detain such animals until such charges shall be paid."-Kline v. Green, (Co. Ct.) 24 N. Y. S. 831.

Long Accounts.

Reference in case of, see "References," 1-3.

Maintenance.

See "Champerty and Maintenance."

Malice.

See "Libel and Slander," 3; "Malicious Prosecution," 1, 2.

MALICIOUS PROSECUTION. Malice-Probable cause.

1. Malice is established where it is shown that the defendant in an action for malicious prosecution made the criminal charge complained of to enforce payment of a debt. Toomey v. Delaware, L. & W. R. Co., (Super.

N. Y.) 24 N. Y. S. 108.

where the board fails to make provision for payment as therein provided, it is proper, after due notice, to issue a mandamus to compel satisfaction by the board.-People v. Board Sup'rs Fulton County, (Sup.) 24 N. Y. S. 397. Order to show cause.

3. Relator procured an order at special term directing the supervisors to convene and allow and provide for the payment of a judgment held by relator, or that they show cause at a special term named why such "order or mandamus" should not be made peremptory. Held, that the order was merely one to show cause why a mandamus should not be granted, and it need not comply with the statutory requirements applying to the alternative writ.People v. Board Sup'rs Fulton County, (Sup.) 24 N. Y. S. 397.

4. The issuance of such an order. to be followed on the return day, if it has not been complied with. and there is no dispute as to facts, by a peremptory mandamus, is a proper practice.-People v. Board Sup'rs Fulton County, (Sup.) 24 N. Y. S. 397.

5. If an application for a mandamus is made in the proper county, an order to show cause against its issuance may be granted by a judge at special term in any part of the state. provided the order is made returnable at a special term held in the district embracing the county wherein an issue of fact joined upon the alternative writ would be triable.-People v. Board Sup'rs Fulton County. (Sup.) 24 N. Y. S. 397. Maritime Liens.

2. In an action against a railroad company for causing plaintiff's arrest for attempting to ride on defendant's train with intent to avoid payment of his fare, defendant requested a charge that "if there was probable cause for making the complaint against the plaintiff, yet if, in making it, the conductor did not act with a malicious purpose, or with actual malice, towards the plaintiff, the defendant is entitled to a verdict.' Held, that it was a substantial compliance with the request to give the charge with the word "actual" stricken out, the jury State court jurisdiction. see "Admiralty." not having been instructed as to the distinction between legal and actual malice.-Toomey v. Delaware, L. & W. R. Co., (Super. N. Y.) 24 N. Y. S. 108.

Damages.

3. In an action for malicious prosecution for causing the arrest of plaintiff, an elderly man, on the ground that he was attempting to ride on defendant's railroad train with the intent of not paying his fare, and putting him on trial at a place where he could not procure bail, the court properly charged that if the jury found for plaintiff they must award_substantial damages.-Toomey v. Delaware, L. & W. R. Co., (Super. N. Y.) 24 N. Y. S. 108.

MANDAMUS.

MARRIAGE.

See, also, "Breach of Marriage Promise:" "Divorce;" "Dower;" "Husband and Wife."

Proof.

1. A marriage will not be presumed from the mere fact that the parties live together, where their relations were meretricious in their inception.-Ahlberg v. Ahlberg, (Super. N. Y.) 24 N. Y. S. 919.

Annulment-Insanity.

2. In New York, in order to maintain an action to annul a marriage on the ground that defendant is a lunatic, it must appear that such cause existed at the time of the marriage.

To compel construction of bridge, see "Bridges." Forman v. Forman, (Super. N. Y.) 24 N. Y.

Remedy by appeal.

1. The fact that a magistrate has a right to appeal to the board of supervisors from a refusal of the auditors of a town to allow his

claim for trying persons accused of crime is
not ground for refusing a mandamus to com-
pel such allowance.-People v. Board of Au-
ditors of Hamden, (Sup.) 24 N. Y. S. 974.
To county board of supervisors.

