4. A superintendent of a factory, although hav
ing power to employ men, or represent the
master in other re-pects, is, in the manage-
ment of the machinery, a fellow-servant of
the other operatives.-Crispin v. Babbitt,
5. One B. was placed in charge of defendant's
works as general superintendent and man-
While
ager, having foremen under him.
plaintiff was at work about an engine he was
injured by steam carelessly let on by B.
Held, That B. only represented defendant in
respect of those duties which defendant had
confided to him; that his act in letting on
the steam was that of a mere operative, for
which defendant would not be liable to a fel-
low servant of B.--Id.
6. A master, whether a natural person or a
corporation, although not to be held as
guaranteeing the absolute safety or perfec-
tion of machinery or other apparatus pro-
vided for the servant, is bound to observe all
the care which the exigencies of the situation
reasonably require in furnishing instru
mentalities adequately safe for use.--Hough
v. The Texas & Pacific RR. Co., 543.
7. Those, at least, in the organization of a rail-
road corporation who are invested with con-
trolling or superior duty in that regard, rep-
resent its personality; their negligence, from
which injury results, is the negligence of the
corporation.--Id.
8. If the servant, having knowledge of a defect
in machinery, gives notice thereof to the
proper officer, and is promised that such
defect shall be remedied, his subsequent use
of the machinery, in the belief, well-grounded,
that it will be put in proper condition within
a reasonable time, does not necessarily, or
as a matter of law, make him guilty of
contributory negligence. It is for the jury
to say whether he was in the exercise of due
care in relying upon such promise and in
using the machinery after knowledge of its
defective or insufficient condition. The bur-
den of proof, in such a case, is upon the
company to show contributory negligence.
-Id.
1. Where a mechanic's lien is sought under the
act of 1875, chap. 379, it takes precedence
over other incumbrances from the time of
filing only, and attaches the contracting
owner's interest which exists at the time of
filing the notice. It the owner's interest has
ceased by his death, or by operation of law,
or by a bona fide conveyance the lien does
not attach.-Brown v. Zeiss et al., 50.
by the act of 1858 to all the counties in the
state except New York and Erie. The act
of 1844 was subsequently amended several
times. Plaintiff tiled a notice of a lien
against premises situated in a village named
in the act of 1844, but the lien was filed in
pursuance of the act of 1854. Held, That
he acquired no lien thereby; that the act of
1844 was not repealed by those of 1854 and
1858.-Whipple v. Christian, 99.
Where mechanic's liens have been discharged
by executing an instrument, it does not lie
with the parties who executed it to object,
when an action against them is brought upon
it, that it is not a bond under the statute be-
cause it has no seal, or because something
was omitted in the form of it. Whitney et al.
v. Coleman, 167.
The act of 1875, in relation to mechanics'
liens in the City of New York, supersedes,
and by necessary implication, repeals the act
of 1863.-Heckman v. Pinckney, 335.
By § 1 of the act of 1875, sub-contractors, as
well as contractors, are given a lien for labor
and materials.-Id.
6. The words "liable to pay at the time" in the
restrictive clause of § 1, mean liability to
pay, by virtue of the contract, either pre-
sently or in futuro, and cannot be confined
to the amount actually payable by the terms
of the contract at the time the lien is filed.-
Id.
7. Defendant made a contract with G. by which
the latter was to repair and alter certain
premises for a specified sum, and if he failed
to perform within a certain time it was
agreed defendant was to be released from the
contract. In an action to foreclose a lien,
the answer did not allege damage from G.'s
failure to perform within the time specified,
but defendant testified that he sustained
damage to a certain amount in loss of rents.
The referee found a substantial performance
of the contract a waiver of defects, and also
of failure to perform in time, and refused to
find that the damage for delay, was any spe-
cified amount. Held, No error.-Id.
8. G.'s rent for premises occupied by him was
to be allowed on the contract. The referee
allowed the rent up to the commencement of
the action. Held, No error; that the con-
tract, for the purposes of the action, must be
treated as then performed.—Id.
