The 1. A policy of life insurance held by plaintiff Werner et al. v. The Metropolitan Life Ins. 2. When an agent of an insurance company 3. H. J., as a gratuity, insured his life for the 4. Defendant issued certain policies which LIMITATION. 1. One who indorses a non-negotiable note 2. Payments of interest by the maker will not 3. An allegation of such payments in the thereof so as to estop him from setting up the statute as a defense.-Id. 4. No person can make a payment upon an indebtedness which will operate as a new promise to take it out of the Statute of Limitations except the debtor or his authorized agent.-Kelly v. Weber, 230. 5. A payment on a judgment made by a debtor of the judgment debtor, under trustee process, is not such a payment as will take the judgment debt out of the Statute. -Id. 6. The provisions of § 9, art. 1, title 3, chap. 8, part 3, of the Revised Statutes, relating to the time within which actions by executors, etc., may be brought, were repealed by the operation of the provisions of chap. 4, tit. 3, of the Code of Civil Procedure, and 402 of the Code furnishes the only rule of limitation in that regard.-Green v. The N. Y. C. & H. R. RR. Co., 360. 7. Where it is sought under sub. 1, § 414, Code Civ. Pro., viz., "in a case where a different limitation is specially provided by law," to maintain an action under a rule of limitation other than those contained in chap. 4, title 3, Code Civ. Proc., the case must be "special" as to the Code; and if the Code makes provision for any case referred to in the Revised Statutes, such case is not a special one.-Id. 8. A written stipulation to submit a dispute to arbitration, being revoked by one party, cannot be set up by the other as an estoppel in pais, the latter not having been induced to stipulate by any assertion of fact, misrepresentation or fraud.-Anderson v. Sibley et al., 382. 9. But a waiver in the stipulation of the statute of limitations is such an acknowledgement of the debt as will take it out of the statute; though it is not available as a technical waiver.-Id. 10. Payments made on general account do not form a part of the mutual accounts, but, when made, extinguish defendant's indebtedness pro tanto.-Raux v. Brand, 534. See FIRE INSURANCE, 1; SURROGATES, 6; WILLS, 18. LIS PENDENS. 1. The commencement of a suit by summons only does not create a lis pendens binding third persons not parties. The complaint must also be served and filed.-The Prest., &c., of the D. & II. C. Co. v. Harris, 36. LOTTERIES. See INDICTMENT, 1. LUNATICS. 1. The court has no power, in an action brought by the administrators of a deceased lunatic against her committee for an accounting, to order the committee to pay to the administrators, out of a fund decreed, in another accounting before the Surrogate, to be due to them from him, a sum of money to enable them to carry on the action, when the committee has appealed from such decree of the Surrogate and that appeal is undetermined.-Stern et al. v. Newberger, 133. 2. Service of the notice specified in Section 2325, Code Civ. Pro., does not go to the jurisdiction of the court, and hence a failure to give such notice does not render the proceedings void.-In re De Melt, 327. 3. In proceedings under title 6 of Chap. 17, Code Civ. Pro., the inquisition found that the supposed lunatic "has been in a state of lunacy for the space of three years last past before said inquisition, and during that time has made contracts or disposed of his property." Held, Error; that, under 2335, the inquiry must be confined to the date of such inquiry.—Id. MALICIOUS PROSECUTION. 1. In an action for malicious prosecution the question whether there was probable cause for the institution of the proceedings alleged to be malicious is one of law for the court to determine.-Pratt v. Appleby, 445. 2. When that question arises on disputed facts, the court must submit it to the jury to find the facts, with instructions as to the law on the facts; but when no exception is taken or objection made to the submission of the question to the jury as one of fact, it is too late to raise any question as to the proper course to have been taken for the first time on appeal.-Id.. MARINE COLLISION. 1. On approaching Hell Gate defendant's steamer signalled the steamer in advance that she would pass her to the left. No response being made she endeavored to do so and a collision occurred and plaintiff's intestate was killed. Held, That under Rule 8 it was the duty of defendant's steamer to check her way and not attempt to pass, and that her attempt to do so was a violation of duty and the primary cause of the collision and established defendant's negligence.-Erwin v. The Neversink Stmbt. Co., 43. 2. Rule 11 does not apply to vessels passing through Hell Gate.-Id. 3. A vessel overtaking another has no right to assume that the silence of the other vessel is an acquiescence in an intention to pass as indicated by her signal.-Id. 4. The fact that defendant drew checks on MASTER AND SERVANT. 1. The general superintendent, or "Captain 102. 