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Sarah Elizabeth, her sister, of spect to his child made with one Huntington, L. I., were friends to who has reared the child under it. me when I most needed the service It is not necessary to decide this of friendship, and at a time when question upon the present record. friends seemed few, and that they It may be stated as a general rule at that time did me a great service in this state that the rights and inby assuming the care and charge terests of the child are paramount of my infant son Francis C. upon the question of the custody Brown, and realizing that they of the child. 14 N. Y., 576. This necessarily will and have become question includes the home of the attached to the said child, I here- ladies from which the boy goes. by, on my honor, solemnly agree That is clearly seen from the case. and promise the said Mary R. and It also includes the home of the Sarah E. Brush that I will not at father, and it was error to exclude any time take or remove from the testimony offered tending to their charge and care the said show the character of respondent's child without their consent, and home. in the event of my death I hereby Order reversed, and declare that it is my desire that mitted to the Special Term, so the said child shall remain with that this evidence may be received. and be under their guardianship Opinion by Barnard, P. J.; so long as they may desire to keep | Pratt and Dykman, JJ., concur. him, and forbid all persons or person from attempting to remove

MECHANICS' LIEN. MORThim from their charge.

GAGEE. Witness my hand, this 12th day of October, 1874.


TERM. The special term refused to

FIFTH DEPT. allow the introduction of testi Aaron Broman, respt., mony to prove that the present Stephen E. Young et al., impld., wife of defendant was an intem applts. perate person and that she was a

Decided Jan., 1885. medium and spiritualist, and also

Lessees of premises mortgaged their interest proof was refused tending to show

to appellants. The labor upon which the what this home was in respect to lien is claimed was performed at the assemblages and practices in what

mortgagors' request while they were in is known as spiritualism.

possession of the premises, before any de

fault under the mortgage, and without apEvarts, Southmayd & Choate,

pellants' knowledge. Appellants purchased for respt.

.the mortgagors' interest in the premises

before notice of liep was filed, and had no Goodrich, Deady & Platt, for

knowledge of the claim until after such applts.

notice was filed. Held, that appellants' inter

est is not subject to the lien. Held, That it is not clear from the authorities that a father may Appeal from order of Special recede from an engagement in re- | Term, appointing receiver pen

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dente lite of defendants' leasehold inortgagees had no right to object interest in certain lands.

to the use and operation of the Defendants W. were lessees of property by the mortgagors. No lands upon which were certain oil consent by the mortgagees can be wells, with their machinery. On inferred from any act of employ. Feb. 4, 1884, and afterwards, they ment by the mortgagors. Nor made to appellants mortgages can such consent be inferred from with words of sale and transfer the fact that the mortgagees saw and power of sale on the property plaintiff working on the premises to secure their accommodation in with other laborers. Had there dorsements. On June 24, appel- | been default by the mortgagors, lants bought the entire interest the position would have been difof defendants W. Aster Feb. 4, ferent.

ferent. 62 N. Y., 215; 65 id., 128. plaintiff, by request of and for de- | The consent of persons having fendants W., performed work only a special property as secur. upon the premises, and on July ity, without right to possession or 25, filed notice of lien on the prop- control or management of the erty therefor, under Laws 1880, property, must be an express one. Ch. 440, and in August served no 8 Hun., 144. tice on appellants, with bill of Otis v. Dodd, 90 N. Y., 336, and particulars annexed for fore. Nellis v. Bellinger, 6 Hun, 560, closure of the lien pursuant to distinguished. that statute. On plaintiff's mo Moreover, the only interest in tion the order appealed from was this case subject to lien, and to made. The labor was performed which the term “owner charge. before any default on the part of able by consent,” can be applied, the mortgagors, and while they was the estate for years. And the had possession of the premises, mortgagees of that interest were and without any request by appel. not owners of it. 5 Wend., 603 ; lants, who state by answer and af. S. C., 2 Paige, 68 ; 54 N. Y., 5, 99. fidavit that it was performed with. Their interest was a chattel interout their knowledge, and that they est, its nature being that of a had no knowledge of the claim chose in action. 58 N. Y., 323 ; until after the notice of lien was 71 id., 341; 52 Barb., 389; 4 Kent filed.

