and 2 to plaintiff. After the wo judgments of foreclosure, plaintiff agreed with R. and others to pay the incumbrances on No. 1 and No. 2, so far as might be necessary to protect the title, he to have the use of the real estate for a term of years, and to apply the profits to the liquidation of his claims. The


plaintiff tendered the defendant the N. Y. SUPREME COURT. GENERAL TERM


amount due on the judgments and costs, and demanded an assignment thereof and of his claims, mortgage and note. The defendant declined to make such

arrangement. There were no liens intermediate defendant's two mortgages on parcel No. 1. The owner of the mortgage on which the first judgment was obtained held as collateral thereto notes of defendant and another.

U. G. Paris, for applt. 1. Lawson, for respt.

Order reversed with costs, and motion. for injunction denied with costs.

Opinion by Learned, P. J.; Bockes and Boardman, J.J. concurring.

Dings, applt. v. Parshall, respt.
Decided April, 1876.

An action to compel the assignment of a bond and mortgage is local, and must be tried in the county where the land is situated.

Appeal from an order refusing to change place of trial from Onondaga to Wayne county,

The Mutual Insurance Company of New York had obtained a udgment of Held, That plaintiff having been foreclosure on land in Wayne county, made a party to the foreclosures, and and the judgment had been assigned to judgment having been had against him, one Williams, and this action is brought the equity of redemption was cut off. to compel Williams to assign the same He had no right of subrogation as to to plaintiff on the ground that the asthe first parcel as third mortgagee, the signment to Williams was frau !ulent defendant holding the first and second and void, and for damages by reason of mortgages. Nor under the circum- the non-sale of the premises on the stances as to the second. The plaintiff does not show that the payment of the first mortgage by him as a purchase on the sale will work him any injustice.

By the agreement (if any such could be made after foreclosure) between plaintiff and the mortgagor to protect the title, the plaintiff did not stand in the position of a surety. He appears to be one who has purchased a term of for the consideration of paying off years certain incumbrances. He is not a tenant paying rent Th agreement seems to indicate that the mortgagor did not assume to protect the lease, but rather the lessee the mortgagor.



from Onondaga to Wayne county was A motion to change the place of trial


Geo. R. Collins, for respt.
T. W. Collins, for applt.

Held, That the order of the special term denying motion to change place of trial was erroneous. The action, under section 123 of the Code, was local, and must be tried in Wayne county where the land is situated.

Opinion by Mullin, P. J.


VOL. 2.] MONDAY JUNE 26, 1976.

Buffalo and Jamestown Railroad Com issue bonds.
pany v. Weeks et. al.

Decided April, 1876.

By the provisions of that statute a duty is doubtless imposed upon the

Where a petition of the tax-payers of Commissioners to subscribe for the stock of the Railroad Company and to the courts may compel them to perform. issue bonds to pay for the stock which But there is no contract between them and the town, and the Commissioners, and the Railroad Company, that the latter can in any way enforce.

a town, signed by a requisite number, is made to bond said town in aid of a Railroad, the statute gives no right which the Railroad can enforce against the town, even where the Commissioners have entered into a contract pursuant to the provisions of the act of 1870.

[No. 20.

3. Because they owe no duty at that stage of the proceedings to the Railroad Company.

This was an application to compel a delivery of said bonds to the Railroad Company.

This is on appeal from an order. While the proceedings remained in The town in which the village of this way, the legislature might repeal Jamestown, in this State, is situated, the bonding act without violating the had, by a petition of its tax-payers pur- obligation of any contract. That by suant to statute, bonded for aid of the the act of 1870, chap. 570, the legislaBuffalo and Jamestown Railroad Com-ture has not authorized the Commispany, but the bonds had never been de-sioners to agree with the Company to livered to the company, although the issue the bonds which the tax-payers Commissioners of said town had signed have consented may be issued to the a contract pursuant to chap. 507 of the Company, and at no time was there a contract by which the Company became entitled to the bonds.

laws of 1870.

Held, That the mere signing of the petition to bond a town, and appointment of Commissioners thereunder gives no right to the Railroad Company either at law or equity which they can enforce against said town.

