any damage from G.'s failure to as required by section 11 of chapter perform within the time specified. All the evidence on the subject was his statement, as a witness, that he suffered damage by reason of the non-completion of the contract in loss of rents of over $2,000. The referee refused to find that the damage for the delay was any specified amount. 500 of the Laws of 1863. The act of 1875, chapter 379, which provides a complete scheme for creating and enforcing liens in New York City, does not purport to be an amendment of the former act. Section 8 of the act of 1875 provides that no lien shall be binding for more than 90 days after filing John M. Pinckney, applt. in person. the claim, unless an action is comAlfred Erbe, for respt. menced within that time to enforce Held, That a literal performance of it, and a notice of the pendency the contract in every detail was not thereof filed, &c., and section 18 a condition precedent to payment provides particularly as to the manby defendant, 50 N. Y., 145; 67 id., ner in which liens may be dis563; that defendant might have charged. been entitled to an allowance on ac- Held, That the act of 1875 takes count of the defective performance the place of and supersedes the act if he had proved and claimed what of 1863; that as the later act covers it would have cost to complete the the whole subject, and was plainly contract strictly according to its intended to furnish the only law terms, but as he did not give such upon the subject, the earlier statute proof, there was no basis for such must be held to be repealed by allowance; that under the answer necessary implication. 30 Vt., 344 ; as it was, and upon the evidence, the 37 N. H., 295; 16 Barb., 15; 3 referee did not err in refusing to How., U. S., 636; 13 id., 429. find that defendant suffered damage from the delay to any specified amount. Defendant claimed that as G. did not in every particular complete the contract before the trial of the action, he was entitled to be credited with rent due from G. to that time. The referee allowed the rent up to the time the action was commenced. Held, no error; that for the purposes of this action the contract must be treated as then performed. Defendant claimed that the lien had ceased because a year had expired, and no order of the court had been made continuing it, and no new docket made stating that fact, Section one of the act of 1875 provides that "every person performing labor or furnishing materials to be used in the construction, alteration, or repair of any buiding, &c., shall have a lien upon the same for the work or labor done or materials furnished at the instance of the owner of the building or other improvement, or his agent." Held, That the general purpose of this section is to give every person who furnishes labor or materials a lien, and it includes subcontractors as well as contractors. It appeared that when the lien was filed no part of the sum stipulated in the contract between P. and G. was due, but a large portion of true. The court charged that the it had then been earned. It was facts which the defendant proved to claimed that the lien was inopera- mitigate the damages must, to have tive under section of the act of that effect, have been known to him 1875, which provides that "the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim," &c. Held, untenable; that the sole purpose of that provision was to limit the owner's liability to the amount he had contracted to pay, after deducting such payments as he had made before the lien was filed. The words "liable to pay at the time" mean liability to pay by virtue of his contract, either presently or in futuro. Judgment of General Term, affirming judgment for plaintiff, affirmed. and believed by him before he ut- Samuel Hand, for applt. Held, no error. That such facts do not operate to mitigate the damages by showing that the plaintiff's reputation is so bad that the words spoken by defendant cannot make it worse. Although evidence is admissible to prove the general character to be bad, yet mere reports or rumors, not amounting to proof of general character, or information obtained by defendant from others as to the truth of the charge, unless accompanied by proof that such information is true, cannot be received to rebut the presumption of Opinion by Earl, J. All concur. malice; so the defendant is reduced SLANDER. EVIDENCE. N. Y. COURT OF APPEALS. Hatfield, respt., v. Lasher, applt. Decided June 1, 1880. to the proof of facts and circumstances known to him at the time of making the charge, having a tendency to induce a belief of its truth, as the only means of showing a want of malice. 11 N. Y., 347; 24 Wend., 105; 12 N. Y., 67; 72 id.,. 36; 8 Wend., 579; 7 Cow., 629. While the defendant in an action of slander Section 165 of the Old Code and may give evidence of facts and circumstances section 535 of the New Code tending to prove the truth of the statements changed the rule of pleading and made by him in mitigation of damages, yet, to be available for that purpose, it must be not the effect or admissibility of shown that such facts and circumstances evidence further than the change in were known to and believed by him at the form of pleading did so. 51 N. Y., time of making the charge. Affirming S. C., 8 W. Dig., 31. 527. Defendant charged that plaintiff This was an action for slander, in had been criminally intimate with charging the plaintiff with unchaste one W., that the latter was diseased, conduct. Upon the trial defendant and that plaintiff was, at the same introduced evidence to show that time, afflicted with a like disease. the statements made by him were Defendant offered to show that W. Vol. 10-No. 15. had the disease alleged. The evidence was excluded. or the city, and did not operate as a rescission of the resolution, or create a new liability. Held, no error. That the evidence This action was brought by plainwas irrelevant; that it did not tend tiff to recover for services rendered to prove that the charge was true, by him as engineer to the board of or that defendant had information, health, in the city of New York, at or had heard reports which should its request, in the years 1871, 1872, have per se led him to believe it was and 1873, for which he had rentrue. To connect the statement that dered bills to the board. It apW. was thus affected with the charge peared that prior to June 1, 1871, that plaintiff was thus affected, and plaintiff had been engineer to the that a belief in the statement led to board at a salary of $4,000 a year. the making of the charge, there must On May 24, 1871, the board adopted have also been proof of statements of the illicit intercourse of W. with plaintiff, and of defendant's belief in them. