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4. A superintendent of a factory, although hav. by the act of 1858 to all the counties in the

ing power to employ men, or represent the state except New York and Erie. The act
master in other re-pects, is, in the manage- of 1844 was subsequently amended several
pient of the machinery, a fellow-servant of times. Plaintiff filed a notice of a lien
the other operatives.-Crispin v. Babbitt, against premises situated in a village named
512.

in the act of 1844, but the lien was filed in
5. One B. was placed in charge of defendant's

pursuance of the act of 1854. Held, That
works as general superintendent and man-

he acquired no lien thereby; that the act of
ager, having foremen under him. While

1844 was not repealed by those of 1854 and
plaintiff was at work about an engine he was

1858.- Whipple v. Christian, 99.
injured by steam carelessly let on by B. 3. Where mechanic's liens have been discharged
Held, That B. only represented defendant in by executing an instrument, it does not lie
respect of those duties which defendant had with the parties who executed it to object,
confided him ; that his act in letting on when an action against them is brought upon
the steam was that of a mere operative, for it, that it is not a bond under the statute be-
which defendant would not be liable to a fel. cause it has no seal, or because something
low servant of B.--Id.

was omitted in the form of it.- Whitney et al.
6. A master, whether a natural person or a

v. Coleman, 167.
corporation, although not to be held as 4. The act of 1875, in relation to mechanics'
guaranteeing the absolute safety or perfec- liens in the City of New York, supersedes,
tion of machinery or other apparatus pro- and by necessary implication, repeals the act
vided for the servant, is bound to observe all of 1863.-Heckman v. Pinckney, 335.
the care which the exigencies of the situation 6. By § 1 of the act of 1875, sub-contractors, as
reasonably require in furnishing instru-
mentalities adequately safe for use.--Hough

well as contractors, are given a lien for labor

and materials.-Id.
y. The Texas & Pacific RR. Co., 543.
7. Those, at least, in the organization of a rail. 6. The words “ liable to pay at the time” in the
road corporation who are invested with con-

restrictive clause of $ 1, mean liability to
trolling or superior duty in that regard, rep-

pay, by virtue of the contract, either pre-
resent its personality; their negligence, from

sently or in futuro, and cannot be confined
which injury results, is the negligence of the

to the amount actually payable by the terms

of the contract at the time the lien is filed.-
corporation.-Id.

Id.
8. If the servant, having knowledge of a defect

in machinery, gives notice thereof to the 7. Defendant made a contract with G. by which
proper officer, and is promised that such

the latter was to repair and alter certain
defect shall be remedied, his subsequent use

premises for a specified sum, and if he failed
of the machinery, in the belief, well-grounded,

to perform within a certain time it was
that it will be put in proper condition within

agreed defendant was to be released from the
a reasonable time, does not necessarily, or

contract, In an action to foreclose a lien,
as a matter of law, make him guilty of

the answer did not allege damage from G.'s
contributory negligence. It is for the jury

failure to perform within the time specified,
to say whether he was in the exercise of due

but defendant testified that he sustained
care in relying upon such promise and in

damage to a certain amount in loss of rents.

The referee found a substantial performance
using the machinery after knowledge of its
defective or insufficient condition. The bur-

of the contract a waiver of detects, and also
den of proof, in such a case, is upon the

of failure to perform in time, and refused to

find that the damage for delay was any spe-
company to show contributory negligence.
-Id.

cified amount. Held, No error.--Id.
See NEGLIGENCE, 20.

8. G's rent for premises occupied by him was

to be allowed on the contract. The referee
MECHANIC'S LIEN.

allowed the rent up to the commencement of

the action. Held, No error; that the con-
1. Where a mechanic's lien is sought under the tract, for the purposes of the action, must be
act of 1875, chap. 379, it takes precedence

treated as then performed. --Id.
over other incumbrances from the time of
filing only, and attaches the contracting

MEMORANDA,
owner's interest which exists at the time of
filing the notice. If the owner's interest has

See EVIDENCE, 1.
ceased by his death, or by operation of law,
or by a bona fide conveyance the lien does

MERGER.
not attach.— Brown v. Zeiss et al., 50.

