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 the incumbrances on No. 1 and No. 2, so far as 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 to the liquidation of his claims. The Opinion by Learned, P. J.; Bockes and Boardman, J.J. concurring. CHANGE OF VENUE. plaintiff tendered the defendant the N. Y. SUPREME COURT. GENERAL TERM amount due on the judgments and costs, and demanded an assignment thereof and of his claims, mortgage and note. The defendant declined to make such arrangement. There were no liens intermediate defendant's two mortgages on parcel No. 1. The owner of the mortgage on which the first judgment was obtained held as collateral thereto notes of defendant and another. U. G. Paris, for applt. 1. Lawson, for respt. FOURTH DEPARTMENT. Dings, applt. v. Parshall, respt. An action to compel the assignment of Appeal from an order refusing to change place of trial from Onondaga to Wayne county, The Mutual Insurance Company of New York had obtained a udgment of Held, 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. to 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 from Onondaga to Wayne county was the sale will work him any injustice. By the agreement (if any such could be made after foreclosure) between plaintiff and the mortgagor to protect the title, the plaintiff did not stand in the position of a surety. He appears to be one who has purchased a term of years for the consideration of paying off certain incumbrances. He is not a tenant paying rent Th agreement seems to indicate that the mortgagor did not assume to protect the lease, but rather the lessee the mortgagor. denied. Geo. R. Collins, for respt. Held, That the order of the special term denying motion to change place of trial was erroneous. The action, under section 123 of the Code, was local, and must be tried in Wayne county where the land is situated. Opinion by Mullin, P. J. N. Y. SUPREME COURT. GEN'L TERM, 3. Because they owe no duty at that stage of the proceedings to the Railroad Company. That the act of 1869, under which these proceedings were instituted, provides in no way for the Railroad Company to compel officers of the town to Buffalo and Jamestown Railroad Com issue bonds. pany v. Weeks et. al. Decided April, 1876. By the provisions of that statute a duty is doubtless imposed upon the Where a petition of the tax-payers of Commissioners to subscribe for the a town, signed by a requisite number, stock of the Railroad Company and to is made to bond said town in aid of issue bonds to pay for the stock which a Railroad, the statute gives no right the courts may compel them to perform. which the Railroad Company can. enforce against 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 legislature 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 legisla Buffalo and Jamestown Railroad Com-ture has not authorized the Commispany, but the bonds had never been desioners to agree with the Company to livered to the company, although 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 laws of 1870. This was an application to compel a delivery of said bonds to the Railroad Company. Held, That the mere signing of the petition to bond a town, and appointment of Commissioners thereunder gives no right to the Railroad Company either at law or equity which they can enforce against said town. 1. Because the Railroad Company is not bound to receive said bonds or to apply them to the construction of the road. 2. It cannot compel the persons ap pointed to issue the bonds, to sign and deliver them for the same reason. Company, and at no time was there a contract by which the Company became entitled to the bonds. The duty of the Commissioners to issue bonds rests on the bonding act of 1869, and not upon the agreement authorized by the statute of 1870, chap. 507. That the amendment to the Consti tution which prohibits towns from bonding in aid of Railroad Companies, when it took effect, tock from the Railroad Company the right to the bonds, and the Commissioners had no control over the bonds after this. Opinion by Mullen, J. LIFE INSURANCE. FORFEI able for the payment of the sum assured or any part thereof, and this policy shall cease and determine." TURE OF POLICY. The prompt payment of premiums, or It further provided that "In every case where this policy shall cease or become null and void, all previous payments ma e thereon, and all dividend credits accruing therefrom, shall be forfeited to the said company." A. failed to pay the premiums falling due subsequent to October, 1870, and also failed to pay the interest on the unpaid premium notes annually in ad vance. Dividends may be first credited on the principal of outstanding notes, where such an agreement has been made or custom established between the parties by the 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- plaintiffs filed this bill, claiming the terest on premium notes at the time stipulation to pay the interest in adrequired 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 was filed by the plaintiffs as representatives of one A, deceased, for relief against the forfeiture of a policy of life insurance held by said A., and a decree for the amount thereof. On the 15th day of October, 1867, the said A. insured