« ForrigeFortsett »
6. When the comptroller has refunded all
the purchase money to the purchaser he
is relieved from further duty in the trans-
7. By $ 2481, subd. 6, the surrogate has
power to open, vacate, modify or set aside
a decree or to grant new trial, and his
order in such a case is appealable and
mandamus is not a remedy by means of
which such an order can be disregarded.
--The People ex rel. Stephens v. Lott, 396.
8. Where the relator, janitor of an armory,
was entitled to monthly payment under
Laws of 1883, Chap. 299, $ 61, for his ser-
vices, which were made a county charge,
but the supervisors had made no provis-
ion for such payment and the relator pro-
cured his bills to be discounted, Held,
That his claim for such discounts was
not a county charge ; that his claim for
repayment was at least doubtful and a
peremptory mandamus would not lie. -
The People ex rel. Johnston v. Suprs. of
Ulster Co., 559.
See CONTRACT, 14 ; RAILROADS, 12.
1. Where both vessels are beating up a
river and on the same tack, the one down
the river is to be considered an overtak-
ing vessel within the rules of navigation,
regardless of the difference of their
courses, and is bound to avoid the other.
-Aldridge et al. v. Clausen, 273.
2. Defendant was the owner of a steam
yacht licensed to proceed from port to
port in the U. S. and by sea to any for-
eign ports. The accident took place in
the Hudson River and the yacht at the
time showed the lights prescribed for
ocean going steamers and those carrying
sail, but not the lights prescribed for
coasting vessels navigating inland
waters. Held, That the yacht at the
time of the accident was a coasting ves-
sel and bound to carry the central range
of lights prescribed by rule 7 of $ 4233,
U. S. R. S.--Chase et al. v. Belden, 392.
the employee, the danger and risk of
the work is obvious, no negligence can
be imputed to the master for a failure to
give notice.-Murphy v. Mairs, 309.
9. Plaintiff was injured by the fall of a
scaffold on which he was at work for de-
fendant as a helper. Defendant did not
construct the scaffold, but it was done
by his foreman. Held, That whether
the scaffold was unsafe for the use to
which it was put was a question of fact
for the jury, and that defendant was
liable for a failure to exercise proper
care and prudence in regard to it before
requiring plaintiff to use it.-Weiler v.
10. Where the dangers of an employment
in the floors left for the stairs. Above
this opening a number of brick-layers
were at work laying brick on the fourth
floor. The only evidence of the accident
was given by a fellow workman, who was
in the cellar, and who testified that he
heard a thud, and, on looking round,
saw deceased stagger toward the wall,
and caught him as he was falling into
the tub. It was found that deceased's
skull was fractured. Held, That it could
be inferred that deceased was killed by
some hard substance falling upon his
head from above; that defendant was
under a duty to properly cover the said
opening so as to protect the workmen in
the cellar from such accidents and could
not escape the liability for his neglect to
do so by having delegated such duty to
his foreman ; and that, in the absence of
proof that deceased knew that the cover-
ing over said opening was insufficient, it
could not be concluded that he took this
risk as a necessary incident of his em-
ployment.--Ford v. Lyons, 39.
4. Disobedience of a rule made by an em-
plog and posted conspicuously in his
factory for the protection of his employ-
ees in the use of the machinery would
ordinarily be negligence on the part of
the employee ; but, if the employer prose-
cutes his work in a manner that renders
a violation of the rule necessary or prob-
able, or if he suffers and approves its
habitual disregard, its disobedience is not
conclusive on the question of the em-
ployee's negligence, and that matter
must be left to the jury to determine.-
Hayes v. The Bush & D. Mfg. Co., 42.
5. Plaintiff's intestate, a skilled workman,
entered and remained in defendant's ser-
vice with full knowledge and appreciation
of the risk and danger of leaving the roller
couplings uncovered. He died from in-
juries received in the couplings. Held,
that he took upon himself the risk of
injury from plaintiff's omission.-Shaw v.
Sheldon et al., 45.
6. Testimony was given that the superin-
tendent asked deceased if he wanted the
couplings covered and that he declined it.
Held, That the jury should have been
charged that, if true, that fact proved
conclusively that deceased took the risk
and freed defendants from responsibility.
7. Plaintiff while working in a laundry
7. Accountings between a mortgagor and a
former holder of the mortgage, in respect
to payments claimed to have been made
thereon, accompanied by an agreement to
apply the balances settled upon the mort-
gage, are admissible in evidence, as
against a subsequent assignee, to prove
payment of the mortgage to the mort-
gagees.-Holcomb v. Campbell, 265.
8. Such an agreement to make an applica-
tion is as effectual, by way of payment
upon the morgage, as if receipted to that
effect or endorsed thereon; and both par-
ties are concluded by the transaction.-Id.
