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11. By resolution of the electors of Gravesend
in 1871, it was provided that the common
lands should be let only at public auction on
notice, and that no lot should be let at a
time more than one year prior to the ex-
piration of any existing lease thereof, nor
more than ten years. By resolution in
1878 this was amended by adding that the
Land Commissioners are authorized to
renew any existing lease upon terms which
they deem most advantageous to the town.
Plaintiffs held leases which expired in 1882
and 1883. The Commissioners renewed
them in 1880 and 1879 respectively. Held,
That the limitation in the resolution of 1871
was not nullified by the resolution of 1878,
and that the renewals were invalid.--Til-
you v. The Town of Gravesend, 529.

See CORPORATION, 13; FRAUD, 2; NEGLI-
GENCE, 20; RAILROADS, 1.

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1. In an action upon a policy of life insurance
which by its terms declares that the death
of the insured by suicide is not a risk as-
sumed by the insurance company, when,
upon the cross-examination of one of the
plaintiffs' witnesses, the proofs of death
furnished to the company are introduced in
evidence by it, and such proofs show that
the insured was held to have committed
suicide, at a coroner's inquest held upon his
body, a prima facie defence is established,
and the complaint will be dismissed, unless
the plaintiff shows that death resulted from
some other cause.-Goldschmidt et al. v.
The Mutual Life Ins. Co., 95.

2. The acceptance by an insurance company
of an application for insurance does not

complete the contract so as to bind the ap-
plicant until he has an opportunity to exam-
ine the policy and has assented to its terms.
-King v. The U. S. Life Ins. Co., 203.

3. In an action to procure the restoration of
policies and an accounting on the ground
of fraud of defendants' officers in procuring
plaintiffs to exchange said policies for new
ones containing more onerous conditions,
the Court found as facts that there was no
fraud or misrepresentation, and that plain-
tiffs secured advantages by the new policies
at least equal to those surrendered by them,
and had suffered no damage. Held, That
in the absence of valid exceptions to rulings
there was no question to review.-Hencken
et al. v. The U. S. Life Ins. Co. et al.,412.
4. In view of the impossibility of placing a
precise pecuniary value on the various pro-
visions of the policies, and the wide differ-
ence existing among experts in relation
thereto, the question whether a policy holder
will be damnified by an exchange is pecu-
liarly a question for the parties interested to
determine for themselves.-Id.

5. When the person insured by a policy of
life insurance in an insolvent company dies
during the process of the winding up of the
affairs of said company, and within a very
short time after the filing of such policy
with the receiver for valuation, and before
the actuary engaged in calculating the val-
uations of the policies issued by said com-
pany has made his report, and proofs of
such death are furnished to the receiver
before the making of said report, the
policy should be valued as a death claim
against the assets of the company and not
as an existing and continuing insurance.-
The People v. The Knickerbocker Life Ins.
Co., 481.

6. Upon an application for a re-valuation of a
policy it is in the discretion of the Court
to make such order as may seem just and
equitable.-Id.

LIMITATION.

1. In an action for money loaned, the Court
found that the cause of action, if any, ac-
crued more than seven years before action
brought, and declined to find on plaintiff's
request that it was a case of mutual accounts
or reciprocal demands. Held, That the
finding disposed of the case and that the
action was barred by the statute of limita-
tions.-Havemeyer et al. v. Quintard et al.,

120.

2. When an action upon a contract is com-
menced within the time limited therefor by
the statute of limitations, a counterclaim
arising out of the contract set forth in the
complaint as the foundation of the plain-
tiff's claim is not barred by the statute of
limitations although the pleading contain-
ing it is not served until after the expiration

of the time limited by said statute for the
commencement of an independent action
upon such counterclaim.-Herbert et al. v.
Dey, 220.

3. A. died February 6, 1876, and in the same
month B. was appointed administrator, but
did nothing as such except draw from bank
some money of A.'s. B. died May 18, 1880,
having in his will nominated C. as his ex-
ecutrix. Petitioner was, on September 22,
1880, appointed administrator de bonis non
of A., and on December 14, 1881, filed with
the Surrogate his petition, under § 2606,
Code Civ. Pro., praying for judicial set-
tlement of the account of B. as adminis-
trator, and that C. as executrix show cause
why she should not render such account,
and deliver to petitioner any of such prop-
erty which had come to her hands or was
under her control. Held, That the petition
is not barred by the statute of limitations.
-In re petition of Clark v. Latz, 235.