2. Plaintiff, who was in the employ of defend- 3. Where a party agrees to finish articles 4. Where the master supplies lights and places 5. If there is due care and diligence in select- those who are called on to join in its execution is negligence of a fellow servant and not of the master.-Id. 6. The plaintiff was arrested on the suspicion that he had been guilty of larceny committed at a bath-house at Manhattan Beach not connected with defendant's own premises, so far as the evidence discloses; but it does appear that the officer who made the arrest was at different periods seen on and about defendant's property acting in an official capacity; that he received no pay from defendant, but from another party, and that he was the officer in command of the police and detectives whose headquarters were in a room provided by defendant. Held, The officer was a public officer stationed at Manhattan Beach to discharge the duties which he owed to the public as a policeman, and that he was not in any sense employed by the railroad company or under the order and direction of any of the officers of said company, and it does not appear that this arrest was made by any express direction of the officers of the company, or that it was within the line of his duty. The plaintiff was in no sense under the protection or a guest of the defendant at the time of his arrest, hence the defendant company is not liable.--Fitzpatrick v. The N. Y. & M. B. RR. Co., 506. See CONTRACT, 27; NEGLIGENCE, 23; RAILROADS, 25. MECHANICS' LIENS. 1. Persons who have performed labor in torpedoing a completed oil well may file a lien therefor under Chap. 440, Laws of 1880.Gallagher v. Karns et al., 217. 2. In an action to enforce a lien under Chap. 440, Laws of 1880, a receiver pendente lite may be appointed in a proper case.--Id. 3. In an action to enforce a mechanic's lien, the answer set up the failure of plaintiff to complete the work according to the written contract, and enumerated some of the particulars in which the work was defective, and claimed to recoup damages therefor. Held, That plaintiff must prove performance in accordance with the written contract to entitle him to recover, and that the exclusion of evidence of defects in the work, not enumerated in the answer, was error.-Haag et al. v. Hilmeyer, 323. 4. A consent by the lessor of real estate to the making of improvements and erections on his land is sufficient to give a lien on his interest, under Ch. 489, Laws of 1873, for the work done and materials furnished, although the contract for such work was made with the lessee.-Otis v. Dodd et al., 428. MISTAKE. 1. Where plaintiffs gave notes to defendants' agent for rent due them, and afterwards made a compromise for such rent with defendants, who did not know of the notes, but was subsequently compelled to pay the notes to a third party, who had discounted them for the agent, Held, That such compromise was made under a mistake, and that he was entitled to recover the amount paid thereon, with interest. - Murphy v. McLanahan et al., 254. 2. Where a party has charged more than he is entitled to and obtained the money so charged through the inadvertence or mistake of his debtor, an action will lie to recover back the over-payment_without a previous demand and notice. It is otherwise where the money is paid through a common mistake.-Sharkey v. Mansfield, 376. MORTGAGE. 1. Plaintiffs loaned moneys to P. to aid him in erecting a theatre to be leased to S. To secure said loan a mortgage was made to one B., who assigned it to plaintiffs and guaranteed its payment and also gave a declaration that he had no defense, &c., thereto. At the same time P. assigned to plaintiffs, all the rents reserved in the lease to S. to apply on the mortgage until it was paid. A tripartite agreement between B.. P. and S. was also executed, by which it was agreed that S. should pay the rents to plaintiffs, and also that if S. failed to pay P. should assign his claim therefor to B., who should endorse the amount thereof on the mortgage. In an action to foreclose the mortgage it was claimed that certain unpaid rents should have been endorsed. Held, That plaintiffs did not occupy the position of assignees in such a sense that they took subject to any equities or defenses P. had at the time of the assignment; that as plaintiffs had no knowledge of the tripartite agreement it furnished no defense to the action.-Riggs et al. v. Purssell, 82. 2. Where the grantee of mortgaged premises covenants to pay the mortgage he thereby becomes the principal debtor. -Fleischauer v. Guggenheimer, 164. 3. The mortgagee is entitled to the amount of his mortgage, and he cannot be injured through the accumulation of taxes growing out of the default of those whose duty it was to see that they were paid.—Id. 4. The grantee, under such circumstances, who assumes the payment of the bond and mortgage, is liable for the deficiency after deducting the taxes from the purchaser's bid; he being the principal debtor, it is his business to see that the taxes are paid.