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, c. 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 Section 45 provided that the repeal of a law by that act should not affect rights already accrued under the repealed act.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 a 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.
9. A notice by the aqueduct commissioners to an inspector of masonry, that, owing to lack of work, you are hereby suspended from No- vember 16th, without pay, until such time as your services may be required," shows an in- tention to dismiss, and not merely to suspend, notwithstanding three months later the commis- sioners, evidently as a precautionary measure, passed a resolution that the inspector's services were no longer required, and that he was there- fore dismissed. Barrett, J., dissenting. Greg- ory v. Mayor, etc., 21 N. E. 119, 113 N. Y. 416; Emmitt v. City of New York, 28 N. E. 19, 128 N. Y. 117, distinguished.-Kelly v. City of New York, (Sup.) 24 N. Y. S. 1.
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 Ñ. 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. Defective streets.
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 and out of repair from protracted use.-Cassidy sewer basin in the street having become worn 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 ing point. Held, that plaintiff could not re- temperature was constantly below the freez- 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.- Y. S. 1014. Durr v. Village of Green Island, (Sup.) 24 N.
injuries caused by a defect in a cross walk 14. In an action against a city for personal left by a street-railway company in building its track, it is no defense that 30 days previous completing its work, where such city was not to the injury such company was enjoined from a party to the injunction suit, and in its answer admits that at the time of the injury it was its duty to keep the walk in repair.-Dale v. City of Syracuse, (Sup.) 24 N. Y. S. 968. injuries caused by a defect in a cross walk, 15. In an action against a city for personal the question as to whether the fall of plaintiff was caused by the hole in the walk or by the slippery condition of the walk, arising from a fall of snow during the previous night, for which condition defendant is not liable, was properly submitted to the jury under appro- priate instructions.-Dale v. City of Syracuse, (Sup.) 24 N. Y. S. 968.
Negligence of traveler.
16. In an action against a city for personal injuries caused by a defect in a cross walk, plaintiff testified that at the time of the ac- cident his attention was attracted from the walk, and that he did not notice the hole in the walk, with which he was familiar. Held, that the question as to whether or not plain- tiff was guilty of contributory negligence was
for the jury-Dale v. City of Syracuse, (Sup.) 24 N. Y. S. 968.
| county from submitting to the court an action by the town against the county on an agreed ratement of facts because such statement Deposit of sewage in private pond. does not contain all the facts material to the 17. Where the sewage of a village is col-county's defense, in the absence of fraud and lected and emptied through its sewers and gut- collusion on the part of defendants, unless the ters into plaintiff's pond, polluting the water, acts of the board of supervisors in the matter and causing a large deposit of offensive mat- ter, plaintiff is entitled to a perpetual injunc- York Cent. & H. R. R. Co. v. Maine, (Sup.) were beyond their authority, and void.-New tion, and to at least nominal damages.- 24 N. Y. S. 962. 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, c. 440, 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.
20. A notice which merely states that plain- tiff has a claim against the village for the loss of a wagon and for injuries to his person and property by reason of his coming in contact with a pole which stands in P. street, is in- sufficient, in that it does not specify the time nor the particular place where the injury oc- curred, as provided by Laws 1889, c. 440.- Freligh v. Directors of Saugerties, (Sup.) 24 N. Y. S. 182.
Complaint in action against.
21. A complaint in an action against a town, for injuries caused by defendant's negligence in failing to keep a bridge in repair, must aver that the claim was served on the supervisors of the town within 6 months after the cause
of action accrued, and that 15 days elapsed after the claim was so presented before the ac- tion was commenced, as required by Laws 1890, c. 568, § 16. Olmstead v. Town of Pound Ridge, (Sup.) 24 N. Y. S. 615.
22. Objection to the complaint, for failure to show that notice of claim as required by statute was given, may be raised at any stage of the action.-Olmstead v. Town of Pound Ridge, (Sup.) 24 N. Y. S. 615.
Action by taxpayer to restrain acts of officers.
Illegal disbursements.
24. Under Code Civil Proc. § 1925, provid- action "to obtain a judgment preventing waste ing that a resident taxpayer may bring an of or injury to the estate, funds or other prop- erty" of the city, such person may obtain city officers from illegally paying out city funds an injunction to restrain aldermen and other for the defense of some of their number in contempt proceedings, in pursuance of a pre- of counsel for the purpose.-West v. City of vious resolution authorizing the employment Utica, (Sup.) 24 N. Y. S. 1075.
