« AnteriorContinuar »
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. É. & W. RR. Co.,
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.
Central Trust Co., of N. Y. to secure the
payment of the principal of its bonds and
the interest upon them due serni-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.
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.
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.
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.
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
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 X. and be
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
ågainst 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,
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-
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
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 reqnired 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., 503.
See CORPORATIONS, 1-3 ; DEEDS, 1, 2, 11, 12,
15 ; EXECUTORS, 3; FIRE INSURANCE, 5;
PARTNERSHIP, 8, 9.
1. A statute authorizing the mayor and com-
mon council of a city to appoint commis-
sioners for a public park, and giving them
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.--Id.
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.
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.-
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:
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
ade, 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
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
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,
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
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
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-
1. A defendant's wife is a competent witness
in the city early in the morning; it is com-
petent for the defence to show, by the tes-
timony of a witness who walked and timed
the distance, that the prisoner could not
have walked from the place described by
the people's witnesses so as to be at the
places mentioned in the city at the time
testified to by bis witnesses.-Id.
MUTUAL BENEFIT SOCIETIES.
1. Defendant was incorporated under Ch. 267,
Laws of 1875. It issued a certificate of
membership to one H. payable upon death,
one fourth to H.'s wife and three-fourths to
plaintiff Massey, not a relative. The cer-
tificate of incorporation of defendant did
not state as an object the payment of
moneys upon the death of a member But
the by-laws, which by the act defendant had
power to make, provided for such payments
to members' families or their assigns, and
for the payment of benefits to beneficiaries
designated by deceased members. Held,
That plaintiff Massey, though not a member
of H.'s family, could recover, and that the
contract was not one beyond the powers of
defendant.- Massey et al. v. The Mutual
Relief Soc., 280.
2. The by-laws of a mutual benefit associ.
ation provided that any person in good
health, &c., may become a member upon
approval of the executive committee, and
upon payment of the prescribed admission
An application was approved and
certificates were issued and mailed to an
agent, who, knowing that the applicant
had become seriously ill, delivered them to
a third person, B., upon his promise to
pay the admission fee, and the latter mailed
them to the applicant, who died before the
mail arrived. B. forthwith forwarded the
amount of the admission fee to the agent,
with information of the death, who re-
mitted it to the home office. Upon learn.
ing these facts, the association tendered
back the money. Held, That the agent
had no authority to waive the essential
conditions requisite to membership, and
his acts were not binding on the association,
and the applicant was not a member at the
time of his death.— The People v. The
Mutual Benefit Associates, 546.
1. Defendant furnished a team and wagon to
one M. under an arrangement that M. was
to work them and receive one-fourth of the
proceeds, and defendant to receive the
balance. Plaintiff was run over and in-
jured by the team while M. was driving
them. Held, That as to third persons de
fendant and M. each became the agent of
the other in the prosecution of the common
enterprise and liable for his omissions and
faults in regard thereto.-Stroher v. Elt-
2. When a wharf has been maintained in its
position for such a length of time and un-
der such circumstances as to warrant the
imputation of negligence to its owners in
failing to remove an unevenness in the bot.
tom alongside of such wharf, which causes
an injury to a vessel lawfully coming
thereto, the owners of the wharf are liable
for such injury.-Barber v. Abendroth
3. It is no error to charge the jury that if the
brakeman whose duty it was to notify pas-
sengers of the movements of the train as-
sured plaintiff it was safe for her to alight
she was excused from the negligence of
getting off the moving train. And the ad-
ditional charge that if plaintiff believed it
was imprudent for her to alight, and her
judgment was the true one, she should
bave remained on the train, was certainly as
favorable to defendant as it could properly
ask.- Abbey v The N Y. C. & H. RR. Co.,
4. Plaintiff, who was employed by one G.,
was injured by the fall of some boxes while
engaged in unloading a vessel. To obtain
power, G. leased of defendants an engine
and boiler, in charge of their engineer, who
worked the same under the direction of
two of G.'s men. The machinery was per-
fect, and the engineer was not shown to be
incompetent. It was claimed that the
boxes fell because they were lowered too
fast and stopped suddenly. Held, That de-
fendants were not liable. — Coyle v. Pierre-
pont et al., 91.
5. Plaintiff was riding on the front platform
of one of defendant's cars without objec-
tion, and on the car stopping stepped down
on the step 10 let some passengers in. He
testified that as he was stepping up again
the car gave a sudden movement and pulled
up and he was thrown out sideways. It
was not shown that the driver started his
horses in any unusual or negligent manner.
Held, That there was no evidence of negli-
gence on defendant's part.-Hayes v. The
42d St. & Grand Sl. Ferry RR. Co., 135.
6. Where a passenger, in the exercise of
ordinary care and observation, was induced
to believe, by the announcement of the
station and to change cars, and by appcar.
1. All property and rights held by a State
bank before organizing as a National bank
continue to be vested in it under its new
status. As between it and those who have
contracted with it, it retains its identity.
