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Officers and agents.
Officers and agents— Authority to incur
6. Laws 1881, c. 488, § 1, provides that expense in litigation.
any town, village, or city may, at its own ex- 10. City aldermen, who have been convicted
pense, build a bridge over a canal within its of contempt in disobeying an injunction, which
own limits, under the direction of the state conviction stands unreversed, cannot, by reso-
superintendent of public works. Section 2 pro- lution, make the city liable for the expense of
vides that such superintendent shall have sole defending the contempt proceedings.-West v.
power of appointing and removing the tenders City of Utica, (Sup.) 24 Ñ. Y. S. 1075.
of hoist, lift, and swing bridges, but their
wages shall be paid by the town, village, or Implied contracts.
city to the superintendent, to be paid by him
11. Where water is supplied to a village
to them. Held, that the building of a bridge which has power to make contracts for water
by a city, under such law, is an acceptance of for public use, but no contract was in fact
its terms, whence arises à contract to pay the made, an agreement to pay will be implied.--
wages of the bridge tenders, and they may_sue Port Jervis Water-Works Co. v. Village of
the city on its default in such payment.-Fail- Port Jervis, (Sup.) 24 N. Y. S. 497.
ing v. City of Syracuse, (Co. Ct.) 24 N. Y. S.
705, 4 Misc. Rep. 50.
7. The charter of the village of Whitestone
12. The fact that a sewer system was con.
(Laws 1869, c. 199, tit. 2, $ 1) provides that structed by water commissioners, free from any
there shall be seven trustees of the village. I control by the city, does not exempt the city
Section 8 provides that, in case of a vacancy from liability for an accident happening 15
in the board, a majority of the remaining trus-
years thereafter, as a result of the cover of a
tees may call a special election to fill it, at
sewer basin in the street having become worn
such time and place and in such manner as and out of repair from protracted use.-Cassidy
they may prescribe. Held, that the statute is
v. City of Poughkeepsie, (Sup.) 24 N. Y. S. 523.
mandatory, and mandamus will lie to compel
13. In an action against a village for in-
such trustees to call a special election to fill a juries from a fall on an icy sidewalk, it ap-
vacancy in the board. People v. Board of peared that, during a month prior to the in-
Trustees of Whitestone, (Sup.) 24 N. Y. S. 532. jury, snow accumulated on the walk while
8. Laws 1879, c. 145, § 2, provided that the might have been removed, and that two_or
the temperature was such that the same
commissioners of excise in cities should hold three days before the injury the walk was
their office for three years, and until others
should be appointed in their place. Laws 1892, covered with sleet, and so remained while the
c. 401, $ 2, approved April 30, 1892, repealing ing point. Held, that plaintiff could not re-
temperature was constantly below the freez-
that act, provided that the term of office of
every commissioner of excise then in of- from the previous accumulation of snow, as
cover without showing that the injury resulted
fice should be the term for which he was
defendant would not be liable for the existence
elected or appointed, and the term of every
commissioner appointed before the end of the
of the sleet on the walk while the tempera-
term of the mayor then in office should be Durr v. Village of Green Island, (Sup.) 24 N.
ture was such that it could not be removed.-
for the term then provided by law. Section Y. S. 1014.
5 of this chapter provided that a commission-
er's term of office should expire with the term injuries caused by a defect in a
14. In an action against a city for personal
of the mayor who appointed him. Section 45 left by a street-railway company in building
provided that the repeal of a law by that act its track, it is no defense that 30 days previous
should not affect rights already accrued under
to the injury such company was enjoined from
the repealed act. Held, that persons appointed
by the mayor April 4,'1892, such appointment completing its work, where such city was not
to take effect May 1st, would hold office for admits that at the time of the injury it was
a party to the injunction suit, and in its answer
three years, irrespective of the fact that they its duty to keep the walk in repair.-Dale v.
made by the same mayor in July, and that City of Syracuse, (Sup.) 24 N. Y. S. 968.
others were appointed to fill such office by injuries caused by a defect in a cross walk,
for the jury:-Dale v. City of Syracuse, (Sup.) county from submitting to the court an action
24 N. Y. S. 968.
by the town against the county on an agreed
Paiement 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.
24. Under Code Civil Proc. & 1925, provid-
Actions against-Conditions precedent.