See BANKRUPTCY, 8; CONTRACT, 20.
MISTAKE.
2. The mechanic's lien law of 1844 applied to
certain cities and villages named. The act
of 1854 repealed all former laws for the
security of mechanics in the counties 1. To entitle a party to recover or to be relieved
named therein, and this act was extended
from his contract on the ground of mistake,
the proof of the mistake must be clear and
positive. If the proof of mistake is not of
such a character a motion for a nonsuit can-
not be properly denied.-Hill v. Hill, 239.
See ACCOUNT, 3, 5; DEED, 4.
1. Where mortgaged property has been sold
under a foreclosure by advertisement, and
upon terms stated publicly at the time of the
sale, though not included in the published
notice, the mortgagor cannot affirm the sale
as to price bid when made upon the terms
stated, and then repudiate the terms of sale
and claim, as surplus proceeds thereof, money
which, by the terms of sale, was to be ap-
plied in payment of a prior mortgage, as
though no such terms controlled the action
and bid of the mortgagee bidding in the
property.-Story v. Hamilton, 13.
2. When mortgaged property is so sold and bid
in by the mortgagee, the terms of the sale
need not be inserted in the affidavits. All
necessary facts, not required by the statute
to be in the affidavits, may be proved by
parol.-Id.
3. In an action to foreclose a mortgage, the
personal representatives, not the heirs, of a
deceased subsequent mortgagee are the nec-
essary and proper parties.-The German
Savings Bk. v. Muller et al., 67.
4. A purchaser under a decree of foreclosure is
not bound to take upon his shoulders the re-
sponsibility of a doubtful title.-Id.
5. The lien of a mortgage to secure future ad-
vances which the mortgagee is not compelled
to make, but may or not at his option, at-
taches only as the advances are actually made
-and the extent of the lien depends upon
the condition of the property subject thereto
at the time when the advances are made re-
spectively. Hence, the lien of a judgment
docketed subsequent to the recording of
such a mortgage is prior to the lien arising
from advances made under the mortgage
subsequent to the docketing.-Ackerman v.
Hunsicker, 69.
6. The docketing of a judgment is construc-
tive notice to mortgagee, and for his own
security he must acquaint himself with the
condition of property relied upon at the time
of making such advance or payment under
his mortgage.-Id.
7. To establish a tender which will discharge
the lien of a mortgage, the proof must be very
clear that it was fairly made, and deliberately
and intentionally refused by the mortgagee
or some one duly authorized by him, and that
sufficient opportunity was afforded to ascer-
tain the amount due. It must appear that a
sum sufficient to cover the whole amount due
was absolutely and unconditionally tendered.
-Tuthill v. Morris, 200.
8. Even if a tender has been made it must bel
kept good in order to entitle the mortgagor
to the extinguishment of the mortgage.-Id.
9. The fact that a security has become, or is
invalid in law, and cannot be enforced even
in equity, does not entitle a party to come
into a court of equity and have it decreed to
be surrendered or extinguished without pay-
ing the amount equitably owing thereon.-
Id.
10. In a contract for the sale of land, defendant
agreed to give plaintiff a warranty deed and
a release from the city, and also agreed,
if the release could not be given with the
deed, to indemnify plaintiff so as to insure a
delivery by a certain time, and it was stipu-
lated that a mortgage to be given should re-
main as security for the delivery of the re-
lease, and not be collectible until such de-
livery. Held, That an action could not be
maintained by reason of a failure to deliver
the release; that the time designated for such
delivery was not of the essence of the con-
tract, and the effect of the failure was only
to postpone the payment of the mortgage.—
Ryerson et al. v. Willis, 283.
11. Where a receiver of a lessor is appointed
in foreclosure proceedings he is entitled to
all the rents then due, and to grow due, to
the lessor under the lease, and the latter has
no authority to accept a surrender of the
lease, and the lessee will still be liable if,
after notice of the receiver, he pays rent or
attempts to nullify the lease.-Nealis v. Bus-
sing, 289.