2. Under 2 Rev. St. pp. 474, 475, c. 8, §§ 102, 103, (4 Rev. St., 8th Ed., p. 2685,) providing for the payment by the county board of supervisors of a judgment against a town,

S. 917.

cable, and, where defendant neglected to insist
on his right to such fund, his lien would be
postponed to that of plaintiff, to the amount
that he might have realized from such fund.-
McConnell v. Muldoon, (Super. N. Y.) 24 N. Y.
S. 902.

MASTER AND SERVANT.

Negligence of independent contractor, see "Neg-
ligence," 8.

Master's liability to third persons.

1. Where refuse timber was, by direction
or assent of defendant railroad company's sec-
tion foreman, left on defendant's right of way,
by the side of a highway, so as to frighten
plaintiff's team in passing, defendant is respon-
sible for such acts of the sectionmen.-Tinker
v. New York, O. & W. R. Co., (Sup.) 24 N. Y.

S. 977.

2. The sectionmen of defendant railroad
company, in repairing a cattle guard, deposited
on the side of the highway refuse timber,
which frightened plaintiff's horses, thus caus-
ing personal injuries to plaintiff. Held, that
the question whether it was reasonably neces-
sary, in the regular course of their employ
ment, for defendant's servants to thus deposit
the timber by the roadside. was for the jury
Tinker v. New York, O. & W. R. Co., (Sup.)
24 N. Y. S. 977.

Negligence of master-Dangerous prem-
ises.

3. Defendant was constructing a building
near its railroad track, and, on a level with the
third floor, some posts, intended for the support
of the fourth story of the building, stood on plates

The ev-

and in discharging such duty is bound to make
use of proper instrumentalities in causing the
repairs to be made.-Ballard V. Hitchcock
Manuf'g Co., (Sup.) 24 N. Y. S. 1101.

6. On the question whether the officers
of a corporation knew of the defective con-
dition of a boiler which exploded, killing a
servant, it is proper to show information
given to them as to its condition and need of
repairs antecedent to the accident.-Ballard
v. Hitchcock Manuf'g Co., (Sup.) 24 N. Y. S.

1101.

7. In an action against a railroad company
explosion of his engine, it appeared that, about
to recover for the death of a fireman by the
a week before the accident, the water in the
boiler had been lowered so that the crown
sheet was not covered. The engine was after-
wards examined and tested to the maximum
pressure of about 145 pounds, but no defect
was discovered, and it was continued in use.
running without a train, under a pressure of
The explosion occurred while the engine was
110 pounds. Held insufficient to go to the jury
on the question of defendant's negligence.--
Racine v. New York Cent. & H. R. R. Co.,
(Sup.) 24 N. Y. S. 388.

framework in the employ of defendant, was in-
8. Plaintiff, while working on a timber
iured by the breaking of one of the timbers, and
claimed that the timber was defective, and
that the defect could have been discovered by
defendant. The evidence for defendant was
indefinite as to inspection of the framework,
and as to whether the timber had been before
mit the case to the jury.-Ernst v. Brown
used for the same purpose. Held proper to sub-
Hoisting & Conveying Co., (Super. Buff.) 24
N. Y. S. 359.

Fellow servants or vice princ pals.

12 or 15 feet distant from each other.
idence did not disclose how the posts were held 9. A chemist employed in a paper mill, who
in position. While plaintiff's intestate was has no control over the machinery or employes,
working on the railroad track, in defendant's is a fellow servant of a laborer employed in
employ, a post fell on him, and caused his the construction of an addition to the mill;
death. Held, that the question as to whether or and, where the latter is injured by the start-
not defendant had reason to apprehend danger ing of the machinery through the chemist's
to deceased was for the jury.-Mickee v. Wal- negligence, the master is not liable.-Wilson v.
ter A. Wood Mowing & Reaping Mach. Co., Hudson River Water-Power & Paper Co.,
(Sup.) 24 N. Y. S. 501.
(Sup.) 24 N. Y. S. 1072.

Defective appliances.

