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detain such animals until such charges shall , where the board fails to make provision for
be paid."-Kline v. Green, (Co. Ct.) 24 N. Y. 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.
Reference in case of, see "References," 1-3. Order to show cause.
3. Relator procured an order at special
term directing the sipervisors to con rene and
allow and provide for the payment of a judg-
See “Champerty and Maintenance."
ment 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
See "Libel and Slander,” 3; "Malicious Prose cause why a mandamus should not be granted,
cution," 1, 2.
and it need not comply with the statutory re
quirements applying to the alternative writ.-
MALICIOUS PROSECUTION. People v. Board Sup'rs Fulton County, (Sup.)
24 N. Y. S. 397.
4. The issuance of such an order. to be fol-
1. Malice is established where it is shown Coinplied with, and there is no dispute as to
lowed on the return day, if it has not been
that the defendant in an action for malicious facts, by a peremptory mand:imus, is a proper
prosecution made the criminal charge com-
plained of to enforce payment of a debt.
practice.-People v. Board Sup'rs Fulton Coun-
Toomey y. Delaware, L. & W. R. Co., (Super. ty, (Sup.) 24 N. Y, S. 397.
N. Y.) 24 N. Y. S. 108.
5. If an application for a mandamus is
2. In an action against a rallroad company made in the proper county, an order to show
for causing plaintiff's arrest for attempting to
cause against its issuance may be granted by a
ride on defendant's train with intent to avoid judge at special term in any part of the state,
payment of his fare, defendant requested a
provided the order is made 'returnable at a
charge that “if there was probable cause for special term held in the district embracing the
making the complaint against the plaintiff, yet county wherein an issue of fact joined upon the
if, in making it, the conductor did not act with Board Sup'rs Fulton County. (Sup.) 24 N. Y.
alternative writ would be triable.- People v.
towards the plaintiff, the defendant is entitled S. 397.
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.
See, also, "Breach of Marriage Promise;" “Di-
vorce;" "Dower;" "Husband and Wife."
3. In an action for malicious prosecution
for causing the arrest of plaintiff, an elderly Proof.
man, on the ground that he was attempting to 1. A marriage will not be presumed from
ride on defendant's railroad train with the in- the mere fact that the parties live together.
tent of not paying his fare, and putting him on where their relations were meretricious in
trial at a place where he could not procure their inception.--Ahlberg v. Ahlberg, (Super.
bail, the court properly charged that if the N. Y.) 24 N. Y. S. 919.
jury found for plaintiff they must award_sub-
stantial damages.-Toomey v. Delaware, L. & Annulment-Insanity.
W. R. Co., (Super. N. Y.) 24 N. Y. S. 108.
2. In New York, in order to maintain ad
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 MARSHALING ASSETS AND
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 Mortgage liens.
not ground for refusing a mandamus to com-
pel such allowance. -People v. Board of, Au- certain balance of a certain fund arising from a
Defendant's mortgage provided that a
ditors of Hamden, (Sup.) 24 N. Y. S. 974.
prior mortgage of the same premises should be
To county board or supervisors.
applied to defendant's claim, and contained an
2. Under 2 Rev. St. pp. 474, 475, c. 8, 88 assignment of such balance to defendant. Plain-
102, 103, (4 Rev. St., 8th Ed., p. 2685,) provid- tiff held a mortgage of the same premises, jun-
ing for the payment by the county board of ior to the mortgage of defendant. Hed, that
supervisors of a judgment against a town, the rule as to marshaling securities was appli-
cable, and, where defendant neglected to insist and in discharging such duty is bound to make
on his right to such fund, his lien would be use of proper instrumentalities in causing the
postponed to that of plaintiff, to the amount repairs to be made.-Ballard v. Hitchcock
that he might have realized from such fund.- Manuf'g Co., (Sup.) 24 N. Y. S. 1101.
McConnell v. Muldoon, (Super. N. Y.) 24 N. Y. 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
MASTER AND SERVANT.
given to them as to its condition and need of
repairs antecedent to the accident.–Ballard
Negligence of independent contractor, see “Neg- v. Hitchcock Manuf’g Co., (Sup.) 24 N. Y. S.
Master's liability to third persons.