1. Because the Railroad Company is not bound to receive said bonds or to apply them to the construction of the


2. It cannot compel the persons ap pointed to issue the bonds, to sign and deliver them for the same reason.

That the act of 1869, under which these proceedings were instituted, provides in no way for the Railroad Company to compel officers of the town to

The duty of the Commissioners to issue bonds rests on the bonding act of 1869, and not upon the agreement authorized by the statute of 1870, chap. 507.

That the amendment to the Consti

tution which prohibits towns from
bonding in aid of Railroad Companies,
when it took effect, tock from the Rail-
road Company the right to the bonds,
and the Commissioners had no control
over the bonds after this.
Opinion by Mullen, J.

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FORFEI able for the payment of the sum assur-
ed or any part thereof, and this policy
shall cease and determine."


Anderson et. al., v. St. Louis Mutual
Life Insurance Company.

It further provided that "In every
case where this policy shall cease or
become null and void, all previous pay-
ments ma e thereon, and all dividend
credits accruing therefrom, shall be
forfeited to the said company."

The prompt payment of premiums, or
of interest annually in advance on
a premium note, where the policy by
its terms requires such payments, is
a condition precedent to a recovery
A. failed to pay the premiums falling
on the policy.
due subsequent to October, 1870, and
Dividends may be first credited on the also failed to pay the interest on the
principal of outstanding notes,
where such an agreement has been unpaid premium notes annually in ad-


made or custom established between the parties by the course of business. Equity cannot reliere against the forfeiture of a policy on account of non payment of premiums or of interest on premium notes at the time required by the terms of the policy.

The question in this case came up on a demurrer to a bill in equity, which was filed by the plaintiffs as representatives of one A, deceased, for relief against the forfeiture of a policy of life insurance held by said A., and a

decree for the amount thereof.

A. died in 1872, and due proof of
death was served on
the company.
The time for payment having elapsed,
plaintiffs filed this bill, claiming the
stipulation to pay the interest in ad-
vance was merely a penalty, and that
the court would relieve against it.

Defendants demurred on the ground
that the bill admitting that the interest
had not been paid in advance and the
policy providing in such case a forfei-
ture of the policy and all previous
payments and div dend credits, there
was no ground for relief.

On the 15th day of October, 1867, the said A. insured his life with defendant in the sum of ten thousand dollars, the premiums to be four hundred and ninety dollars per annum in advance. The policy, which was issued to him, by its terms provided that if the two first annual premiums were paid and any default was made in any subsequent premiums, such default should not work a forfeiture, but the amount insured should be reduced to the sum of the annual premiums already paid. It also provided that "If the assure fail to pay annually in advance the interest on any unpaid notes or loans which may be owing by the insured to the company on account of annual pre- Under the policy in question, the miums, the company shall not be lia-failure to pay the interest in advance

Held, That nothing could be plainer than the language of the policy. The prompt payment of premiums is the very es ence of life insurance. It is a condition precedent to the existence of the policy. Bliss on Life Ins., 253, 274; May on Ins., 406; 1 Disney, 355; 2 Disney, 106; 12 East., 13%;

Hill, 161; 100 Mass., 500; 43 N. Y., 283; 8 II. of L., 745; 4 Vroom, 487.

And the company has the same right to insist on the prompt payment of a note, or of interest on the same in advance. 3 Bigelow,780; 36 N. Y., 157; 19 Mich., 169; 100 Mas., 500; 1 Disney, 355.

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upon the premium note debarred the plaintiff of a recovery and worked a forfeiture of the premium already paid.




The junior incumbrancer having paid the debt is entitled to subrogation.

Defendant, P., is the owner of a cer

Also held, That although the general rule is that where money is paid up-tain judgment of foreclosure and sale on a note, the law will first apply it up-on certain premises. Plaintiff is also on the interest and then upon the prin- the owner of a bond and mortgage cipal, it must bend to a spec al usage junior to P.'s, on the same premises. or custom which has been established The property was advertised to be between the parties by the course of sold under P.'s judgment. Prior to business. In the statements previous-time of such sale, plaintiff tendered to ly made by the company to the assured, P. the amount due on his judgment, the dividends had been deducted from together with the costs, &c., and rethe principal of his notes outstanding, quested an assignment of his interest to and not from the interest upon the new plaintiff. The tender has since then notes which he gave in settlement. The been kept good, and P. duly notified of interest was paid in cash. Such being the fact. P. refused to assign, &c. the custom between them, all that the Plaintiff also requested P. at time of company was bound to do in crediting tender to proceed and sell said presubsequent dividends was to apply ises, which P. also refused. them in the same way. If there is anything in the prospectus of the company to the contrary, the bill is demurrable in not setting it forth

Also held, (following Tait v. The New York Life Ins. Co., 4 Big., 479.) That equity has no power to afford relief in such a case as the present one.

