Ripley agt. Astor Insurance Company. was left alone at any time after the watchman goes off duty in the morning, the parties answered: "Only at meal times, and on the sabbath and other days when the mill does not run." Literally construed, this language perhaps imports that the watchman, although off duty on the sabbath, was only so during the same hours as on other days-a construction which, it is supposed, is confirmed by the answer to another interrogatory, in which the parties, when asked whether there is a watchman in the mill during the night, respond, without exception, "there is a watchman nights." Now, it seems to me, that as the parties had the idea of the sabbath in their minds, and as all the interrogatories were written down and all together read over before any one was answered, if it had been intended that any portion of the sabbath was to be violated by service labor, the expression used, instead of being merely "nights," would have been "every night," or perhaps still stronger, "every night, sundays included." Suppose, speaking of a pre-eminently industrious mechanic, or even professional man, one should say that he worked hard o' nights, would any person understand that the expression was intended to convey the idea that he worked after 12 P. M. on saturday, and before 12 P. M. on sunday? All language, be it ever so general, has its implied limitations-and even the man who is "forever at work" rests some portion of the twenty-four hours, and some one day of the seven. If, then, he who is “forever at work" rests on sundays, and befo e daylight as well as after, he who works" of nights" must certainly be regarded as having the same privilege. As to so much of the loss as arose from the destruction of the "stock," the indemnity by the express terms of the policy was payable, not to the mill owners, but to Sheldon & Co., the owners of the stock. The mill owners, therefore, even if they desired to do so, could not assign the claim to the plaintiff. They occupied the same position in that respect as mortgagors, taking a policy in their own name, but with the customary clause: "Loss, if any, payable to A. B., mortgagee." A. B., and A. B. only, in such case the mortgage being Ford agt. Sampson. unsatisfied-could maintain the action. Sheldon & Co., so far as respects the stock, were not only the sole parties in interest, but the sole parties to whom the insurers, in case of loss, had, as we have seen by the terms of the policy, contracted to pay. A new trial must, therefore, be granted unless the plaintiff waives that portion of the damages found by the jury which is applicable solely to the stock. If that be waived, judgment for the balance should be entered for the plaintiff. SUPREME COURT. GORDON L. FORD agt. GEORGE L. SAMPSON. Where the plaintiff alleges title, and that the premises are in possession of the defendant, and demands possession, an answer which merely denies possession of the premises does not put in issue the plaintiff's title, and no question of adverse possession arises in the case. To form an issue of title upon the plaintiff's allegations, while a stranger was in possession, claiming the title, the defendant should have set up title in himself, or title out of the plaintiff. Second District, General Term, Poughkeepsie, May, 1859. By the court-BROWN, Justice. The parties to this action are owners of separate lots of ground, adjoining and upon the west side of Columbia street, in the city of Brooklyn, and this action is brought to recover a small gore of land six inches wide in the rear and running out to a point thirty-five feet easterly from the rear of the lots, and which the plaintiff claims is included within the lines of his lot, and is now in the possession of the defendant. The proof shows that the gore of land in controversy is within the defendant's enclosure and on his side of the division fence. George S. Howland owned Ford agt. Sampson. both the lots in the year 1841, and is the common source of title. He conveyed the plaintiff's lot to Wildes Thomas Thompson, by deed dated June 21st, 1842, who conveyed to William S. Wetmore by deed dated September 7th, 1848. William S. Wetmore conveyed to the plaintiff by deed bearing date April 19th, 1856. The title deeds of the defendant were not produced upon the trial, so that we do not see precisely when he or his grantors mediate or immediate enter into possession. If the question of adverse possession arose in the case, as the counsel for the defendant supposed upon the argument, this fact would have been important; but, in the view I shall take of the case, it cannot be of any consequence. The complaint sets out the plaintiff's seizin in fee simple of the entire lot upon the westerly side of Columbia street, describing it by the same metes and bounds as those contained in the several deeds of conveyance to which I have referred, and then alleges that the defendant is in possession of a portion of the lot, being the gore in controversy, which is also described by metes and bounds. It also alleges that possession of the gore or small lot was demanded of the defendant, and that he refused