receives the title, only to transfer it to another, he is not liable under such a
clause in the deed.] One Mandeville, being the owner of certain real prop-
erty, requested the defendant Chamberlin, to hold the title thereto for a
few days, for his accommodation, promising to hold him harmless.
Chamberlin having consented to do so, Mandeville and his wife con-
veyed the property to him, and the same was two days thereafter by him
conveyed, at Mandeville's request, to one Sarah E. Mandeville. The
deed to Chamberlin contained a clause by which he assumed and agreed
to pay two mortgages upon the property. The deed was recorded by
Mandeville's attorney, and Chamberlin never saw it nor did he know
that it contained the said clause until more than ten years after it was
executed. He paid nothing upon receiving, and received nothing upon
giving the deed.
In an action by the plaintiff to foreclose one of the mortgages so
assumed by Chamberlin, which had been purchased from the mortgagee
after the deed to Chamberlin had been recorded, Held, that as Chamber-
lin had never agreed to assume or pay the said mortgage, no liability was
imposed upon him by the insertion of the said clause in the deed, and that
no personal judgment for a deficiency could be entered against him.
DEYERMAND v. CHAMBERLIN..
Proceedings to mortgage an infant's real estate for payment of his
debts—the special guardian cannot dispute the validity of the debts he is di-
rected to pay-when he is not protected by an order of confirmation when
he is liable for interest-order directing the mortgage and the report of the
referee, should specify the debts to be paid.
See CHATTEL MORTGAGE.
FORECLOSURE.
MORTGAGE FORECLOSURE:
See FORECLOSURE.
MORTGAGEE-In possession, required to account for rents and profits.
In possession-rights of, how affected by the statute of limitations.
See CHAMBERLAIN v. WOODWARD.
Rights of, to notice of tax sale-Poughkeepsie.
See DUBOIS v. CITY OF POUGHKEEPSIE......
MOTION—To vacate order of arrest-where it must be made.
MOTION FOR NEW TRIAL-Need not be made in the County Court-
for the purpose of reviewing a judgment entered on the report of a referee
in an action commenced in a justice's court and re-tried in a County Court.
COOK v. DARROW.....
MUNICIPAL CORPORATION -Action by the people to recover land
wrongfully obtained from a town-when it cannot be brought-chapter 49 of
1875-constitutionality of—who are necessary parties to an action brought
under it—a town cannot disaffirm a deed procured through fraud without
restoring what it received under it.
See PEOPLE. NEW YORK & M. B. R. R. Co......
Assessment in New York city-what is not a fraud or substantial
error within chapter 338 of 1858, as amended by chapter 312 of 1874-under
chapter 313 of 1874 an assessment will not be vacated for the omission of any
MUNICIPAL CORPORATION—Continued.
officer to perform his duty-when the party aggrieved must take his objec-
tion before the assessment is confirmed.
Power of the city of Poughkeepsie to sell for taxes-as to notice to be
given to mortgagees-it may sell for State and county taxes-rate of interest it
may collect-within what time the sale must be made-fees of city attorney
for selling, hno fixed.
See DUBOIS v. CITY OF POUGHKEEPSIE.
Assessment-what errors or omissions in, will not authorize the court
When it may be restrained from discharging sewage upon private
See BEACH v. CITY OF ELMIRA...
Assessment- —no action or suit to vacate it will lie in New York city.
See HECKMAN v. MAYOR, &c..
Nuisance-ice on sidewalk-lessor liable for the damages occasioned by
its existence during the time of the demise.
See WENZLER v. McCOTTER...
Assessment--one who purchases property subject to it and who agrees
to pay it, cannot apply to have it vacated.
See MATTER OF CONLEY...
NEGLIGENCE-Master-when not liable to servant for injury occasioned
by neglect of co-servant.] 1. This action was brought to recover damages
for an injury alleged to have been occasioned by the defendant's negli-
gence. The plaintiff had, for several years prior to the accident, been
employed by the defendant as a yard switchman, it being his duty to
break up the trains coming into the yard, and shift the cars to outgoing
trains, or to the repair shop, according to the directions contained on a
card furnished to him by the yard dispatcher, whose duty it was to order
sent to the repair shop all cars marked as out of repair by the car inspector.
At about four o'clock in the morning of March 1, the plaintiff, while
coupling a coal car to an outgoing train, caught his glove upon a piece
of iron projecting from the bumper of the coal car, and had his hand
crushed. He claimed that the car inspector was negligent in not dis-
covering that the bumper of the coal car was out of repair, and ordering
it sent to the shop instead of ordering it sent out with another train.
Held, that the plaintiff and the car inspector were co-servants, engaged
in a common service, and that the defendant was not liable for the neg-
lect of the car inspector to discover this particular defect.
GIBSON v. NORTHERN CEN. R. Co..