4. The word "return in section 401, Code
Civ. Pro., containing exceptions to the
limitation of actions, applies as well to a
person coming from abroad, where he has
resided, as to a citizen going abroad for a
time and then returning. But the return,
in order to set the statute running, must be
so public and under such circumstances as
to give the creditors an opportunity, by the
use of ordinary diligence and due means,
to prosecute the debtor.-Engel v. Fischer,
341.

5. In May, 1867, the wife of testator conveyed
to S. property which was her separate
estate, and in the transaction a part of the
purchase price was paid the testator for the
use and benefit of the wife. She did not
demand the money in his lifetime. He
died in May, 1874. Upon the accounting
of the wife as executrix, Held, That the
claim was barred by the statute of limita-
tions. In re estate of Cole, 534.

6. A judgment was recovered in justice's
court in 1873, and in 1880 was docketed in
a county clerk's office. In 1884 a motion
was made for leave to prosecute it in this
court. Held, That the six years' limitation
fixed by § 382, subdiv. 7, of the Code of
Civ. Pro. applied, and that the action was
barred.-Slocum v. Stoddard, 556.

See BANKS, 6, 7; FIRE INSURANCE, 13; FRAUD,
5, 21; GUARDIANS, 5; SURETYSHIP, 5.

MANDAMUS.

See APPEAL, 14; TAXES. 7.
MARINE COLLISION.
See EVIDENCE, 11.
MARINE INSURANCE.

1. In every case of marine insurance there is
an implied warranty of seaworthiness, and

if the vessel is not seaworthy the policy
does not attach.-Van Wickle et al v. The
Mechanics & Traders' Ins. Co., 143.

2. If it appears that the vessel shortly before
sailing became leaky, unfit to perform the
voyage, or sank without encountering any
peril or storm, this is presumptive evidence
of unseaworthiness.-Id.

3. A policy of marine insurance provided
that its general language should be con-
trolled by the indorsement of special risks;
that the perils insured against were those of
the seas and all other perils, &c., to said
goods or any part thereof; that perishable
articles or those damaged before shipment
should be warranted free from average un-
less general. Plaintiff was insured by in-
dorsement on 1,650 bbls. of potatoes on
canal boat, F. P. A. After 109 bbls. were
delivered the boat sunk and the greater part
of the cargo lost. Held, That it was the
intention of the parties to exempt the in-
surer from payment of any loss occurring
to a portion only of the cargo, and that de-
fendant's liability was terminated by the
delivery of a material part of the cargo.-
Chadsey v. Guion, 361.

MARRIAGE.

1. A promise of marriage made on condition
of illicit cohabitation is without considera-
tion and void.-Lewis v. Goetschius, 140.
2. When a man and woman marry and the
man has a wife living at that time, but that
fact is not known to the woman, who in-
tends to contract a valid relation, and it
subsequently becomes known to her and
she still continues to live with the man,
and the former wife subsequently dies and
information of her death is received by
them, and they thereafter live together as
man and wife, holding themselves out to
the world as such, a new and legal marital
relation will be presumed to have arisen,
dating from the death of the former wife.
-The Polar Star Mut. Ben. Ass'n. v. Boni-
face et al., 522.

See EVIDENCE, 43–45.

MARRIED WOMEN.

1. Plaintiff, a married woman, not carrying
on a separate business, was injured. By the
same accident her husband was injured,
and he has an action pending therefor. The
Court, after stating the ground upon which
damages could be given plaintiff in this
action, said, "for her discomfort in the
past and for her discomfort in the future
and for her inability to labor you may also
compensate." Held, Error; because under
this language damages might have been
given the wife by the jury for loss of ser-
vices, which latter were the property of the
husband.-Houghkirk v. The D. & H. C.
Co., 558.

See FORGERY, 1, 2.

MASTER AND SERVANT.

1. If ordinary ingenuity has been exercised
to the utmost to provide machinery and
means for the endurance of the enormous
strain imposed upon it by railroad use, and
when the best practicable inventions are
utilized and the best human foresight exer-
cised, the master is not liable even though
injuries are sustained by the servant.
Dudley v. The N. Y., L. E. & W. RR. Co.,
118.

2. The rule requiring masters to exercise due
diligence to furnish safe and suitable ap-
pliances, and keep them in a proper state
of repair, applies to the premises where the
employee is required to perform services
as well as to the machinery.-Williams v.
The Syracuse Iron Works, 188.