7. In an action against a railroad company
1. Where refuse timber was, by direction explosion of his engine, it appeared that, about
to recover for the death of a fireman by the
or assent of defendant railroad company's sec a week before the accident, the water in the
tion foreman, left on defendant's right of way, boiler had been lowered so that the crown
by the side of a highway, so as to frighten sheet was not covered. The engine was after-
plaintiff's team in passing, defendant is respon-wards examined and tested to the maximum
sible for such acts of the section men.--Tinker
New York, O. & W. R. Co., (Sup.) 24 N. Y. pressure of about 145 pounds, but no defect
was discovered, and it was continued in use.
2. T'he section men of defendant railroad running without a train, under a pressure of
The explosion occurred while the engine was
company, in repairing a cattle guard, deposited 110 pounds. Held insufficient to go to the jury
on the side of the highway refuse timber, on the question of defendant's negligence.--
which frightened plaintiff's horsas, thus caus- Racine v New York Cent. & H. R. R. Co.,
ing personal injuries to plaintiff. Held, that (Sup.) 24 N. Y. S. 388.
the question whether it was reasonably neces-
8. Plaintiff, while working on a timber
sary, in the regular course of their employ: framework in the employ of defendant, was in-
ment, for defendant's servants to thus deposit jured by the breaking of one of the timbers, and
the timber by the roadside. was for the jury.- claimed that the timber was defective, and
Tinker v. New York, O. & W. R. Co., (Sup.) that the defect could have been discovered by
24 N. Y. S. 977.
defendant. The evidence for defendant was
Negligence of master-Dangerous prem- indefinite as to inspection of the framework,
and as to whether the timber had been before
3. Defendant was constructing a building mit the case
used for the same purpose. Held proper to sub-
to the jury.--Ernst v. Brown
near its railroad track, and, on a level with the Hoisting & Conveying Co., (Super. Buff.) 24
third floor, some posts, intended for the support N. Y. S. 359.
of the fourth story of the building, stood on plates Fellow servants or vice princ pals.
12 or 15 feet distant froin 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 dangering 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.
10. The master, by delegating the making
4. In an action against a railroad company latter his representatives.-Ballard v. Hitch-
of repairs to machinery to others, makes the
for injuries to an employe resulting from the
improper loading of a jumber car so that the cock Manuf'g Co., (Sup.) 24 N. Y. S. 1101.
brakes would not work, there was no evidence Assumption of risks.
that defendant had promulgated any rule re 11. Plaintiff, while standing on a step be-
quiring the inspection of cars after loading, or tween an engine and the fly wheel, around or
had made provision for making such inspection, between which there was no guard, examining
except that the agent at the station where the the bearings, slipped on some oil thrown on the
car was loaded said that he understood it to steps by the machinery, and, falling into the
be his duty to inspect each loaded car, and so wheel, was injured. He had been employed
instructed the men under him. He did not, about the engine 8 or 10 days. He was not
however, inspect the car in question, and men a mechanic or skilled workman, though he had
formerly under him said that he had never for a number of years worked round machinery
given any instructions in that regard. Held, and engines, but never round an engine of this
that the question whether defendant had made kind. He was never cautioned about the em.
proper provision for the inspection of cars after ployment. Held, that it could not be said, as a
loading was for the jury.-Byrnes v. New York, matter of law, that the danger was so apparent
L. E. & W. R. Co.. (Sup.) 21 N. Y. S. 517. to him that he had assumed the risk.-Slacer v.
5. A master is bound to use reasonable Field Engineering Co., (Super. Buff.) 24 N. Y.
care to keep in suitable repair a boiler which S. 550.
is in use in a room in which his servants are 12. Where an employe engaged in railroad
it 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 18. In an action for personal injuries to a
by his employer near the railroad track, the servant, caused by a defective machine, it an-
employer is not relieved from liability on the peared that the machine was known by all to
ground that the danger was open to the obser- be defective, and that the foreman ordered the
vation of deceased, unless deceased was charge- engineer to fix it on the following Sunday.
able with knowledge of the condition of the Plaintiff worked on the machine all the Movie
building.–Mickee v. Walter A. Wood Mowing day following, when it appeared to be in good
& Reaping Mach. Co., (Sup.) 24 N. Y. S. 501. order. The accident happened on the next day.