18. Laws 1884, c. 308, provides that the action to obtain a judgment preventing waste
ing that a resident taxpayer may bring an
officers of a village created by special charter of or injury to the estate, funds or other prop
shall have the same "powers" as are prescribed erty" of the city, such person may obtain
in any general act for the incorporation of
villages, except as such special charter may be city officers from illegally paying out city funds
an injunction to restrain aldermen and other
in conflict with the general acts. Held, that for the defense of some of their number in
Laws 1889, c. 440, providing that no action
shall be maintained against a village for in- contempt proceedings, in pursuance of a pre
juries caused by its negligence, unless notice of counsel for the purpose. -West v. City of
vious resolution authorizing the employment
of the time and place at which such injuries Utica, (Sup.) 24 N. Y. S. 1075.
were received shall have been given the village
within one year after the injury, applies to a What officers to defend actions.
village created by special charter, though the 25. Laws 1866, c. 220, provides for the in-
latter required no such notice.-Freligh v. Di- corporation of the village of Saratoga Springs
rectors of Saugerties, (Sup.) 24 N. Y. S. 182. vesting in the board of trustees power of suing
19. It is not a compliance with the statute and defending "in all courts and places wbat-
requiring such notice, where it is served on soever.” Laws 1890, c. 470, provides for the
defendant's officers the same day, though be appointment of a board of street commissioners
fore, the action for the injury, is commenced, to exercise all the powers in relation to the pub
since the purpose of the law is to give such lic streets of said village theretofore vested in
officers an opportunity to investigate the facts the trustees. By Laws 1884, c. 308. the tros-
and settle the claim, if just, without litigation. tees of villages created by special charter are
-Freligh v. Directors of Saugerties, (Sup.) 24 given the same powers as are prescribed in
N. Y. S. 182.
any general act for the incorporation of Fil-
20. A notice whiili merely states that plain- lages; and by Laws 1870, c. 291, tit. 3, $ 3,
tiff has a claim against the village for the loss subd. 5, boards
of trustees are authorized "to
of a wagon and for injuries to his person and employ an attorney or attorneys for the trans-
property by reason of his coming in contact action of any matter requiring legal skill."
with a pole which stands in P. street, is in- Held that, in proceedings for the appointment
sufficient, in that it does not specify the time of commissioners to appraise the damages to
nor the particular place where the injury oc- property in said village by a change in the
curred, as provided by Laws 1889, c. 440.-- grade of a street, under Laws 1883, c. 113, as
Freligh v. Directors of Saugerties, (Sup.) 24 amended by Laws 1884, c. 281, proriding that
N. Y. S. 182.
notice thereof shall be served on the person
Complaint in action against.
or persons having complete authority to make
21. A complaint in an action against a town, such change, the board of trustees alone is 20-
for injuries caused by defendant's negligence thorized to defend therein, and the attorneys
in failing to keep a bridge in repair, must aver employed by it may act without the presence or
that the claim was served on the supervisors consent of the board of street commissioners. -
of the town within 6 months after the cause
Collins v. Village of Saratoga Springs, (Sup.)
of action accrued, and that 15 days elapsed 24 N. Y. S. 234.
after the claim was so presented before the ac-
tion was commenced, as required by Laws 1890, Mutual Benefit Insurance.
c. 568, $ 16. - Olmstead v. Town of Pound
Ridge, (Sup.) 24 N. Y. S. 615.
See "Insurance," 14, 15.
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 Control of lands under navigable wa-
Ridge, (Sup.) 24 N. Y. S. 615.
Action by taxpayer to restrain acts of
The state holds title to the land onder
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-
action to enjoin
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,
the driver was talking with a passenger, and
he did not know that he had run over any one
See, also, “Damages."
until the conductor pointed to the body lying
Contributory, of passenger, see "Carriers," 7. on the track. There was no obstruction of the
of servant, see "Master and Servant,” 17– view of the track at the time of the accident.
Held, that the evidence of negligence on the
of traveler on defective street, see "Munici- part of the driver was sufficient to justify the
al Corporations," 16.
submission of that question to the jury.-Mason
Defective streets, see "Municipal Corporations," v; Atlantic Ave. R. Co., (City Ct. Brook.) 24
N. Y. S. 139, 4 Misc. Rep. 291.
Indemnity against action, see “Indemnity;": 1-3: Liability for acts of independent con-
Liability of railroad company, see "Railroad
Of carrier of passengers, see "Carriers," 1-7. 8. Where the owner of premises, whose
Of keeper of boarding house, see "Boarding- duty it is to keep the same in repair, contracts
with a third person to make necessary repairs,
Of master, see "Master and Servant,” 3. and he fails to make them, the owner
is liable for injuries resulting from the de-
fective condition of the premises, though such
1. In an action for damages caused by a third person was an independent contractor,-
dam washing away, where there was no waste Brennan v. Ellis, (Sup.) 24 N. Y. S. 426.
weir to the dam, or flagging over the dirt fill-
ing between the walls of the dam, and an Defective sidewalks-Liability of abut-
expert testified that it was not safe to build ting owners.
a dam without a waste weir, and a witness 9. In an action against a railroad com-
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.
