6. When the comptroller has refunded all
the purchase money to the purchaser he
is relieved from further duty in the trans-
action.-Id.
7. By § 2481, subd. 6, the surrogate has
power to open, vacate, modify or set aside
a decree or to grant new trial, and his
order in such a case is appealable and
mandamus is not a remedy by means of
which such an order can be disregarded.
-The People ex rel. Stephens v. Lott, 396.
8. Where the relator, janitor of an armory,
was entitled to monthly payment under
Laws of 1883, Chap. 299, § 64, for his ser-
vices, which were made a county charge,
but the supervisors had made no provis-
ion for such payment and the relator pro-
cured his bills to be discounted, Held,
That his claim for such discounts was
not a county charge; that his claim for
repayment was at least doubtful and a
peremptory mandamus would not lie.-
The People ex rel. Johnston v. Suprs. of
Ulster Co., 559.
See CONTRACT, 14; RAILROADS, 12.
MARINE COLLISION.
1. Where both vessels are beating up a
river and on the same tack, the one down
the river is to be considered an overtak-
ing vessel within the rules of navigation,
regardless of the difference of their
courses, and is bound to avoid the other.
—Aldridge et al. v. Clausen, 273.
2. Defendant was the owner of a steam
yacht licensed to proceed from port to
port in the U. S. and by sea to any for-
eign ports. The accident took place in
the Hudson River and the yacht at the
time showed the lights prescribed for
ocean going steamers and those carrying
sail, but not the lights prescribed for
coasting vessels navigating inland
waters. Held, That the yacht at the
time of the accident was a coasting ves-
sel and bound to carry the central range
of lights prescribed by rule 7 of § 4233,
U. S. R. S.-Chase et al. v. Belden, 392.
MARINE COURT.
See JUDGMENT, 6.
MARINE INSURANCE.
1. The validity of a marine insurance ef-
fected after the loss of the subject of in-
surance depends upon the good faith of
the assured, but no agency, however gen-
eral in terms will be deemed to embrace
the power to insure property after knowl-
edge of its loss.-The People v. Dimick,
236.
1. On an application to revoke letters issued
to the widow of deceased the surrogate
has power to pass upon the validity of
a former marriage of such widow
where the question affects the vitality of
her marriage with the deceased.-In re
estate of Hetherington, 4.
2. Decedent's widow was formerly married
to one G. from whom she separated. At
the time of said marriage G. had another
wife living. In neither case has the mar-
riage been annulled. Held, That the
marriage to G. was absolutely void; that
a decree dissolving it was not necessary
to the legality of her marriage to dece-
dent and that she was the legal wife of
decedent.-Id.
1. A married woman domiciled in New
York made a note, by her husband, who
was then doing business in Connecticut,
to the order of a firm there of which he
was a member. The note was payable in
Connecticut. It was first negotiated in
New York. The law as to married
women in Connecticut is, in general, the
common law, and its statutes would not
permit the making of such a note. Held,
That the note was valid and she was
bound.-Voight et al. v. Brown, 539.
See ASSAULT, 4; LIFE INSURANCE, 4, 5;
MECHANIC'S LIEN, 2.
MASTER AND SERVANT.
1. One who has authority from the master to
employ men, act as foreman and order
repairs, stands in the position of the mas-
ter, and the latter is liable for his neglect
to adopt reasonable precautions for the
safety of the employees.-Healy v. Ryan
et al., 23.
2. Plaintiff was injured while in defendants'
employ in a collision caused by a defec-
tive brake. He had notified one P., who
had authority to order repairs, and had
been promised that it would be repaired.
Held, That the question of contributory
negligence was for the jury, and that the
question whether such notice was given
was properly submitted to them.-Id.
3. Plaintiff's intestate was killed while at
work in the cellar of a building which
defendant was constructing as contractor.