13. Where an experienced workman, who Plaintiff's regular occupation at the machive
had been engaged for two months in the con- was not a dangerous one, but on the day of
struction of an elevated railroad, undertook, the accident he was ordered to take the place
when the structure was icy, to climb to the top of a man who was absent, and while só en-
by ineans of the network of the columns, as he gaged he was injured. Plaintiff testified that
had frequently done before, and as the workmen he thought the machine had been repaired.
usually climbed to the top thereof, and, while Held, that it was error to dismiss the complaint
thus attempting to reach the top, fell, and was on the ground of contributory negligence, as
killed. his employer is not liable for his death plaintiff had a right to assume that the ma-
because of the absence of a ladder for the use chine had been repaired on Sunday.-Schulz F.
of the workmen, or because of the use of a Rohe, (Super. N. Y.) 24 N. Y. S. 118.
particular kind of brace which it is claimed
19. While plaintiff's intestate was at work
causc deceased to fall, but which was the kind at the bottom of the elevator shaft in defend-
generally used on such structure, and was not | ant's factory, a barrel on an upper floor was
defective.-Cowbi!! v. Roberts, (Sup.) 24 N. Y. set in motion by the vibrations of the ma-
chinery, and, rolling under the bar, which was
14. Where an employe's work was on the the only guard to the shaft, fell on intestate.
ground, and he undertook to climb to the top Intestate knew that there was no door to the
of an elevated railroad structure, in building shaft, and the jury found that if the bar had
which he was employed, for his own purposes, been in place the barrel would not have fallen.
before commencing work in the morning, his Intestate was the last man to enter the ele
employer is not liable. -- Cowhill v. Roberts, vator on the upper floor, and he did not replace
(Sup.) 24 N. Y. S. 533.
the bar, as he was required to do by defend-
15. A brakeman who has been more than a ant's rules. Held, that plaintiff's intestate was
year in the employ of a railroad company as- guilty of contributory negligence.-Freeman F.
sumes the risk incident to the fact that some Glens Falls Paper-Mill Co., (Sup.) 24 N. Y. S.
of the guard rails in the company's switch 403.
yards are not blocked, so as to prevent an em-
ploye's foot from being caught between the
Measure of Damages.
guard rail and the main rail. Appel v. Rail-
roail Co., 19 N. E. 93, 111 N. Y. 550, followed.
-VIcNeil 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. Consent of landowner to improve-
vators must provide trap or automatic doors
to such elevators. Held, that where the ab- ments-Liability of vendor.
sence of such a door was apparent and well 1. Laws 1885, c. 342, § 1, provides that any
known to plaintiff's intestate, and he had used person performing labor or furnishing material
the elevator constantly, and knew what to do in the erection of a building, with the convent
with the device that took the place of a door, of the owner, may have a lien on the building
he must be considered to have assumed the and lot. Section 5 provides that, where the
risks of the absence of the doors, and to have owner has agreed to sell and conrey the prom-
waived compliance with the statute.-Freeman ises, he shall remain the “owner." within the
v. Glens Falls Paper-Mill Co., (Sup.) 24 N. Y. meaning of the lien law, till the deed has been
delivered and recorded. Held, that one who, by
agreement with the purchaser in an erecutory
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 X. I. S.
ing through it collecting tickets, the train being 781.
at the time in a tunel, where from the inside For what obtained.
of the rear car the reflection made it appear
that there was another car behind, the negli-
2. Under Laws 1885, c. 342, § 1, giving a
gence complained of being defendant's failure mechanic's lien to any person who 'shall per
to have a chain across the end of the rear plat form labor in altering or repairing any buiid-
form, a requested charge that, if plaintiff knew
validated by an honest mistake of the person no evidence was introduced in support of such
verifying it.-Ringle _v. Wallis Iron Works, allegation. Held, that the evidence did not
(Sup.) 24 N. Y. S. 757, 4 Misc. Rep. 15. show defendant guilty of such gross negligence
4. Defendant, who had a contract to do as would render him liable for the goods.-
certain work, half of the price to be paid Xiques v. Bradstreet Co., (Sup.) 24 N. Y. S.
when the materials were shipped, and the bal- 48.
ance on completion of the work, subcontracted
with plaintiffs for part of the work. Plain-
tiff was to be paid when defendant should Penalty for using cans of another, see "Trade
receive payment under its contract. Held, that Marks and Trade-Names," 5.