Demurrer sustained.

Opinion by Brown, J.

Dings, respt., v. Parshall, applt.
Decided April, 1876.

Appeal from an order denying a motion to dissolve an injunction.

When the premises were advertised for sale the first time, crops were growing on the premises of the value of several hundred dollars. By the refusal of P. to sell as requested, the crops have been lost and plaintiff damaged.

After the tender as aforesaid, P.
transferred said judgment to defendant
W., who now claims to own the same.
T. W. Collins, for applt.
Geo. W. Collins, for respt.

Held. That plaintiff, being a junior mortgagee of the premises in question, had the right to redeem them from the senior mortgage held by P., and to redeem he must pay the amount due thereon, together with all costs.

A junior mortgagee may redeem from a
prior mortgage by paying the amount
due thereon and the costs.
The tender of the amount due thereon
by junior mortgagee for purposes of
redemption is equivalent, if properly

The tender of the amount due on the mortgage before sale by the junior incumbrancer, for the purpose of redemption, is equivalent to actual payme it if properly made and the money

made, to the payment of the money, so tendered s thereafter kept good and provided the money tendered is set at some definite place for the prior apart and kept for such mortgagee. mortgagee.

The junior incumbrancer having paid the debt of the prior incumbrancer, is entitled to be subrogated to the prior lien and all securities held by the prior incumbrancer, and he holds the premises for the amount paid on the first mortgage.

The tender to P. having been made before the assignment to W., and having been kept good, nothing passed by the assignment to W.

Order affirmed.

Opinion by Mullin, P. J.


King, respt., v. The N. Y. C. & H.
R. R. R. Co., applt.

Decided May 23, 1876.

iron from the vessels. D. for several
years before had had a similar contract
with defendant.
He had employed
laborers to assist him in performing the
contract, and among others the plain-
tiff, who knew of the contract with de-
fendant. These persons were paid by
D. The hook which fastened the
boom of the derrick became worn and
broke; the boom fell, striking and in-
juring plaintiff.

Held, That D. occupied the position

MASTER AND SERVANT. NEG- of employer and master of plaintiff, and for his negligence, plaintiff's remedy is against him alone.

Matthew Hale, for applt.

Amasa J. Parker, for respt.

This action was brou ht to recover damages for injuries sustained by plain tiff, alleged to have been occasioned by defendant's negligence. It appeared that in 1872 one D. entered into a contract with defendant to unload from barges and vessels, and place upon cars, all the railroad iron brought to the dock in Albany for defendant in that year, and defendant was to furnish a derrick to be used by D. in hoisting the

Also held, that in the absence of proof of a contract by defendant with D. to keep the derrick in repair, no duty to do so on its part could be inferred.

Where the person who was the immedi ate cause of an accident is a conThe owner of an implement or piece tractor engaged in performing a spe- of machinery may lawfully allow ancific work, the relation of master and other to take and use it, and if in using servant does not exist, and the party it it becomes defective and causes inemploying him is not liable, unless jury to a third person, the owner is not the work contracted for is unlawful,

or where an officer or public body responsible, especially where the article charged with a certain duty com- is not in its nature dangerous, and is mits its performance to another. placed in the possession of a person comThe owner of an implement or piece petent to manage and use it. 4 C. B., of machinery may lawfully allow (N. S.) 556; El., Bl. & El., 168; 7 C. another to take and use it, and if in

using it becomes defective and causes B., (N. S.) 768. Coughtry v. Globe injury to a third person, the owner W. Co. 56 N. Y., 124, distinguished.

is not liable.

Plaintiff claimed that that defendant agreed to keep the derrick in repair, but defendant's proof tended to show that the agreement was that defendant should make repairs when notified by D. that they were necessary. The court charged that in the absence of a special agreement as to the inspection and keeping in order of the derrick, it was defendant's duty to provide a suitable derrick and to keep it in order; and that if defendant was to make re

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