Com., 85. J. R. Jewell, for applts.

When appellants purchased no Geo. H. Phelps, for respt.

notice of lien had been filed ; and Held, That before default in the when it was filed

was filed defendants terms of the mortgages, or until W. had no interest in the propthe mortgagees in good faith erty. deemed themselves unsafe, the Order reversed. mortgagors were entitled to pos Opinion by Brady, J.; Haight, session, control and management J., concurs ; Barker, J., not of the property. 35 N. Y., 274; voting. 48 id., 556; 42 id., 322. The



delivered a deed for one-half of MORTGAGE FORECLOSURE.

the property afterward conveyed

to the defendant to one Z. ; and N. Y. SUPREME COURT. GENERAL for that reason it was claimed that TERM. FIRST DEPT.

the consideration for the mortgage

had in part failed. Henry Bram, respt., v. Geo. A. Bram and Clara Bram, applts.

A. J. Dittenhoefer and David

Gerber, for applts. Decided Jan. 9, 1885.

H. M. Geschiedt, for respt. Where a deed is executed and delivered to a

Held, That as the deed to C. husband and wife both are seized of the entirety, and neither is severally seized of executed by the wife alone, whose any interest in the property, and each is interest in the property was creaincapable by means of his or her sole deed

ted by a joint deed to herself and to convey any present right or interest in

her husband, it was inoperative the property to his or her grantee. Only such persons are required to be parties in the way of conveying any presto a foreclosure suit as have acquired

ent interest whatever to the gran. rights or interests, or claim to have done tee named in it. so subsequent to the mortgage. Any in

That where a deed is executed terest acquired prior thereto cannot be con

and delivered to a husband and sidered or determined in such an action. In an action tried before the court it is not wife both are seized of the en

necessary for the court to find as facts and tirety,' and neither is severally state in its decision matters admitted by seized of any interest in the propthe pleadings.

erty, and each is incapable by Appeal from a judgment recov means of his or her sole deed to ered on a trial at Special Term. convey any interest in the prop.

This action was brought to fore- erty to his or her grantee. 16 Johns, close a mortgage given for the pur- 110; 2 Kent's Com., 7th ed., 110; chase price of the property de- 8 Cow., 277, 283; 15 Wend., 616, scribed in it. This property had 618; 19 id., 175 ; 49 Barb., 155, been conveyed to and was owned 162; 1 Wash. on Real Prop., 4th by Jacob and Babeta Bram, who ed., 332, SS 672–3; 92 N. Y., 152. were husband and wife, and they That there was, therefore, no fail. executed and delivered a full cov ure of consideration for the mortenant warranty deed of said prop gage. erty to the defendant Geo. A. It was further objected that the Bram, who at the same time ex- failure to make Z. a party to this ecuted and delivered to them the action was fatal to it. mortgage in suit, which they there. Held, That only such persons upon assigned to the plaintiff. It are required to be made parties to was proved on behalf of the de- a foreclosure suit as have acquired fendant that previous to the ex. rights or interests, or claim to have ecution and delivery of the deed done so, subsequent to the executo him Babeta Bram, one of the tion and delivery of the mortgage, grantors therein, had executed and I and since, if Z. had any interest

under his deed, he acquired it prior | ants had a blue-stone yard in which to the mortgage, his right could one Simpson was foreman. His not be considered or determined in duties consisted in "shifting stone, this action. 75 N. Y., 127, 131. work in the mill and work done

It was also claimed that the con- with the derrick." He gave di. clusions of law were not justified rections to the men in his departby the facts found, inasmuch as ment; he had not power to hire there was no finding by the court or discharge men, nor general that the mortgage debt was due or superintendence of any kind over that there was any sum unpaid defendants' business. On the day thereon.

of the accident Simpson was on the Held, That these facts were ad boom, and was preparing to drag mitted by defendant's answer, and some heavy stones; he directed they were, therefore, not in dis- men at a crank, around which ran pute, and it was not necessary to the rope holding up the boom, to find them and make a statement | lower the boom. They lowered it of them in the decision of the so far that all the rope ran off the court.

drum and the boom fell, striking Judgment affirmed.

plaintiff, who was just below busy Opinion by Daniels, J.; Davis, at a stone. The defence, among P. J., and Brady, J., concur. other things, was that the negli

gence, if any, was that of a co- ·

servant. The court held that pro MASTER AND SERVANT.

hac vice Simpson was the master. NEGLIGENCE.

