gagor, held that mortgagee should not be reim- | Board of Zoning Adjustment of City of Boston, bursed for premiums paid.-Id. 150 N. E. 892.

600 (2) (Ind.) Mortgagee in possession 124 (2) (Mass.) Appointment of members should be reimbursed for interest paid on a of board of zoning and adjustment from perprior mortgage.-Wise v. Layman, 150 N. E. sons nominated by associations and societies 368. of city of Boston, held not to violate Declaration of Rights, arts. 6, 7, 30 (St. 1924, c. 488, 8 20).-Bradley v. Board of Zoning Adjustment of City of Boston, 150 N. E. 892. 164 (111.) County jury commissioner "municipal officer," whose salary is within constitutional provision prohibiting increase or decrease in salaries of municipal officers during term (Smith-Hurd Rev. St. 1925, c. 78, § 24, 29; Const. art. 9, § 11).-Barnett v. Cook County, 150 N. E. 672.

604 (Ind.) Taxes and any assessment made by authority for public purposes, which is primary lien on property, paid by mortgagee, must be repaid upon redemption.-Wise v. Lay-construed.-Town of Hagerstown v. Liberty 230 (Ind.App.) Letter of agency strictly man, 150 N. E. 368. Light & Power Co., 150 N. E. 116.

Evidence held not to show subsequent agree-347 (2) (Mass.) City not permitted to share ment to extend time for redemption beyond 6 in security so as to render it insufficient for month period agreed on.-Id. payment of labor and materials (G. L. c. 149, § 29).-J. H. McNamara, Inc., v. McGuire, 150 N. E. 862.

61 (III.) Order not subject to collateral at- (E) Assessments for Benefits, and Special tack.-Weber v. Kemper, 150 N. E. 339.

(A) Municipal Officers in General. 123 (Mass.) Members of board of zoning-Id. adjustment of Boston are public officers (St. 1924, c. 488).-Bradley v. Board of Zoning Adjustment of City of Boston, 150 N. E. 892.

124(1) (Mass.) Statute conferring power on board of zoning adjustment to change 601 (N.Y.) Authorities may exclude apartboundaries of district and zoning map is not ment houses from residential districts.-Wulfinvalid (St. 1924, c. 488, § 20).-Bradley v. sohn v. Burden, 150 N. E. 120.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
Zoning regulations not invalid because depre- (C) Defects or Obstructions in Streets and
ciating value of property.-Id.

Other Public Ways.

Zoning regulations not invalid because pro-757(1) (N.Y.) Duty to maintain streets
hibiting advertising on apartment houses.-Id. cannot be shifted.-Metzroth v. City of New
621 (Mass.) Under St. 1924, c. 488, build- York, 150 N. E. 519.
ing commissioner of Boston cannot grant per-761(1) (N.Y.) Travelers may assume side-
mit for erection of building in excess of height walk is reasonably safe.-Metzroth v. City of
permitted by zoning provisions.-Norcross v. New York, 150 N. E. 519.
Board of Appeal of Building Department of
City of Boston, 150 N. E. 887.

764 (2) (N.Y.) Travel on reservoir cause-
way includes passing and moving of vehicles
on side of highway.-Bennett v. Town of Kent,
150 N. E. 302.

Annulling by board of appeal of building com-
missioner's refusal of permit for building 155
feet in height, and ordering him to grant it, 790 (N.Y.) City permitting erection of
held under facts not erroneous as matter of sidewalk shed, and having notice of improper
law (St. 1923, c. 462, § 11; St. 1924, c. 488, § use, held liable for collapse; "substantial;"
15).-Id.
"sufficient."-Metzroth v. City of New York,
150 N. E. 519.

Whether proposed building will derogate from
intent and purpose of Zoning Act of City of
Boston, St. 1924, c. 488, is primarily question
of fact.-Id.

621 (Mass.) Authority of state fire marshal
under Boston Zoning Act is conferred by impli-
cation on him as a member of department of
public safety (St. 1924, c. 488, § 1)-Marcus
v. Commissioner of Public Safety, 150 N. E.

903.

