and 2 to plaintiff. After the wo judg Order reversed with costs, and motion ments of foreclosure, plaintiff agreed for injunction denied with costs. with R. and others to pay tie incum Opinion by Learned, P. J.; Bockes brances on No. 1 and No. 2, so far as and Boardman, J.J. concurring. 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

CHANGE OF VENUE. 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,

FOURTH DEPARTMENT. and demanded an assignment thereof

Dings, applt. v. Parshall, respt. and of his claims, mortgage and note.

Decided April, 1876. The defendant declined to make such arrangement. There were no liens in- An action to compel the assignment of termediate defendant's two mortgages

a bond and mortgage is local, and

must be tried in the county where the on parcel No. 1. The owner of the

land is situated. mortgage on which the first judgment

Appeal from an order refusing to was obtained held as collateral thereto notes of defendant and another.

change place of trial from Onondaga

to Wayne county, U. G. Paris, for applt.

The Mutual Insurance Company of 1. Lawson, for respt.

New York had obtained a udgment of Ileld, 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

. 10 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

judgment. does not show that the payment of the

A motion to change the place of trial first mortgage by him as a purchase on froin Onondaga to Wayne county was the sale will work him any injustice.

denied. By the agreement (if any such could be made after foreclosure) between

Geo. R. Collins, for respt. plaintiff and the mortgagor to protect

T. W. Collins, for applt. the title, the plaintiff did not stand in TIeld, That the order of the special the position of a surety. He appears term denying motion to change place of to be one who has purchased a term of trial was erroneous. The action, under years

for the consideration of paying off section 123 of the Code, was local, and certain incumbrances. IIe is not a must be tried in Wayne county where tenant paying rent Th: agreement the land is situated. seems to indicate that the mortgagor Opinion by Mullin, P.J. did not assume to protect the lease, but rather the lessee the mortgagor.

VOL. 2.)

MONDAY JUNE 26, 1976.

[No. 20.

NEW YORK WEEKLY DIGEST. 3. Because they owe no duty at that

stage of the proceedings to the Rail

road Company BONDING TOWNS,

That the act of 1869, under which

these proceedings were instituted, proN. Y. SUPREME Court. Gen’L Term, vides in no way for the Railroad ComFOURTH DEPARTMENT.

pany to coinpel officers of the town to Buffalo and Jamestown Railroad Com issue bonds. pany v. Weeks et. al.

By the provisions of that statute a Decided April, 1876.

duty is doubtless imposed upon the Where a petition of the tax-payers of Commissioners to subscribe for the

a town, signe:t by a requisite number, stock of the Railroad Company and to is made to bond said town in aid of a Railroad, the statute gives no right the courts may compel them to perform.

issue bonds to pay for the stock which which the Railroad Company can enforce ayainst the town, even where But there is no contract between them the Commissioners have entered into and the town, and the Commissioners, a contract pursuant to the provisio':8 and the Railroad Company, that the of the act of 1870.

latter can in any way enforce. . This is on appeal from an order.

While the proceedings remained in The town in which the village of this way, the legisiature 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, althou;h 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 laws of 1870.

contract by which the Company beThis was an application to compel a came entitled to the bonds. delivery of said bonds to the Railroad

The duty of the Commissioners to Company.

issue bonds rests on the bonding act or Held, That the mere signing of the 1869, and not upon the agreement aupetition to bond a town, and appoint- thorized by the statute of 1870, chap. ment of Commissioners thereunder 507. gives no right to the Railroad Company

That the amendment to the Constieither at law or equity which they can tution which prɔhibits towns from enforce against said town.

bonding in aid of Railroad Companies, 1. Because the Railroad Company is when it took effect, tock from the Railnot bound to receive said bonds or to road Company the right to the bonds, apply them to the construction of the and the Commissioners had no control road.

over the bonds after this. 2. It cannot compel the persons ap

Opinion by Mullen, J. pointed to issue the bonds, to sign and deliver them for the same reason.


LIFE INSURANCE. FORF EI. able for the payment of the sum assur

TURE OF POLICY. ed or any part thereof, and this policy U.S. CIRCUIT COURT. W. D. TENNESSEE shall cease and determine."

It further provided that “In every Anderson et. al., v. St. Louis Mutual Life Insurance Company.

case where this policy shall cease or

become null and void, all previous payThe prompt payment of premiums, or ments ma e thereon, and all dividend

of interest annually in advance on a premium note, where the policy by credits accruing therefrom, shall lie its terms requires such payments, is

forfeited t) the said company." a condition precedent to a recocery 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 in:erest on the

principal of outstanding notes, where such an agreement has been unpaid premiun notes annually in admade or custom established between the parties by ihe course of business.

