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such income should be insufficient | 6. The trustees named in a railroad

for the purposes specified, the will
authorized said trustees "to apply
to that purpose so much of the
principal sum invested as may be
necessary to make up the de-
ficiency." The testator left but
little personal estate, and resort to
the real estate became necessary
to carry out the purposes of the
trust. Held, that the trustees had
power, under and pursuant to
orders of the court directing it, to
borrow money for such purposes,
and to mortgage the real estate to
secure the same; that the court
had power to make the orders and
that, therefore, mortgages so exe-
cuted were valid. Rogers v.
Rogers.
228

4. Where there has been an unquali-
fied delivery of a mortgage to a
third person for the use of the
mortgagee, with intent to make it
an operative obligation, and the
mortgage is recorded by such third
person, although such delivery and
record was without the knowledge
of the mortgagee; if the rights of
creditors, purchasers or incum-
brancers have not intervened, it is
competent for the mortgagee or his
representatives to assent to and
ratify the arrangement and to en-
force the mortgage. Munoz v.
Wilson.

295

5. The simple fact, therefore, that an
attorney who has taken a mortgage
for his client and placed it on
record, had previously taken for
another client a mortgage on the
premises which was not recorded,
does not charge the junior mort-
gagee with knowledge of the ex-
istence of the prior mortgage; it
must be made to appear clearly
that the attorney at the time of the
execution and delivery of the
second mortgage had in mind
the existence of the prior one, and
not only this, but also that he knew
it was still an existing and valid
lien. If he did recollect that the
prior mortgage was executed, but
honestly believed that it was then
or had been satisfied, although
mistaken on that point, the second
mortgagee would not be charged
with notice of its existence. Con-
stant v. Univ. of Rochester.

604

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7. The W. C. R. R. Co., for the pur-
pose of obtaining means with which
to construct its road, issued bonds
secured by a mortgage covering its
line, rolling-stock and other prop-
erty, including a land grant given
it by the United States govern-
ment. By the mortgage it was
made the duty of the trustees
named therein in case of default in
any payment of principal or in-
terest on the bonds to apply the
mortgaged property "promptly to
that purpose." The company, with
the approval of the trustees, was
authorized to sell the lands cov-
ered by the land grant, accept the
mortgage bonds in payment or
hold the proceeds of sales as a
sinking fund for payment of the
bonds. Interest on the bonds was
to be paid by the company, and it
was provided that none of such
proceeds were to be appropriated
to the payment of interest unless
the treasury of the company should
be first exhausted, in which case
the proceeds might be used to pay
accrued interest, the company to
execute to the trustees "income
bonds" therefor, to be first paid out
of the earnings of the road and
secured by a second mortgage.
In case of default in the payment
of interest on the first mortgage
bonds, the whole principal became
due at the option of the trustees,
and they were authorized to enter
upon the granted lands, to take
possession of the railroad and roll-
ing-stock and to sell the whole
property and apply the net proceeds
ratably to the payment of unpaid
bonds and interest. By article
thirteen of the mortgage the com-
pany was required, in case of such
default, to execute such further
deeds and assurances as were
needed and to furnish a full inven.

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tory, etc. By a subsequent article the trustees were required, on the requisition of the holders of not less than one-fourth of the bonds, to exercise their power of entry, or sale or both. If a default was made in the omission of anything required by said article "for the further assuring of the title of the trustees. or in any provisions herein contained to be performed or kept by said company the trustees were given a discretion" to enforce or waive the rights of the bondholders by reason of such default," subject to a power in a majority in amount of the bondholders to instruct the said trustees to waive such default, but it was declared that no action of the said trustees or bondholders," or both, in waiving such default, should extend to or be taken to affect any subsequent default. Held, that the trustees had no discretion to waive a default in the payment of principal or interest; that the words "or in any provisions," etc., were to be construed to relate to the provisions other than those already specifically provided for.

Id.

8. The corporation entered into a contract for constructing its road, by which it agreed that the contractors should receive in payment for the construction the whole issue of first mortgage bonds, all of the stock and the earnings of the road during the period of construction. The contractors were to procure the necessary funds by sale of these securities and were to buy up the interest coupons as they matured. The contractors proceeded with the work, sold bonds and took up maturing coupons, but while the road was incomplete, not having funds to meet interest amounting to over $150,000 about to mature by an arrangement between the company, the contractors and the trustees, proceeds of the land grant sales to the amount of the coupons so taken up were assigned by the trustees, they taking from the company as security an "income bond" conditioned to pay the amount, with interest, out of the earnings of the road. The company or the contractors then borrowed the