12. Where a grantee of mortgaged premises as-
sumes the payment of the mortgage he can-
not object that his grantor is not joined in
the action to foreclose. The grantor is, per-
haps, a proper, but not a necessary party.-
Root v. Wright, 318.
13. An usurious payment by the grantor on the
mortgage previous to his conveyance of the
premises is not to be credited to the grantee so
as to reduce the debt below what he assumed
to pay.-Id.
14. The owner of certain premises executed a
mortgage for $3,000 thereon and conveyed
the premises to B. subject to the mortgage. B.
executed a mortgage for $4,000 thereon and
conveyed to D. subject to both mortgages.
D. conveyed in three parcels to different
grantees, parcels 1 and 2 free from incum-
brance, and parcel three subject to both
mortgages. Parcel 1 was afterwards con-
veyed subject to both mortgages, and the
liability fixed at $1,584. The owner after-
wards procured a release from the $4,000
mortgage on payment of a sum not specified,
and a subsequent grantee paid interest on a
portion of the $3,000 mortgage. Defendant
became the purchaser of parcels 2 and 3
on foreclosure sale under the $4,000 mort-
gage, the conveyance being made subject to
the $3,000 mortgage. On foreclosure of the
latter mortgage, Held, That the clause in
defendant's deed was not of itself conclusive of
an intent to charge parcels 2 and 3 exclusively
with payment of the mortgage; that if the
property was not offered and bid off with
the assumption of the mortgage, and there
was no intent to charge it, the clause might
not have that effect; that the owner of
parcel 1 occupied a position of equality withi
defendant, and should pay the unpaid bal-
ance of the $1,584.-Zabriskie v. Salter, 339.
15. It is unnecessary, where a resale of mort-
gaged premises is directed to be made in
parcels, that the notice of the resale should
specify that the sale should be made in
parcels.-Hoffman v. Burke et al., 347.
16. A mortgage to secure future advances to a
specified amount is valid, and when record-
ed is notice of a lien to the extent of the
advances specified, but in the absence of an
agreement for further advances, and when
they are not referred to in the mortgage, the
recording thereof is not notice that it was
given to secure further advances.-Ketcham
v. Wood, 453.
17. The recording of the mortgage is sufficient
notice of any advance actually made, for
though the record itself conveys no notice
that any sum less than that stated therein
was advanced, yet it is sufficient to put any
one on inquiry, and is notice of any fact
which would in the course of business be
ascertained upon such inquiry.-Id.
18. The record of an assignment of mortgage is
not constructive notice to subsequent pur-
chasers and incumbrancers deriving title in
good faith from the mortgagor, but furnishes
protection against any subsequent assignment
of the same mortgage or any unauthorized
discharge thereof.-Bryan v. Judson, 515.
19. The clerk is not obliged to note the assign-
ment in the margin of the record of the mort-
gage.-Id.
20. When an assignment contains the names of
the mortgagor and mortgagee, the date of the
mortgage, and a covenant of the amount due,
and there is no proof of any other mortgage of
the same date executed by the mortgagor,
there is no uncertainty or ambiguity.-Id.
21. Plaintiff's intestate held an assignment of
mortgage which was duly recorded. The as-
signor afterwards executed a satisfaction, and
the mortgage was discharged of record. The
land was subsequently conveyed to L., who
executed a mortgage to H. Both L. and H.
knew that the former mortgage had not been
paid. H. assigned his mortgage to defend-
ant, who was a purchaser in good faith.
Held, That defendant had no greater rights
than H., and was not protected by the re-
cording acts; that no one having been mis-
led by the silence of plaintiff's intestate, the
latter was not estopped from bringing an
action to foreclose.-Id.
22. The mortgagor, Benham, conveyed part of
the premises in suit to B., giving him suffi-
cient money to pay off the mortgage.
