3. In order to enforce its prohibitory legislation, the State may
authorize any person to institute suits, either in his own name or in the
name of the people of the State of New York, to recover penalties for
violations of such laws. Id.
Board of excise-powers and duties of, in proceedings taken to revoke
- Licensee not entitled to jury trial.
See PEOPLE v. WRIGHT....
To sell strong liquors (except ale and beer) to be drank on the premises, can
only be granted to inn, tavern or hotel keepers - As to ale and beer, no restriction
is imposed.
See O'ROURKE v. PEOPLE.....
Of attorney on a judgment for costs.
See LESHER v. ROESSNER
Of attorney on surplus moneys.
See ATLANTIC SAVINGS BANK v. HILER..
LUNATIC- Contract with when sustained.] 1. A contract with a person
not known to be of unsound mind, and who has not been found, upon a
commission de lunatico inquirendo, to be insane, may be sustained, if it shall
be proved to have been fairly made, and without advantage having been taken
of the lunatic. MATTER OF BECKWITH....
Compensation for services rendered to — when cannot be recovered.]
Neither money advanced, nor compensation for services rendered to a lunatic,
can be recovered from him, if the circumstances were such as to put the
party upon inquiry as to his mental condition. Id.
Necessaries-contract to pay for, implied.] The law will imply a con-
tract on the part of the lunatic to pay for necessaries furnished for the sup-
port of himself and family. Id.
4. Costs of proceedings taken in behalf of — when not granted.] In pro-
ceedings to have a person declared a lunatic, or to traverse or supersede
the commission, the costs rest in the sound discretion of the court, and will
not be granted unless the proceedings are instituted for the benefit of the
lunatic, and are instituted and prosecuted fairly and in good faith. Id.
MANDAMUS- Chap. 583, 1871-When court will not compel board of appor-
tionment to issue bonds therein provided for Disputed claim.] 1. A peremptory
mandamus will not be granted requiring the board of apportionment of
the city and county of New York to issue bonds, in pursuance of chap-
ter 583, Laws of 1871, until it is established that a debt is owing to the
relator, which may lawfully be paid out of the proceeds to arise upon the sale
of such bonds.
A conceded claim, audited and allowed by the proper authorities, would
be sufficient to entitle the relator to require that the fund for its payment
should be raised, but a controverted demand can justify no proceeding of
that kind. PEOPLE. BOARD OF APPORTIONMENT.
2. When issues of fact must be tried by jury.] Where disputed matters
of fact arise in proceedings by way of mandamus, issues of fact must be
formed and tried by a jury, in all cases where the existence of a long account
may not require the case to be referred. Id.
3. Disputed questions of fact cannot be decided on conflicting affidavits.]
Where the right to a mandanius depends upon disputed facts, the questions
arising thereon should not be decided on conflicting affidavits, but issues of
fact should be joined and tried according to the course of the common law.
PEOPLE . GREEN...
Will be issued to restore person to membership in corporation from which
he has been unjustly expelled.
See PEOPLE v. N. Y. BENEVOLENT SOCIETY OF MASONS
-When issued to enforce confirmation of assessment of damages for change
of grade of street.
See PEOPLE v. GREEN...
MARRIED WOMAN- Covenant of seizin by husband and wife when wife
not bound by.] 1. This action was brought on a covenant of seizin contained
in a deed executed by both husband and wife, the covenant being in favor of
both. The action was brought against the husband alone, the complaint
alleging that the wife joined only to release her dower. The defendant
demurred, on the ground that his wife should have been made a party to
the action. Held, that the demurrer was properly overruled. The covenant
did not bind the wife, as the property was not her separate estate; any pre-
sumption that it was such, being rebutted by the allegations of the complaint.
GROAT . PHILLIPS
2. Cannot make will during infancy.] Chapter 200, of 1848, as amended
by chapter 375, of 1849, does not give to a married woman power to make
a testamentary disposition of her real estate while she is an infant.
ZIMMERMAN . SCHOENFELDT
MASTER AND SERVANT- Text by which to determine when the relation
erists. In case of an injury arising from the negligence of a servant, the true
test by which to determine who is the master, and consequently who is
liable to the party injured, is to determine who employed the servant, and
who had the power to discharge him. MICHAEL . STANTON....
