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.
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.
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.
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.
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"
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.
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
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
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.
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.
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.
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.
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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