« ForrigeFortsett »
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
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1844 was not repealed by those of 1854 and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.
was omitted in the form of it.- Whitney et al.
v. Coleman, 167.
well as contractors, are given a lien for labor
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.-
in machinery, gives notice thereof to the 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 detects, 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-
treated as then performed. --Id.
See EVIDENCE, 1.
See BANKRUPTCY, 8; CONTRACT, 20.
the proof of the mistake must be clear and kept good in order to entitle the mortgagor
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.-
under a foreclosure by advertisement, and
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-
Jated 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
personal representatives, not the heirs, of a the lessor under the lease, and the latter has
lease, and the lessee will still be liable if,
after notice of the receiver, he pays rent or
not bound to take upon his shoulders the re- 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.
premises is not to be credited to the grantee so
mortgage for $3,000 thereon and conveyed
the premises to B. subject to the mortgage. B.
tive notice to mortgagee, and for his own conveyed to D. subject to both mortgages.
D. conveyed in three parcels to different
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
ance of the $1,584.--Zabriskie v. Salter, 339. pellant's interest in the premises, which
he acquired as B.'s grantee. The defendant
Baldwin was a grantee of Benham's as fo 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-
bam, who was Baldwin's grantor, B. would be
specified amount is valid, and when record- mortgage in suit bad not been paid. The
18; Fire INSURANCE, 9; GUARANTY, 2; LIMI-
TATION, 5; SUBROGATION ; Trusts, 6.
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, 665.
and harness injured by reason of a defect in
the approach to a bridge over the Erie Canal
within defendant's limits. It appeared ibat
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,
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.
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-
the premises in suit to B., giving him suffi- and that it could not be said, from the fact
that the verdict was not murder but man- cause of action.— The First Nat. Bk. of El-
8. The relation of director and stockholder is
not analagous to that of trustee and cestui
the validity of an order bringing in the bank
of the prisoner's wife, it is competent for the murrer had been sustained to the action as
was in the bank.-Id.
See NEGLIGENCE, 7; Taxation, 1, 2, 11;
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-
deposits gratuitously or otherwise, and when eyes with a brush while attempting to cure
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-
experience, they had ever known a case where
gonorrheal ophthalmia was communicated by
the use of the brush. Held, competent.-ld.
son v. The Nat. Bank of Newberne, 397. cians employed by it.-Id.
the granting of attachments against national 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-
an illegal rate of interest, the usury works a of impeachment.-Id.
cars, was injured in depot by a truck of an
express company, drawn by its employees
through the crowd, without giving warning
its stockholders, alleged that one Van C., lish gross negligence on the part of the com-
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.
street, and not always in view of the em- ally liable for an injury to an employee on
notice, actual or constructive, of a defect
whereby an accident happened, is a complete
street of a city through which defendant's negligence.—Theall v. The City of Yonkers,
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
17. A judge's charge to a jury in an action for
horse to be left in a street unless securely degree of care the defendant should exercise
18. A charge which left it entirely within the
the street, and there was no planking or fill- cautions the defendant should have taken to
court has the power to dismiss the complaint
after all the evidence on both sides is in,
when it appears, by the great preponderance
contributed to the injury.- Von Nordhausen
v. The N. Y. & H, RR. CO., 366.
20. Defendant contracted with the Mayor, &c.,
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
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 or his servants.-
Broeck et al. v. Everard, 384.
ceivers of a Vermont railroad, and, being ages against a defendant, which damages