Master-when not guilty of negligence in appointing subordinate
officers.] The car inspector, a man of thirty-four or five years of age, had,
prior to his coming to this country, been employed as a a common laborer,
except for a few months, when he had worked in a railroad yard, putting
brasses into freight cars. Upon entering the defendant's employment, he
had no knowledge of machinery, and worked in the carpenter's shop,
bolting, putting in brasses and boxes, and assisting in the shop. After
so working for from one to two years, he was made car inspector. His
sobriety and intelligence were unquestioned.
Held, that the evidence failed to show that he was incompetent to act
as a car inspector, or that the master of the repair shop was guilty of
negligence in appointing him to that position. Id.
Contributory negligence when a failure to look out for an ap
proaching train does not constitute it.] The plaintiff's intestate, a bright
boy of nine years of age, waited on the westerly side of the defendant's
road, at a public crossing, until a long freight train, which was going in
a southerly direction, had passed, and then immediately attempted to
run across the track, without looking along it, to see whether another
train was approaching; after having run about thirty or forty feet he was
struck by the locomotive of a passenger train, going north, at a speed of
about thirty or thirty-five miles an hour: there was a curve just south of
the crossing, which hid the tracks beyond it, and only about twenty-five
seconds elapsed from the time the locomotive passed it until it struck
the boy.
Held, that the court properly refused to nonsuit the plaintiff on the
ground that the deceased had been guilty of contributory negligence.
POWELL v. N. Y. CENTRAL, &c. R. R. Co....
4. Ferry company-duty of, as to guarding against accidents to its
passengers.] Ferry companies are not insurers of the absolute safety of
their passengers, either while they are coming upon or are leaving the
boat; nor are they bound to guard against possible accidents, which
could not reasonably be foreseen. The defendant, a ferry company.
landed its passengers by means of a float or bridge, which served to con-
nect the boat with the shore. Between this float and the piers on each
side of it was a space of from eight to fourteen inches, to admit of its
rise and fall with the tide, and of the lateral swaying caused by its being
struck by the boat. Upon the sides, near the piers, where the passengers
came on and off the boat, a square beam eight inches in height ran along
the flooring, upon which rested a circular beam, starting from the floor
at each end of the bridge, and rising at the center, to a height of about
five feet; about twenty-two inches from the floor beam, a light rail ran
horizontally from one part of the circular beam to the other. The plaint-
iff's intestate, a boy of between five and six years of age, while leaving
the ferry-boat in company with his mother, fell through an opening in
the guards upon the side of the bridge, and was drowned. There was
nothing unusual in the construction of the bridge, and it had been used
for a long time for the purpose of landing passengers, without any acci-
dent such as that which happened to the intestate having occurred.
Held, that the evidence failed to show any negligence on the part of
the defendant which would justify a recovery by the plaintiff.
5. Master and servant-jury, when to decide whether a superintend- 44
ent is to be regarded as the alter ego of a corporation—also as to whether he
is an unskillful and improper person to be so employed.] One Hogan, who
acted as the superintendent of the defendant, a gas company, caused a
trench to be dug in a street to expose a gas-pipe therein, in order that it
might be examined and repaired. The trench having, by mistake, been
dug about two and a half feet south of the pipe, Hogan, in order to
avoid opening a new trench, ordered the men to undermine the earth
north from the trench to the pipe, and to throw the dirt removed upon
the top of the earth which covered the excavation over the pipe. The
overhanging bank having fallen in and injured the plaintiff, an employee
of the defendant, while he was engaged in examining the pipe, he brought
this action to recover the damages occasioned thereby.
Held, that the questions whether or not Hogan was, as to the act in
quest on, to be regarded as the alter ego of the company and whether,
or not the evidence showed him to be an unskillful and improper
person to be employed as a superintendent, should have been left to the
jury, and that it was error to direct a nonsuit.
DEVINE v. TARRYTOWN, &c. GAS LIGHT Co......
6. In an action for damages occasioned by, the plaintiff must prove
freedom from any negligence on his part contributing to the accident.] The
plaintiff's intestate, a milkman, was killed in crossing a railroad at about
half-past six o'clock in the morning of January 27, 1879, while seated in
a covered wagon driving his horse through a street. He was a healthy
and temperate man and familiar with the locality. The crossing was on
a level with the street, and the track was visible from any point in
the street within a space of one hundred and sixty feet of the crossing.
Several witnesses, who had no occasion to look for the train, heard it
approach the crossing, and one testified that he saw the lights upon it.
No evidence as to the conduct of the deceased, at the time of the acci-
dent, or as to its cause, was given. In an action to recover the damages
occasioned by the death of the plaintiff's intestate,-Held, that there was
a failure to prove that the deceased was free from negligence contribut-
ing to the accident, and that the plaintiff was properly nonsuited.
Liability of a railroad company for an animal killed on its track,
through its neglect to maintain cattle-guards and fences-interest on the
value of the animal killed, when allowed.