Defendants executed to the City Bank a
guaranty of payment of advances to be
made to one W., which guaranty was re-
cognized by defendants after the bank had
been converted into a National bank. W.,
having afterwards failed, Held, That de-
fendants were liable on the guaranty.- The
City Natl. Bk. of Poughkeepsie v. Phelps, 87.
ances created by the acts of the employees,
tbat the train had come to a full stop for
the discharge of passengers (though it had
not, in fact), and proceeded to the platform,
in the dark, for the purpose of alighting,
but was thrown therefrom by the sudden
starting or violent jerking of the train,
Held, That the case was properly submitted
to the jury, to determine whether negligence
existed on the part of defendant, and
whether plaintiff was free from negligence
under the circumstances of the case.
Bartholomew v. The N. Y. C. & H. R. RR.
could be found so long as he violated no
established rule of the company. -Pierce v.
The Rawson M'f'g. Co., 256.
12. Plaintiff, with his team, approached de-
fendant's tracks in the evening, and stop-
ped, but saw or heard no train, and a person
standing where defendant usually kept a
flagman waved his lantern and called to
plaintiff to cross the tracks, and plaintiff in
crossing was injured by defendant's engine.
Held, That evidence as to the actions of the
person with the lantern was proper, although
plaintiff could not identify him as an em-
ployee of defendant.— Wagner v. The N. Y.,
L. E. & W. RR. Co., 277.
7. Plaintiff, who was employed by defendant,
started on a dark night with a lantern to go
10 a privy which projected over a stream
and which he was required to and was for
a long time accustomed to use. The lan-
tern went out and in the darkness he missed
the door and fell over the wall, breaking
his leg. Held, That he could not recover
without proof that he had no knowledge of
the dangers and risks attending the use of
the privy.-Kesley v. The Sanderson Bros.
Steel Co., 192.
13. A loaded coal wagon of defendant's was
going up a steep icy street in the daytime,
when a horse cast a shoe. The driver drew
the wagon out to the side of the street,
blocked its wlieels, went to a blacksmith
shop with the team and was gone 15 min-
utes. Plaintiff in the meantime drove up
the street, saw the coal wagon and also a
wagon loaded with iron coming down.
Seeing that he could not reach the coal
wagon before the iron wagon did he turned
out and stopped about 40 feet directly be-
hind the coal wagon. The ironworks
wagon, on reaching the coal wagon, slid
over and struck it; the coal wagon slid
down upon plaintiff's coach and team and
damaged, them. Held, That defendants
were justified in leaving their wagon prop-
erly blocked in the street under the circum-
stances, and that plaintiff could not re-
cover. — Newcomb v. Van Zile et al., 278.
8. Where it appears that the whistle was not
blown until ihe train was very near the
crossing, and the evidence is conflicting as
to whether the bell was rung, the question
of defendant's negligence is one for the
jury.-Burgess v. The N. Y. C. & H. R. RR.
9. Deceased was riding by invitation with
friends, and the driver, on approaching the
crossing, looked both ways and saw no train,
and while looking in the opposite direction
heard the whistle blow and the train was
upon them. The view of the track was
obstructed from the road for some distance
and from a point 30 feet from the crossing
it was only visible for about 300 feet. The
train was travelling 50 miles an hour. It
did not appear what deceased was doing.
Held, That the question of contributory
negligence was for the jury.-Id.
10. Where snow eight inches deep had lain on
the walk two weeks, and then thawed and
froze again, and the ice thus resulting con-
tinued nearly a week, and plaintiff slipped
on it at night and was hurtHeld, That
the jury were warranted in finding the vil-
lage authorities chargeable with notice, and
negligent.-Chapman v. The Village of Silver
14. Plaintiff, aged 12, was hired by defend.
ants, who manufactured a kind of fuel from
coal dust and pitch, to carry water to the
workmen. One Taylor was foreman, and
he directed plaintiff to attend a shoot which
brought down pitch. In order to do this
plaintiff was compelled to stand on a plat-
form about three feet wide, raised twelve
feet from the ground, and without any rail-
ing. Through the whole length of this
platform and about two feet above it ran a
shaft which revolved outward. The out.
side edge of the platform was not more
than ten feet from the shaft. This turned
cog-wheels which made a good deal of noise.
and which were greasy. The pitch shoot
was near the cog. wheels and back of them.
From time to time it was necessary to open
and close the shoot ; to open it the boy
must lean over the cog.wheels, raise a slide
with an iron bar, and put iu a peg; and
similarly to close it he must lean over and
drive down the slide with a hammer. While
waiting for orders to open or close it his
back must be to the shaft. The cog-wheels
had been covered by a box which was not
there when the accident occurred. On that
day a strong wind was blowing. This wind
or the draft made by the revolving cogs
drew in plaintiff's coat-tail as he stood with
his back to the machinery ; he was thrown
11. P. went to defendant's office to ask the
superintendent for work ; not finding him
he went into anyther room of the factory,
and was there killed by a descending eleva-
tor. Held, on suit by P.'s personal repre-
sentative, that it was error to leave the
question to the jury whether deceased was
lawfully in the factory, and it was error to
charge ihe jury that deceased had a right to
look for the superintendent wherever le
Vol. 20-No. 26b.