See BANKRUPTCY, 8; CONTRACT, 20.
2. The mechanic's lien law of 1844 applied to
certain cities and villages named. The act

MISTAKE.
of 1854 repealed all former laws for the
security of mechanice 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 kept good in order to entitle the mortgagor
positive. If the proof of mistake is not of to the extinguishment of the mortgage.-Id.
such a character a motion for a nonsuit can-
not be properly denied.-Hill v. Hill, 239.

9. The fact that a security has become, or is

invalid in law, and cannot be enforced even
See ACCOUNT, 3,5; DEED, 4.

in equity, does not entitle a party to come

into a court of equity and have it decreed to
MORTGAGE.

be surrendered or extinguished without pay-

ing the amount equitably owing thereon.-
1. Where mortgaged property has been sold Id.

under a foreclosure by advertisement, and
upon terms stated publicly at the time of the 10. In a contract for the sale of land, defendant
sale, though not included in the published

agreed to give plaintiff a warranty deed and
notice, the mortgagor cannot affirm the sale

a release from the city, and also agreed,
as to price bid when made upon the terms

if the release could not be given with the
stated, and then repudiate the terms of sale

deed, to indemnify plaintiff so as to insure a
and claim, as surplus proceeds thereof, money

delivery by a certain time, and it was stipu-
which, by the terms of .sale, was to be ap-

Jated that a mortgage to be given should re-
plied in payment of a prior mortgage, as

main as security for the delivery of the re-
though no such terms controlled the action

lease, and not be collectible until such de-
and bid of the mortgagee bidding in the

livery. Held, That an action could not be
property.Story v. Hamilton, 13.

maintained by reason of a failure to deliver

the release ; that the time designated for such
2. When mortgaged property is so sold and bid

delivery was not of the essence of the con-
in by the mortgagee, the terms of the sale

tract, and the effect of the failure was only
need not be inserted in the affidavits. All

to postpone the payment of the mortgage.-
necessary facts, not required by the statute

Ryerson et al. v. Willis, 283.
to be in the affidavits, may be proved by
parol.-Id.

11. Where a receiver of a lessor is appointed

in foreclosure proceedings he is entitled to
3. In an action to foreclose a mortgage, the all the rents then dne, and to grow due, to

personal representatives, not the heirs, of a the lessor under the lease, and the latter has
deceased subsequent mortgagee are the nec- no authority to accept a surrender of the
essary and proper parties.— The German

lease, and the lessee will still be liable if,
Savings Bk. v. Muller et al., 67.

after notice of the receiver, he pays rent or
4. A purchaser under a decree of foreclosure is attempts to nullify the lease.- Ñealis v. Bus-

not bound to take upon his shoulders the re- sing, 289.
sponsibility of a doubtful title.--Id.

12. Where a grantee of mortgaged premises as-
5. The lien of a mortgage to secure future ad-

sumes the payment of the mortgage he can.
vances which the mortgagee is not compelled

not object that his grantor is not joined in
to make, but may or not at his option, at-

the action to foreclose. The grantor is, per-
taches ouly as the advances are actually made

haps, a proper, but not a necessary party-
-and the extent of the lien depends upon

Root v. Wright, 318.
the condition of the property subject thereto 13. An usurious payment by the grantor on the
at the time when the advances are made re- mortgage previous to his conveyance of the
spectively. Hence, the lien of a judgment

premises is not to be credited to the grantee so
docketed subsequent to the recording of as to reduce the debt below what he assumed
such a mortgage is prior to the lien arising to pay.--Id.
from advances made under the mortgage
subseqnent to the docketing. - Ackerman v. 14. The owner of certain premises executed a
Hunsicker, 69.