See NEGLIGENCE, 7, 30.

MECHANICS LIEN.

1. Lessees of premises mortgaged their inter-
est to appellants. The labor upon which
the lien is claimed was performed at the
mortgagors' request while they were in
possession of the premises, before any de-
fault under the mortgage, and without ap-
pellants' knowledge. Appellants purchased
the mortgagors' interest in the premises be-
fore notice of lien was filed, and had no
knowledge of the claim until after such
notice was filed. Held, That appellants'
interest is not subject to the lien.-Broman
v. Young et al., impld., 517.

2. The Mechanics' Lien law of 1875, applica-
ble solely to the city of New York, was not
repealed, either expressly or by implica-
tion, by the general law of 1880 on the
same subject, and both of said statutes
stand together and are applicable to the city
of New York, and proceedings in said city
may be taken under either of them, and, if
such proceedings conform to either of said
statutes as to the filing of the lien, the lien
is valid.-Cockerill v. Loonan, 545.

MERGER.

See COMMON Carrier, 1.

MORTGAGE.

1. On a re-sale on foreclosure the premises
were sold subject to the rights of children
who were not made parties to a former par-
tition suit. There was nothing in the
decree or the notice of sale referring to such
a restriction. Held. That as the purchaser
bought with notice, paying a less amount
on account thereof, he should be required
to complete his purchase and that no amend-
ment of the decree was necessary.-Crom-
well v. Hull et al., 53.

2. The N. Y. City and Northern RR. Co.
mortgaged its road, franchises, etc., to the

Central Trust Co., of N. Y. to secure the
payment of the principal of its bonds and
the interest upon them due semi-annually.
The railroad company was entitled by the
terms of the mortgage to remain in posses-
sion of the mortgaged property until some
default should be made in the payment of
the principal or interest on its bonds, or
some part thereof; and, by a separate pro-
viso, the trustee was given the right to
enter upon and operate the road and apply
the proceeds to the payment of the principal
and interest of the bonds or to exercise a
power of sale with respect to the entire
property covered by the mortgage in case
of a default in payment of principal or of
interest continuing for twelve months; and
it was also provided after a twelvemonths'
default in the payment of interest the prin
cipal should fall due. The company
defaulted in the payment of a semi-annual
instalment of interest, and after the expira-
tion of about three months the trustee
brought an action to foreclose the mort-
gage, asking for a sale of the whole prop-
erty, and for the payment of the principal
of the debt. Upon demurrer, Held, That
such an action could be maintained.-The
Central Trust Company v. The New York
City & Northern RR. Co., 96.

3. B. owned a mortgage on certain real estate
which he assigned to R., guaranteeing its
payment. R. subsequently foreclosed the
mortgage and the property was purchased
at the foreclosure sale for a sum greater
than the mortgage debt. The purchaser,
however, refused to complete his purchase,
and upon an application to compel him to
do so, he was so ordered, or in default it
was ordered that the property be re-sold and
the purchaser charged with the deficiency
arising under such re-sale. Under this
order R. re-sold the property and a large
deficiency arose upon such sale, from the
payment of which the original purchaser
was relieved on account of irregularities
in the second sale. Held, That B. was not
liable for such deficiency.-Riggs et al. v.
Boucicault et al., 184.

4. A. and B., brothers, owned certain prem-
ises subject to the dower of C., their mother;
D. bought the premises, giving a mortgage
back in which A. was named as second
party. The mortgage provided for pay-
ment of interest to the mother, and on her
death a portion of the principal to A. and
the rest to be distributed to B.'s children
as they respectively came of age. Ulti-
mately the principal was paid to Ă. and he
discharged the mortgage. Held, That pay-
ment to A. of the money belonging to B.'s
children was unlawful, and A.'s discharge
of the mortgage was inoperative. - Water-
man et al v. Webster et al., 231.

5. Plaintiff executed a release of one of two
parcels of land covered by a mortgage
which he held, and sent the same to a third

party to deliver to the mortgagor, provided
his said mortgage was a first lien on the
remaining parcel. The mortgagor knew of
the condition. By mistake of the facts the
agent delivered the release, and the mort-
gage proved not to be first lien, as pro-
vided. Held, That the delivery did not
bind plaintiff as against the mortgagor.-
Rose v. Rose, 334.

