tion of those duties at least are prescribed by the general statute of the state. The duties devolving upon the board of health do not relate to the exercise of corporate powers, neither are their duties for the benefit of the cor poration in its local or special interest. Their duties relate to the preservation of the health of the public; the individuals residing in the city may be benefited by the faithful discharge of the duties of such officers; so may the public at large. The duties of such officers are, therefore, public in their nature, and they should be regarded as the servants and agents of the public instead of the corporation. (Id.)

4. Accordingly, held, that the city of Rochester is not liable or responsible for the acts of its board of health. (Id.)

NEGLIGENCE.

1. The defendant was the owner of a building and leased it with the machinery it contained to one Little. The latter employed the plaintiff, who came in contact with the machinery and was injured:

Held, that the tenant took the premises as they were, and that the plaintiff going into his service at that place, took the risks of the situation. If any railings or other safeguards were required, it was the duty of the tenant who used the machinery to construct them.

Held, further, that the tenant and not the landlord, was responsible for the injury. The respective duties owing by landlord and tenant to third persons considered. (Ryan agt. Wilson, ante, 172.)

2. In an action to recover damages for the death of plaintiff's intestate, caused by the negligence of the defendant, it appeared that the deceased was the only child of the plaintiff, a man in moderate

circumstances, and was a healthy and bright child, a girl of six years of age, and left her surviving a father and mother, the latter of whom was also severely injured and crippled by the same accident. The jury gave a verdict for $5,000:

Held, that it should not be set aside as excessive. (Hooghkirk agt. President, &c., of the Delaware and Hudson Canal Co., ante, 328.)

3. When the condition of life of the parties is shown, and there is a reasonable prospect of a long and useful life to the party killed, the jury are to estimate the present and prospective damages caused by the death to the next of kin, to be measured according to their best judgment by the actual “pecuniary injuries to such" next of kin The discharge of such a duty, expressly confided to a jury by statute, necessarily, in a case which presents reasonable grounds of conjecture, involves a wide discretion, and unless the evidence shows a plain error, the verdict cannot be disturbed:

the death of an infant, and no actual loss in dollars and cents shown," that there is no pecuniary damage in such a case, or that the expense of maintaining the child would necessarily exceed any pecuniary advantage which the parents could have derived from its service had it lived;" and that the "calculations" of the probable injuries are for the jury," because evidence on such a subject beyond what has been above stated to be proper would necessarily be speculative and hypothetical;" and

Fourth. When juries have only, by such lights as the circumstances and condition in life of the next of kin, and the physical and mental characteristics of the deceased afford, calculated and ascertained "the pecuniary injuries to be hundreds of dollars, the courts cannot interfere. (Id.)

NEW TRIAL.

1. A defendant who has been evicted from the possession of real estate by virtue of a judgment in favor of the plaintiff in an action of ejectment, provided a new trial is granted in such action upon an appeal, and he succeeds upon such new trial, cannot enter a formal judgment of restitution upon such verdict without an order of the court allowing it. (Martin agt. Rector, ante, 362.)

NEW YORK (CITY OF).

1. Clerks of the different departments may be removed by the heads of the same, for the reason that by the diminution of business their services are no longer needed. Such ground of removal held to be sufficient. (Langdon agt. Mayor, Aldermen and Commonalty of New York, ante, 134.)

2. Although the board of apportionment has adjusted the salary, and

the amount for prospective services has been apportioned, such acts cannot deprive the head of the department of the power, or relieve him from the duty of making the removal, if there is nothing for such clerk to do. (Id.)

See CENTRAL PAKK.

1.

2.

Matter of Wright et al., ante, 345.

NOTICE.

To establish an adverse possession by one tenant in common, such as will effect the ouster of his cotenant, notice in fact to the latter of the adverse claim is required, or unequivocal acts open and public, making the possession so visible, hostile, exclusive and notorious, that notice may fairly be presumed. (Culver agt. Rhodes, 87 N. Y., 348.)

Under the provision of the Code of Procedure (sec. 348) requiring ten days' notice to the "adverse party of the entry of the order or judgment affirming the judgment appealed from," before bringing suit upon an undertaking given to stay proceedings on appeal to the general term, the fact that after entry of judgment and service of notice thereof, the sum of costs was reduced upon retaxation, did not require the service of a new notice before bringing suit. (Yates agt. Burch, 87 N. Y., 409.)

3. It seems, that under said provision a notice of the entry of the order or judgment of affirmance, without stating the amount of costs awarded, would be sufficient. (Id.)

NUISANCE

See HIGHWAY.

The People agt. Livingston, ante, 242.