He was engaged in preparing mortar, and
for that purpose was obliged to get water
from a tub standing under the opening
in the floors left for the stairs. Above
this opening a number of brick-layers
were at work laying brick on the fourth
floor. The only evidence of the accident
was given by a fellow workman, who was
in the cellar, and who testified that he
heard a thud, and, on looking round,
saw deceased stagger toward the wall,
and caught him as he was falling into
the tub. It was found that deceased's
skull was fractured. Held, That it could
be inferred that deceased was killed by
some hard substance falling upon his
head from above; that defendant was
under a duty to properly cover the said
opening so as to protect the workmen in
the cellar from such accidents and could
not escape the liability for his neglect to
do so by having delegated such duty to
his foreman; and that, in the absence of
proof that deceased knew that the cover-
ing over said opening was insufficient, it
could not be concluded that he took this
risk as a necessary incident of his em-
ployment.-Ford v. Lyons, 39.
4. Disobedience of a rule made by an em-
ployer and posted conspicuously in his
factory for the protection of his employ-
ees in the use of the machinery would
ordinarily be negligence on the part of
the employee; but, if the employer prose-
cutes his work in a manner that renders
a violation of the rule necessary or prob-
able, or if he suffers and approves its
habitual disregard, its disobedience is not
conclusive on the question of the em-
ployee's negligence, and that matter
must be left to the jury to determine.-
Hayes v. The Bush & D. Mfg. Co., 42.
5. Plaintiff's intestate, a skilled workman,
entered and remained in defendant's ser-
vice with full knowledge and appreciation
of the risk and danger of leaving the roller
couplings uncovered. He died from in-
juries received in the couplings. Held,
that he took upon himself the risk of
injury from plaintiff's omission.-Shaw v.
Sheldon et al., 45.
6. Testimony was given that the superin-
tendent asked deceased if he wanted the
couplings covered and that he declined it.
Held, That the jury should have been
charged that, if true, that fact proved
conclusively that deceased took the risk
and freed defendants from responsibility.
-Id.
7. Plaintiff while working in a laundry
slipped upon the wet floor, when her left
foot slipped into a hole which was used to
sweep refuse into, and it was injured.
Held, That she must be deemed to have
taken the risk of slipping on the floor as
incident to the employment and that the
employer was not liable.-Burns v. Bost-
wick, 217.
8. If, considering the age and experience of
the employee, the danger and risk of
the work is obvious, no negligence can
be imputed to the master for a failure to
give notice.-Murphy v. Mairs, 309.
9. Plaintiff was injured by the fall of a
scaffold on which he was at work for de-
fendant as a helper. Defendant did not
construct the scaffold, but it was done
by his foreman. Held, That whether
the scaffold was unsafe for the use to
which it was put was a question of fact
for the jury, and that defendant was
liable for a failure to exercise proper
care and prudence in regard to it before
requiring plaintiff to use it.-Weiler v.
Isley, 398.
10. Where the dangers of an employment
are obvious, or are well known to the ser-
vant, instruction and warning as to them
is not required of the master.— Wendling
v. Bainbridge et al., 481.
11. While plaintiff was welding two pieces
of iron one of his employers, without
warning, threw a compound on the
pieces, which formed a sputtering flux
and one of the particles injured plain-
tiff's eye. Held, That as this act was
unusual the injury was not an incident
of the work which plaintiff assumed.-
McCarragher v. Gaskell et al., 527.
12. The members of a firm are liable for a
negligent act of one of the firm.- Id.
See CONTRACT, 18; NEGLIGENCE, 19; RAIL-
ROADS, 1, 3, 4, 10, 11.
1. Where an action to establish and foreclose
a lien is brought pursuant to Chap. 402,
Laws of 1854, and amendments thereto,
and judgment rendered therein which
was set aside on appeal and a new trial
granted, it is proper to deny a motion to
dismiss the action, although more than a
year had expired since the determination
upon appeal and the case had not been
retried. The case is still one where "pro-
ceedings are commenced," and the lien
continues" until judgment is rendered,"
that is, until a final judgment is rendered.
-Haag et al. v. Hillemeyer, 34.
2. Where a man, with his wife's consent,
erects improvements on her real estate,
said estate becomes subject to the stat-
utory mechanics' liens the same as if the
wife had personally contracted for the
erection of the building.-McDougall et al.
v. Nast, 263.
3. The statutory lien is limited to the amount
due to the contractor at the time of filing
the notice, or to the sums he might re-
ceive afterwards on account of his con-
tract.-Id.