A. died in 1872, and due proof of

the company. Equity cannot relieve against the for- death: was served on feiture of a policy on account of The time for payment having elapsed, non payment of premiums or of in- plaintiff's filed this bill, claiming the terest on premium notes at the time stipulation to pay the interest in adpe quired by the terms of the policy.

vance was merely a penalty, and that The question in this case came up the court would relieve against it. on a demurrer to a bill in equity, which Defendants demurred on the ground was filed by the plaintiffs as represen- that the bill admitting that the interest tatives of one A, deceased, for relief had not been paid in advance and the against the forfeiture of a policy of policy providing in such case a forfeilife insurance held by said A., and a ture of the policy and all previous decree for the amount thereof.

payments and div dend credits, there Qu the 15th day of October, 1867, the was no yround for relief. said A. insured his life with defendant

lleld, That nothing could be plainer in the sum of ten thousand dollars, the than the language of the policy. The premiums to be four hundred and nine prompt payment of premiums is the ty dollars per annum in advance. The

very es ence of life insurance. It is a policy, wlich was issued to him, by its condition precedent to the existence of terms provided that if the two first an- the policy. Bliss on Lite Ins., 253, nual premiums wer: paid and any de- 274; Mayon Ins., 406; 1 Disney, fault was made in any subsequent pre- 355; 2 Disney, 106; 12 East., 13%; miums, such default should not work a 3 Hill

, 161; 100 Mass., 500 ; 13 N. Y., forfeiture, but the amount insured 283 ; 8 H. of L., 745 ; 4 Vroom, 487. should be reduced to the sum of the

And the company has the same riglit annual premiums already paid. It

to insist on the prompt payment of a also provided that “If the assure note, or of interest on the same in adfail to pay annually in advance the in

3 Bigelow,780; 36 N. Y., 157; terest on any unpaid notes or loans 19 Mich., 169; 100 Mas., 500; 1 Diswhich may be owing by the insured to ney, 350. the company on account of annual pre Under the policy in question, the miums, the company shall not be lia-I failure to pay the interest in advance


upon the premium note debarred the The junior incumbrancer having paid plaintiff of a recovery and worked a

the debt is entitled to subrogation. forfeiture of the premium already Appeal from an order denying a mopaid.

tion to dissolve an injunction. Also held, That although the gener Defendant, P., is the owner of a ceral 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 previvus- time of such sale, plaintiff tendered to ly made by the company to he 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 o’rtstanding, 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 premsubsequent dividends was to apply ises, which P. also refused. them in the same way.

If there is When the premises were advertised anything in the prospectus of the com- for sale the tirst time, crops were growpany to the contrary, the bill is demur- ing on the premises of the value of sevrable in not setting it forth

eral hundred dollars. By the refusal of Also held, (tollowing Tait v. The P. to sell as requested, the crops have New York Life Ins. Co., 4 Big., 479.) been lost and plaintiff damaged. That equity has no power to afford re Aft r the tender as atoresaid, P. lief in such a case as the present one. transferred said judgment to defendant Demurrer sustained.

W., who now claims to own the same. Opinion by Brown, J.

7. W. Collins, for applt.

Geo. 1. Collins, for respt. MORTGAGE. TENDER. Held, That plaintift, being a junior N. Y. SUPREME Court. GEN. Term mortgagee of the premises in question, FOURTH DEPARTMENT.

had the right to redeem them from the Dings, respt., v. Parshall, applt.

senior mortgage held by P., and to re

deem he must pay the amount due Decided April, 1876.

thereon, together with all costs. A junior mortgagee may redeem from a

The tender of the amount due on prior mortgage by paying the amount due thereon and the costs.

the mortgage before sale by the junior The tender of the amount due thereon incum rancer, for the purpose of re

by junior mortgagee for purposes of demption, is equivalent to actual pay. redemption is equivalent, it properly me it if properly made and the money mude, to the payment of the money, su tendered is thereafter kept good and provided the money tendered is set at some detinite place for the prior apart and kept for such mortgagee. mortgagee.

The junior incumbrancer having paid iron from the vessels. D. for several the debt of the prior incumbrancer, is years before had had a similar contract entitled to be subrogated to the prior with defendant. He had employed lien and all securities held by the prior laborers to assist him in performing the incumbrancer, and he holds the prem- contract, and among others the plainises for the amount paid on the first tiff, who knew of the contract with demortgage.

fendant. These persons were paid by The tender to P. having been made D. The hook which fastened the before the assignment to W., and hav- boom of the derrick became worn and ing been kept good, nothing passed by broke; the boom fell, striking and inthe assignment to W.

juring plaintiff. Order affirmed.

Matthew Hale, for applt. Opinion by Mullin, P. J.

Amasa J. Parker, for respt.

Held, That D. occupied the position MASTER AND SERVANT. NEG of employer and master of plaintiff, LIGENCE.

and for his negligence, plaintiff's remN. Y. COURT OF APPEALS. edy is against him alone. King, respt., v. The N. Y. C. & II. Also held, that in the absence of R. R. R. Co., applt.

proof of a contract by defendant with Decided May 23, 1876.

D. to keep the derrick in repair, no duty Where the person who was the immedi to do so on its part could be inferred. ate cause of an accident 28 a con

The 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 the work contracted for is unlawful,

jury to a third person, the owner is not or where an officeror public boily 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 lavfully, 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 defendant This action was brou ht to recover agreed to keep the derrick in repair, damages for injuriis sustained by plain but defendant's proof tended to show tiff, alleged to have been occasioned by that the agreement was that defendant defendant's negligence. It appeared should make repairs when notified by that in 1872 one D. entered into a con- D. that they were necessary. The tract with defendant to unload from court charged that in the absence of a barges and vessels, and place upon cars, special agreement as to the inspection all the railroad iron brought to the and keeping in order of the derrick, it dock in Albany for defendant in that was defendant's duty to provide a suityear, and defendant was to furnish a able derrick and to keep it in order; derrick to be used by D. in hoisting the and that if defendant was to make re

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