What officers to defend actions.
25. Laws 1866, c. 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, c. 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 23. Under Code Civil Proc. § 1925, as sup- has no power to grant to a railroad company a plemented by Acts 1881, 1887, authorizing an strip of land adjoining the shore of a river, so action by a taxpayer to prevent injury to the as to cut off a riparian owner's right of access property of a municipality, a taxpayer cannot to the waters thereof. 23 N. Y. S. 927, af- maintain an action to enjoin a supervisor | firmed.-Saunders v. New York Cent. & H. R. of a town and the board of supervisors of a R. Co., (Sup.) 24 N. Y. S. 659.
See, also, "Damages." Contributory, of passenger, see "Carriers," 7. of servant, see "Master and Servant," 17-
of traveler on defective street, see "Munici- al Corporations," 16.
Defective streets, see "Municipal Corporations," 12-16.
Indemnity against action, see "Indemnity," 1-3. Liability of railroad company, see "Railroad Companies."
Of carrier of passengers, see "Carriers," 1–7. Of keeper of boarding house, see "Boarding- House Keepers.
Of master, see "Master and Servant," 3. What constitutes.
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, the owner and he fails make them, 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.
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 9. In an action against a railroad com- a dam without a waste weir, and a witness called by defendant testified that he would not pany for injuries to plaintiff from slipping on build such a dam without a waste weir, the ice which had accumulated on the sidewalk question of defendant's negligence in its con- from water dripping from the spout of defend- struction was properly for the jury.-Cottrell ant's water tank, defendant could not defeat v. Marshall Infirmary, (Sup.) 24 N. Y. S. 381. a recovery on the ground that, the obstruction 2. The owner of a dam is not liable for being on the sidewalk, the city only was liable. damages caused by its washing away by a-Thuringer v. New York Cent. & H. R. R. Co., phenomenal flood, that no one could expect. (Sup.) 24 N. Y. S. 1087. Cottrell v. Marshall Infirmary, (Sup.) 24 N. Y. 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.
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- 5. In an action for personal injuries result-ligent in not discovering the ice is a question ing from plaintiff's team becoming frightened for the jury.-Thuringer v. New York Cent. & at refuse timber left by defendant railroad H. R. R. Co., (Sup.) 24 N. Y. S. 1087. 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 N. Y. S. 977.
NEGOTIABLE INSTRUMENTS. Legality of consideration.
1. A note given to a woman with whom the 6. In an action against a railroad com- maker had sustained illicit relations, and by pany for injuries to plaintiff from slipping on ice which had accumulated on the sidewalk whom he had had a son, not given for the pur- from water dripping from the spout of defend-pose of continuing the relations, is not bad, as ant's water tank, it was for the jury to say given for an immoral purpose.-People v. Hayes, whether defendant was negligent, and whether (Sup.) 24 N. Y. S. 194. its negligence caused or contributed to plain- tiff's injury.-Thuringer v. New York Cent. Accommodation paper. & H. R. R. Co., (Sup.) 24 N. Y. S. 1087.
7. In an action against a street railroad company for causing the death of a boy six years old, it appeared that at the time the boy was struck by the car which caused his death
2. Defendants, in an action on a note, al- leged that they indorsed the note for the ac- commodation of plaintiff. The maker's clerk testified that he was sent to procure defend- ants' indorsement either by the maker or by
plaintiff's president, both of whom were in the | signee can recover. maker's office at the time; that defendants (Sup.) 24 N. Y. S. 271. refused to indorse the note without the writ- Sureties. ten request of plaintiff's president; and that witness wrote a letter to defendants stating that plaintiff requested the indorsement. Held sufficient to require the submission to the jury of the question whether the indorsement was for plaintiff's accommodation.-Bucyrus Steam Shovel & Dredge Co. v. Meyer, (Sup.) 24 N. Y. S. 246.
Bona fide purchasers.
3. A person is not liable under Laws 1890, c. 564, § 57, on a note executed by the corpora- tion while he was a stockholder, but not dis- counted until after he disposed of his stock, and the fact that the note was dated as of the time of its execution, and the person seek- ing to enforce such liability is a bona fide pur- chaser for value, is_immaterial. Hatch, J., dissenting. Close v. Brady, (Super. Buff.) 24 N. Y. S. 567.
