MALICIOUS PROSECUTION — Continued.

as to good faith of defendant in obtaining possession of automobile
from plaintiff's employer on presentation of check for repairs on which
payment was subsequently stopped. Gillie v. Fellows, 734.

MANDAMUS.

See, also, MUNICIPAL CORPORATIONS, 1, 2, 6.

NATURE AND GROUNDS IN GENERAL.

failure to

1. Mandamus only issues where clear legal right appears
present claim to comptroller of city of New York as required by Greater
New York charter, section 261, is bar to issuance of writ against comp-
troller-relator did not establish clear legal right to writ since amount
of claim remained unaudited. People ex rel. Wells & Newton Co. v.
Craig, 407.

SUBJECTS AND PURPOSES OF RELIEF.

2. Acts and proceedings of municipalities - application by city of
New York for peremptory writ of mandamus to compel extension of
water system for fire protection - writ denied where city's liability for
compensation is doubtful alternative writ directed. People ex rel.
City of N. Y. v. Queens County Water Co., 356.

3. Acts of public officers - when writ will issue to require enforcement
of Transportation Corporations Law, section 26. People ex rel.
Weatherwax v. Watt, 929.

ACTS OF PUBLIC OFFICERS.

4. Writ of mandamus will not issue to compel comptroller of city
of New York to pay vouchers under contract for constructing building
for College of City of New York, where contract was not made in manner
prescribed by statute- writ will not issue to compel payment under
section 1132 of Greater New York charter where moneys if received
would not be expended in defraying expense incident to gratuitous
instruction by college charter did not authorize trustees of college
to bind city by contract involving liability. People ex rel. Rangeley
Construction Co., Inc., v. Craig, 503.

RELIEF.

5. Mandamus will lie only where there is clear legal right to relief
demanded. People ex rel. Conners v. Board of Education of City of New
York, 5.

MARITIME LAW.

See SHIPS AND SHIPPING, 1, 3.

MARRIAGE.

See HUSBAND AND WIFE, 1.

MASTER AND SERVANT.

See, also, APPEAL, 4; FALSE IMPRISONMENT, 1; MOTOR Vehicles;
SHIPS AND SHIPPING, 1, 3; WORKMEN'S COMPENSATION LAW,
7, 8.

SERVICE AND COMPENSATION.

1. Remuneration - complaint in action to recover percentage of
profits insufficient where it is not alleged what profits were earned by
defendant. Conti v. Cohen, Inc., 302.

MASTER'S LIABILITY FOR INJURIES TO SERVANT.

2. Negligence owner of motor trucks hired by general contractor
at given rate per truck per day was independent contractor and respon-
sible for negligence of driver of truck rented from third person
general contractor is not responsible though trucks bore his name.
Wagner v. Motor Truck Renting Corporation, 371.

MEASURE OF DAMAGES.

See TRIAL, 5.

MECHANIC'S LIEN.

See LIENS.

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MORTGAGES.

See, also, TAXATION, 2, 3.

CONSTRUCTION AND OPERATION.

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66

1. Sinking fund provision of railroad mortgage or deed of trust con-
strued"after" defined bonds outstanding" defined practical
construction of agreement by parties recognized by court. New York
Trust Co. v. Portland Railway Co., 422.

FORECLOSURE BY ACTION.

2. Parties Federal receiver of property of defendant corporation
is not entitled to be made party defendant in action to foreclose mortgage
on real property of corporation-making receiver party was abuse of
discretion of court where there does not appear to be any defense to
the action. Bate v. Brenack Stevedoring Co., Inc., 194.

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3. Parties and process a purchaser under foreclosure sale acquires
good title to land though non-resident defendant is personally served
without the State and certificate of Secretary of State as to notary's
power to act was not attached to affidavit of service, where a new
affidavit with certificate is filed nunc pro tunc after sale judgment
of foreclosure valid. Kelly v. Schramm, 377.