4. In an action against a railroad company
for injuries to an employe resulting from the
improper loading of a lumber car so that the
brakes would not work, there was no evidence
that defendant had promulgated any rule re-
quiring the inspection of cars after loading, or
had made provision for making such inspection,
except that the agent at the station where the
car was loaded said that he understood it to
be his duty to inspect each loaded car, and so
instructed the men under him. He did not,
however, inspect the car in question, and men
formerly under him said that he had never
given any instructions in that regard. Held,
that the question whether defendant had made
proper provision for the inspection of cars after
loading was for the jury.-Byrnes v. New York,
L. E. & W. R. Co., (Sup.) 24 N. Y. S. 517.

10. The master, by delegating the making
latter his representatives.-Ballard v. Hitch-
of repairs to machinery to others, makes the
cock Manufʼg Co., (Sup.) 24 N. Y. S. 1101.
Assumption of risks.

11. Plaintiff, while standing on a step be-
tween an engine and the fly wheel, around or
between which there was no guard, examining
the bearings, slipped on some oil thrown on the
steps by the machinery, and, falling into the
wheel, was injured.
He had been employed
about the engine 8 or 10 days. He was not
a mechanic or skilled workman, though he had
for a number of years worked round machinery
and engines, but never round an engine of this
kind. He was never cautioned about the em
ployment. Held, that it could not be said, as a
matter of law, that the danger was so apparent
to him that he had assumed the risk.-Slacer v.
Field Engineering Co., (Super. Buff.) 24 N. Y.
S. 550.

5. A master is bound to use reasonable
care to keep in suitable repair a boiler which
is in use in a room in which his servants are 12. Where an employe engaged in railroad
at work, so as to guard against its explosion,grading is killed by the falling of a timber from

the third floor of a building being constructed
by his employer near the railroad track, the
employer is not relieved from liability on the
ground that the danger was open to the obser-
vation of deceased, unless deceased was charge-
able with knowledge of the condition of the
building.-Mickee v. Walter A. Wood Mowing
& Reaping Mach. Co., (Sup.) 24 N. Y. S. 501.
13. Where an experienced workman, who
had been engaged for two months in the con-
struction of an elevated railroad, undertook,
when the structure was icy, to climb to the top
by means of the network of the columns, as he
had frequently done before, and as the workmen
usually climbed to the top thereof, and, while
thus attempting to reach the top, fell, and was
killed. his employer is not liable for his death
because of the absence of a ladder for the use
of the workmen, or because of the use of a
particular kind of brace which it is claimed
caused deceased to fall, but which was the kind
generally used on such structure, and was not
defective.-Cowbi!! v. Roberts, (Sup.) 24 N. Y.
S. 533.

14. Where an employe's work was on the
ground, and he undertook to climb to the top
of an elevated railroad structure, in building
which he was employed, for his own purposes,
before commencing work in the morning, his
employer is not liable. - Cowhill v. Roberts,
(Sup.) 24 N. Y. S. 533.

--

18. In an action for personal injuries to a
servant, caused by a defective machine, it ap
peared that the machine was known by all to
be defective, and that the foreman ordered the
engineer to fix it on the following Sunday.
Plaintiff worked on the machine all the Mou-
day following, when it appeared to be in good
order. The accident happened on the next day.
Plaintiff's regular occupation at the machine
was not a dangerous one, but on the day of
the accident he was ordered to take the place
of a man who was absent, and while so en-
gaged he was injured. Plaintiff testified that
he thought the machine had been repaired.
Held, that it was error to dismiss the complaint
on the ground of contributory negligence, as
plaintiff had a right to assume that the ma-
chine had been repaired on Sunday.—Schulz v.
Rohe, (Super. N. Y.) 24 N. Y. S. 118.

19. While plaintiff's intestate was at work
at the bottom of the elevator shaft in defend-
ant's factory, a barrel on an upper floor was
set in motion by the vibrations of the ma-
chinery, and, rolling under the bar, which was
the only guard to the shaft, fell on intestate.
Intestate knew that there was no door to the
shaft, and the jury found that if the bar had
been in place the barrel would not have fallen.
Intestate was the last man to enter the ele
vator on the upper floor, and he did not replace
the bar, as he was required to do by defend-
ant's rules. Held, that plaintiff's intestate was
guilty of contributory negligence.-Freeman v.
Glens Falls Paper-Mill Co., (Sup.) 24 N. Y. S.
403.