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, À See, also, “Chattel Mortgages."
Misc. Rep. 15.
Agreement by person assuming mortgage to in-
demnify grantor, see “Contracts,” 3.
Limitation of action to reform, see "Limitation
5. A fund was held by S., to be paid out, of Actions," 1.
as directed by defendant, in erecting buildings of land bounded by water, see “Riparian
on defendant's land. Two orders drawn on the
fund were presented to. S., but before they Priorities, see “Mechanics' Liens,” 5.
were paid a sum exceeding the entire amount To indemnify cosurety, see “Indemnity,” 8.
of the fund was paid out on other orders, and
defendant thereupon gave S. a mortgage on the What constitutes.
land to secure past and future advances by 1. Plaintiff conveyed to defendant land in-
him. After the mortgage was recorded, F. cumbered to the amount of $6,000, for an
filed a notice of lien for materials, and later S. expressed consideration of $500, though noth-
paid the two orders theretofore presented. ing was in fact paid. Defendant gave plain-
Held, that these orders, being assignments of tiff back a written agreement that, whenever
the fund pro tanto at the time they were pre- plaintiff should pay him the amount of the
sented, should be deducted from the fund as claims against the place, he would reconvey.
of that time, and therefore the whole amount Held a mortgage, and not a gift on condition.
paid by S. in excess of the fund was advanced Draper v. Draper, (Sup.) 24 N. Y. S. 1127.
by him before notice of F's lien, and to that
extent the mortgage was superior.-Hirshfield Equitable mortgage.
v. Ludwig, (Sup.) 24 N. Y. S. 634.
2. Where a landowner agrees to give a
Action on bond given to release lien- 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-
6. In an action on a bond given by the gage on all the land, so as to avoid the neces-
owner under section 24 of the lien ļaw (Laws sity of a reformation of the mortgage deed.-
1885, c. 342) to release the premises from liens, Sprague v. Cochran, (Sup.) 24 N. Y. S. 369.
conditioned for the payment of any judgment Consideration.
that might be rendered against the premises in
any proceeding to enforce the lien, while the existing debt is valid as against a mortgage
3. A mortgage given in good faith for an
bondsmen are not necessary parties, the pur- subsequently given for value parted with at
chaser of the lot is a necessary party, for the the time.-Korneman v. Fred Hower Brewing
purpose of establishing the lien.-Garland v.
Co., (City Ct. Brook.) 24 N. Y. S. 103, 4 Misc.
Van Rensselaer, (Sup.) 24 N. Y. S. 781.
4. The lien of a mortgage given to secure
Error in report-Liabilities.
future advances is superior to the lien of a
prior unrecorded purchase-money mortgage as
Plaintiff and defendant entered into a
to all sums advanced within the limits of the
contract whereby defendant agreed to furnish amount stated in the subsequent mortgage,
plaintiff the business standing of a certain num-without notice of such prior mortgages-Reyn-
ber of men for one year. The contract provid- olds y. Webster, (Sup.) 24 N. Y. S. 1133.
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
ive notice to the holder of the latter mortgage.
inquired as to one B.; "grocer, 63 Grand River -Reynolds v. Webster, (Sup.) 24 N. Y. S.
Ave., Detroit, Mich." Defendant reported as
to one B., "grocer and saloon, 573 Russell, cor.
Ohio, Detroit, Mich.” The report contained a Payment and release.
provision that the correctness of the same was 6. In an action to foreclose a mortgage it
not guarantied. Plaintiff, without further in- appeared that the parties to the mortgage were
quiry, filled an order for goods to 63 Grand neighbors; that the mortgagee bought goods
River avenue. The goods were never paid for, regularly at the mortgagors store; and that,
and plaintiff sued defendant for their value, al finally, his account amounted to as much as the
leging that defendant did not make proper in- mortgage. Interest on the mortgage was cred-
quiries of its correspondents at Detroit; but ited on the mortgagor's books, with the items
of goods sold to the mortgagee, and no demand such election may appeal to the county judge,
for principal or interest was made until 16 specifying the irregularities therein. Section
years after the mortgage was made, and when 13, as amended by Laws 1878, c. 59, $ 4, pro-
both parties were dead. Held, that the mort- vides that the county judge must. within a
gage was settled and paid.-Taylor v. Bernard, specified time, decide as to the legality or ille
(Sup.) 24 N Y. S. 525.