4. Pleading separate defense that bond and mortgage had been
assigned to secure corporate debt, but by renewal of notes without
notice to assignor had been reassigned under Federal court order,
whereupon defendant claimed contribution from plaintiff's assignor and
from plaintiff, held, to be in effect and substance counterclaim justifying
and requiring plaintiff's serving reply matters set up by reply not
superfluous, irrelevant or scandalous as to issue raised by counterclaim.
Hume v. Woodruff, 510.

5. Judgment against mortgagee for burning building as counterclaim
against assignee of mortgage - assignment executed after fire. Markle

v. Osborne, 906.

MOTIONS AND ORDERS.

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See COSTS, 1; DEPOSITIONS, 2; PARTIES; PLEADINGS, 9, 16, 17;
TRIAL, 1.

MOTOR VEHICLES.

See, also, MASter and Servant, 2.

INJURIES TO THIRD PERSON.

1. Owner not liable in action for death of child where accident occurred
while chauffeur was using automobile for his own purposes it was
error for court so to charge jury that it might find that at time of accident,
chauffeur was engaged in business of owner where there was nothing
in evidence that would warrant inference that use of machine would
expedite master's business. Donnelly v. Yuille, 59.

2. Action to recover for injuries to boy suffered while jumping from
motor truck, being driven by unlicensed chauffeur boy, who was
riding with permission of driver, not trespasser unlicensed chauffeur

presumed to be incompetent negligence to employ such person where
it must be presumed that if car had been properly operated for purposes
for which it was designed accident would not have happened. LaRose v.
Shaughnessy Ice Co., 821.

3. Express company hiring motor truck by hour from owner who
cared for it and selected and paid driver is not liable in action to recover
for death caused by truck driver was not special servant of express
company owner was independent contractor. Charles v. Barrett, 584.
MUNICIPAL CORPORATIONS.

See, also, EMINENT DOMAIN; MANDAMUs, 2, 3.

OFFICERS.

1. Process mayor of city of New York is necessary party defendant
in mandamus proceedings to compel payment of amount due under
contract for constructing building for College of City of New York
where charter of Greater New York requires warrants to be countersigned
by mayor. People ex rel. Rangeley Construction Co., Inc., v. Craig, 503.
2. Alternative writ of mandamus to compel vacation of order of board

MUNICIPAL CORPORATIONS - Continued.

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of health revoking relator's permit to sell milk will not be granted where
relator's violations of Sanitary Code were numerous and action of board
was not capricious-powers of board are administrative -writ will
not issue where there is no abuse of discretionary power. People ex rel.
Agins & Klugerman, Inc., v. Board of Health, etc., of City of New York,
562.

3. Certiorari to review proceedings of acting mayor of city of Buffalo
in demoting police captain courts will give more crictical examination
of evidence in such proceedings where official presiding at hearing may
be witness to material facts on trial, and where he is without judicial
experience or training, where determination is necessary whether or
not he was influenced consciously or unconsciously, by his personal
interest in controversy charges that relator violated rules of police
department not sustained relator reinstated. People ex rel. Winspear

v. Kreinheder, 887.

CONTRACTS.

contractor

4. Withdrawal of bid for construction of school building
did not have right to withdraw his bid for construction of particular
fireproof building and demand return of deposit where general appropria-
tion made by board of estimate and apportionment was greater than
bid, though estimated cost of particular building was less. People
ex rel. Conners v. Board of Education of City of New York, 5.

5. Acceptance of bids municipal corporation is entitled to reason-
able time after receipt of bids for construction of particular school
building in New York city to determine whether lowest bid was reason-
able and contractor had no right to withdraw his bid while it was being
considered, unless final action thereon was delayed for unreasonable
length of time - when delay of thirty-nine days in accepting bid is not
unreasonable. People ex rel. Conners v. Board of Education of City of
New York, 5.