6. A stockholder is not a necessary party to
an action for the foreclosure of a mortgage
against the property of the corporation ;
and if he is included in the class of persons
who are to be made parties under § 452 of
the Code, he must show a defence.-Smith
et al. v. The Smith Moquette Loom Co., 342.

7. An objection that the property sold on fore-
closure was not sufficiently described in
the mortgage or foreclosure proceedings is
sufficiently met by an affidavit of a surveyor
that there is no difficulty in identifying the
property in question from the description
given in the judgment.—Abbott v. Curran,
344.

8. An objection that the bond and mortgage
were not produced before the referee is
sufficiently met by proof that the same had
been duly executed and delivered, that no
part of the debt had been paid, and by
proof of the loss of the original papers, in
the absence of any evidence to the con-
trary.-Id.

9. An objection that the sale was not made
by the sheriff cannot obtain where the sale
was regular in all other respects, and a sale
made by a referee appointed on the written
consent of all the parties who have ap-
peared presents no irregularity.-Id.

10. The fact that the notice of the sale was
published sometimes only in the second
edition of a newspaper affords no objection
to the title.-Id.

11. The words in the grant, by the State, of
the lands in suit, "for commercial purposes
only," are too vague on which to base an
objection.-Id.

12. In a suit to foreclose a mortgage executed
by the husband alone, the wife was made a
party, and the judgment roll contained evi-
dence of due service of the summons upon
her, but was in fact served upon her bus-
band only; upon a motion to set aside or
modify the judgment, the husband being
living, Held, That her right to present
relief was in the discretion of the Court, and
was properly refused.-Smith v. Askin, 394.
13. Testator devised his real and personal
estate to his wife during widowhood, and
upon her death or re-marriage to his chil-
dren, to be divided between them in equal
proportions. She was authorized to make
such advances out of the estate to the chil-
dren as she should in her discretion deem

best for their maintenance and support,
the amount of which to be charged to and
deducted from their shares upon the final
distribution. The widow was appointed
sole executrix and guardian, and authorized
as executrix to mortgage, lease, sell and
convey the whole or any part of the estate
as she should in her discretion deem best
for the purpose of carrying into effect the
provisions of the will. Upon her re-mar-
riage she executed a mortgage of the real
estate. Held, That her power to do so
ceased upon her re marriage.-The Mutual
Life Ins. Co. v. Shipman et al., 442.

14. Only such persons are required to be
parties to a foreclosure suit as have acquired
rights or interests, or claim to have done
so, subsequent to the mortgage. Any inter-
est acquired prior thereto cannot be consid-
ered or determined in such an action.-Bram
v. Bram et al., 519.

15. In an action tried before the Court it is
not necessary for the Court to find as facts
and state in its decision matters admitted
by the pleadings.-Id.

16. F. and wife joined in a mortgage to plain-
tiff of lands of F. to secure an obligation of
F. Afterward F. made a general assign-
ment, and his assignee conveyed to defend-
ant the mortgaged lands. The mortgage
becoming due, defendant tendered plaintiff
the amount due and demanded an assign-
ment to himself of the mortgage, which
plaintiff refused, and proceeded to foreclose.
Held, Defendant was entitled to the assign-
ment, and the wife of F. had no superior
equities forbidding it.-Platt v. Brick, 554.
17. In an action by a grantee of lands to re-
strain the enforcement of a prior mortgage
by the assignee thereof, who took it in good
faith and for value, and praying for the
cancellation of said mortgage and assign-
ment and their discharge of record, on the
ground that the grantor fraudulently repre-
sented that the property was unencumber-
ed, and induced plaintiff to forego an ex-
amination of the records, and that said
mortgage was without consideration, etc.
Held, That the declarations of the assignor
made while he was the owner and holder
of the mortgage, that the mortgage was
given without any consideration for the
purpose of keeping off the creditors of the
mortgagor, and had not been delivered prior
to the conveyance to plaintiff, are inadmis-
sible against the assignee.-Briggs v. Lang-
ford et al., 563.

See CORPORATIONS, 1-3; DEEDS, 1, 2, 11, 12,
15; EXECUTORS, 3; FIRE INSURANCE. 5;
PARTNERSHIP, 8, 9.

MUNICIPAL CORPORATIONS.