mortgage for $3,000 thereon and conveyed

the premises to B. subject to the mortgage. B.
6. The docketing of a judgment is construc- executed a mortgage for $4,000 thereon and

tive notice to mortgagee, and for his own conveyed to D. subject to both mortgages.
security he must acquaint himself with the

D. conveyed in three parcels to different
condition of property relied upon at the time grantees, parcels 1 and 2 free from incum-
of making such advance or payment under brance, and parcel three subject to both
his mortgage.--Id.

mortgages. Parcel 1 was afterwards con-
7. To establish a tender which will discharge

veyed subject to both mortgages, and the
the lien of a mortgage, the proof must be very

liability fixed at $1,584. The owner after-
clear that it was fairly made, and deliberately

wards procured a release from the $4,000
and intentionally refused by the mortgagee

mortgage on payment of a sum not specified,
or some one duly authorized by him, and that

and a subsequent grantee paid interest on a
sufficient opportunity was afforded to ascer.

portion of the $3,000 mortgage. Defendant
tain the amount due. It must appear that a

became the purchaser of parcels 2 and 3
sum sufficient to cover the whole amount due

on foreclosure sale under the $4,000 mort-
was absolutely and unconditionally tendered.

gage, the conveyance being made subject to
--Tuthill v. Morris, 200.

the $3,000 mortgage. On foreclosure of the

latter mortgage, °Held, That the clause in
8. Even if a tepder has been made it must be defendant's deed was not of itself conclusive of
an intent to charge parcels 2 and 3 exclusively cient money to pay off the mortgage. B.
with payment of the mortgage; that if the paid the same to the mo agee, but having
property was not offered and bid off with occasion to procure the satisfaction of a mort-
the assumption of the mortgage, and there gage for a like amount held by said mort-
was no intent to charge it, the clause might gagee against Betts, he caused the bond
not have that effect; that the owner of and mortgage in suit to be assigned to
parcel 1 occupied a position of equality with the mortgagee, in substitution of the Betts
defendant, and should pay the unpaid bal. mortgage. This occurred previous to ap-

ance of the $1,584.--Zabriskie v. Salter, 339. pellant's interest in the premises, which
18. It is unnecessary, where a resale of mort-

he acquired as B.'s grantee. The defendant

Baldwin was a grantee of Benham's as fo the
gaged premises is directed to be made in
parcels, that the notice of the resale should

rest of the premises. On foreclosure, Held,

That appellant's lot should be first disposed
specify that the sale should be made in

of; that as between his grantor, B., and Ben-
parcels.Hoffman v. Burke et al., 347.

bam, who was Baldwin's grantor, B. would be
16. A mortgage to secure future advances to a estopped from claiming ihat the bond and

specified amount is valid, and when record- mortgage in suit bad not been paid. The
ed is notice of a lien to the extent of the grantees stand in the shoes of their grantors.
advances specified, but in the absence of an -Coles v. Appleby, 632.
agreement for further advances, and when See Bar, 9; CORPORATIONS, 13; EVIDENCE, 14,
they are not referred to in the mortgage, the

18; Fire INSURANCE, 9; GUARANTY, 2; LIMI-
recording thereof is not notice that it was

TATION, 5; SUBROGATION ; Trusts, 6.
given to secure further advances.—Ketcham
v. Wood, 453.

MUNICIPAL CORPORATIONS.
17. The recording of the mortgage is sufficient 1. Where the Common Council of a city is au-
notice of any advance actually made, for

thorized by the Legislature to "regulate the
though the record itself conveys no notice

erection, use and continuance of slaughter.
that any sum less than that stated therein
was advanced, yet it is sufficient to put any

houses," it must have the lesser power of

prohibiting the slaughter of cattle within its
one on inquiry, and is notice of any fact

limits. And no constitutional rights of in-
which would in the course of business be

dividuals are violated by such a prohibi-
ascertained upon such inquiry.-Id.