805(1) (Mass.) Traveler stepping into
hole in sidewalk held negligent.-Cox v. City of
Boston, 150 N. E. 301.

805 (2) (Mass.) Traveler's knowledge of
defect in highway does not bar recovery.-Cox
v. City of Boston, 150 N. E. 301.
808(1) (Mass.) Care required of party
maintaining fire escape to prevent injury to
travelers on street.-McCarthy v. Thompson
Square Theatre Co., 150 N. E. 170.

808 (5) (Mass.) Abutting owner held lia-
ble for pedestrian's fall on icy sidewalk, where
water dripped from eaves.-Allen v. Salman-
sohn, 150 N. E. 299.

821 (17) (Mass.) Negligence in maintain-
ing fire escape injuring traveler on street held
for jury.-McCarthy v. Thompson Square
Theatre Co., 150 N. E. 170.

(E) Condition or Use of Public Buildings
and Other Property.

851 (Ohio) Municipal parks are "public
grounds," which must be free from nuisance.-
City of Cleveland v. Ferrando, 150 N. E. 747.

Unguarded, unexploded bomb in public park
is nuisance, and municipality, having knowledge
thereof, is liable for injuries.-Id.

XIII. FISCAL MANAGEMENT, PUBLIC
DEBT, SECURITIES, AND TAXA-
TION.

penditures.

(B) Sewers, Drains, and Water Courses. (A) Power to Incur Indebtedness and Ex-
710 (111.) Private sewer held a "drain for
mutual benefit," entitling city to use it after
owner's acquiescence in use resulting in mutual
benefit for 19 years (Smith-Hurd Rev. St. 1925,
c. 42, § 193).-Knudson v. Neal, 150 N. E. 626.
Public use of private sewer for 19 years with
mutual benefit held to establish mutual drainage
system by implied agreement.-Id.

Evidence held to show connection with private
sewer was made with owner's acquiescence, and
without overtaxing capacity.-Id.

712 (III.) City, establishing sewer system
in public street, became obligated to receive
sewage of public living adjacent thereto, as
long as system was not overtaxed.-Knudson v.
Neal, 150 N. E. 626.

873 (III.) Ordinance by which city would
borrow money and elevate railroad track held
unconstitutional as loan of city's credit in aid
of railroad (Const. art. 14, § 2).-Murphy v.
Dever, 150 N. E. 663.

(C) Bonds and Other Securities, and Sink-

ing Funds.

907 (III.) Act enabling park commissioners
to enlarge park systems held not applicable to
districts organized under act authorizing bond
issue (Laws 1907-08. p. 427; Laws 1895, p.
272; Laws 1925, p. 500 amending Laws 1895, p.
279, § 31).-Roberts v. Berwyn Park Dist., 150
N. E. 705.

907 (Ind.) Statute, authorizing appeal to
board of tax commissioners from order for is-
suance of municipal bonds, is not unconstitu-
tional as granting judicial powers (Acts 1921,
c. 222, § 4 [Burns' Ann. St. Supp. 1921, §
10139t7]).-State v. Evans, 150 N. E. 788.

915 (I.) Bonds issued by park district held
void as in excess of maximum limitation per-
mitted by law under which it was organized
(Laws 1895, p. 272).-Roberts v. Berwyn Park
Dist., 150 N. E. 705.

917(1) (Ind.) Taxpayers' petition, oppos-
ing bond issue, must be filed within 15 days aft-
er order for bond issue to give state board of
tax commissioners jurisdiction (Acts 1921, c.
222. § 4 [Burns' Ann. St. Supp. 1921, §
1013917]; Acts 1923, c. 93 [Burns' Ann. St.
1926. § 14240]).-State v. Evans, 150 N. E. 788.

949 (III.) Use of proceeds does not affect
validity of bond issue.-People V. Chicago
Heights Terminal Transfer Ry. Co., 150 N. E.
262.

See Automobiles; Master and Servant, 88-
330; Municipal Corporations, 747-851;
Railroads, 275-394; Street Railroads,
99-117.

1. ACTS OR OMISSIONS CONSTITUTING
NEGLIGENCE.

(A) Personal Conduct in General.