2. Agreement by master to pay for injuries occasioned by servant — liability
on.] An apprentice in the employ of the defendant, with his assent, took
defendant's horse and wagon for a ride, and, by his negligence, injured the
assignor of the plaintiff. The apprentice was arrested, and, while he was in
custody, the defendant appeared, and, after a full statement of the facts had
been made, entered into an engagement in writing, by which he promised
to pay a certain sum for the injuries so occasioned. In an action upon this
agreement, held, that the defendant was liable thereon.
Railroad company not bound to employ mechanical appliances to protect
one employe from injuries liable to result from negligence of another — Rule is
otherwise as to passengers.
See SALTERS 0. DEL. AND HUDSON CANAL CO....
Liability of master for willful and malicious acts of sercant.
See ROUNDS . DEL., LACK. AND WEST. R. R. Co....
MECHANICS' LIEN - Kings county — who is owner under the statute,
chap. 478, 1862.] A notice of lien filed under the statute relating to liens in
Kings county, which gives the name of the owner of the property who has
contracted to sell it to the party who made the contract with the lienor,
sufficiently describes the owner within the provisions of that statute.
MEMORANDUM - When copy of, is admissible in evidence.
When witness may consult paper and testify to the fact recorded by it.
See ZIMMERMAN . SCHOENFELDT.
MISDEMEANORS Jurisdiction of Special Sessions of New York over-
Several may be joined in one indictment and sentence pronounced for each.
See PEOPLE EX REL. TWEED . LISCOMB
- Fraudulently obtained· - when recoverable from third party to whom
it has been paid-Demand.] G. obtained from the plaintiff, upon a forged
bond and mortgage which he knew to be such, a sum of money, and paid it
to the defendant on a precedent debt which it did not appear had been dis-
charged, nor that any security therefor had been parted with by reason of
such payment. Held, that the defendants were liable for such amount to the
plaintiff, after notice and demand. STEPHENS . BOARD OF EDUCATION.... 712
MONEY PAID AND RECEIVED - Money had and received for plain-
tiff's use- when action lies for.] The defendant, who had contracted to
construct a portion of a railroad, sublet a part of the contract to Fisher &
Hart, who employed laborers who worked for them upon the road. Subse-
quently, Fisher & Hart having absconded, the defendant paid to the laborers
the amounts due to them. It appeared that, in paying the laborers, it was
customary to deduct from the wages due to each laborer the amount due
from him to his boarding-house keeper, or to persons who had sold goods to
him, or his boarding-house keeper for him. In pursuance of this custom,
the defendant retained $458.16, being the amount due to the plaintiff for
goods sold by him to laborers and boarding-house keepers. In an action
brought by the plaintiff to recover such amount, held, that he was entitled
to recover the same from the defendant, as money had and received by him
for plaintiff's use. MCCAFFERTY O. DECKER...
MORTGAGE-Unrecorded mortgage-recital of, in deed is not notice to subse-
quent incumbrancers.] 1. A recital in a deed, given by a former owner to the
grantor of the present owner of real estate, that the premises are subject to
two mortgages, existing liens on said premises, if one of such mortgages is
not recorded and notice thereof is not given to one taking a mortgage from
such present owner, does not give a right of priority to the unrecorded mort-
gage over the one subsequently given and recorded. CROFUT v. WOOD..... 571
2. Providing for payment of interest annually — construction of] Where
a bond, bearing date the 28th day of June, 1871, was conditioned for the pay-
ment "of the sum of $500 on the 1st day of April, 1873, with interest annually
on the first day of April in each year," held, that the first interest came due
April 1st, 1872. Cook v. CLARK
May be assigned by parol.
See MACK v. MACK..
MUNICIPAL CORPORATIONS- Railroad stock belonging to town
agreement for sale of, by commissioners of town-payment of money by pur-
chaser to discharge lien on-right to recover it from town, upon rescission of
agreement.] 1. The commissioners of the defendant having, in its behalf,
subscribed for certain stock in the A. & S. R. R. Co., a dispute arose as to the
amount due; the company claiming a balance of some $6,000 for back interest,
and refusing to issue the scrip until such amount should be paid. Sub-
sequently, the commissioners agreed to sell the stock to one Wilbur, the
plaintiff's assignor; and, to enable him to procure a transfer of the same
upon the books of the company, authorized him to pay the amount claimed
by it to be due. which amount was accordingly paid by him. At the time of
entering into the contract, Wilbur gave the commissioners a bond for $500,
and his check for the balance, upon the agreement that the check was not to
be presented until the stock had been transferred on the books of the com-
pany.
