any damage from G.'s failure to as required by section 11 of chapter perform within the time specified. 500 of the Laws of 1863. The act All the evidence on the subject was of 1875, chapter 379, which prohis statement, as a witness, that he vides a complete scheme for creatsuffered damage by reason of the ing and enforcing liens in New non-completion of the contract in York City, does not purport to be loss of rents of over $2,000. The an amendment of the former act. referee refused to find that the Section 8 of the act of 1875 prodamage for the delay was any speci- vides that no lien shall be binding fied amount.

for more than 90 days after filing John M. Pinckney, applt. in person. the claim, unless an action is com

, Alfred 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but as he did not give such upon the subject, the earlier stutute proof, there was no basis for such must be held to be repealed by allowance ; that under the answer necessary implication. 30 Vt., 344 ; as it was, and upon the evidence, the 37 N. H., 295; 16 Barb., 15; 3 referee did not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 Section one of the act of 1875 from the delay to any specified provides that "every person peramount.

forming labor or furnishing materiDefendant claimed that as G. did als to be used in the construction, not in every particular complete the alteration, or repair of any buiding, contract before the trial of the ac- &c., shall have a lien upon

the same tion, he was entitled to be credited for the work or labor done or mawith rent due from G. to that time. terials furnished at the instance of The referee allowed the rent up to the owner of the building or other the time the action was commenced. improvement, or his agent.”

Held, no error ; that for the pur- Held, That the general purpose of poses of this action the contract this section is to give every person must be treated as then performed. who furnishes labor or materials a

Defendant claimed that the lien lien, and it includes subcontractors had ceased because a year

as well as contractors. pired, and no order of the court had It appeared that when the lien been made continuing it, and no was filed no part of the sum stipunew docket made stating that fact, lated in the contract between P. and

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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 1 of the act of that effect, have been known to him 1875, which provides that“ the ag- and believed by him before he utgregate amount of such liens must tered the slanderous words. pot exceed the amount which the Samuel Hand, for applt. owner would be otherwise liable to William H. Johnson, for respt. pay at the time of the filing of the Held, no error. That such facts do claim,” &c.

not operate to mitigate the damages Ileld, untenable ; that the sole by showing that the plaintiff's repurpose of that provision was to putation is so bad that the words limit the owner's liability to the spoken by defendant cannot make amount he had contracted to pay, it worse. Although evidence is adafter deducting such payments as missible to prove the general charhe had made before the lien was acter to be bad, yet mere reports or filed. The words “liable to pay at rumors, pot amounting to proof of the time” mean liability to pay by general character, or information virtue of his contract, either pres- obtained by defendant from others ently or in futuro.

as to the truth of the charge, unless Judgment of General Term, af- accompanied by proof that such infirming judgment for plaintiff, af- formation is true, cannot be refirmed.

ceived to rebut the presumption of Opinion by Earl, J. All concur. malice; so the defendant is reduced

to the proof of facts and circum

stances known to hiin at the time of SLANDER. EVIDENCE.

making the charge, having a tend

ency to induce a belief of its truth, N. Y. COURT OF APPEALS.

as the only means of showing in Hatfield, respt., v. Lasher, applt.

want of inalice. 11 N. Y., 347 ; 24

Wend., 105; 12 N. Y., 67' ; 72 id., Decided June 1, 1880.

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.

527. Affirming S. C., 8 W. Dig., 31.

Defendant charged that plaintiff This was an action for slander, in had been criminally intimate with charging the plaintiff withi 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 evi- or the city, and did not operate as a rescission dence was excluded.

of the resolution, or create a new liability. Hell, 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 bim 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 bad 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

a resolution, making the office of of the illicit intercourse of W. with engineer to the board an honorary plaintiff, and of defendant's belief in

one, and providing that no salary them.

should be attached to it. This resoJudgment of General Term, lution was communicated to plainaffirming judgment for plaintiff, tiff, who, in his reply, expressed his affirmed.

appreciation of the honor conferred Opinion by Folger, Ch. J. All

upon him by retaining him in office, concur.

and the pleasure it would afford him to discharge the duties of engineer.