10 (Ind.App.) Railroad's duty to care for
injured licensee or trespasser arises only where
immediate attention is demanded.-Davis v.
Keller, 150 N. E. 70.

Railroad employé's failure to care for in-
jured licensee held not proximate cause of in-
jury subsequent to accident.-Id.

130(1) (Mass.) Excluding evidence of con-
dition of stairway step two months after acci-
dent was discretionary.-Milano v. Wasserman,
150 N. E. 835.

134(3) (Mass.) Finding one injured was in-
vitee held warranted.-Goldstein v. Slutsky, 150
N. E. 326.

134 (7) (Mass.) Evidence held to show
apartment house owner knew of danger.-Gold-
stein v. Slutsky, 150 N. E. 326.

135 (Mass.) Evidence held to warrant find-
ing boy seven years of age exercised reason-
able care in protecting younger brother from
danger.-Pinto v. Brennan, 150 N. E. 86.

Evidence held to warrant finding mother was
not negligent in permitting child to be out of
view.-Id.

(C) Trial, Judgment, and Review.

136(5) (Mass.) Causal connection between
defect in shop stairway and injury held mere
conjecture insufficient for jury.-Milano v. Was-
serman, 150 N. E. 835.

136(9) (Ohio) Court should direct verdict,
where evidence is susceptible of no other in-
ference than that of contributory negligence.-
Buell v. New York Cent. R. Co., 150 N. E. 422.
(III) Willful injury imports conscious-136(14) (III.) Willful injury question of
ness injury may result.-Brown v. Illinois Ter- fact.-Brown v. Illinois Terminal Co., 150 N.
minal Co., 150 N. E. 242.
Violation
136 (22) (N.Y.)
of Industrial
Commission's rule requiring safety appliances
for window cleaners not negligence per se.-
Schumer v. Caplin, 150 N. E. 139.

"Willful or wanton injury" must be inten.
tional.-Id.

(C) Condition and Use of Land, Buildings,
and Other Structures.

39 (Ind.App.) Track held not attractive
nuisance.-Davis v. Keller, 150 N. E. 70.

52 (Mass.) Apartment house owner, fail-
ing to instruct wife to warn of danger, held
liable for injuries to invitee.-Goldstein v. Slut-
sky, 150 N. E. 326.

III. CONTRIBUTORY NEGLIGENCE.
(A) Persons Injured in General.
68 (N.Y.) Evidence of custom of washing
windows from outside, held inadmissible.-
Schumer v. Caplin, 150 N. E. 139.

(C) Imputed Negligence.

96 (Mass.) Child seven years of age may
be allowed on streets unattended.-Pinto v.
Brennan, 150 N. E. 86.

|

E. 242.

136(22) (N.Y.) Negligence as to customer
tripping over doorsill held question for jury.—
Kern v. Great Atlantic & Pacific Tea Co., 150
N. E. 572.

136 (25) (Mass.) Evidence to prove defect
in shop stairway caused injury held insufficient
for jury.-Milano v. Wasserman, 150 N. E. $35.

136 (27) (Mass.) Contractor held not neg-
ligent as matter of law in going into dark cel-
lar. Goldstein v. Slutsky, 150 N. E. 326.

139 (7) (N.Y.) Instruction, declaring Build-
ing Code applicable to all elevators, held prej-
udicial error, where freight elevator caused
injury. Sarconi v. One Hundred and Twenty-
Two West Twenty-Sixth St. Corporation, 150
N. E. 137.

NEGOTIABLE INSTRUMENTS.
See Bills and Notes.

NEW TRIAL.

(D) Comparative Negligence.
101 (Ohio) Contributory negligence dimin-
ishes under federal Employers' Liability Act. See Criminal Law, 911-959.
-Hocking Valley Ry. Co. v. Kontner, 150 N. E.
739.

Causal negligence held attributable both to
railroad and injured engineer within federal
Employers' Liability Act, permitting him to re-
cover damages proportionally diminished.-Id.
Request to charge denying comparison of neg-
ligence between injured engineer and railroad
under federal act held properly refused.-Id.