Subsequently, an action was commenced by the defendant, and an injunc-
tion obtained preventing the transfer of the stock to Wilbur, who there-
upon rescinded the contract, and brought this action against the town of
Oneonta to recover the amount paid by him to the company, and the value
of the bond. Held (1), that Wilbur, in paying the money to the company,
acted as the agent of the commissioners, and that the transaction was
substantially the same as though he had paid the money to them and they
had paid it to the company, and that as the defendant had had the benefit
of the payment, it was liable therefor to Wilbur; (2), that even if the com-
missioners had no authority to make the contract, as it was not for cash,
still, as it was not immoral, opposed to public policy, or criminal, the plaintiff
was entitled to recover what had been paid under it.
2. Streets-sidewalks-duty to keep in repair- chap 140, 1850, § 28,
sub. 5-3 Edm. St., 627.] It is the duty of a municipal corporation to keep
the streets under its control at all times in a safe condition, and it is liable
to a person who has sustained an injury in consequence of its neglect of that
duty. Sidewalks are comprehended in the term streets.
WILSON v. CITY OF WATERTOWN
MUNICIPAL CORPORATIONS-Continued.
3. Streets occupied by railroad company - duty of city to keep in repair —
liability of railroad company to city-chap. 140, 1850, § 28, sub. 5—3 R. S.
(Edm. ed.), 627. ] The fact that the dangerous condition of a street resulted
from acts of a railroad company, for which the railroad was liable to the
city, does not exonerate the city from liability for injuries resulting to a per-
son by reason of the condition of the street. All wrong-doers are severally
liable to the party injured. The general railroad act, which gives a company
authority to occupy a street of a municipal corporation with its tracks, does
not release the corporation from liability for injuries sustained by a person
arising from the dangerous condition of such street. In case such condition
of the street results from the neglect of duty of the railroad, it will be lia-
ble over to the city for the damages recovered against it by reason of such
neglect Id.
Unauthorized commencement of action in name of town by attorney ·
when plaintiff's proceedings not stayed on account of, on application of defend-
See TOWN OF DELHI v. GRAHAM......
Power of city of New York to make valid contracts with its officers — 1870,
chap. 137, § 115.
See MULLALY v. MAYOR
See NEW YORK CITY.
NATIONAL BANK- Usurious contract by right of borrower to recover
twice the amount of interest paid under― Act of Congress, 1864, chap. 106, § 30
—when has no application.] An action cannot be maintained against a na-
tional bank, located in this State, to recover back twice the amount of inter-
est paid upon a usurious contract, where such contract related exclusively
to the private affairs of the bank, and where, in making it, the bank was in
no sense acting as the agent of the general government. The act of con-
gress (section 30, chapter 106 of 1864), regulating the rate of interest and pre-
scribing penalties for usury, has no application to the private contracts of
national banks made in this State. HINTERMISTER v. FIRST NAT. BANK.... 345
NEGLIGENCE - Contributory negligence — when does not prevent recovery.]
The contributory negligence which excuses the defendant from liability for
injury, caused, in part at least, by his negligence, must be the personal act of
the party injured; otherwise, as to him, all contributing thereto are joint
wrong-doers.
Where a canal boat, forming a part of a tow under the charge of the
defendants, was sunk by a collision occurring between it and another of the
defendant's tows, which collision was caused, in part, by the negligence of
the captain of the canal boat, held, that as the owner of the cargo of the canal
boat could not control the movements of the boat nor the conduct of her
crew, he was not responsible for the negligence of her captain, and that he
was entitled to recover the value of the cargo from the defendant.
ARCTIC FIRE INS. Co. v. AUSTIN
2. Defective sidewalk intoxication-contributory negligence, question for
jury.] Where, in an action brought to recover damages for injuries sus-
tained in consequence of defects existing in a sidewalk, it appears that the
plaintiff was intoxicated at the time of the accident, it is for the jury, and
not for the court to say whether or not the intoxication contributed in any
degree to the injury sustained.