PARTIES.

1. The Stuyvesant Bank, in 1870, began a suit against defendant, and, after a reference ordered, a receiver was appointed in proceedings for a dissolution of the bank. Subsequently, in bankruptcy proceedings, the present plaintiff, in 1872, was appointed the bank's assignee. The original suit, after long interruption, was prosecuted before the referee, against defendant's objection,

without formal substitution of either receiver or assignee as plaintiff, though the attorneys who commenced it were authorized to continue it on behalf of both. After judgment for plaintiff, in 1879, this application was made by supplemental complaint to substitute the assignee as plaintiff :

Held, That the assignee having lawfully succeeded to the rights and interests of the bank, had a right to prosecute the action in its name without a formal order to that effect, and that his subsequent application for substitution was properly made. (Platt agt. Murray et al, ante, 149.)

2. In an action brought to restore notes alleged to have been canceled, in pursuance of a wrongful scheme to which defendant was not a party but of which he was cognizant, the parties to that scheme are necessary parties. (Alexander agt. Katte, ante, 262.)

3. The absence of such parties may be taken advantage of by demurrer. (Id.)

4. Where, upon trial before a referee it appeared that there could not be a complete determination of the matters in controversy without the presence of one not a party to the action, and the referee thereupon granted leave to plaintiffs to make application to the court to bring in such necessary party, and directed the cause to stand over for that purpose:

2. M. L and H. were copartners under the name and style of M. L. & Co. M. died, leaving a will, whereby he appointed C. and E. his executors and legal representatives, empowering them to represent, manage and carry on in his name, for the benefit of his estate, his interests in said business of M. L. & Co. Pursuant to this power the surviving partners of said firm, in conjunction with said C. and E, continued the firm's business under the old firm name of M. L. & Co., and under such firm name sold goods and made contracts:

Held, that the case does not fall within the mischief which the statute was designed to suppress; nor is the transaction one which the law-makers, by this highly penal statute, intended to punish and invalidate. (Id.)

See DISCOVERY.

Martine agt. Albro, ante, 215.

PLACE OF TRIAL.

1. Though a domestic corporation, when sued by a non-resident, had the right to have the place of trial in the county which it had designated by its certificate of incorporation as that in which its principal office of business was to be located, yet such right is in no sense jurisdictional, and hence may be waived. By section 986 of the Code of Civil Procedure, the notice of motion to compel the change of the place of trial to the county of defendant's residence must be made within ten days after the five days within which a demand for such change must be made upon plaintiff. If this is not done, the right to the change is waived. (Duche et al. agt. Buffalo Grape Sugar Company, ante, 516.)

PLEADING.

1. A general demurrer to a complaint that the pleading does not state facts sufficient to constitute a cause of action will be overruled, if one of two or more causes of action alleged is sufficiently stated. (Seaver agt. Hodgkin, ante, 128.)

2. Whether the defense of non-payment of ten per cent on subscription to the stock of a railway corporation is valid to defendant, sued by a receiver who represents the creditors of a corporation, quære. (Id.)

3. Under the Code a plea in abatement setting forth a non-joinder of parties defendant, and giving the names of such parties, need not state that they are living and within the jurisdiction of the court. (Pusser agt. Matthiesson, ante, 157.)

ty of payment of balance due on demand of the principal, it was averred in the complaint that a demand was made; the answer contained a general denial of the allegations of the complaint, save the execution of the mortgage and the subsequent agreement. There was no proof of demand on the trial, and it did not appear that the question was there raised or suggested; there was no finding that demand was made, and no request to find, and it did not appear that the point was taken at general term:

Held, that the denial in the answer was not one that would positively indicate a purpose to make the question of demand one of the contested issues on trial, although sufficient to authorize the question to be there raised; and that the question could not be raised here. (Penn. Coal Co. agt. Blake, 85 N. Y., 227.)

5. Where an answer admits all the allegations in the complaint necessary to be established to make out the cause of action, and sets up an affirmative defense, defendant has the affirmative of the issue, and the right to open and close the case. The fact that the complaint alleges facts not essential for plaintiff to aver or prove, and that the same are denied by the answer, does not deprive defendant of such right. (Murray agt. N. Y. L. Ins. Co., 85 N. Y., 236.)

6. Two policies of life insurance issued by defendant contained each a condition that if the insured should die in consequence of "the violation of the laws of any nation, state or province," the policy should be void. The complaint, in an action upon the policies, alleged that the death was not caused by the breaking of any of the conditions. Copies of the policies were annexed. The answer denied this allegation, and alleged that the insurer died in