B.
paid the same to the mortgagee, but having
occasion to procure the satisfaction of a mort-
gage for a like amount held by said mort-
gagee against Betts, he caused the bond
and mortgage in suit to be assigned to
the mortgagee, in substitution of the Betts
mortgage. This occurred previous to ap-
pellant's interest in the premises, which
he acquired as B.'s grantee. The defendant
Baldwin was a grantee of Benham's as to the
rest of the premises. On foreclosure, Held,
That appellant's lot should be first disposed
of; that as between his grantor, B., and Ben-
ham, who was Baldwin's grantor, B. would be
estopped from claiming that the bond and
mortgage in suit had not been paid. The
grantees stand in the shoes of their grantors.
-Coles v. Appleby, 532.
See BAR, 9; CORPORATIONS, 13; EVIDENCE, 14,
18; FIRE INSURANCE, 9; GUARANTY, 2; LIMI-
TATION, 5; SUBROGATION; TRUSTS, 5.
MUNICIPAL CORPORATIONS.
Where the Common Council of a city is au-
thorized by the Legislature to "regulate the
erection, use and continuance of slaughter-
houses," it must have the lesser power of
prohibiting the slaughter of cattle within its
limits. And no constitutional rights of in-
dividuals are violated by such a prohibi-
tion. The People v. Cronin, 16, 565.
Plaintiff's horse was killed, and his wagon
and harness injured by reason of a defect in
the approach to a bridge over the Erie Canal
within defendant's limits. It appeared that
the bridge and its approaches were on land
belonging to the state. Held, That defend-
ant was not liable; that the duty of guard-
ing the bridge and its approaches did not
devolve on defendant, but on the state.-
Carpenter v. The City of Cohoes, 103.
8. The Common Council of Syracuse, in 1877,
passed an ordinance forbidding persons to
sell milk in the streets of said city without
a license. Held, That it was within the
scope of the general and particular powers
of the city to pass the ordinance, and that
an act incorporating a milk association gave
it no greater rights than individuals had;
that the power to unite and sell milk as an
association is not a power to sell it in disre-
gard of the city ordinances.-The People ex
rel. Larrabee v. Mulholland, 564.
See TAXATION, 7; WHARFAGE, 1, 3.
1. On a trial of an indictment for murder the
judge charged that if the jury believed the
evidence offered in behalf of the people to be
true they would be justified in finding the
prisoner guilty of murder in the second de-
gree, and defined the offense. A verdict of
manslaughter in the third degree was ren-
dered. Held, that the charge was erroneous,
and that it could not be said, from the fact
that the verdict was not murder but man-
slaughter, that the objectionable charge did
not influence the jury.-McKenna v. The
People, 342.
2. What is sufficient evidence to warrant a ver-
dict of guilty on an indictment for murder.
-Reinhardi v. The People, 537.
3. On the trial of an indictment for the murder
of the prisoner's wife, it is competent for the
prosecution to prove the marriage of the
prisoner to another woman shortly before
the murder, and his prior and subsequent
relations with her, for the purpose of show-
ing a motive for the crime.-Id.
1. A national bank cannot charge a compensa-
tion for loaning its credit and procuring an-
other bank to discount the paper of its cus-
tomers. The Nat. Bk. of Gloversville v.
Wells et al., 23.
2. National banks have power to receive special
deposits gratuitously or otherwise, and when
received gratuitously they are liable for their
loss by gross negligence.-Patterson v. The
Syracuse Nat. Bk., 57.
8. The incorporation of a national bank must
be proved in an action brought by it. Such
proof may be supplied on the argument of
an appeal, where it appears to be the only
defect which will invalidate the judgment.-
The N. Y. Nat. Exchange Bk. v. Jones et al.,
4. Section 5198 of the U. S. Rev. Statutes,
which requires actions against a national bank
to be brought in the state where such bank is
located,is permissive only and not mandatory,
and does not deprive the courts of other
states of juri-diction in such actions.-Robin-
son v. The Nat. Bank of Newberne, 397.