money to take up maturing interest coupons, the company giving as security" land income notes" with the sinking fund securities, which were so assigned, pledged as collateral. To procure money to complete the road the company increased its land income notes to $300,000. Another default in interest having occurred, the trustees began a foreclosure suit, and under authority of the mortgage, took possession of the road and began to operate it, and thereafter joined with a majority of the bondholders in and adopted a plan for reorganization. This contemplated the substitution of three mortgages for the first mortgage, one of these for $400,000, which, with the accompanying bonds, was given to secure the land income notes, and interest on certain unfunded coupons; this was made a first lien on all of the property of the company. The trustees assumed to waive all previous or future defaults in payments of principal or interest on the first mortgage bonds; they thereafter applied some part of the proceeds of the land fund to payments of principal and interest on the new preferred mortgage bonds. In an action brought by plaintiff, who held bonds secured by the first mortgage and who had not assented to the reorganization scheme or to the waiver of defaults, against said trustees, a judgment was rendered compelling them to pay the proceeds of the land sales in ratable proportions upon plaintiff's bonds and adjudging the new mortgages to be void as to him. Held, no error; that the scheme of reorganization could only be made effective by consent of all the original bondholders or by a foreclosure cutting off their lien; that plaintiff had a right to stand upon his contract and the trustees had no power to compel him to make a new and different one. Id.

9. By the fourth article of the mortgage, securing the bonds, it was provided that "during the con struction of the said railroad hereby mortgaged, the interest on the bonds * * * shall be paid out of the earnings of the said road and the proceeds of sales of the

first mortgage bonds," and as by their contract the contractors were to receive in payment for construction the whole issue of first mortgage bonds, and the earnings of the road during construction; held, that the coupons taken up by them were extinguished as obligations and could not form the basis of a claim by them against the company. (GRAY, J.; DANFORTH and PECKHAM, JJ., concurring.) Id.

10. The first mortgage contained a provision that neither of the trustees"

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4. An order of the General Term reversing, on the facts, the decree of the surrogate and directing issues to be tried by a jury, is not reviewable here. Burger v. Burger. 523

shall be answerable except for his own willful default or neglect.' The trial court found that defendants, although acting erroneously, proceeded in good faith. Plaintiff claimed that the bonds of 5. those who assented to the reorganization should be considered as extinguished, and that all the proceeds of the land grant and income from earnings should be devoted to the payment of bonds held by the non-assenting owners. Held, that the omission to pay plaintiff had some excuse in his exorbitant claims, and that judgment was properly rendered against the trustees, as such, and not personally.

Id.

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6.

An order of the General Term of the Supreme Court affirming an order of Special Term confirming the report of the commissioners of estimate and assessment in proceedings to acquire title to lands for the purpose of establishing a public place in the city of New York under the act of 1884 (Chap. 451, Laws of 1884), is not reviewable here. In re Board Street Opening, etc. 581

The General Term has power to amend an order of reversal so as to show that the reversal was upon the facts, although an appeal has been perfected and a return made to this court, and the order as amended may be attached to the return. Ross v. Gleason. 683

MOTIONS AND ORDERS.

1. When the General Term reverses a surrogate's decree, imposing costs upon an executor or trustee personally, it must appear in the order of reversal that the ground therefor was the abuse of discretion by the surrogate; in the absence of this statement, the order is not sustainable. In re Selleck. 284

2. It seems the granting or refusal of a motion to postpone the trial of a criminal action is in the discretion of the court, and its decision thereon, where there is no abuse of discre

MUNICIPAL CORPORATIONS.

1. It seems that, while, by the incorporation of a company under the act of 1884 (Chap. 252, Laws of 1884), providing for the organization of street railroad companies, it is endowed with capacity to acquire and hold such rights and property, real and personal, as are necessary to enable it to transact the business for which it was created, and is allowed to mortgage its franchise as security for loans made to it, it has no present right or authority to construct or operate a railroad upon the streets of any municipality. People v. O'Brien. 1

2. This right it may acquire by pur-
chase, but it can only be acquired
from the city authorities, who can
grant or refuse it at their pleasure,
and may grant their consent upon
such terms and conditions as they
choose to impose.
Id.

3. As municipal corporations are
creatures of the state and exist and
act in subordination of its sover-
eign power, the legislature may
determine what moneys they may
raise and expend and what taxa-
tion for municipal purposes may
be imposed; and so, it may com-
pel such a corporation to pay a
claim which has some meritorious
basis to rest on. Mayor, etc. v.
Tenth Nat. Bk.

446

4. The property of a municipality,
acquired and held for govern-
mental and public uses, and used
for public purposes, is not a tax-
able subject within the purview of
the tax laws, unless specially in-
cluded. People ex rel. v. Bd. of
Assessors.
505

5. This exemption does not depend
upon the origin of the title of the
municipality or the location of the
property, but applies whether it
was acquired by purchase or
voluntary grant, or as the product
of taxation, or whether the prop-
erty is situated within or without
the territorial limits of the munici-
pality.
Id.

See NEW YORK (CITY OF).

NEGLIGENCE.

