.
11. In an action for personal injuries, where
the evidence on the question of contributory
negligence is such that reasonable men might
reach adverse conclusions, the question is one
for a jury.-Erickson v. Twenty-Third St. Ry.
Co., (Sun.) 24 N. Y. S. 603.
12. Whether a woman injured by falling
on ice negligently allowed to accumulate on
the sidewalk by an adjacent owner was neg-
ligent in not discovering the ice is a question
for the jury. -Thuringer v. New York Cent. &
H. R. R. Co., (Sup.) 24 N. Y. S. 1087.
NEGOTIABLE INSTRUMENTS.
Legality of consideration.
1. A note given to a woman with whom the
maker had sustained illicit relations, and by
whom he had had a son, not given for the pur-
pose of continuing the relations, is not bad, as
given for an immoral purpose.-People v. Hayes,
(Sup.) 24 N. Y. S. 194.
Accommodation paper.
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