4. In an action on a note for $2,500, it ap- peared that defendants made the note, and de- livered it to one L. to have it discounted for defendants, instead of which L. delivered the note before maturity to plaintiffs, to whom he owed about $4,000, and was credited on his ac- count with the amount. After the note fell due L. paid plaintiffs $500, and received a re- lease in full of all plaintiffs' claims. Held, that plaintiffs did not part with anything of value before maturity of the note, and therefore could not recover on it.-Vietor v. Bauer, (Sup.) 24 N. Y. S. 428.
5. An indorsee of a note, who surrenders an old note, and pays the difference in cash, is a bona fide holder.-Weems v. Shaughnessy, (Sup.) 24 N. Y. S. 271.
6. In an action by the indorsee of a check against the drawer, who stopped payment, it appeared that plaintiff, the payee's sister-in- law, nad been living with the latter's family some months before the check was drawn, on a farm which belonged to one H.; that, as be- tween the payee and H., the money for which the check was given belonged to the latter; and that plaintiff knew the check was given for butter produced on the farm, at a time when the payee was sick, and the family greatly in need of money. H. testified that before the butter was sold he told plaintiff's sister, in her presence, that the check for the price must be made payable to him, and that the day after it was drawn he demanded it of such sister. Plaintiff testified that she purchased the check three or four days after it was given; that she heard H. ask for it, but could not tell the date, nor remember what was said; and that her memory was good, and she did not remember that H. told her sister that the check must be made payable to him, but would not say it did not occur. Held, that a finding by the jury that plaintiff did not have knowledge of circumstances that ought to have put her on inquiry as to the rightful ownership of the check by the payee was against the weight of the evidence.-Fealy v. Bull, (Sup.) 24 N. Y. S. 988.
8. A note signed by deceased and P. was made to P.'s aunt, for money to pay off a note ceased was surety. to another person, signed by P., on which de- The payee knew that P. had the benefit of the money. P. personally made payments on the note. All of the indorse ments were in his writing, except one by the payee, and all the interest payments were made by P. At one time, deceased asked permission to take his name off the note, which the payee refused, and deceased then said that he should understood that deceased was a surety only- see that the note was paid. Held, that it was In re Sanders' Estate, (Surr.) 24 N. Y. S. 317, 4 Misc. Rep. 343; In re Farrington, Id. Demand and protest.
9. In New York, mere proof of the insol- vency of the maker of a note is not a sufficient excuse for failing to present the note for pay- ment, and to notify the indorser of the dis- honor.-Manning v. Lyon, (Sup.) 24 N. Y. S.
10. Evidence that there were several notes of the same makers besides the note in suit, payable at the same bank; that no funds were provided for their payment; and that they were not paid,-does not show that the makers and prior indorsers were insolvent before the maturity of such note, and therefore does not excuse failure to demand payment.-Manning v. Lyon, (Sup.) 24 N. Y. S. 265. Actions on.
C. to the order of defendant G., and indorsed 11. In an action on notes made by defendant by him, the consideration of which was an old note made by C. to O., there being, on the one hand, evidence that the old note belonged to plaintiff, and that it was surrendered to C. at the time the notes sued on were given, and, on the other hand, evidence that O. owned the note at that time, and was to deliver it to C. when the indorsed notes were delivered, and that this was not done, it was error to direct a verdict for plaintiff.-Murphy v. Carey, (Sup.) 24 N. Y. S. 585.
12. In an action on a note signed "T.. Agt.," the complaint averred that T. "was the lawful agent of the defendant J., and, as such agent, had the control, direction, and manage ment of all her business transactions;" that he, "as such agent aforesaid, heretofore made" the note sued on; and that he made it "as such agent for the said defendant J., under and by the direction and authority of the said J., and in the due management and control of her said business, and for the benefit of said business." Held, that the complaint was not sufficient to charge J. as maker, since there was no allegation that the note was made by J.. or that she authorized or directed T. to make it, or afterwards ratified it, or any alle gation from which such inference could be le- gally drawn. - First Nat. Bank v. Turner. (Sup.) 24 N. Y. S. 793.
Newly-Discovered Evidence.
7. If the assignor of a note, after maturity and without consideration, was a bona fide holder, and entitled to recover thereon, the as- See "New Trial," 2.