Plaintiff had a verdict.
N.Y. SUPREME COURT. GENERAL A. B. Parker, for applts.

J. N. Fiero, for respt.

Held, Error. We think it must Bartholomew Scott, respt., v.

be held as matter of law that Elizabeth Sweeney et al., applts. Simpson was only a servant. The Decided Nov., 1884.

cases of Crispin v. Babbitt, 81 N.

Y., 546, and Slater v. Jewett, 85 Defendants conducted a blue stone yard, and

employed s. He had charge of shifting N. Y., 63, point out with some stone, work in the mill and with the der. clearness the test in these cases. rick. He had not power to hire or discharge If the act is one which from its men, and was not general superintendent. nature and character belongs, or S., while shifting stone with the derrick, ought to belong, to the department plaintiff was injured. Held, That plaintiff of the master, then it is the and S. were co-servants, and that plaintiff master's act, no matter to what incould not recover against defendants, the ferior agent or servant the author

ization, not the execution when Plaintiff, a laborer employed by authorized, of the act is entrusted. defendants, was injured by the lf, however, the act done or boom of a derrick, and brought omitted is in the execution of the this action to recover. Defend- proper details of the principal


work which has been by the master of defendant's business in this directed to be done, such execu- State, and while acting in that cation of proper details is the act of pacity engaged him to enter dethe servant, no matter how high fendant's service at a fixed salary. the rank of the subordinate who All the evidence in the case was performs the labor. And see 91 given by plaintiff. He stated that N. Y., 334.

he had an interview with, J. the When Simpson ordered the day before he began his service. boom lowered he was carrying Witness was asked : “State what out his part of the details of his conversation you had with him on master's work, no less than the the subject of working for the workman who turned the crank. company.” Defendant's objection He was operating the derrick, a thereto was overruled and defendwork needing one servant to be ant excepted. The witness answerwatchful of details, and so to ed : “He asked if I would like to direct the labor of others as to work for the company. He said make it useful to their common he was superintendent for the State employer in moving stone from the of New York." Defendant obyard to the mill.

jected to the statement as to what Judgment reversed.

J. said as to his being superintenOpinion by Landon, J.; Learned, dent, as not being competent, and P. J., concurs ; Bockes, J., dis- asked that it be stricken out. The sents.

referee overruled the objection and

denied the application to strike EVIDENCE. AGENCY. out, and defendant excepted. There

was no other evidence as to Ji's N. Y. SUPREME COURT. GENERAL


George C. Green, for applt. Ambrose Fowler, respt., v. The Frank Brundage, for respt. Howe Machine Co., applt.

Held, That the denial of motion

to strike out was error. As the Decided Jan., 1885.

witness volunteered the evidence, Where incompetent evidence has been volun

the motion was proper and the teered by the witness the only way in

only way to expunge the same which it can be expunged from the record is by motion to strike out.

from the record. 78 N. Y., 102. An agent cannot create an authority in him There was no competent evi

self to do a particular act by its perform-dence of J.'s agency. 1 Cowen & ance or by asserting his authority to do it.

Hill's Notes, 189; 52 N. Y., 272; Appeal from judgment on ref- 65 Barb., 165. The evidence given eree's report.

was mere hearsay. Action for services alleged to Judginent reversed, new trial behave been rendered by plaintiff for fore another referee, costs to abide defendant, a foreign corporation. event. Plaintiff sought to prove that one Opinion by Barker, J.; Haight, J. was general agent and manager | Bradley and Rumsey, JI., concur.

Vol. 20.—No. 22b.

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