9. What was said by the parties, while the
accounting and settlement was in pro-
gress, is admissible as part of the res
10. Testator, who was liable upon a mort-
gage which he had assumed, conveyed the
mortgaged premises to his daughter by a
full convenant deed, in consideration of
love and affection. Held, That the land
was the primary fund for the payment
of the mortgage, and that the daughter
had no claim against the estate for par-
ments on the mortgage made by her. – İn
re claim of Wilbur v. Estate of Warren,
11. In an action to restrain the foreclosure of
a bond and mortgage, of which defendant
was assignee, upon the ground of pay-
ment, plaintiff, who was the widow and
devisee of the mortgagor, was allowed to
testify that in certain years there were
settlements of mutual accounts between
the mortgagees and the mortgagor; that
certain amounts were then found due the
latter and that these were agreed to be
indorsed on the bond and mortgage.
Hell, No error. That these declarations
of the mortgagees were competent as part
of the res gesta. -Holcomb v. Campbell,
12. Where a person who has purchased prem-
rogation to the surety in case of payment,
and the lien of the mortgage was de-
stroyed.-Murray v. Fox et al., 535.
See ASSESSMENTS, 2; ASSIGNMENT, 2; BANKS,
13; CORPORATIONS, 7; DEEDS, 4; LEASE, 1;
MECHANIC'S LIEN, 5; TRUSTEES, 1; VE-
the foreclosure and sale of the premises
described in the mortgage. The rights
acquired by the city by means of its
right of eminent domain are paramount
to the lien of the mortgage.-Fincke et al.
v. The City of Buffalo, 445.
14. When a mortgage of a third person is
assigned by the mortgagee as collateral
for his own debt, the foreclosure by the
assignee and his purchase at the sale as
against the assignor, who has not been
made a party, has only the effect to sub-
stitute the land for the mortgage in the
hands of the assignee, and leave it sub-
ject to the right of the assignor, by pay-
ment of his debt, to reclaim the property
and hold it discharged of the assignee's
lien. - In re estate of Gilbert, 470.
15. The efficiency of a deed or mortgage de-
pends upon its being executed according
to the statutory formalities and being
unconditionally delivered by the maker
to the grantee or mortgagor or his agent.
- Munoz v. Wilson, 477.
16. Under the circumstances of this case,
Held, That the mortgage to
testate, though subsequent in date to a
deed to defendant, was delivered first
and entitled to priority.-Id.
17. Action to foreclose a mortgage upon the
property of a railroad company given to
secure bonds issued by said company.
The defense was that the bonds had been
fraudulently issued and were invalid.
The issues were tried at Special Term
and a decision rendered to the effect that
said bonds had been unlawfully issued
and were voidable at the election of the
railway company with the exception of
those which had passed into the hands of
holders for value without notice, and that
as to such bonds the action could be
maintained. Held, That it was not nec-
essary upon such decision for the court
to make findings and to enter an interlo-
cutory judgment of foreclosure and sale
with a reference to ascertain the amount
due upon the bonds, but that a mere
order of reference to inquire who were
tbe holders of the bonds in controversy
and for what they had been acquired
and what consideration had been paid
therefor by their present or preceding
holders was proper and sufficient. --The
Central Trust Co. v. The N. Y. C. & N.
RR. Co., 520.
18. Such an order of reference affected a
substantial right and was appealable.-
19. Plaintiff, who held mortgages executed
1. The provisions of Chap. 719, Laws of
1870, in regard to the employment of
counsel by defendant's common council
were inconsistent with and repealed by
Chap. 461, Laws of 1871, and a claim for
services as counsel under such an employ-
ment cannot be recovered against de-
fendant. — Lyddy v. Long Island City,
2. If city authorities have no actual notice
of an obstruction placed in a street by
third persons, yet if their ignorance re-
sults from omission of duty of inspection
the city is equally chargeable as if express
notice had been actually proved. The
question of reasonable time on which
notice is to be inferred must be deter-
mined on all the circumstances of the
case by the jury where the question of
negligence depends on implied notice,
and in such case it is error to non-suit.-
Kunz v. The City of Troy, 425.
3. The chamberlain of the city of Troy
sured had agreed, required that any mem-
ber desiring to make a direction as to
payment different from that stated in the
certificate might do so in a prescribed
form and with certain formalities. The
insured, believing himself dying and de-
siring such change, told a friend that he
wished this done and asked him to have
the forms gone through with. Before
anything was actually done he died.
Held, That the designation in the certifi.
cate must stand and that the person des-
ignated was entitled to the money.-Ire-
land v. Ireland, 335.
See EXECUTORS, 11; LIFE INSURANCE, 9
1. After defendant's train began moving
plaintiff's intestate with others attempted
to board it. The gate was closed on the
foot of deceased and he was carried along
clinging to the car until struck by a
water pipe and injured so that he died.
Held, That his attempt to enter the train
under the circumstances was a negligent
act contributing to his death and that
plaintiff could not recover.-Solomon v.
The Manhattan R. Co., 25.
2. After the gates on defendant's cars were
closed plaintiffs' testator kept hold of the
stanchions supporting the roof while the
train was moving and the gateman push-
ing him away until he disappeared under
the car and was killed. Held, That
plaintiffs could not maintain an action
for damages for his death.-Card et al. v.
The Manhattan R. Co., 43.