Excessive damages, see "Damages," 5-7.
changed, the first decision must be regarded as stare decisis.-Silliman v. Paine, (Sup.) 24 N. Y. S. 344.
Grounds-Disqualification or miscon- See "Negotiable Instruments."
1. On a motion for a new trial by plaintiff in a case against a city, it appeared that plain- tiff's attorney, when impaneling the jury, asked if any of them had business relations with any one connected with the city attorney's office, and that no juror made any reply, whereupon the attorney said he would take it for granted that no such relation existed. It appeared that one juror kept a livery stable, and regularly furnished the law department with carriages, under the direction of the corporation counsel, and it appeared that the juror understood the purpose of the question, and made no disclosure merely because the attorney mentioned in terms the city attorney, and not the corporation coun- sel. Held, that a new trial should be granted.- McGarry v. City of Buffalo, (Sup.) 24 N. Y. S. 16.
Newly-discovered evidence.
Fixing water rates, see "Municipal Corpora- tions," 2.
Of appeal, see "Appeal," 1. Of lien, see "Livery Stable Keepers."
Deposit of sewerage in private pond, see "Mu- nicipal Corporations," 17.
Abatement of public nuisance.
A mill pond which, by the collection of foul matter, becomes a nuisance endangering the health of the public, may be discontinued.- Board of Health of Yonkers v. Copcutt, (Sup.) 24 N. Y. S. 625.
Obligation of Contracts.
2. Newly-discovered evidence that defend- ant's wagon had a broken shaft on the day after plaintiff claimed he was run into by de- See "Constitutional Law," 2. fendant, and that defendant admitted that he ran into plaintiff, would be but cumulative to plaintiff's direct testimony that defendant ran into him.-Shute v. Jones, (Sup.) 24 N. Y. S. 637.
Conditions of granting.
3. Where, on petition of a receiver of a firm, disputed claims are referred, and are dis- allowed by the referee after a regular trial, and his report is confirmed, it is a proper con- dition to the granting of a motion for a new trial on the ground of newly-discovered evidence, made pending an appeal from the order of con- firmation, that the receiver be reimbursed for the amount he paid the referee for fees, and that the partner, who was in no way liable 'for the claims, be allowed costs and attorneys' fees. In re Wyatt, (Sup.) 24 N. Y. S. 277; In re Ryan, Id.
Statutory new trial as of right.
4. Where, in an action to recover posses- sion of a suite of rooms in an apartment house, the complaint alleges that defendant holds forcible possession of the premises, of which plaintiff had been in possession, and demands treble damages, and it is doubtful whether such complaint contains allegations necessary to an action of ejectment, but it seems to have been framed on the theory that it was an ac- tion of forcible entry and detainer, it is error. after final judgment against plaintiff, to grant him a new trial under Code Civil Proc. § 1525, which entitles the defeated party in ejectment to a new trial, as of right, at any time within three years, on conditions therein specified.— Compton v. The Chelsea, (Sup.) 24 N. Y. S. 241.
Decision on first trial as stare decisis. 5. Where a decision in ejectment has not been reversed, on a second trial under the stat- have been ute, unless the essential facts
OFFICE AND OFFICER.
See, also, "Receivers."
Action against officers, see "Venue in Civil Cases," 1.
Officers and agents of corporation, see "Corpo- rations," 3-5, 7-9.
of city, see "Municipal Corporations," 6-10. State officers, see "States and State Officers.” Preference of Union soldiers in making appointment.
1. Laws 1887, c. 464, §§ 1, 2, provide that in the public departments, and in noncom- petitive examinations under the civil service laws when they apply, "honorably discharged soldiers and sailors shall be preferred for ap pointment and employment," etc., and all per- sons having appointing power are required to faithfully comply with the terms of the stat- ute in letter and spirit. Laws 1889, c. 382, $30, repeats the authority given by the con- stitution to the superintendent and warden as to appointments, and provides that each shall have the power to remove his appointees, when, in his judgment, the public interests re- quire it. Held, that a keeper of Sing Sing prison, who is an honorably discharged soldier. and has faithfully discharged his duty as such officer for many years, has no absolute right to such position; and the warden may remove him when, in his honest judgment, the public interests require it.-People v. Lathrop, (Sup.) 24 N. Y. S. 754. Eligibility.
2. The supervisor of a city ward is not ineligible to appointment as a commissioner of excise.-People v. Lahr, (Sup.) 24 N. Y. S. 1020.
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