tion.— The People v. Cronin, 16, 665.
18. The record of an assignment of mortgage is 2. Plaintiff's horse was killed, and his wagon
not constructive notice to subsequent pur-

and harness injured by reason of a defect in
chasers and incumbrancers deriving title in

the approach to a bridge over the Erie Canal
good faith from the mortgagor, but furnishes

within defendant's limits. It appeared ibat
protection against any subsequent assignment

the bridge and its approaches were on land
of the same mortgage or any unauthorized

belonging to the state. Held, That defend-
discharge thereof.Bryan v. Judson, 516.

ant was not liable; that the duty of guard-
19. The clerk is not obliged to note the assign-

ing the bridge and its approaches did not
ment in the margin of the record of the mort-

devolve on defendant, but on the state.-
gage.-
Id.

Carpenter v. The City of Cohoes, 103,

8. The Common Council of Syracuse, in 1877,
20. When an assignment contains the names of passed an ordinance forbidding persons to
the mortgagor and mortgagee, the date of the

sell milk in the streets of said city without
mortgage, and a covenant of the amount due,

a license. Held, That it was within the
and there is no proof of any other mortgage of

scope of the general and particular powers
the same date executed by the mortgagor,
there is no uncertainty or ambiguity.-Id.

of the city to pass the ordinance, and that

an act incorporating a milk association gave
21. Plaintiff's intestate held an assignment of

it no greater rights than individuals had;
mortgage which was duly recorded. The as-

that the power to unite and sell milk as an
signor afterwards executed a satisfaction, and

association is not a power to sell it in disre-
the mortgage was discharged of record. The

gard of the city ordinances.- The People ex
land was subsequently conveyed to L., who

rel. Larrabee v. Mulholland, 564.
executed a mortgage to H. Both L. and H. See Taxation, 7; WHARFAGE, 1, 3.
knew that the former mortgage had not been
paid. H. assigned his mortgage to defend-

MURDER.
ant, who was a purchaser in good faith.
Held, That defendant had no greater rights 1. On a trial of an indictinent for murder the
than H., and was not protected by the re-

judge charged that if the jury believed the
cording acts; that no one having been mis-

evidence offered in behalf of the people to be
led by the silence of plaintiff's intestate, the

true they would be justified in finding the
latter was not estopped from bringing an

prisoner guilty of murder in the second de-
action to foreclose.--Id.

gree, and defined the offense. A verdict of

manslaughter in the third degree was ren-
22. The mortgagor, Benham, conveyed part of dered. Held, that the charge was erroneous,

the premises in suit to B., giving him suffi- and that it could not be said, from the fact

ary, 3.

that the verdict was not murder but man- cause of action.— The First Nat. Bk. of El-
slaughter, that the objectionable charge did mira v. Rathbun et al., 495.
not influence the jury.—McKenna v. The

8. The relation of director and stockholder is
People, 342.

not analagous to that of trustee and cestui
2. What is sufficient evidence to warrant a ver-

que trust.-Id.
dict of guilty on an indictment for murder. 9. A demurrer does not bring up the question of
- Reinhardi v. The People, 537.

the validity of an order bringing in the bank
3. On the trial of an indictment for the murder as a party plaintiff, made after a former de.

of the prisoner's wife, it is competent for the murrer had been sustained to the action as
prosecution to prove the marriage of the originally brought by the original stock-
prisoner to another woman shorily before holder alone, and this, although it appears
the murder, and his prior and subsequent that the stockholder alone had no cause of
relations with her, for the purpose of show- action, and that the right of action, if any,
ing a motive for the crime. -Id.

was in the bank.-Id.
NATIONAL BANKS.