4. Section 2 of Chap. 342, Laws of 1885, ap-
plies only to cases where the money is
paid or the incumbrances put on by col-
lusion with the owner for the purpose of
defrauding the contractor.-Munger v.
Curtis et al., 362.
5. A lien cannot cut off or affect a prior
unrecorded mortgage made in good faith.
-Id.
1. The report of a referee appointed to com-
pute, etc., in a foreclosure suit is not the
report meant by § 763 of the Code, which
contemplates a decision of the referee
determining the rights of the parties as
they would be determined by a verdict,
decision of a judge, or interlocutory judg-
ment.-Smith v. Joyce 106.
2. A failure to revive a foreclosure suit in
which there was no defense, plaintiff
having died after the report of the referee
to compute and before the entry of final
judgement, does not affect the title of the
purchaser at a sale under a decree in
plaintiff's favor, such purchaser being
the mortgagor and a defendant and hav-
ing no notice of plaintiff's death.-Id.
3. Under what circumstances the non-pro-
duction of a bond and mortgage furnishes
conclusive evidence of their payment.-
Lammer et al. v. Stoddard et al., 107.
4. A mortgage made upon real property be-
fore the enactment of Chap. 275, Laws of
1882, by a trustee appointed by a marriage
settlement to receive the rents and profits
of said property during the life of the
wife and apply the same to her benefit free
from the debts, control or management
of her husband, is absolutely void as
being in contravention to the trust, not-
withstanding that it was made with the
sanction and under the direction of the
Supreme Court and the proceeds were
used in paying taxes levied upon the
property.-The U. S. Trust Co. v. Roche
et al., 111.
5. An action to foreclose such a mortgage
cannot be sustained upon the ground that
the mortgagee has become subrogated to
the rights of the prior lienors whose liens
upon such property were paid off by the
money advanced upon the mortgage.-Id.
6. A purchaser of the equity of redemption
who makes payments to the mortgagee
after an assignment of the mortgage has
been recorded is a purchaser subsequent
to the assignee, and under the recording
act he is chargeable with notice of such
assignment, and it is not material whether
he had notice otherwise sufficient to
put him on inquiry.-Brewster v. Carnes,
129.
7. Accountings between a mortgagor and a
former holder of the mortgage, in respect
to payments claimed to have been made
thereon, accompanied by an agreement to
apply the balances settled upon the mort-
gage, are admissible in evidence, as
against a subsequent assignee, to prove
payment of the mortgage to the mort-
gagees.-Holcomb v. Campbell, 265.
8. Such an agreement to make an applica-
tion is as effectual, by way of payment
upon the morgage, as if receipted to that
effect or endorsed thereon; and both par-
ties are concluded by the transaction. — Id.
9. What was said by the parties, while the
accounting and settlement was in pro-
gress, is admissible as part of the res
gestæ.-Id.
10. Testator, who was liable upon a mort-
gage which he had assumed, conveyed the
mortgaged premises to his daughter by a
full convenant deed, in consideration of
love and affection. Held, That the land
was the primary fund for the payment
of the mortgage, and that the daughter
had no claim against the estate for pay-
ments on the mortgage made by her.-In
re claim of Wilbur v. Estate of Warren,
276.
11. In an action to restrain the foreclosure of
a bond and mortgage, of which defendant
was assignee, upon the ground of pay-
ment, plaintiff, who was the widow and
devisee of the mortgagor, was allowed to
testify that in certain years there were
settlements of mutual accounts between
the mortgagees and the mortgagor; that
certain amounts were then found due the
latter and that these were agreed to be
indorsed on the bond and mortgage.
Held, No error. That these declarations
of the mortgagees were competent as part
of the res gesta.-Holcomb`v. Campbell,
12. Where a person who has purchased prem-
ises at foreclosure sale and paid the ten
per cent. and signed the usual terms of
sale assigns his bid to another person
who fails to complete the purchase the
assignee takes the responsibility of the
broken condition so far at least as to for-
feit the ten per cent. in case of a deficiency
on the re-sale.-Mead v. Brunnemer et
al., 407.