USE AND REGULATION OF PUBLIC PLACES.

6. Streets ordinance against holding meetings in public streets with-
out permit from mayor is valid unjustifiable discrimination that others
were permitted to hold like meeting not shown withholding permit
is not denial of free speech- mandamus is proper remedy where permit
is improperly withheld. People ex rel. Doyle v. Atwell, 225.

7. Section 40 of new charter of city of Buffalo (Laws of 1914, chap.
217) vests all authority respecting licenses for signs in council which
under old charter was vested in commissioner of public works. Ordi-
nance with respect to signs was continued by new charter.
Kertz v.
Adam & Co., 921.

NEGLIGENCE.

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-

8. Defects in sewer - city of New York, having accepted and main-
tained sewer with knowledge of defects in construction is liable for
damages caused by breaking of sewer adjoining plaintiff's store city
not liable for negligence of Public Service Commission or independent
contractors under it- contractor is not liable where insufficiency of
sewer was directly referable to faulty plans of enginners of Public
Service Commission or for improper maintenance by city. John
Wanamaker, New York, v. City of New York, 441.

TAXATION.

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9. Special or local assessments statute (Laws of 1888, chap. 131)
by which city of Amsterdam acquired bridge required it to keep property
in repair cost of sidewalk built on said bridge property cannot be
assessed against abutting owner - Laws of 1911, chap. 242, relating to
said city, saving clause applied — rule of practical construction applied.
Carbonelli v. City of Amsterdam, 848.

ACTIONS.

10. Employee working on per diem basis suspended pending deter-
mination of criminal charges is not entitled to pay during suspension
Greater New York charter, section 1569-a, not applicable to action by
suspended employee to recover wages during period of suspension on
criminal charges. Manderille v. College of City of New York, 107.

MUNICIPAL CORPORATIONS Continued.

11. Statement in complaint as to agreement between city and con-
tractor construed to be statement of fact and not conclusion of law and
as such was admitted by demurrer. Johnson Construction Co. v. City
of Jamestown, 917.

[For tables containing all sections of municipal charters, ordinances,
etc., cited and construed in this volume, see ante, pp. lxix and lxxi.]

NEGLIGENCE.

See, also, HIGHWAYS, 1, 2; MASTER AND SERVANT, 2; MOTOR
VEHICLES, 1-3; MUNICIPAL CORPORATIONS, 8; NUISANCE;
PHYSICIANS AND SURGEONS; RAILROADS, 1, 2; SHIPS AND
SHIPPING, 1, 3, 4; STATE; WORKMEN'S COMPENSATION LAW, 4, 7, 8.

ACTS CONSTITUTING NEGLIGENCE.

1. Dangerous substances - defendant is liable in action for damages
for loss of horses caused by chemical in street though street had not been
accepted by public authorities and was not in general use, but had
been dedicated to public use when boundary is presumed to extend
to center of street purchase of land by plaintiff's employer and
defendant from common source reference in conveyance to map on
which street is shown. Shapiro v. Albany Chemical Co., 719.

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2. Dangerous substances - action by servant of purchaser of can
of chlorinated lime to recover from manufacturer for injuries suffered
from explosion and action by husband for expense and loss of services
manufacturer liable evidence that can came from defendant - letter
written by defendant after accident that new device had been invented
to prevent explosion admissible in evidence - judgment by Appellate
Division on merits by virtue of Code of Civil Procedure, § 1317.
Hallenbeck v. Wander & Sons' Chemical Co., Inc., 855.

RES IPSA Loquitur.

3. Doctrine of res ipsa loquitur has no application where instrumen-
tality through which accident happens is not wholly and entirely under
defendant's control. King v. Interborough Rapid Transit Co., 15.
ACTIONS.

4. Damages money paid to servant to do work done during
incapacitation from injuries is proper element of damages in action by
husband to recover consequential damages for loss of services of his
wife. Orben v. State Investing Co., 658.