See NEGLIGENCE, 7; Taxation, 1, 2, 11;

USURY, 9.
1. A national bank cannot charge a compensa-
tion for loaning its credit and procuring an-

NEGLIGENCE.
other bank to discount the paper of its cus-

1. In an action for damages for the loss of plain.
tomers. — The Nat. Bk. of Gloversville v.
Wells et al., 23.

tiff's sight, alleged to have been caused by

the negligence of defendant's surgeon in put-
2. National banks have power to receive special ting some poisonous infection into plaintiff's

deposits gratuitously or otherwise, and when eyes with a brush while attempting to cure
received gratuitously they are liable for their bim, plaintiff was asked, on cross-examina-
loss by gross negligence.- Patterson v. The tion, whether he had published articles com-
Syracuse Nat. Bk., 87.

plaining of his treatment, and whether he

stated in the articles that the poison was
8. The incorporation of a national bank must

communicated with a brush. Held, Compe-
be proved in an action brought by it. Such

tent on the question of plaintiff's credibility.
proof may be supplied on the argument of
an appeal, where it appears to be the only

-Doyle v. The N. Y. Eye and Ear Infirm-
defect which will invalidate the judgment. -
The N. Y. Nat. Exchange Bk. v. Jones et al., 2. Experts were asked whether, within their
132.

experience, they had ever known a case where
4. Section 5198 of the U. S. Rev. Statutes,

gonorrheal ophthalmia was communicated by

the use of the brush. Held, competent.-ld.
which requires actions against a national bank
to be brought in the state where such bank is 3. In such an action it is competent for defend-
located,is permissive only and not mandatory, ant to show that plaintiff's treatment atter
and does not deprive the courts of other leaving the infirmary was improper, and to
states of jurisdiction in such actions.—Robin- prove the professional standing of the physi-

son v. The Nat. Bank of Newberne, 397. cians employed by it.-Id.
8. Section 6242 U.S. Rev. Statutes, prohibiting 4. The physician who attended plaintiff after

the granting of attachments against national leaving the infirmary, on cross-examination,
banks, applies only to such banks as are in-

denied that he told defendant's surgeon that
solvent or are about to become 80.--Id.

plaintiff had no reason to complain of his

treatment there. Held, That evidence con-
6. Where a national bank discounts a note at tradicting the denial was competent by way

an illegal rate of interest, the usury works a of impeachment.-Id.
forfeiture of the entire interest, and only the
face of the note can be recovered by the 5. Where a passenger, on his way from the
bank.-The First Nat. Bk, of Uniontown v.

cars, was injured in depot by a truck of an
Stauffer, 399.

express company, drawn by its employees

through the crowd, without giving warning
7. A complaint by a national bank and one of of its approach, Held, That these facts estab-

its stockholders, alleged that one Van C., lish gross negligence on the part of the com-
president of said bank, had wrongfully pany.-Gilson v. The Am. Ex. Co., 32.
loaned and appropriated its funds and made
false quarterly reports of its condition to the 6. The fact that plaintiff was standing in the pas-
damage of the bank and plaintiff; that the

sage way when struck by the truck does not
defendants, directors, knew of the wrongful

of itself amount to contributory negligence,
acts of Van C. ; that they might have pre-

but is a circumstance for the jury to consider
vented them, but instead aided him, and

upon that question.-Id.
that they assisted the president to waste the 7. In an action for conversion of bonds depog-
funds and defraud the bank and the stock- ited with a bank for safe keeping the
holders; and the complaint demanded judg- evidence showed that the theft of the
ment for the loss thereby suffered. On de- bonds must have been in the day time; that
murrer, Held, That the complaint stated a they were kept in a safe accessible from the

street, and not always in view of the em- ally liable for an injury to an employee on
ployees of the bank, and that sometimes the the latter road caused by defective tools and
door of the safe was left open. The question machinery, and that the fact that he was a
whether the theft was suffered through gross receiver would not shield him from liability.
negligence of the bank in the care of the -Id.
bonds was submitted to the jury. Held, no 14. The fact that a party is not chargeable with
error.Pattison v. The Syracuse Nat. Bk.,
67.