IV. ACTIONS.
(A) Right of Action, Parties, Preliminary
Proceedings, and Pleading.

110 (Ind.App.) Complaint for failure of
railroad to give attention to injured child held
insufficient.-Davis v. Keller, 150 N. E. 70.

110 (Ohio) Facts creating duty should be
alleged. Cleveland, C., C. & St. L. Ry. Co. v.
Potter, 150 N. E. 44.

119(2) (Ohio) Admitting testimony of and
charge imposing duty, facts creating it not
having been alleged, held erroneous.-Cleveland,
C., C. & St. L. Ry. Co. v. Potter, 150 N. E. 44.

(B) Evidence.

124(1) (Mass.) Evidence of general condi-
tion of stairway held immaterial on issue of
negligence in maintenance.-Milano v. Wasser-
man, 150 N. E. 835.

1. NATURE AND SCOPE OF REMEDY.

6 (Mass.) Granting or denial of motions to
set aside verdicts rests in sound discretion of
trial judge.-Downs v. James, 150 N. E. 167.
6 (Mass.) Disposition of motions for new
trial rests in sound judicial discretion, and it is
rarely that any question of law can be raised
on motion for new trial as matter of right.-
Petition of Thorndike, 150 N. E. 296.

6 (Mass.) Disposition of motion is discre-
tionary.-Cox v. City of Boston, 150 N. E. 301.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

71 (Mass.) Jurisdiction to enforce zoning
acts and restrain violations thereof does not
confer rights on individuals suffering only pri- II. THE FIRM, ITS NAME, POWERS, AND
vate injury (G. L. c. 40, § 28).-O'Brien v.
Turner, 150 N. E. 886.

64 (N.Y.) Buyer of good will of brokerage
partnership could not take firm title without
therein.-In
partner named
Brown, 150 N. E. 581.
8867 (N.Y.) Continuity of place and name
held chief elements.-In re Brown, 150 N. E.
581.

44 (Ohio) Evidence held to show that of- (A) Representation of Firm by Partner.
fice was not abolished.-State v. Witter, 150132 (Mass.) Restriction prohibiting part-
ner from making or indorsing notes without
assent does not affect those without knowledge
thereof.-Back Bay Nat. Bank v. Brickley, 150

~112 (III.) Equity has jurisdiction of suit to N. E. 11.
compel public officer to account for public146(!) (Mass.) Member of commercial
moneys.-People v. Small, 150 N. E. 435.
Every presumption is indulged against pub-
lic official who converts public money.-Id.
PARENT AND CHILD.

For parties on appeal and review of rulings as
to parties, see Appeal and Error.
For parties to particular proceedings or instru-217(1) (Mass.) Persons taking note for

had notice that money was borrowed for part-operative association, properly overruled.-Bur-
ner's individual use rightly denied.-Id.
ley Tobacco Growers' Co-op. Ass'n v. Rogers,
150 N. E. 384.

Ruling that fact that name of partnership
appeared on back of partner's note required
verdict for defendant properly refused.-Id.
218(3) (Mass.) Defendants' request for
directed verdict rightly refused.-National
Shawmut Bank v. McGlinn, 150 N. E. 151.
VI. DEATH OF PARTNER, AND SURVIV-
ING PARTNERS.

VI. AMENDED AND SUPPLEMENTAL
PLEADINGS AND REPLEADER.

236 (7) (Mass.) Permitting amendment of
declaration changing form of action within
court's discretion.-Reinherz v. American Piano
Co., 150 N. E. 216.

246(1) (Mass.) Failure of declaration to
247 (Ind.App.) Estate of deceased partner allege joinder of counts in contract and tort be-
held liable for goods sold to partnership, despite cause of doubt held defect curable by amend-
contract of guaranty limiting his liability.- ment.-Feldman v. Witmark, 150 N. È. 329.
Doerr v. Hibben, Hollweg & Co., 150 N. E.248 (1) (Mass.) Under G. L. c. 231, § 51,
795.
amendments at law must be intended to sus-
tain cause for which action was brought.-Rich-
ardson v. Brown, 150 N. E. 908.