13. Under the charter of the city of Buf-
falo, where the city in the exercise of its
right of eminent domain has instituted
proper proceedings to condemn a portion
of lands which are subject to a mortgage,
and awards have been made to the mort-
gagee for his damages in diminishing his
security, although the awards had not
in fact been paid by the city to the mort-
gagee, the right of such mortgagee to
payment of such awards is not affected by
the foreclosure and sale of the premises
described in the mortgage. The rights
acquired by the city by means of its
right of eminent domain are paramount
to the lien of the mortgage.-Fincke et al.
v. The City of Buffalo, 445.
14. When a mortgage of a third person is
assigned by the mortgagee as collateral
for his own debt, the foreclosure by the
assignee and his purchase at the sale as
against the assignor, who has not been
made a party, has only the effect to sub-
stitute the land for the mortgage in the
hands of the assignee, and leave it sub-
ject to the right of the assignor, by pay-
ment of his debt, to reclaim the property
and hold it discharged of the assignee's
lien. In re estate of Gilbert, 470.
15. The efficiency of a deed or mortgage de-
pends upon its being executed according
to the statutory formalities and being
unconditionally delivered by the maker
to the grantee or mortgagor or his agent.
-Munoz v. Wilson, 477.
16. Under the circumstances of this case,
Held, That the mortgage to plaintiff's in-
testate, though subsequent in date to a
deed to defendant, was delivered first
and entitled to priority.-Id.
17. Action to foreclose a mortgage upon the
property of a railroad company given to
secure bonds issued by said company.
The defense was that the bonds had been
fraudulently issued and were invalid.
The issues were tried at Special Term
and a decision rendered to the effect that
said bonds had been unlawfully issued
and were voidable at the election of the
railway company with the exception of
those which had passed into the hands of
holders for value without notice, and that
as to such bonds the action could be
maintained. Held, That it was not nec-
essary upon such decision for the court
to make findings and to enter an interlo-
cutory judgment of foreclosure and sale
with a reference to ascertain the amount
due upon the bonds, but that a mere
order of reference to inquire who were
the holders of the bonds in controversy
and for what they had been acquired
and what consideration had been paid
therefor by their present or preceding
holders was proper and sufficient.-The
Central Trust Co. v. The N. Y. C. & N.
RR. Co., 520.
18. Such an order of reference affected a
substantial right and was appealable.—
Id.
19. Plaintiff, who held mortgages executed
by F. and W., executed a release of W.
from all liability thereon, which ex-
pressed an intention not to discharge F.'s
liability. Held, That the release cut off
and destroyed the equitable right of sub-
rogation to the surety in case of payment,
and the lien of the mortgage was de-
stroyed.—Murray v. Fox et al., 535.
See ASSESSMENTS, 2; ASSIGNMENT, 2; BANKS,
13; CORPORATIONS, 7; DEEDS, 4; LEASE, 1;
MECHANIC'S LIEN, 5; TRUSTEES, 1; VE-
NUE, 2.
MUNICIPAL CORPORATIONS.
1. The provisions of Chap. 719, Laws of
1870, in regard to the employment of
counsel by defendant's common council
were inconsistent with and repealed by
Chap. 461, Laws of 1871, and a claim for
services as counsel under such an employ-
ment cannot be recovered against de-
fendant. - Lyddy v. Long Island City,
284.
2. If city authorities have no actual notice
of an obstruction placed in a street by
third persons, yet if their ignorance re-
sults from omission of duty of inspection
the city is equally chargeable as if express
notice had been actually proved. The
question of reasonable time on which
notice is to be inferred must be deter-
mined on all the circumstances of the
case by the jury where the question of
negligence depends on implied notice,
and in such case it is error to non-suit.—
Kunz v. The City of Troy, 425.
3. The chamberlain of the city of Troy
having abandoned his office and left the
city, the mayor appointed defendant "to
discharge the duties * during his
absence." The charter provided for an
appointment for three years, and that in
case of sickness or absence, if the cham-
berlain neglected to appoint some suitable
person to discharge the duties the mayor
could appoint some suitable person to dis-
charge the duties during such sickness or
absence. Held, That the appointment
was a temporary one and was not in-
tended as an appointment for a full term;
that if the power to make a temporary
appointment did not, under the circum-
stances, exist, the appointment of defend-
ant was void -The People ex rel. Bridg-
man v. Hall, 428.