15. A brakeman who has been more than a
year in the employ of a railroad company as-
sumes the risk incident to the fact that some
of the guard rails in the company's switch
yards are not blocked, so as to prevent an em-
ploye's foot from being caught between_the
guard rail and the main rail. Appel v. Rail-
road Co., 19 N. E. 93, 111 N. Y. 550, followed. See "Damages."
-McNeil v. New York, L. E. & W. R. Co.,
(Sup.) 24 N. Y. S. 616.

16. Laws 1887, c. 462, § 8, provides that
the owners or lessees of buildings having ele-
vators must provide trap or automatic doors
to such elevators. Held, that where the ab-
sence of such a door was apparent and well
known to plaintiff's intestate, and he had used
the elevator constantly, and knew what to do
with the device that took the place of a door,
he must be considered to have assumed the
risks of the absence of the doors, and to have
waived compliance with the statute.-Freeman
v. Glens Falls Paper-Mill Co., (Sup.) 24 N. Y.
S. 403.

Contributory negligence.

Measure of Damages.

MECHANICS' LIENS.

Consent of landowner to improve-
ments-Liability of vendor.

1. Laws 1885, c. 342, § 1, provides that any
person performing labor or furnishing material
in the erection of a building, with the consent
of the owner, may have a lien on the building
and lot. Section 5 provides that, where the
owner has agreed to sell and convey the prem-
ises, he shall remain the "owner." within the
meaning of the lien law, till the deed has been
delivered and recorded. Held, that one who, by
agreement with the purchaser in an executory
contract to sell land, and with the consent of
17. In an action by a conductor of a train the vendor, erects a house on the land, has a
against a railroad company for injuries received lien on the house and lot as against the vendor.
in falling off the rear of his train while pass--Garland v. Van Rensselaer, (Sup.) 24 N. Y. S.
ing through it collecting tickets, the train being 781.
at the time in a tunnel, where from the inside For what obtained.
of the rear car the reflection made it appear
that there was another car behind, the negli-mechanic's lien to any person who shall per-
2. Under Laws 1885, c. 342, § 1, giving a
gence complained of being defendant's failure
to have a chain across the end of the rear plat-form labor in altering or repairing any "build-
a lien may be had on
form, a requested charge that, if plaintiff knew ing or building lot,'
Raven v. Smith,
there were but three cars in the train, he could building lots for grading.
not recover, was properly refused, as his mind (Sup.) 24 N. Y. S. 601.
might have been so occupied with his duties Proceedings to perfect.
that he could have for the moment forgotten
the number of cars, without being guilty of
contributory negligence. Fiero v. New York
Cent. & H. R. R. Co., (Sup.) 24 N. Y. S. 805.

---

3. Under Laws 1885, c. 342, (Mechanic's
Lien Law,) § 4, providing that a truthful state-
ment shall be made by the claimant of the
actual amount of work done, a lien is not in-

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.

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
Misc. Rep. 15.

Priority.

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-
Parties.

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.

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.

Milk Cans.

Penalty for using cans of another, see "Trade-
Marks and Trade-Names," 5.

MORTGAGES.

See, also, "Chattel Mortgages."

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
Rights," 1.

"Riparian

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
the scrivener, a parcel is omitted, the agree-
mortgage upon all his land, but, by mistake of
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.

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 before advances are made, but after the mort-
5. The recording of such prior mortgage
officer or agent of the company in procuring gage for advances was given, is not construct-
and communicating the information. Plaintiff
inquired as to one B., "grocer, 63 Grand Riverve notice to the holder of the latter mortgage.
Ave., Detroit, Mich." Defendant reported as
-Reynolds v. Webster, (Sup.) 24 N. Y. S.
1133.
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

Payment and release.

6. In an action to foreclose a mortgage it
appeared that the parties to the mortgage were
neighbors; that the mortgagee bought goods
regularly at the mortgagor s store; and that,
finally, his account amounted to as much as the
mortgage. Interest on the mortgage was cred-
ited on the mortgagor's books, with the items

To vacate attachment, see "Attachment," 7, 8. no by-law of the council shall be repealed or