5. Section 5242 U.S. Rev. Statutes, prohibiting
the granting of attachments against national
banks, applies only to such banks as are in-
solvent or are about to become so.-Id.
6. Where a national bank discounts a note at
an illegal rate of interest, the usury works a
forfeiture of the entire interest, and only the
face of the note can be recovered by the
bank.-The First Nat. Bk. of Uniontown v.
Stauffer, 399.
7. A complaint by a national bank and one of
its stockholders, alleged that one Van C.,
president of said bank, had wrongfully
loaned and appropriated its funds and made
false quarterly reports of its condition to the
damage of the bank and plaintiff; that the
defendants, directors, knew of the wrongful
acts of Van C.; that they might have pre-
vented them, but instead aided him, and
that they assisted the president to waste the
funds and defraud the bank and the stock-
holders; and the complaint demanded judg-
ment for the loss thereby suffered. On de-
murrer, Held, That the complaint stated a
cause of action.-The First Nat. Bk. of El-
mira v. Rathbun et al., 495.
The relation of director and stockholder is
not analagous to that of trustee and cestui
que trust.-Id.
A demurrer does not bring up the question of
the validity of an order bringing in the bank
as a party plaintiff, made after a former de-
murrer had been sustained to the action as
originally brought by the original stock-
holder alone, and this, although it appears
that the stockholder alone had no cause of
action, and that the right of action, if any,
was in the bank.-Id.
See NEGLIGENCE, 7; TAXATION, 1, 2, 11;
USURY, 9.
1. In an action for damages for the loss of plain-
tiff's sight, alleged to have been caused by
the negligence of defendant's surgeon in put-
ting some poisonous infection into plaintiff's
eyes with a brush while attempting to cure
him, plaintiff was asked, on cross-examina-
tion, whether he had published articles com-
plaining of his treatment, and whether he
stated in the articles that the poison was
communicated with a brush. Held, Compe-
tent on the question of plaintiff's credibility.
-Doyle v. The N. Y. Eye and Ear Infirm-
ary, 3.
2. Experts were asked whether, within their
experience, they had ever known a case where
gonorrheal ophthalmia was communicated by
the use of the brush. Held, competent.-Id.
3. In such an action it is competent for defend-
ant to show that plaintiff's treatment after
leaving the infirmary was improper, and to
prove the professional standing of the physi-
cians employed by it.-Id.
The physician who attended plaintiff after
leaving the infirmary, on cross-examination,
denied that he told defendant's surgeon that
plaintiff had no reason to complain of his
treatment there. Held, That evidence con-
tradicting the denial was competent by way
of impeachment.-Id.
Where a passenger, on his way from the
cars, was injured in depot by a truck of an
express company, drawn by its employees
through the crowd, without giving warning
of its approach, Held, That these facts estab-
lish gross negligence on the part of the com-
pany.-Gilson v. The Am. Ex. Co., 32.
The fact that plaintiff was standing in the pas-
sage way when struck by the truck does not
of itself amount to contributory negligence,
but is a circumstance for the jury to consider
upon that question.-Id.
7. In an action for conversion of bonds depos-
ited with a bank for safe keeping the
evidence showed that the theft of the
bonds must have been in the day time; that
they were kept in a safe accessible from the
street, and not always in view of the em-
ployees of the bank, and that sometimes the
door of the safe was left open. The question
whether the theft was suffered through gross
negligence of the bank in the care of the
bonds was submitted to the jury. Held, no
error.-Pattison v. The Syracuse Nat. Bk.,
8. Plaintiff's intestate was peddling wood in a
street of a city through which defendant's
tracks ran.
He left his horse untied and
crossed the street to make a sale when the
horse became frightened by an approaching
train and started across the street, but the
wagon became entangled by the tracks. In-
testate seized hold of the horse's head, and
while endeavoring to get him away was
thrown on the track and killed by the train.