Plaintiff's bills for 1871 and 1873 SALARY. MUNICIPAL COR

were never acted upon by the board, PORATIONS.

but by a resolution, passed May 17, N. Y. COURT OF APPEALS.

1873, it approved the bill of 1872 Haswell, applt., v. The Mayor, for $1,600, and directed its payment. &c., of N. Y., respt.

No payment having been made, this Decided June 1, 1880.

action was commenced. At the trial,

the plaintiff's complaint was disBy resolution of the board of health, adopted missed, and this judgment was afin 1871, the office of engineer to the board was made an honorary one, and it was pro

firmed by the General Term. vided that no salary should be attached to it. Elliot Sandford, for applt. Plaintiff was notified, and replied, expressing

D. J. Dean, for respt. his appreciation at being retained in office. In an action for services performed in 1871, Held, no error; that the resolu2, 3, Held, That the action could not be tion of the board of health, of maintained ; that there could be no right to compensation, it having been expressly de May 24, 1871, clearly abolished the clared, and assented to, that the services salary of the engineer, and made the rendered should be honorary.

office an honorary one, and its effect The board audited plaintiff's bill for services was not changed or modified by

for the year 1872, and directed its payment: plaintiff's letter in reply thereto. Held, That this was a mere gratuity, without authority, and did not constitute the legal There could be no right to compenauditing of a bona file debt against the board sation, it having been expressly de


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clared, and assented to, that the has been in bis employ, and who has services rendered should be hono- not been directly discharged from rary.

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 The allowance for services in 1872 as compels the former to make re- did not operate as a rescission, or muneration unless the law permits create any new liability. it to be done. Dillon on Munc. Judgment of General Term, afCorp., $ 169 ; 13 Gray, 347. firming judgment dismissing com

Also held, That as plaintiff's letter, plaint, affirmed. in reply to the resolution of May 24, Opinion by Miller, J. All concur. 1871, was evidently intended as a response thereto, and addressed to the secretary of the board, it may

MORTGAGE. be regarded as official, although not N. Y. COURT OF APPEALS. addressed to the board.

Zabriskie v. Salter, impl’d. Also held, That the fact that the board audited and allowed, in 1873, Decided April 6, 1880. à claim of $1,600 to plaintiff, as The owner of certain premises executed compensation for services rendered mortgage for $3,000 thereon and conveyed after the passage of the resolution,

the premises to B. subject to the mortgage. B.

executed a mortgage for $4,000 thereon and was not sufficient to authorize a re

conveyed to D. subject to both mortgages. covery. The certificate of the cor- 1. conveyed in three parcels to different rectness of the bill was a mere gra

grantees, parcels 1 and 2, free from incum.

brance, and parcel three subject to both tuity, without authority, and did not


Parcel 1 was afterwards conconstitute the legal auditing of a

veyed subject to both mortgages and the bona fide debt against the board of liability fixed at $1,584. The owner after. health or the city. The conditions wards procured a release from the $4,000 of plaintiff's employment having

mortgage on payment of a sum not specified,

and a subsequent grantee paid interest on a been fixed, they could not be

portion of the $3,000 mortgage. Defendant changed, except by an express became the purchaser of parcels 2 and 3 repeal of the resolution. 2 Sandf., foreclosure sale under the $4,000 318; 1 Hill, 362; 15 Wend., 44; 6

mortgage, the conveyance being made sub

ject to the $3,000 mortgage. On foreclosure Hill, 214. The rule applicable to a

of the latter mortgage, Held, that the practical construction of a contract clause in defendant's deed was not of itself has no relevancy where there is a conclusive of an intent to charge parcels 2 positive agreement, as was the case

and 3 exclusively with payment of the here.

mortgage; that if the property was

offered and bid off with the assumption of The rule that a person is liable

the mortgage and there was no intent to for the services rendered by one who charge it, the clause might not have that


not a

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 $1,000 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

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 $4,600 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 $1,000 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 $1ment 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 $610 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

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