his life with defendant in the sum of ten thousand dollars, the premiums to be four hundred and ninety dollars per annum in advance. The policy, which was issued to him, by its terms provided that if the two first annual premiums were paid and any default was made in any subsequent premiums, such default should not work a forfeiture, but the amount insured It Defendants demurred on the ground that the bill admitting that the interest. had not been paid in advance and the policy providing in such case a forfei· ture of the policy and all previous payments and div dend credits, there was no ground for relief. Held, That nothing could be plainer than the language of the policy. The prompt payment of premiums is the very es ence of life insurance. It is a condition precedent to the existence of the policy. Bliss on Life Ins., 253, 274; May on Ins., 406; 1 Disney, 355; 2 Disney, 106; 12 East., 133; 3 Hill, 161; 100 Mass., 500; 43 N. Y., 283; 8 H. of L., 745; 4 Vroom, 487. should be reduced to the sum of the And the company has the same right annual premiums already paid. 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 invance. 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 the company on account of annual pre ney, 855. Under the policy in question, the miums, the company shall not be lia-failure to pay the interest in advance upon the premium note debarred the plaintiff of a recovery and worked a forfeiture of the premium already paid. The junior incumbrancer having paid the debt is entitled to subrogation. Appeal from an order denying a motion 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 previous-time of such sale, plaintiff tendered to ly made by the company to the 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 outstanding, 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 anything in the prospectus of the company to the contrary, the bill is demurrable in not setting it forth When the premises were advertised for sale the first time, crops were growing on the premises of the value of several hundred dollars. By the refusal of P. to sell as requested, the crops have been lost and plaintiff damaged. After the tender as aforesaid, P. transferred said judgment to defendant W., who now claims to own the same. T. W. Collins, for applt. Geo. W. Collins, for respt. Held. That plaintiff, being a junior mortgagee of the premises in question, had the right to redeem them from the senior mortgage held by P., and to redeem he must pay the amount due 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 incumbrancer, for the purpose of reby junior mortgagee for purposes of redemption is equivalent, if properly mude, to the payment of the money, provided the money tendered is set apart and kept for such mortgagee. demption, is equivalent to actual payme it if properly made and the money so tendered s thereafter kept good and at some definite place for the prior mortgagee. The junior incumbrancer having paid the debt of the prior incumbrancer, is entitled to be subrogated to the prior lien and all securities held by the prior incumbrancer, and he holds the premises for the amount paid on the first mortgage. The tender to P. having been made before the assignment to W., and having been kept good, nothing passed by the assignment to W. Order affirmed. Opinion by Mullin, P. J. iron from the vessels. D. for several years before had had a similar contract. with defendant. He had employed laborers to assist him in performing the contract, and among others the plaintiff, who knew of the contract with defendant. These persons were paid by D. The hook which fastened the boom of the derrick became worn and broke; the boom fell, striking and injuring plaintiff. Matthew Hale, for applt. Amasa J. Parker, for respt. Held, That D. occupied the position MASTER AND SERVANT. NEG- of employer and master of plaintiff, LIGENCE. N. Y. COURT OF APPEALS. King, respt., v. The N. Y. C. & R. R. R. Co., applt. H. and for his negligence, plaintiff's remedy is against him alone. Also held, that in the absence of 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. The owner of an implement or piece ate cause of an accident is a contractor 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 officer or public body 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 lawfully 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. This action was brou ht to recover damages for injuries sustained by plain tiff, alleged to have been occasioned by defendant's negligence. It appeared that in 1872 one D. entered into a contract with defendant to unload from barges and vessels, and place upon cars, all the railroad iron brought to the dock in Albany for defendant in that year, and defendant was to furnish a derrick to be used by D. in hoisting the Plaintiff claimed that defendant agreed to keep the derrick in repair, but defendant's proof tended to show that the agreement was that defendant should make repairs when notified by D. that they were necessary. The court charged that in the absence of a special agreement as to the inspection and keeping in order of the derrick, it was defendant's duty to provide a suitable derrick and to keep it in order; and that if defendant was to make re |