Cases on question of contributory negligence collated.
Liability of railroad company for injuries sustained by trespasser through
negligence of employes.
See ROUNDS v. DEL., LACK. AND WEST. R. R. Co.......
Apprentice- liability of master on agreement to pay for injuries occasioned
by negligence of.
See SHERWOOD . FISCHER....
NEW TRIAL Motion for, under Code, § 268-when must be made.] 1.
A motion at General Term, under section 268 of the Code, for a new
trial, where the decision to be reviewed is interlocutory and provides for a
NEW TRIAL—Continued.
reference, should be made before proceeding with the reference directed by
the interlocutory order. CHURCH v. KIDD..
2.- In equity actions when not granted for technical errors.] In equity
actions the court will always look at the entire case and see whether sub-
stantial justice has been done, and where that appears it will affirm the judg-
ment, notwithstanding the admission of testimony which, in ordinary actions
at law, might have necessitated a new trial. Id.
NEW YORK CITY — Board of education acting as trustees of College of New
York- bills incurred by — audit and payment of.] 1. The charter of the city
of New York confers no authority upon the auditor of the said city to audit,
or upon the comptroller to draw warrants for the payment of, bills for work
performed in pursuance of the directions of the board of education, acting
as trustees of the college of the city of New York. PEOPLE v. NEILSON.......... 214
Assessment for sewer — application to vacate —defect in copy of petition
served.] Where, on an application to vacate an assessment, the copy of the
petition served upon the corporation counsel differs in some respects from
the petition presented to the court, but it does not appear that the corpora-
tion counsel has been prejudiced thereby, such defect cannot be urged on an
appeal from an order vacating the assessment. MATTER OF WILLIAMSON... 65
3. Chap. 321, 1865, providing for construction of sewers — construction of]
Chapter 321, Laws of 1865, providing that all sewers thereafter constructed,
shall be in accordance with the general plan devised by the Croton aqueduct
board for the sewerage of the particular district in which such sewer is
to be laid, "subject to such modifications as may become necessary in con-
sequence of alterations made in the grade of any street or avenue or part
thereof in said district, or otherwise,' does not require that such modifica
tions should be made to appear on the general plan or map, or that new plans
or maps showing them should be filed. Id.
4. — When application to vacate assessment for sewer denied.] Where an
application is made to vacate an assessment for laying a sewer, constructed
in accordance with plans and specifications prepared and signed by the Cro-
ton aqueduct board, on the ground that it is not in conformity with the
general plan for the district in which it is built, and there is no evidence to
show whether or not the general plan has been modified by the board; held,
that the application should be denied. Id.
5. Chap. 580, 1872 — “omission" within meaning of.] As the board, by
the contract and the plans connected therewith, approved of the change in
the plan of the sewerage for that district, their failure to decide upon such
change, at a meeting called for that purpose, and to prepare and file a map
thereof, was an "omission " within the seventh section of chapter 580, Laws
of 1872, and the assessment was not thereby invalidated. Id.
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6. Board of education — liability of city for acts of] The board of edu-
cation, created by chapter 386, Laws of 1851, was a body corporate, capa-
ble of suing and being sued, and the corporation of the city of New York was
not liable either for its contracts or torts. A by-law of the board provided
that a certain sum of money should be set apart, to be expended in repairs
and incidental expenses for the schools of the different wards, and prohibited
the expenditure of any sum in excess thereof. The plaintiff performed ser-
vices in repairing certain of the school-houses, in good faith, and under the
directions of the trustees of the ward. The amount expended by the trustees
in repairs exceeded the amount appropriated for that purpose. This action
was brought to recover the value of such services. Held (1), that the plaintiff
could not have recovered against the board of public education, as the liability
was incurred by the trustees in excess of their authority; (2), that the act of
1871, abolishing the board of education, did not create a right of action against
the city, which had no lawful existence against the said board.
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7. Board of education — remedy for abuse of powers by subordinate officers
of] The trustees of the several school districts were subordinate officers, and
all persons dealing with them were bound, in law, to know the powers con-
ferred upon them, and their limitations, and have no remedy for an abuse or
excess of such powers, except against the officers chargeable therewith. Id.
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