1. In an action to recover damages
for injuries received by plaintiff
while employed in defendant's
storehouse, it appeared that plaint-
iff was engaged in removing grain
from the platform of a grain or
freight elevator, when the engineer
gave it an upward movement which
continued until striking against a
beam, the rope by which it was
suspended broke and the platform
fell to the ground floor, carrying
the plaintiff and inflicting the in-
juries complained of. The eleva-

tor engine and appliance were
proved to be of a kind commonly
in use when they were put into
the building, and also like those in
common use in hotels, breweries,
printing houses and public build-
ings. The motion of the elevator
was entirely under the control of
the engineer. The whole apparatus
was put in under the direction of
a manufacturer of many years ex
perience, who testified that he had
hundreds of elevators then running
similarly constructed for the car-
riage of freight and employes in
charge; that they were put in,.
leaving a distance between the
cross-beam of the elevator and the
puiley beam above it, varying from
six inches to three feet, a short
distance being safer when the ele-
vator was operated with a double
rope, as was the case here. This
elevator had been in use for two
years before the accident and was
continued in use for several years
down to the time of the trial without
causing other harm and without
complaint, and there was nothing
to show that when used with ordi-
nary and reasonable care any harm
could result from it. Held, the
evidence failed to establish a cause
of action, and that plaintiff was
not entitled to recover. Stringham
v. Hilton.
188

2. Also, held, that the injuries having
been caused by the act of the
engineer, plaintiff's co-servant in
starting the elevator, the master
was not liable for the improper per-
formance of his duties.
Id.

3. R., plaintiff's intestate, was riding
on a public highway with her
husband, who was driving. In
attempting to cross defendant's
tracks at a crossing they were both
killed by a coliision with a passing
train. In an action to recover
damages, it appeared that at this
crossing, in the absence of ob-
structions, a train upon the freight
track, which came first, or up-
on the passenger track which
was seventy feet distant from the
freight track, was visible for a
distance of one or two miles. In
approaching the freight track the
husband stopped his horse when
a hundred or more yards away

and then again within fifteen yards
of the crossing on account of the
passage of a freight train. As
soon as it had passed he crossed
the freight track, and, in an en-
deavor to cross the passenger track,
the collision occurred. There was
no proof as to the manner of the
accident except that the horse was
seen jumping to get across and
did, in fact, escape. The plaint-
iff was nonsuited. Held, error;
that if the husband was negligent,
his negligence could not be im-
puted to the wife; that while she
had no right, because her husband
was driving, to omit reasonable
and prudent effort to see for her-
self that the crossing was safe, she
was not bound to suspect a purpose
on the part of her husband to cross
until she saw it being executed;
that the presumption was they both
saw the approaching train, and she
was not blamable in thinking and
expecting he would stop again;
that when she saw he was about
to make the attempt to cross, as
they must have been then very
close to the track, she was not
bound to jump from the wagon,
seize the reins or interfere with the
driver; that even if she did not
entreat him to stop, but sat silent,
it does not follow, as matter of law,
that she was negligent, as she
might not have had time or might
have been paralyzed from fright,
and the question was one of fact
for a jury. Hoag v. N. Y. C. &
H. R. R. R. Co.

199

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ants employed "dump cars" run
ning on a track laid in the shaft.
The cars were drawn out by a
cable and returned by gravitation,
their downward speed being regu-
lated by a brake. They were not
intended as facilities for taking
persons down the shaft, or fitted
for that purpose. M., who was
riding on the outside of one of
these cars down the shaft, to where
the work of excavation was going
on, through the neglect of the
brakeman in charge of the car to
control its velocity, was thrown
from the car and killed. In an
action to recover damages, it ap-
appeared that there was plenty of
room in the shaft to go on foot up
and down it, and there was no ob-
struction in the way of the en-
gineer's proceeding to the work on
foot; that while M. had been ac-
customed, with the consent of the
brakeman to so ride down, it did
not appear that this was with the
knowledge of the defendants,
or that the brakeman had any
authority to give his consent. It
also appeared that other engineers
employed in the work of inspec-
tion usually, although not al-
ways, walked up and down the
shaft. Held, that no duty or obli-
gation rested upon defendants to
transport M. into the tunnel or to
allow such a use of their car by
him, or to manage it with such
care as to prevent injury to him
when riding thereon; that no license
could be implied by such former
use of the cars; that the decedent
took upon himself the risk, both
as to the condition of the cars and
the quality and care of the brake-
man; and that, therefore, a re-
fusal to nonsuit was error. Morris
v. Brown.

318

5. Defendants were engaged, under
a contract with the aqueduct com-
missioners of the city of New 6. It seems that if the decedent in

going in or coming out of the tun-
nel, or while engaged in the duty
of inspection had been run over by
the car, either because of its im-
perfection or the careless manage-
ment of the defendants' servant
having it in charge, a different
question would have been pre-
sented.
Id.

York, in excavating for a tunnel.
By their contract they were bound
to furnish "all facilities for the
purpose of inspection." M., de-
fendant's intestate, was a civil en-
gineer in the employ of the com-
missioners. It was his duty to in-
spect the work to see that it was
done in compliance with the con-
tract. For the purpose of remov-
ing the materal excavated defend-17. A master is chargeable with the

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