4. The negligence of the water board of the
city of Yonkers, created under Chap. 36,
Laws of 1873, for the purpose of taking
land by condemnation for the city, while
acting in performance of the duty of the
municipality, is the negligence of the
city.-Pettengill v. The City of Yonkers,
5. By Chap. 298, Laws of 1886, a city was au-
thorized to borrow not exceeding $25,000
to erect a school building and the board
of education was to certify how much of
this sum would be necessary. The board
certified that the whole sum would be
2. In a prosecution for the crime of man-
slaughter committed as above described,
reports of the condition of the buildings
which subsequently fell, made to the Bu-
reau of Inspection of Buildings of the
city of N. Y. by one of its examiners,
were admitted in evidence against the
objection and exception of defendant.
Before said reports were received in evi-
dence their entire substance and effect
were stated by the superintendent of said
bureau in the course of his examination
as a witness without exception or objec-
tion on the part of defendant. Held, That
since the reading of the report added
nothing to the evidence already before
the jury no error was committed in re-
ceiving them for which a conviction
should be reversed.--Id.
3. In such a prosecution it is proper to sub-
mit to the jury specimens of mortar taken
from several different parts of the fallen
buildings shortly after their fall, and also
a specimen of mortar designated by ex-
perts to be good.—Id.
MUTUAL INSURANCE.
1. Defendant was organized under Chap.
175. Laws of 1883. An assessment was
laid and money collected to pay plaintiff's
claim. Payment was deferred and finally
suit brought. Held, That the collection
of the assessment for the purpose of pay-
ment was not a bar to defendant proving
any valid defenses which it had to the
payment and that it was its duty to make
such defenses.--Mayer v. The Equitable
Reserve Fund Life Assn., 322.
2. A beneficial certificate in the "Grand
Lodge Ancient Order of United Work-
ingmen of the State of New York," and
the rules of the order to which the in-
sured had agreed, required that any mem-
ber desiring to make a direction as to
payment different from that stated in the
certificate might do so in a prescribed
form and with certain formalities. The
insured, believing himself dying and de-
siring such change, told a friend that he
wished this done and asked him to have
the forms gone through with. Before
anything was actually done he died.
Held, That the designation in the certifi-
cate must stand and that the person des-
ignated was entitled to the money.-Ire-
land v. Ireland, 335.
See EXECUTORS, 11; LIFE INSURANCE, 9
1. After defendant's train began moving
plaintiff's intestate with others attempted
to board it. The gate was closed on the
foot of deceased and he was carried along
clinging to the car until struck by a
water pipe and injured so that he died.
Held, That his attempt to enter the train
under the circumstances was a negligent
act contributing to his death and that
plaintiff could not recover.-Solomon v.
The Manhattan R. Co., 25.
2. After the gates on defendant's cars were
closed plaintiffs' testator kept hold of the
stanchions supporting the roof while the
train was moving and the gateman push-
ing him away until he disappeared under
the car and was killed." Held, That
plaintiffs could not maintain an action
for damages for his death.-Card et al. v.
The Manhattan R. Co., 43.
3. A person driving a vehicle through the
streets of a city is bound to anticipate
that pedestrians may be at the crossings
and to take reasonable care not to injure
them.- Birkett v. The Knickerbocker Ice
Co., 46.
4. In order to impute the negligence of its
parents to a child who is non sui juris
the child itself must be guilty of what
would be negligence in an older person.
-Id.
5. It is not negligence, as a matter of law,
for a mother to allow a child four and
one-half years old to go out to play on the
sidewalk in the city of Brooklyn on a
summer afternoon in company with a
brother six years of age. Whether or not
such an act is negligence is a question for
the jury.-Id.
6. The measure of the damages arising
from the death of a child four and one-
half years old caused by the negligence
of defendant is not the loss of services of
such child during its minority, but is
the whole pecuniary loss occasioned by
its death.-Id.
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