1. A statute authorizing the mayor and com-
mon council of a city to appoint commis-
sioners for a public park, and giving them

the control over the park and the approaches
thereto, and imposing upon them the duty
of keeping them in good repair, does not
relieve the city from the duty imposed by
its charter to keep all the streets in repair,
and therefore does not absolve it from lia-
bility for damages resulting from defects
existing in a street within the jurisdiction of
the commissioners. Such commissioners
are agents or officers of the corporation en
trusted with the performance of a corporate
duty for the benefit of the inhabitants, and
the city therefore is liable for their neglect,
acts or omissions respecting such duties.-
Polley v. The City of Buffalo, 163.

2. A memorandum kept in the office of a city
engineer that a permit to excavate a street
for a sewer had been issued is competent
evidence of the fact and to charge the city
with notice of the existence of a defect
arising from the filling of the excavation.—
Id.

3. In an action ex delicto against a city it is
not necessary to allege in the complaint
that the claim has been presented to the
common council for audit, as required by
the city charter.-Nagle v. The City of Buf
falo, 214.

4. Where the charter of a municipal corpora-
tion imposes upon it the duty of directing
the manner and superintending the making
and repairing of sidewalks in its streets, its
assent to an unauthorized alteration of a
sidewalk by an adjacent owner can only be
shown by formal corporate action. Neither
knowledge of individual members of the
common council that a change has been
made, nor an omission of that body to ob-
ject, can take its place and secure immunity
to the corporation from claims for injuries
caused thereby.-Urquhart v. The City of
Ogdensburgh, 360.

5. While a municipal corporation may have
the right to use or suffer wood to be used in
the covering of water boxes in a sidewalk, it
is its duty to see that they are kept safe and
the sidewalk in a proper condition for the
use of travellers.-Campbell v. The City of
Syracuse, 449.

6. In order to establish the defense on the
part of a municipal corporation in an action
for negligence that for the purpose of re-
moving snow and ice from the sidewalk it
was without means or the ability to procure
same, it must affirmatively appear that de-
fendant had no funds from which to repair
its streets and also that it had no power to
procure funds.- La Duke v. The Village
of Fulton, 453.

See CORPORATIONS, 5; HIGHWAYS, 2, 3; IN-

TEREST.

MURDER.

1. A defendant's wife is a competent witness

against him in a murder trial.-The People
v. Petmecky, 107.

2. Evidence of defendant's proposal to a fel-
low prisoner of a plan to overcome the
sheriff and escape is competent.--ld.

3. Letters from defendant to his wife are
competent evidence against him.—ld.

4. It is not error for the trial judge in his
charge to define the degrees of murder in
the inverse order of their enumeration in the
statute, referring finally to the first degree
of the crime, and then discussing evidence
tending to show that defendant was guilty
of murder in the first degree.-Id.

5. It is not error to charge that if the jury
should find that defendant had knowingly
testified falsely in respect to a material fact,
then his testimony is entitled to credit only
so far as the jury shall find it to be consist-
ent with the established facts, or corrobo-
rated by the testimony of others.-Id.

6. It is not error to charge: "If the prisoner
at the bar is to be found guilty of murder
in the second degree or of any less offence,
it is because you find that there is a reason-
able doubt that he committed this act from
a deliberate and premeditated design, and
also that there is a reasonable doubt that he
committed it while engaged in the commis-
sion of the crime of grand larceny in the
second degree."—Id.

7. Where the accused, knowing the location
of the deceased, drew a pistol with some
difficulty from his pocket, and in spite of
remonstrances discharged it towards the
deceased, inflicting a mortal wound, Held,
That it was competent for the jury to find
from the circumstances that the accused
had a purpose, formed after more or less
deliberation, to kill the deceased.-The
People v. Conroy, 242.

8. A charge to the jury that there is no op-
portunity to compromise in any respect,
but it is a conviction of murder in the first
degree or an absolute acquittal; and that
is they believe a certain witness, that alone
is sufficient to enable them to find a verdict
of guilty, has the effect to mislead and
prejudice the jury, and to take away from
them the right and power to ascertain and
determine, from the facts and circum-
stances, the existence of the intent, delib-
eration and premeditation, the necessary
elements of the crime charged, and is there-
fore a material error.-The People v. Kelly,
395.

9. Where the prosecution gave evidence to
show that a man of the prisoner's appear-
ance and description was seen about a cer-
tain hour in the early morn in the vicinity
of the crime, and shortly after its commis-
sion, going towards the city; and the de-
fence showed that he was at several places

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