See LACKIN v. DELAWARE & HUDSON CANAL CO.....
Directors of a bank allowing it to be damaged by wrongful acts of its
president-liability of, to the bank and its stockholders.
Master-duty of, as to furnishing his servants with safe machinery.
See JONES v. N. Y. CENTRAL & H. R. R. Co...
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NEGOTIABLE NOTE- What instrument is a negotiable note.] One
Nighthart, having purchased an engine from the American Engine Com-
pany, gave to it a note in the following form: "Fourteen and one half
months after date I promise to pay to the order of the American Engine
Company $450, at seven per centum, at the Havana National Bank, at
Havana, N. Y., value received, being in part payment for a portable
engine, which engine shall be and remain the property of the owner of
this note, until the amount hereby secured is fully paid." This note
having been indorsed by one Woodward, for the accommodation of
Nighthart, was transferred by the company to the plaintiff, who brought
this action against the defendant, with whom the note had been deposited
for collection, to recover damages for its neglect to properly protest the
same and rotify the indorsers thereof.
Held, that the note was a negotiable one, and that it was the duty of
the defendant to demand payment thereof of the maker, and notify the
indorser of its non-payment. Upon the trial the defendant offered to
prove that, after the maturity of the note, the plaintiff, acting under the
rights reserved in the note, caused the sheriff to take possession of the
engine, and thereafter caused the same to be sold under an execution
issued upon a judgment recovered against Nighthart upon the note, and
purchased the same for $68, and also offered to prove that the engine was
at the time of the sale and of the trial worth $500.
Held, that as this action was founded on the defendant's negligence,
the plaintiff could recover no more than would fully compensate him for
the injury sustained thereby. That the plaintiff, who assumed to have
NEGOTIABLE NOTE-Continued.
and exercise the rights of the vendor of the engine, must, as between the
parties, be treated as holding the engine under a chattel mortgage or
pledge. That, as he had himself purchased the engine at the sale, the
defendant was entitled to prove the value thereof, and have it applied in
satisfaction of the debt. That the court erred in rejecting the evidence.
MOTT v. HAVANA NAT. BANK....
NEW TRIAL—County court-Judgment on report of a referee in an action
commenced in a justice's court and re-tried in a County Court--how reviewed-
motion for a new trial need not be made in County Court.
NEW YORK CITY—Assessment-what act is not a fraud or substantial
error within chapter 338 of 1858, as amended by chapter 312 of 1874.] 1.
By an ordinance, duly adopted, One-Hundred-and-Eighth street was
directed to be regulated, graded, paved, &c., from Fifth avenue to the
East river. A profile prepared by the city authorities showed the grade,
as determined upon, to the East or Harlem river at Avenue A, but also
showed that the waters of the river flowed westwardly within the lines
of the said street, between Avenue A and First avenue. The first adver-
tisement was for proposals for regulating and grading the street, in ac-
cordance with the profile, to Avenue A, but upon the objections being
mahat the city had no title to the lands between Avenue A and First
avenu, and that the assessed valuation of the lands between those ave-
is not large enough to bear an assessment of one-half of the cost of
the work to be done between them, a contract was let to regulate, grade,
&c.. the strect to First avenue only.
Upon the hearing of an application to vacate the assessment on the
gry that the work ordered by the common council had not been com-
pleted. Held, that the act of the city authorities in making the line of
First avenue the limit of the work was not a fraud upon the petitioner or
a substantial error within the meaning of chapter 338 of 1858, as amended
by chapter 312 of 1874. MATter of PincknEY..........
2. Under chapter 313 of 1874 an assessment will not be vacated for
the omission of any officer to perform his duty.] That if the ordinance im-
posed the duty of regulating. grading, &c., the street to Avenue A, the
omission of the officer to perform that duty by reason of a misconstruc-
tion of the ordinance would not avoid the assessment, as chapter 313 of
1874 provides that no assessment shall be vacated "for or by reason of
the omission of any officer to perform any duty imposed upon him."
3. When the party aggrieved must take his objection before the assess-
ment is completed.] The work was completed in October, 1874, and the
assessment confirmed in February, 1876. This proceeding was commenced
in June, 1879. It appeared that the petitioner's agent knew of the work
while it was in progress.
Held, that as the mistake in the construction of the ordinance, if any
there were, could easily have been corrected before the consummation of
the assessment by completing the work to Avenue A, the objection should
have been then made, and that, having failed to make it then, the peti-
tioner could not now avail himself of it. Id.
4. Summary proceedings-jurisdiction of a justice of a District Court
in New York, over premises not in his district.] A justice of one of the
District Courts of the city of New York cannot entertain summary pro-
ceedings to remove a tenant, under the provisions of the Revised Statutes,
when the premises which are the subject of the controversy are not situated
within the district in and for which he was elected.
PEOPLE ex rel. HAMBRECHT v. CAMPBELL...
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