257 (N.Y.) Representative of deceased
partner could not complain, if liquidators, in
sale of good will, recited involuntary qualities.
-In re Brown, 150 N. E. 581.

VII. DISSOLUTION, SETTLEMENT, and

See Equity,

PLEADING.
182–295.

XI. MOTIONS.

345(1) (Mass.) Motion for judgment for
defendant held proper.-Wingersky v. E. E.
Gray Co., 150 N. E. 164.

364 (1) (Mass.) Allegations as to events
after tort relied on properly stricken from dec-
laration (G. L. c. 231, § 7).-Davis v. H. S. &
M. W. Snyder, 150 N. E. 864.

367 (4) (Ind.App.) Overruling motion to re-
quire plaintiff to allege facts showing his po-
sition as train approached held error.-Davis v.
Keller, 150 N. E. 70.

367(6) (Ind.) On demurrer after overrul-
ing motion to make complaint more certain, no
facts will be implied to sustain conclusions of
negligence alleged in complaint.-Terre Haute,
Indianapolis & Eastern Traction Co. v. Scott,

150 N. E. 777.

XIII. DEFECTS AND OBJECTIONS, WAIV-
ER, AND AIDER BY VERDICT
OR JUDGMENT.

406(9) (N.Y.) Possible defects in pleading
in rent action waived by proof of facts with-
out objection.-Kottler v. New York Bargain
House, 150 N. E. 591.

POLICE POWER.

For pleadings in particular actions or proceed-See Constitutional Law, 81; Municipal Cor-
ings, see also the various specific topics.

For review of rulings relating to pleadings, see
Appeal and Error.

I. FORM AND ALLEGATIONS IN

GENERAL.

18 (Mass.) Definite statement of specific

porations, 601-626.

PRACTICE.

For practice in particular actions and proceed-
ings, see the various specific topics.

PRESCRIPTION.

facts constituting a wrong is required.-Dunn See Limitation of Actions.
v. E. E. Gray Co., 150 N. E. 166.

II. DECLARATION, COMPLAINT, PE-
TITION, OR STATEMENT.

63 (Mass.) Rule as to burden of proof as
to statutory exceptions stated.-Ansell v. City
of Boston, 150 N. E. 167.

IV. REPLICATION OR REPLY AND SUBSE-
QUENT PLEADINGS.

180(2) (Ind.) In suit on note, reply alleg-99 (Mass.) Any contract between obligee
ing different promise held a departure.-Hart- and principal obligor, which changes nature of
lep v. Murphy, 150 N. E. 312.
surety's liability, discharges him.-Jordan
Marsh Co. v. Collins, 150 N. E. 202.

PROHIBITION.

V. DEMURRER OR EXCEPTION.
214(1) (Ind.App.) Demurrer admits truth
of allegations of complaint.-Dark Tobacco See Intoxicating Liquors.
Growers' Co-op. Ass'n v. Robertson, 150 N. E.
106.

214(3)(Ill.) Demurrer held not to admit
allegations of fact previously decided and res
judicata.-Weber v. Kemper, 150 N. E. 339.

I. NATURE AND GROUNDS.

3(1) (Ohio) Prohibition will not issue when
other remedy available.-State v. Perry, 150
N. E. 78.

216(1) (Ind.App.) Appellate court, in pass- Remedy to pevent abuse of discretion in ex-
ing upon sufficiency of answer in action on con- ercise by coroner of quasi judicial duties is by
tract between co-operative association and to- injunction and not writ of prohibition.-Id.
bacco grower, will ignore all allegations of mat-3(1) (Ohio) Writ awarded only when no
ters of opinion and agreements not inserted in
written contract.-Burley Tobacco Growers'
Co-op Ass'n v. Rogers, 150 N. E. 384.

216(2) (Ind.App.) Demurrer to answer of
no consideration, in action on contract by co-

other adequate remedy is available.-State v.
Justice, 150 N. E. 430.

3(2) (Ohio) Writ not awarded to prevent
erroneous judgment, where court has complete
jurisdiction.-State v. Justice, 150 N. E. 430.