2. The owner of a dam is not liable for being on the sidewalk, the city only was liable.
a recovery on the ground that, the obstruction
damages caused by its washing away by a Thuringer v. New York Cent. & i. R. R. Co.,
phenomenal flood, that no one could expect.-
Cottrell v. Marshall Infirmary, (Sup.) 24 N. Y. (Sup.) 24 N. Y. S. 1087.
3. Where a railroad company delivers a car 10. Where persons engaged in unloading a
load of luinber to the owner, it owes no dụty car of lumber remove the stakes and cross-
to an employe of his contractor to provide ties which support the piles of lumber on the
against the danger of accident by the falling car, so that it falls, and kills one of them, de-
of the lumber while such employe is engaged, ceased is guilty of contributory negligence.-
hy direction of his employer, in unloading it Hulse v. New York, O. & W. R. Co., (Sup.) 24
from the car.- Hulse v. New York, O. & W. R. N. Y. S. 512.
Co., (Sup.) 24 N. Y. S. 512.
11. In an action for personal injuries, where
4. A railroad company is not guilty of neg. the evidence on the question of contributory
ligence because a car load of lumber is not so negligence is such that reasonable men might
piled on the car in loading that it will not fall reach adverse conclusions, the question is one
over at the sides while being unloaded, on re-
for a jury.- Erickson v. Twenty-Third St. Ry.
moval of the stakes and cross-ties which held Co., (Sun.) 24 N. Y. S. 603.
it securely while being transported.-Hulse v.
12. Whether a woman injured by falling
New York, o. & W. R. Co., (Sup.) 24 N. Y. S. 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 tiinber
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.
Legality of consideration.
6. In an action against a railroad com 1. A note given to a woman with whom the
pany for injuries to plaintiff from slipping on maker had sustained illicit relations, and by
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. 108T.
2. Defendants, in an action on a note, al-
7. In an action against a street railroad | leged that they indorsed the note for the ac-
company for causing the death of a boy six commodation of plaintiff. The maker's clerk
years old, it appeared that at the time the boy testified that he was sent to procure defend-
was struck by the car which caused his death I ants' indorsement either by the maker or by
plaintiff's president, both of whom were in the signee can recover. - - Weems v. Shaughnessy,
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 letter to defendants stating
8. A note signed by deceased and P. was
that plaintiff requested the indorsement. Hela made to P.'s aunt, for money to pay off a pote
sufficient to require the submission to the jury ceased was surety.
to another person, signed by P., on which de
of the question whether the indorsement was
The payee knew that P.
had the benefit of the money.
for plaintiff's accommodation.-Bucyrus Steam
Shovel & Dredge Co. v. Meyer, (Sup.) 24 N. Y. 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
Bona fide purchasers.
by P. At one time, deceased asked permission
3. A person is not liable under Laws 1890, refused, and deceased then said that he should
to take his name off the note, which the payee
c. 564, $ 57, on a note executed by the corpora-
tion while he was a stockholder, but not dis- understood that deceased was a surety only:-
see that the note was paid. Held, that it was
counted until after he disposed of his stock, In re Sanders' Estate, (Surr.) 24 N. Y. S. 317,
and the fact that the note was dated as of 4 Misc. Rep. 343; In re Farrington, Id.
the time of its execution, and the person seek-
ing to enforce such liability is a bona fide pur- Demand and protest.
chaser for value, is immaterial. Hatch, J., 9. In New. York, mere proof of the insol-
dissenting.-Close v. Brady, (Super. Buff.) 24 vency of the maker of a note is not a sufficient
N. Y. S. 567.
excuse for failing to present the note for pay-
4. In an action on a note for $2,500, it ap- ment, and to notify the indorser of the dis-
peared that defendants made the note, and de- honor.-Manning v. Lyon, (Sup.) 24 N. Y. S.
livered it to one L. to have it discounted for 265.
defendants, instead of which L. delivered the 10. Evidence that there were several notes
note before maturity to plaintiffs, to whoin he of the same makers besides the note in suit,
owed about $4,000, and was credited on his ac- payable at the same bank; that no funds were
count with the amount. After the note fell provided for their payment; and that they
due L. paid plaintiffs $500, and received a re- were not paid,--does not show that the makers
lease in full of all plaintiffs' claims. Held, that and prior indorsers were insolvent before the
plaintiffs did not part with anything of value maturity of such note, and therefore does not
before maturity of the note, and therefore could excuse failure to demand payment.-Manning
not recover on it.-Vietor v. Bauer, (Sup.) 24 v. Lyon, (Sup.) 24 N. Y. S. 265.