Held, That he was not, as a matter of law,
guilty of contributory negligence; that it
was his right and duty to rescue his horse if
he could, and he had business in the place
where he was; that there is no absolute rule
of law that requires one who has a horse in
the street to tie him or hold him by the
reins; that his carelessness in leaving the
horse untied was not the proximate cause of
his death, and that whether intestate acted
prudently or not was a question for the jury
to determine.-Wasmer v. The D., L. & W.
RR. Co., 100.
9. There was a city ordinance that forbade any
horse to be left in a street unless securely
tied. Held, That it could not be said, as mat-
ter of law, that intestate violated this ordi-
nance.-Id.
10. The tracks were raised above the surface of
the street, and there was no planking or fill-
ing between the rails. Held, That it was a
question of fact for the jury whether the
usefulness of the street was not unnecessarily
impaired, and that defendant would not be
relieved from liability because it is lessee of
the road.-Id.
11. It is negligence for a railroad company to
run its trains within city limits at a rate ex-
ceeding that allowed by the city ordinance.
-Id.
12. Every operator of a railroad is bound to
furnish his employees with machinery ade-
quate for the use to which it is to be applied,
and to maintain it in like condition, and for
every injury happening by reason of neglecti
to perform this duty he is liable, whether the
act or omission causing it was due to his own
neglect or that of agents employed by him,
and an action for such injury will lie against
one or more of several parties operating such
road, as the liability is several as well as
joint. Kain v. Smith, 176.
13. Defendant and others were appointed re-
ceivers of a Vermont railroad, and, being
authorized by the laws of that state to do so,
leased a railroad in this state for a term of
years. Held, That defendant was individu-
ally liable for an injury to an employee on
the latter road caused by defective tools and
machinery, and that the fact that he was a
receiver would not shield him from liability.
-Id.
14. The fact that a party is not chargeable with
notice, actual or constructive, of a defect
whereby an accident happened, is a complete
defense to an action based on that party's
negligence.-Theall v. The City of Yonkers,
15. Plaintiff fell through a hole in a bridge over
the Bronx River, which formed a part of the
highway running from Yonkers to East-
chester. Held, That the case was governed by
the Laws of 1841, chap, 225, § 2, as amended
by chap. 383, Laws of 1857, which declare a
joint liability for a neglect of duty, which
consequently could only be enforced by an
action against Yonkers and Eastchester
jointly.-Id.
16. In an action for damages for negligence,
where it appears that certain movements
were unexpected and unforseen, and could
not be expected to enter into ordinary prob-
abilities, the engineer will not be held in
fault for not stopping the train to prevent
accident from such a cause.-McKenna v. The
N. Y. C. & H. R. RR. Co., 223.
17. A judge's charge to a jury in an action for
damages for negligence should specify what
degree of care the defendant should exercise
in notifying the approach of trains.-Semel
v. The N. Y., N. H. & H. RR. Co., 224.
18. A charge which left it entirely within the
discretion of the jury to determine what pre-
cautions the defendant should have taken to
protect persons at crossings is erroneous.-
Id.
19. In an action for damages for negligence, the
court has the power to dismiss the complaint
after all the evidence on both sides is in,
when it appears, by the great preponderance
of evidence, that the plaintiff's negligence
contributed to the injury.-Von Nordhausen
v. The N. Y. & H. RR. Co., 365.
20. Defendant contracted with the Mayor, &c.,
of the City of New York to pave a certain
portion of one of the streets in said city, and
made a contract with one Booth to furnish
the material, consisting of granite blocks, to
be used for defendant's purposes. Certain
damages were caused to plaintiff by the
negligence of Booth's servants. Held, That
the relation of master and servant did not
exist between the defendant and Booth, and
that defendant was not responsible for the
negligence of Booth his servants.-
Broeck et al. v. Everard, 384.
21. Where a referee awards judgment for dam-
ages against a defendant, which damages
were caused only in part at most by the
wrongful acts of defendant, and it is impos-
sible from the findings of the referee to as-
|