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Folger, Ch. J. All concur. SALARY. MUNICIPAL COR PORATIONS. N. Y. COURT OF APPEALS. Haswell, applt., v. The Mayor, &c., of N. Y., respt. Decided June 1, 1880. By resolution of the board of health, adopted in 1871, the office of engineer to the board was made an honorary one, and it was provided that no salary should be attached to it. Plaintiff was notified, and replied, expressing his appreciation at being retained in office. In an action for services performed in 1871, 2, 3, Held, That the action could not be maintained; that there could be no right to compensation, it having been expressly de clared, and assented to, that the services rendered should be honorary. The board audited plaintiff's bill for services for the year 1872, and directed its payment. Held, That this was a mere gratuity, without authority, and did not constitute the legal auditing of a bona fide debt against the board a resolution, making the office of Elliot Sandford, for applt. Held, no error; that the resolution of the board of health, of May 24, 1871, clearly abolished the salary of the engineer, and made the office an honorary one, and its effect was not changed or modified by plaintiff's letter in reply thereto. There could be no right to compensation, it having been expressly de rary. clared, and assented to, that the has been in his employ, and who has services rendered should be hono- not been directly discharged from their performance, has no applicaNo compensation is recoverable tion to corporations or public for the performance of a public ser- bodies, whose powers are limited by vice, or of official duties, unless it is statute, and where the case is to be given by law, and there is no implied determined upon the construction obligation on the part of a municipal to be placed upon a resolution of corporation, and no such relation such body. between such a body and its officers as compels the former to make remuneration unless the law permits it to be done. Dillon on Munc. Corp., § 169; 13 Gray, 347. Also held, That as plaintiff's letter, in reply to the resolution of May 24, 1871, was evidently intended as a response thereto, and addressed to the secretary of the board, it may be regarded as official, although not addressed to the board. Also held, That the fact that the board audited and allowed, in 1873, a claim of $1,600 to plaintiff, as compensation for services rendered after the passage of the resolution, was not sufficient to authorize a recovery. The certificate of the correctness of the bill was a mere gratuity, without authority, and did not constitute the legal auditing of a bona fide debt against the board of health or the city. The conditions of plaintiff's employment having been fixed, they could not be changed, except by an express repeal of the resolution. 2 Sandf., 318; 1 Hill, 362; 15 Wend., 44; 6 Hill, 244. The rule applicable to a practical construction of a contract. has no relevancy where there is a positive agreement, as was the case. here. The rule that a person is liable for the services rendered by one who The allowance for services in 1872 did not operate as a rescission, or create any new liability. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Miller, J. All concur. MORTGAGE. N. Y. COURT OF APPEALS. Decided April 6, 1880. The owner of certain premises executed a on effect; that the owner of parcel 1 occupied suit. There is a direct conflict of a position of equality with defendant and evidence whether it was thus put should pay the unpaid balance of the $1,584. up and offered for sale. It was This action was brought for the denied that there was any order foreclosure of a mortgage. It ap- of the court authorizing the referee peared that the mortgage was to insert that clause in the deed. executed by one W. for $3,000. W. Chas. N. Black, for applt. sold the property to B. subject to A. Dickinson, for respt. said mortgage; the latter executed Held, That the clause in the deed a mortgage of $4,000 and transferred would not of itself be conclusive of the premises to D. subject to both an intent to charge parcels 2 and 3 mortgages; on the next day D. con- exclusively with the payment of the veyed the land in three parcels to mortgage; the title was subject to different grantees, parcels 1 and that mortgage without that clause, 2 free from encumbrances, and and if the property was not offered parcel 3 subject to the two mort- and bid off with the assumption of gages above specified and to two the mortgage, and there was no inother mortgages executed by him tent thus to charge it, the insertion thereon. Subsequently in a convey- of the clause in the deed might not ance of parcel 1, the grantee have that effect. took the deed subject to both mort- It is at least ambiguous, and the gages of $3,000 and $4,000 and it fact that the owner of parcel 1 apwas proved by affidavit that the pro- plied for and procured a discharge portion of liability was fixed by con- from the $4,000 mortgage only would tract at $1,584. When the $4,000 permit the inference that the $3,000 mortgage was foreclosed the owner still remained upon the whole of parcel 1 applied to the court and property. procured a discharge of that parcel It was claimed by S. purchaser at from the mortgage upon the pay- the sale on foreclosure of the $4ment of a certain amount, how much 000 mortgage, that she should be does not appear. It also appeared regarded as taking title at the date that a subsequent owner of that lot of that mortgage, and if the paid interest upon $640 of the $3-clause in her deed did effect a 000 mortgage and recognized the charge of the whole mortgage upon liobility of his lot for that amount. parcels 2 and 3, bid off by her, she There was evidence that when the is entitled to priority in equity over present owner of parcel 1 purchased parcel 1. he took the promise of his grantor Held, That this was correct to the to protect it from the $3,000 mort- extent of the amount of the mortgage. After the release of parcel gage. The giving of a mortgage is 1 from the $4,000 mortgage, parcels an alienation for the application of 2 and 3 were bid off by S. on a fore- the equitable rule pro tanto, that is, closure sale thereof. The referee's to the amount of the mortgage. 50 deed conveyed the premises subject N. Y., 380; 11 Paige, 59. But as to the $3,000 mortgage, the one in against the owner of parcel 1, the |