gality of such election, and, if illegal, he shall
7. In an action commenced in 1891, by an forthwith make an order, and file it in the
administratrix, to foreclose a mortgage for $330, clerk's office, directing another election to be
executed in 1876, to run 15 years without any held, etc. Title 8. c. 291, § 2, provides that
payment of either principal or interest, dece certificates of the inspectors of election, or cer-
dent's brother testified that the mortgage was tified copies, with the seal of the clerk, shall be
given to secure a debt of $230 to him and $100 tinal and conclusive proof of the incorporation
to decedent, that he had been fully paid, and of such village, and the regularity thereof, ex-
that decedent had admitted to him that he had cept in case of an appeal from the election, as
been paid. Four other witnesses testified to thereinbefore provided. Hell, that the remedy
similar statements by deceased. Held, that a by such appeal from an election on the question
judgment for plaintiff was not supported by the of incorporating a village was exclusive, and
evidence.-Hall v. Thompson, (Sup.) 24 Ñ. Y. that the validity of incorporation proceedings
cannot be attacked by bringing an action of
conversion against the tax collector and other
officers of the village, who have taken property
8. A partial failure of consideration is no of plaintiff to satisfy taxes due from him.-
defense to an action to foreclose a mortgage, Gardner v. Christian, (Sup.) 24 N. Y. S. 339.
when not pleaded as an offset or counterclaim. Power to fix water rates-Notice.
-Revoir v. Barton, (Sup.) 24 N. Y. S. 983.
2. Laws 1873, c. 36, incorporating the board
of water commissioners of Yonkers, directs the
9. The owner of mortgaged land devised it board to establish a scale of rents called "wa-
to his widow for life, remainder to his children, ter rents,” and authorizes it to cut off the sup-
with a proviso that, on the death of any child, ply of water of any one not paying th rents.
the share of the one dying should pass to his Held, that the rents are not a tax, entit'ng one
children. Held, that the only necessary parties to notice, as of the levying of a tax on land. -
to an action to foreclose the mortgage were the Silkman v. Board of Water Com'rs of Yonkers,
widow and the children of testator living at the (Sup.) 24 N. Y. S. 806.
commencement of the action, and it was not Approval of plans of building by health
necessary to join the children of a living child.
-Eschmann v. Alt, (Sup.) 24 N. Y. S. 763.
3. Deviation from the plans of a buildin:
10. A plaintiff in a suit to foreclose a mort-
gage need not join as a party defendant a cor-
as approved by the health department of New
poration to which the land was transferred by Laws 1882, c. 410, 8 663, is not excused by the
York city, for which a penalty is provided bs
an unrecorded deed, of which company the
mortgagor was manager, and which knew of permission of an inspector of the departm-nt.
the mortgage proceedings, and took no action which he had no authority to gire.--Health D..
in relation thereto.-Hattield v. Malcolm, (Sup.) N. Y.) 24 N. Y. S. 730.
partment of New York v. Hamm, (Com. PL.
24 N. Y, S. 596.
Rules of city council - Adoption of
4. Laws 1883, c. 298, $ 34, provides that
To vacate attachment, see "Attachment,” 7, 8. no by-law of the council shall be repealed or
rescinded unless by a two-thirds rote of all the
members of the council of the city of Albany.
MUNICIPAL CORPORATIONS. Section 7 of said act, as amended by Lane
1886, c. 444, and Laws 1891, c. 286, provides
See, also, "Highways."
that the common council of such city shall de
Condemnation of, franchise of water company under certain circumstances. Rule 34 provides
termine its own rules, and may expel a member
by city, see "Water Companies."
Defective sidewalks, liability of abutting owner, scinded except by a two-thirds vote of all the
that no rule shall be altered, suspended, or te
see "Negligence," 9.
Indemnity of city by contractors, see "Indem- pose shall be considered until after notice at a
members elected, and no motion for such pur-
Injunction against city council, see “Injunc- sent. Held, that a rule could not be amended
previous meeting, unless by unanimous con-
Warl supervisor, eligibility to office, see "Office the application having been given at a previous