and still refuses to deliver up the same to the plaintiff. To these distinct and specific allegations the defendant answers that he denies that he was in possession of the premises claimed and described in the complaint. He also denies the demand of the possession, and the unlawful withholding thereof. The title of the plaintiff is not put in issue by the pleadings, for nothing is controverted by the defendant's answer, but the defendant's possession, the plaintiff's demand of the possession, and the unlawful withholding thereof by the defendant. No question of adverse possession arises in the case, for if it was the design of the defendant to put in question the validity and force of the plaintiff's deed to pass the title to the lands in dispute, while a stranger was in possession, claiming the title, he should have framed his answer accordingly, and set up the Noyes agt. Burton. title in himself, or title out of the plaintiff, and thus the title would have been put in issue. Both the surveyors concur that the plaintiff's deed covers the premises in dispute, and the letter of the plaintiff of the date of the 1st of July, 1858, and the defendant's reply thereto prove that the possession was demanded and refused. Judgment should be entered that the plaintiff recover from the defendant the premises described in the complaint, with costs. SUPREME COURT. VERNON P. NOYES agt. JOSIAH H. BURTON and others. The supreme court can, during the year, recognize a mechanic's lien as existing on premises, and can continue the property or keep its proceeds in court subject to the lien, if proper proceedings are taken to enforce it, and may perhaps ɔbtain jurisdiction so far over the subject matter as to order the lien to be discharged by payments, if brought to a close within the year, or if proceedings are still pending for that purpose. But this court can give no judgment ordering the property to be sold to satisfy the lien, either before or after the year expires, because such judgment can only be rendered by the common pleas, and the proceeding is not one known to this court or to the common law. By the statute a mechanic's lien (in the city of New-York) ceases after one year from the time of filing, unless the party filing it, within that time commences proceedings in the court of common pleas to bring it to a close; and the fact of the party, in whose favor the lien is filed, being made a party to a foreclosure suit of the premises does not release him from instituting such proceedings. A purchaser of premises in good faith, without notice, and for a valuable consideration, is not bound to take notice of a mechanic's lien filed against a former owner, who conveyed the premises to such purchaser's grantor (whether fraudulently or not) previous to the filing of such lien. He is not bound to notice any lien filed after his grantor's title was recorded. New-York Special Term, May, 1859. INGRAHAM, Justice. On a reference to ascertain who was entitled to the surplus, on a sale of mortgaged premises, VOL. XVII. 29 Noyes agt. Burton. Bailey, one of the defendants, claimed the amount due him, under the mechanics' lien law, for work done upon the premises sold. This work was done for Wm. L. Johnson, contractor, with Warren Berrian and Josiah H. Burton, and the notice of lien was filed on September 28, 1857. Berrian never held the title of the property. Burton, in whom the title was, conveyed the premises to Leeds by deed, May 16, 1857, and Leeds conveyed the premises to Ogden, on February 1, 1858, by deed recorded February 19, 1858. On the hearing before the referee, Bailey offered to prove the facts necessary to sustain a lien against Burton, and a contract with Berrian, made by Burton for sale of premises, and that the conveyance to Leeds was intended to defraud the workmen out of their liens. No offer was made to show that Ogden was cognizant of these facts. It appears to me there are several reasons why Bailey's lien cannot be enforced. First, the lien has expired. By the statute the lien ceases after one year from the time of filing, unless the party filing it within that time commences proceedings in the court of common pleas, to bring it to a close. (Sess. Laws 1851, p. 954.) The fact of his being made a party to this action does not release him. The lien still ceases after a year, because he has not done what the statute declares to be necessary to continue the lien in force after that period. During the year this court could recognize the lien as existing, and could continue the property or keep its proceeds in court, subject to the lien, if proper proceedings were taken to enforce it, and might perhaps obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payments, if it were brought to a close within the year, or if proceedings were still pending for that purpose. But they could give no judgment ordering the property to be sold to satisfy the lien, either before or after the year expired, because that judgment can only be rendered by the common pleas, and the proceeding is not one known to this court or to the common law. Another reason why the defendant Bailey is not entitled to |