notice, actual or constructive, of a defect

whereby an accident happened, is a complete
8. Plaintift's intestate was peddling wood in a defense to an action based on that party's

street of a city through which defendant's negligence.Theall v. The City of Yonkers,
tracks ran. He left his horse untied and 218.
crossed the street to make a sale when the 15. Plaintiff fell through a hole in a bridge over
horse became frightened by an approaching
train and started across the street, but the

the Bronx River, which formed a part of the
wagon became entangled by the tracks. In-

highway running from Yonkers to East-
testate seized hold of the horse's head, and

chester. Held, That the case was governed by
while endeavoring to get him away was

the Laws of 1841, chap, 225, § 2, as amended
thrown on the track and killed by the train.

by chap. 383, Laws of 1857, which declare a
Held, That he was not, as a matter of law,

joint liability for a neglect of duty, which
guilty, of contributory negligence; that it

consequently could only be enforced by an
was his right and duty to rescue his horse if

action against Yonkers and Eastchester
he could, and he had business in the place

jointly.-Id.
where he was; that there is no absolute rule 16. In an action for damages for negligence,
of law that requires one who has a horse in where it appears that certain movements
the street to tie him or hold him by the were unexpected and unforseen, and could
reins; that his carelessness in leaving the not be expected to enter into ordinary prob-
horse untied was not the proximate cause of abilities, the engineer will not be held in
his death, and that whether intestate acted fault for not stopping the train to prevent
prudently or not was a question for the jury accident from such a cause.- - McKenna v. The
to determine.- Wasmer v. The D., L. & W. N. Y, C. & H. R. RR. Co., 223.
RR. Co., 100.

17. A judge's charge to a jury in an action for
9. There was a city ordinance that forbade any damages for negligence should specify what

horse to be left in a street unless securely degree of care the defendant should exercise
tied. Held, That it could not be said, as mat- in notifying the approach of trains.—Semel
ter of law, that intestate violated this ordi- v. The N. Y., N. H. & H. RR. Co., 224.
dance.-Id.

18. A charge which left it entirely within the
10. The tracks were raised above the surface of discretion of the jury to determine what pre-

the street, and there was no planking or fill- cautions the defendant should have taken to
ing between the rails. Held, That it was a protect persons at crossings is erroneous.-
question of fact for the jury whether the

Id.
usefulness of the street was not unnecessarily
impaired, and that defendant would not be 19. In an action for damages for negligence, the
relieved from liability because it is lessee of

court has the power to dismiss the complaint

after all the evidence on both sides is in,
the road.—Id.

when it appears, by the great preponderance
11. It is negligence for a railroad company to of evidence, that the plaintiff's negligence
run its trains within city limits at a rate ex-

contributed to the injury.- Von Nordhausen
ceeding that allowed by the city ordinance.

v. The N. Y. & H, RR. CO., 366.
-Id.

20. Defendant contracted with the Mayor, &c.,
12. Every operator of a railroad is bound to of the City of New York to pave a certain
furnish his employees with machinery ade-

portion of one of the streets in said city, and
quate for the use to which it is to be applied,

made a contract with one Booth to furnish
and to maintain it in like condition, and for

the material, consisting of granite blocks, to
every injury happening by reason of neglect

be used for defendant's purposes. Certain
to perform this duty he is liable, whether the damages were caused to plaintiff by the
act or omission causing it was due to his own

negligence of Booth's servants. Held, That
neglect or that of agents employed by him,

the relation of master and servant did not
and an action for such injury will lie against

exist between the defendant and Booth, and
one or more of several parties operating such

that defendant was not responsible for the
road, as the liability is several as well as

negligence of Booth or his servants.-
joint.-Kain v. Smith, 176.

Broeck et al. v. Everard, 384.
13. Defendant and others were appointed re- 21. Where a referee awards judgment for dam-

ceivers of a Vermont railroad, and, being ages against a defendant, which damages
authorized by the laws of that state to do so, were caused only in part at most by the
leased a railroad in this state for a term of wrongful acts of defendant, and it is impos-
years. Held, That defendant was individu. sible from the findings of the referee to As-

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