-Id. 5. The defendant corporation executed a mortgage to plaintiff upon all its property, real and personal, then owned or to be afterward acquired. A. afterward sold personal property to the corporation on credit and subsequently recovered judgment for the purchase price thereof and issued execution, on which said property was seized. Held, That on the purchase of such property the title vested in the corporation and there remained without subjection to the mortgages until its seizure, and that plaintiff had no equitable lien thereon paramount to the lien acquired by the execution and levy.The Farmers' L. & T. Co. v. The Long Beach Imp. Co. et al., 191. 6. Plaintiff held a mortgage which contained a covenant to insure, and a policy was taken out for his benefit. Subsequently a mortgage on the same premises containing a similar covenant was given to defendant, who had no knowledge or notice of the covenant in plaintiff's mortgage, and a policy was also taken out for his benefit. The premises were destroyed by fire, but plaintiff's policy had previously expired and had not been renewed. In an action of foreclosure, Held, That the title to the insurance money was in defendant, and the equities being equal between the parties the legal title must prevail.-Dunlop v. Avery, 241. 7. The covenant as to insurance is entirely personal and does not run with the land. -Id. 8. The recording act has no application to the covenant as to insurance.-Id. 9. Plaintiff loaned to one G. $2,000, for which he took a mortgage on land worth about $2,500. G. owed about $1,000 on the purchase price of the land. Plaintiff before making the loan required a search showing a good title and that the land was free from incumbrances. Held, That these circumstances would sustain a finding that plaintiff made the loan and took the mortgage without notice that part of the purchase price was still due.-Grow v. Garlock et al., 259. 10. Plaintiff's assignor, H., conveyed certain premises to one S., and took a deed of a house and lot from defendant in part payment and a mortgage from S. for the balance. At the same time S. gave a mortgage on the same premises for the value of the house and lot to defendant, who placed it on record first. Held, That by the sale H. was entitled to a lien for the unpaid purchase money; that he did not intend to waive that lien or postpone his prior equity, and that his mortgage was entitled to priority. French v. Le Roy, 269. 11. An answer by one of several defendants in foreclosure which simply asks that plain tiff's lien be declared subsequent to his, need not be served on the other defendants.-Bully more v. Seward et al., 283. 12. Where a defendant's mortgage is adjudged to be prior to part of plaintiff's, but it appears that it is involved and questioned in another action, it is proper to provide that distribution await the result of such litigation.-Id. 13. M. and C. each owned a one-half interest in a piece of real estate, on which D. as special guardian held a mortgage executed by M. At the request of both M. and C., and upon their promise to give him a second mortgage on the same property which would amply secure his claims, without order of the court, D. released his mortgage so that they could raise money on a first mortgage. This mortgage was given to plaintiff's testator to secure $1,500, C. signing as a surety for M. Thereafter, and before another mortgage was given to D., M. executed a mortgage upon his undivided share to C., to secure her against loss on the mortgage given to plaintiff's testator. The mortgage subsequently given to D. was not executed by C. In proceedings to obtain surplus arising on foreclosure of the mortgage given to plaintiff's testator, Held, That as between D.'s and C.'s mortgages, the former was the prior lien and entitled to have the surplus applied thereon.-Plumb v. Thompson et al., 310. 14. Plaintiff's intestate took a deed of certain property and gave to the equitable owner, H., a defeasance. In an action to foreclose, H. having died, Held, That the transaction constituted an equitable mortgage, and that the heirs of H. were necessary parties.— Dodd v. Neilson, 335. 15. Where one, as surety, makes payments on a mortgage in behalf of his principal he is entitled to subrogation.-Acer v. Hotchkiss, 337. 16. When the owner of mortgaged property refuses or neglects to pay taxes and assessments imposed upon it, the mortgagee may pay the same in order to protect his security, and the amount so paid may be added to and become part of the mortgage debt, which may be enforced upon the foreclosure of the mortgage. This is so, though there be no tax clause in the mortgage.Sidenberg v. Ely et al., 400. 17. It is not necessary that the property should be sold for the tax or assessment before the mortgagee is authorized to pay the same and add the amount paid to his mortgage.-Id. 18. Though, as between the life tenant and the remainder men, it be the duty of the former to pay the taxes, still the equities between them cannot destroy this right |