NEGOTIABLE INSTRUMENTS.

See BILLS AND NOTES.

NEW TRIAL.

See BILLS AND NOTES, 3; TRIAL, 2.

NEW YORK CITY.

See CONSTITUTIONAL LAW; CRIMES, 3; MANDAMUS, 1, 2, 4, 5;
MUNICIPAL CORPORATIONS, 1, 5, 8, 10; TAXATION, 1.

[For tables containing all sections of various charters, codes and
ordinances, etc., cited and construed in this volume, see ante, pp. lxix
and lxxi.]

NONSUIT.

See COURT OF CLAIMS.

NUISANCE.

See, also, VILLAGES.

PRIVATE NUISANCES.

Action for damages - defendant not liable in action for injuries
suffered from faulty operation of freight elevator upon theory that it
was of dangerous construction and unlawfully maintained when structure
was lawfully constructed and not dangerous for purpose for which
maintained - negligence not shown. McDonnell v. Gerken, 446.

OPTIONS.

See SALES, 5.

ORDERS.

See MOTIONS AND ORDERS.

ORDINANCES.

See MUNICIPAL CORPORATIONS, 6.

[For table containing all municipal ordinances, etc., cited and con-
strued in this volume, see ante, p. lxxi.j

PARENT AND CHILD.

See, also, ADOPTION; CRIMEs, 3.

LIABILITIES OF FATHER.

1. Estate of father is liable to third person for necessaries furnished
child prior to father's death separation agreement is no defense for
necessaries furnished after death of mother. Michaels v. Flach, 478.

HABEAS COrpus.

2. Courts are not limited to determining question of legal custody of
child in habeas corpus proceedings by father to obtain possession of
child from guardian. Matter of Standish, 176.

PARTIES.

See, also, Mortgages, 2, 3.

CHANGE OF PARTIES.

Action by trustee in bankruptcy - order staying proceedings until
security for costs is given - motion to substitute bankrupt as plaintif
after composition and to vacate order requiring security should not
have been entertained where it was in violation of stay — motion to
dismiss complaint not before court where there is failure to give notice
required by Code of Civil Procedure, § 768. Helfand v. Massachusetts
Bonding & Ins. Co., 759.

PARTITION.

ACTION FOR PARTITION.

1. Proceedings and relief surrogate does not have power to direct
payment of money to executor in proceedings to sell real property for
payment of debts where interlocutory judgment in partition action
directs sale and that money be paid into Surrogate's Court — surrogate
has no power in partition actions to proceed under section 2707, Code
Civil Procedure order directing payment of money to executor
affected substantial right of person entitled to share therein. Matter
of Murphy, 139.

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2. Proceedings and relief defect in partition action for failure to
obtain order designating person on whom service of summons should
be made for infant defendant is cured when order is procured after
sale with consent of purchaser — answer interposed by guardian ad
litem
- approval of sale by referee on rehearing, and confirmation of sale
by court new interlocutory judgment and sale is not required under
circumstances of case-purchaser is not entitled to return of deposit
since good and marketable title passed under sale after defect was
cured. Lennox v. Lennox, 368.

3. Proceedings and relief-proof of succession is not shown where
plaintiff fails to show ancestor died seized of land and where it appeared
defendant received land under full covenant deed and for more than
twenty years defendants and predecessors had occupied it in open,
hostile and adverse possession - defendants acquired title by adverse

possession. Golden v. Fowler, 254.

PARTNERSHIP.

LIABILITIES OF PARTNERS.

Simple contract executed by part of partners binds all though sealed
complaint in action for accounting on sealed contract against all
partners is good without allegation that partner who did not sign
contract ratified it implied ratification by acceptance of benefits.
Mautner v. Eitingon, No. 2, 756.

PATENTS.

CONTRACTS.

Licenses and contracts a patentee is not entitled to recover for
royalties where it appears that at time contract was executed he had