N. Y. S. 428.
5. An indorsee of a note, who surrenders
an old note, and pays the difference in cash, c. to the order of defendant G., and indorsed
11. In an action on notes made by defendant
is a bona fide holder -Weems v. Shaughnessy, by him, the consideration of which was an old
(Sup.) 24 N. Y. S. 271.
6. In an action by the indorsee of a check
note made by C. to 0., there being, on the
against the drawer, who stopped payment, it
one hand, evidence that the old note belonged
appeared that plaintiff, the payee's sister-in-
to plaintiff, and that it was surrendered to c.
law, had been living with the latter's family at the time the notes sued on were given, and,
some months before the check was drawn, on
on the other hand, evidence that 0. owned the
a farm which belonged to one H.; that, as be- note at that time, and was to deliver it to C.
tween the payee and H., the money for which when the indorsed notes were delivered, and
the check was given belonged to the latter; and that this was not done, it was error to direct
that plaintiff knew the check was given for a verdict for plaintiff.-Murphy v. Carey, (Sup.)
butter produced on the farm, at a time when 24 N. Y. S. 585.
the payee was sick, and the family greatly in
12. In an action on a note signed "T..
need of money. H. testified that before the Agt.," the complaint averred that T. "was the
butter was sold he told plaintiff's sister, in her lawful agent of the defendant J., and, as such
presence, that the check for the price must be agent, had the control, direction, and manage
made payable to him, and that the day after it ment of all her business transactions;" that
was drawn he demanded it of such sister. he, “as such agent aforesaid, heretofore made"
Plaintiff testified that she purchased the check the note sued on; and that he made it was such
three or four days after it was given; that she agent for the said defendant J., under and by
heard H. ask for it, but could not tell the date, the direction and authority of the said J., and
nor remember what was said; and that her in the due management and control of her
memory was good, and she did not remember said business, and for the benefit of said
tha H. told her ister that the check must
business." Held, that the complaint was not
be made payable to him, but would not say sufficient to charge J. as maker, since there
it did not
Held, that a finding by was no allegation that the note was made by
the jury that plaintiff did not have knowledge J., or that she authorized or directed T. to
of circumstances that ought to have put her on
changed, the first decision must be regarded as
stare decisis.-Silliman v. Paine, (Sup.) 24 N.
See, also, “Appeal.”
Y. S. 344.
Excessive damages, see “Damages,” 5–7.
Grounds Disqualification or miscon- See “Negotiable Instruments."
duct of juror.
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 | Fixing water rates, see “Municipal Corpora-
if any of them had business relations with any tions,” 2.
one connected with the city attorney's office, Of appeal, see "Appeal," 1.
and that no juror made any reply, whereupon Of lien, see "Livery Stable Keepers."
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, Deposit of sewerage in private pond, see “Mu-
and it appeared that the juror understood the nicipal Corporations," 17.
purpose of the question, and made no disclosure
merely because the attorney mentioned in terms Abatement of public nuisance.
the city attorney, and not the corporation coun-
A mill pond which, by the collection of
sel. Held, that a new trial should be granted.-
foul matter, becomes a nuisance endangering
McGarry v. City of Buffalo, (Sup.) 24 N. Y. the health of the public, may be discontinued.-
Board of Health of Yonkers v. Copcatt, (Sup.)
24 N. Y. S. 625.
2. Newly-discovered evidence that defend-
ant's wagon had a broken shaft on the day
Obligation of Contracts.
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 OFFICE AND OFFICER.
into him.-Shute v. Jones, (Sup.) 24 N. Y. S.
See, also, “Receivers."
Conditions of granting.
Action against officers, see “Venue in Civil
3. Where, on petition of a receiver of a Cases," 1.
firm, disputed claims are referred, and are dis- Officers and agents of corporation, see "Corpo.
allowed by the referee after a regular trial, rations,” 3-5, 7-9.
and his report is confirmed, it is a proper con- of city, see "Municipal Corporations," 6–10.
dition to the granting of a motion for a new State officers, see “States and State Officers."
trial on the ground of newly-discovered evidence,
made pending an appeal from the order of con- Preference of Union soldiers in making
firmation, that the receiver be reimbursed for appointment.
the amount he paid the referee for fees, and
1. Laws 1887, c. 464, 88 1, 2, provide that
that the partner, who was in no way liable in the public departments, and in noncom-
for the claims, be allowed costs and attorneys' petitive examinations under the civil service
fees.-In re Wyatt, (Sup.) 24 N. Y. S. 277; In laws when they apply, "honorably discharged
re Ryan, Id.
soldiers and sailors shall be preferred for ap
Statutory new trial as of right.
pointment and employment," etc., and all per-
4. Where, in an action to recover posses-
sons having appointing power are required to
sion of a suite of rooms in an apartment house, faithfully comply with the terms of the stat-
the complaint alleges that defendant holds